Soil is excavated in municipalities and, for the most part, is re-located in municipalities. It is estimated that over 25 million cubic metres [1] of construction soils are generated in Ontario. In an ideal world, excavated materials would be relocated within the source jurisdiction, but such a scenario often does not make economic sense in urbanized areas where there may be few suitable reuse sites.
It is important when developing or updating by-laws, to review the Excess Soil and Rules document in detail, to confirm which rules are addressed in the provincial regulation, and determine what additional requirements a municipality may require when issuing a permit.
In 2014, the Province released a guidance document that sets out Best Management Practices, entitled Management of Excess Soil- A Guide for Best Management Practices. Despite such efforts, municipalities, supported by local government “instruments” such as municipal by-laws, permitting processes and enforcement mechanisms have been challenged with “bad actor” contractors who find loopholes in rules for relocating soil. Incidences of inappropriate placement of reusable soil in the wrong place, illegal dumping of contaminated soils or the creation of short-term reuse sites which have less to do with beneficial reuse and more to do with money-making schemes, all collectively contribute to the erosion of public confidence in soil management practices in Ontario. As stated above, the Excess Soil Regulation aims to fill gaps and loopholes and to build overall community confidence in excess soil management.
The Excess Soil Regulation does not affect the need for other approvals or permits not clearly under its purview. The Province advises all reuse site owners and operators to be aware of any permit or other requirements that may be required by a municipality, conservation authority or other public body. Other parties involved in excess soil management (e.g. project leaders from source sites/project areas) should also be aware of this.
KEY CONSIDERATIONS RELATED TO MUNICIPAL BY-LAWS
O. Reg. 406/19 sets criteria to clarify when excess soil is waste, these criteria primarily relate to:
Appropriate soil quality for reuse, and
Beneficial reuse of the excess soil
While some generic excess soil management rules are set in the Regulation and Rules, they do not:
Determine the appropriate beneficial uses or undertakings at a property
Set site-specific operational requirements at an excess soil reuse site.
Clarify or customize rules (e.g. appropriate standards) for a particular site
Municipal by-laws and permits or other site specific instruments (e.g. ARA licences) could provide those site-specific controls.
While aligning rules between the regulation and by-laws provides consistency and some certainty, in relation to most regulated rules, the regulation provides flexibility for a by-law or permit to set alternate rules for a specific site based on site-specific considerations, including, for example, site specific soil quality standards and alternate rules for locating soil storage at a site.
Some activities that require on-site management control are required by the regulation to be enabled by a site-specific instrument such as a by-law. For example, deposit of liquid soil at a reuse site is only allowed if it is permissible under a permit or other instrument.
Reference to the Excess Soil Regulation in Municipal Instruments
For many years municipalities have been responsible for by-laws that regulate the deposit of excess soil. Section 142 of the Municipal Act (2001) which states that they may prohibit or regulate, require permits and impose various conditions on:
the placing or dumping of fill
removal of topsoil
the alteration of the grade of land
While these powers have existed for many years, the Excess Soil Regulation is now being implemented, and key elements of it can be incorporated into by-laws and permits.
Key Takeaways
Municipalities with site alteration and fill by-laws should update their municipal instruments to integrate the Excess Soil Regulation which informs the local government approach to excess soil management.
As a separate but related matter, there are a number of new provincial policies which also specifically mention “excess soil”, in the Provincial Policy Statement and provincial plans (e.g. A Place to Grow: A Growth Plan for the Greater Golden Horseshoe). It is important for municipalities to be aware of them as they consider how to manage excess soil and fill. (See inset below for these new policies.)
New Provincial Policies on Excess Soil in the Provincial Policy Statement and Provincial Plans
In 2020 and 2017 respectively, the following policies were added to the Provincial Policy Statement, 2020 and provincial plans listed below. These are separate from the Excess Soil Regulation.
Provincial Policy Statement
3.2.3 Planning authorities should support, where feasible, on-site and local re-use of excess soil through planning and development approvals while protecting human health and the environment.
Growth Plan for the Greater Golden Horseshoe
2. Municipalities should develop excess soil reuse strategies as part of planning for growth and development.
3. Municipal planning policies and relevant development proposals will incorporate best practices for the management of excess soil generated and fill received during development or site alteration, including infrastructure development, to ensure that: a) any excess soil is reused on-site or locally to the maximum extent possible and, where feasible, excess soil reuse planning is undertaken concurrently with development planning and design;
b) appropriate sites for excess soil storage and processing are permitted close to areas where proposed development is concentrated or areas of potential soil reuse; and
c) fill quality received and fill placement at a site will not cause an adverse effect with regard to the current or proposed use of the property or the natural environment and is compatible with adjacent land uses.
Greenbelt Plan
3.4.2 – General Settlement Area Policies
6. Municipalities should develop excess soil reuse strategies as part of planning for growth and development.
7. Municipal planning policies and relevant development proposals shall incorporate best practices for the management of excess soil generated and fill received during development or site alteration, including infrastructure development, to ensure that: a) Any excess soil is reused on-site or locally to the maximum extent possible and, where feasible, excess soil reuse planning is undertaken concurrently with development planning and design; b) Appropriate sites for excess soil storage and processing are permitted close to areas where proposed development is concentrated or areas of potential soil reuse; and c) Fill quality received and fill placement at a site will not cause an adverse effect with regard to the current or proposed use of the property or the natural environment, and is compatible with adjacent land uses.
Oak Ridges Moraine Conservation Plan
Excess soil and fill
36.1. Official plan policies and development proposals shall incorporate best practices for the management of excess soil generated and fill received during any development or site alteration, including infrastructure development, to ensure that, (a) excess soil is reused on-site or locally to the maximum extent possible; (b) where feasible, excess soil reuse planning is undertaken concurrently with development planning and design; and (c) the quality of fill received and the placement of fill at the site will not cause an adverse effect with regard to the current or proposed use of the property, the natural environment or cultural heritage resources and is compatible with adjacent land uses.
Municipal Control of Quality, Quantity and Purpose
Under the Excess Soil Regulation there is recognition of quality and/or quantity of soil in a site-specific instrument (e.g. municipal fill permit, Aggregate Resources Act licence); if those instruments set requirements related to quality and/or quantity of excess soil to be received at a reuse site, the instrument prevails. More details are below.
1. Reuse sites governed by a site-specific instrument (section 4) - the quality and/or quantity of soil appropriate for the beneficial purpose at that reuse site may be stipulated by the site-specific instrument and, if so, the rules specified by the instrument apply. Typically, for excess soil quality, this would be a specific table of standards referenced in the instrument. The site -specific instrument may include a volume of soil that may be deposited for a particular undertaking, or it may include other information that informs the applicable quantity such as the area for placement of fill or the fill elevation to be achieved. If the site-specific instrument is silent on soil quality or quantity matters then the rules in the Excess Soil Regulation govern, including the applicable standards and rules in the Rules document.
2. Reuse sites not governed by a site-specific instrument (section 5)- the rules set out in section 5 must be met. This includes ensuring the excess soil meets the applicable soil quality standards for that reuse site as set out in the Excess Soil Quality Standards (i.e. the genreric standards) - which would in part depend on the type of use of the reuse site (e.g., agricultural, residential, etc.). Section 5 also requires ensuring that no more excess soil is brought to the reuse site than is necessary for the beneficial purpose. Depending on site characteristics, there may also be specific rules that apply to the final placement of the excess soil, as noted previously. And, if a reuse site is not governed by an instrument, it can be stored (stockpiled) at a reuse site for up to 2 years after it is received for final placement at the reuse site; this can be extended for an additional 5 years with written permission from a MECP Director. This time limit does not apply if the excess soil is to be finally placed at a reuse site that is part of an undertaking related to infrastructure.
Key Takeaways
The Excess Soil Regulation seeks to ensure appropriate control of excess soil quality and quantity:
Where the municipal instrument references quality, then related requirements of the Excess Soil Regulation will defer to it, when excess soil is going to a reuse site.
Where the municipal instrument references quantity, then related requirements of the Excess Soil Regulation will defer to it, when excess soil is going to a reuse site. This includes the case where quantity is not specifically/numerically identified but the beneficial reuse purpose is identified and describes a condition that would become the upper limit on quantity. Note that the way the Excess Soil Regulation refers to beneficial reuse it can be tied to how much excess soil is really needed for a given beneficial reuse.
Section 4 of the Excess Soil Regulation: Excess soil, Reuse Site Governed by Instrument
4. (1) The conditions set out in this section apply for the purposes of paragraph 4 subsection 3 (2).
(2) If the reuse site is governed by an instrument in which the quality of excess soil deposited at the reuse site is addressed in the manner described in Column 1 of the following Table, the conditions set out opposite in Column 2 of the Table must be satisfied:
(3) If the reuse site is governed by an instrument in which the quality of excess soil deposited at the reuse site is not addressed, the condition set out in paragraph 1 of subsection 5 (1) must be satisfied.
(4) If the reuse site is governed by an instrument in which the quantity of excess soil deposited at the reuse site is addressed in the manner described in Column 1 of the following Table, the conditions set out opposite in Column 2 of the Table must be satisfied
(5) If the reuse site is governed by an instrument that does not specify a maximum amount of excess soil that may be deposited at the reuse site and does not identify the beneficial purpose for which the excess soil is to be used, the quantity of excess soil to be deposited at the reuse site must not exceed the quantity necessary for the purposes of the apparent beneficial purpose for which the excess soil is to be used, as determined by examining the circumstances in which the instrument was obtained, the type of undertaking for which the excess soil is to be used and any other relevant circumstances.
Issues of Excess Soil Quality
The Rules document contains tables of generic excess soil standards, in Part II. The generic standards were developed using conservative default assumptions and are designed to be protective of the majority of sites in a given scenario. However, it is important to note that site conditions should be carefully reviewed and evaluated when determining the applicable table of standards. Further details on this matter can be found in Appendix I of Part II of the Rules document. For more information on soil quality, see the factsheets on the MECP excess soil page (https://www.ontario.ca/page/handling-excess-soil).
Key Takeaway
Municipalities may choose to:
Set appropriate Soil Quality Standards in their by-laws for reuse sites
By adopting/referencing the ministry’s generic standards or adopt different standards including possibly using the Beneficial Reuse Assessment Tool or risk assessment to create site-specific standards.
As a best practice, audit soil quality data (sampling frequency, lab data and peer review of both QP-source site / project area and opinions of soil quality provided by reuse sites.
As a best practice, provide a mechanism for stakeholder engagement and / or other transparent ways to disseminate information.
Issues of Beneficial Purpose
The Excess Soil Regulation sets requirements to prevent excess soil from becoming waste. This focusses on ensuring excess soil from a project is reused for a beneficial purpose, or disposed of, and that the quality and quantity of excess soil being received at reuse sites align with that needed for the beneficial purpose. Some generic excess soil management rules are set in the Excess Soil Regulation and Rules document but they do not give site-specific operational requirements for management of soil or fill at a reuse site. Through an instrument (e.g. a by-law permit), a municipality can set operational requirements and set alternate storage rules. Similarly, they do not determine whether a specific beneficial purpose is appropriate for a specific site. Site-specific site alteration or fill operations management oversight remain the responsibility of municipalities, as does any determination of appropriate beneficial purposes in conjunction with land use planning, and transport activities on municipal roads. Municipal by-laws would reflect the unique conditions and expectations of their respective communities and it remains a municipality’s decision whether or not to institute a by-law.
Overall, while some generic excess soil management rules are set in the Excess Soil Regulation and Rules document, they do not determine the appropriate beneficial uses or undertakings at a property, set site-specific operational requirements at an excess soil reuse site, or clarify or customize rules (e.g. appropriate standards) for a particular site. Municipal by-laws and permits or other site specific instruments (e.g. ARA licences) could provide those site-specific controls.
In this document the terms “source site” and “generator site” and “Project Area” are used interchangeably for readability. Words that are capitalized are terms defined in the Excess Soil Regulation.
Ideally, as by-laws are updated, municipalities will use terms defined in regulations as they are legally binding and their use contributes to greater province-wide consistency.
Issue of Availability of Appropriate Reuse Sites
Generally, municipal site alteration and fill by-laws focus on the prevention of illegal dumping of contaminated soil and the mitigation of run-off but do not necessarily focus on beneficial reuse of soil as a resource. The Excess Soil Regulation endeavors to improve municipal and community confidence with overall excess soil operations with the intention of finding more safe, useful reuse sites, in support of beneficial reuse.
While there is a generally accepted estimate of the quantity of soil that is excavated and relocated every year in the GTA, there is not a known equivalent of the availability of space in reuse sites within economic trucking distance from major generator sites. However, there is a growing concern expressed by contractors regarding the critical need for an increase in the number of reuse sites, and greater geographic distribution, throughout Southern Ontario. There is also an understanding that the unintended consequences of strict municipal prohibitions or onerous permitting processes, can result in an increase in illegal dumping and potentially bad management with long term environmental consequences and limited means for accountability and reparation. Municipalities with a comprehensive set of tools that aim to effectively provide oversight of reuse sites will attract “good actors” and deter the drivers with loaded transport trucks, who are looking for places where there is little or no oversight.
When considering the availability of appropriate reuse sites, the Excess Soil Regulation seeks early consideration of this. As part of the excess soil planning actions that are coming into effect on January 1, 2022, section 13 of the Excess Soil Regulation requires certain larger and riskier source sites to complete an Excess Soil Destination Assessment Report (among other excess soil planning reuse actions outlined in sections 8-16 of the regulation). Direction on what to include in this report is given in the Excess Soil Regulation and Rules document and includes, among other elements:
“If the site is or will be governed by a site-specific instrument, identify the instrument, the public body responsible for issuing the instrument and any other information relevant to the receipt of excess soil at that site”.[1]
The Excess Soil Destination Assessment Report helps to verify that intended reuse sites are willing to accept excess soil from the project area and that the excess soil is of appropriate quality and quantity for the intended beneficial reuse. Contingency measures must be identified in the report in the event that excess soil cannot be deposited at an intended reuse site. For more information, see the MECP factsheet on project areas/source sites at https://www.ontario.ca/page/handling-excess-soil.
Key Takeaways
Sharpening municipal tools
In support of beneficial reuse:
Establish quantity thresholds for approvals / permissions that are defensible and risk-based (See Town of Mono inset example.
If one is developed, make the supporting rationale document that a municipality may choose to \ to explain how the standards specified in its by-law were derived widely available
In support of greater environmental protection:
Establish strong requirements for Fill Management Plans for large sites. (See Issues - Fill Management Plan tab)
Reference and integrate complementary/ related environmental protection plans.
Strengthen working relationships with local Conservation Authorities (See Issues - Conservation Authorities tab)
Link applications to related municipal instruments such as tree protection, planning and development, zoning, to ensure continuity and compliance.
When liaising with applicants for a permit under a by-law, make applicants aware that there may be requirements for bringing excess soil to a reuse site (e.g. specific requirements when greater than 10,000m3 is being received) that they may also need to comply with, per the Excess Soil Regulation.
Issues relating to the management of Liquid Soil
Excess soil includes dry soil and liquid soil, and the Excess Soil Regulation has differing requirements and rules for each of these (though to significant extent, these are overlapping). Liquid soil means soil that has a slump of more than 150 millimeters using the Test Method for the Determination of “Liquid Waste” (slump test) set out in Schedule 9 to Regulation 347.
Liquid soil, generated through such activities as hydro-excavation, tunneling and removal of sediment from stormwater management ponds, may be de-watered or solidified which may enable it to be reused as dry soil, without an ECA (see above). An exception would be liquid soil related to wastewater or other contaminants or activities that are out of scope of the Excess Soil Regulation.
Local instruments may permit the deposit of liquid soil at a reuse site to allow conversion to reusable dry soil; in this case the permit would stipulate the operational requirements associated with that liquid soil (e.g. The Town of Whitchurch-Stouffville by-law).
Issues of nuisance
Ensure alignment and consistency of by-laws relating to noise, dust, traffic, hauling routes, and excess soil management
Issues relating to enforcement
Allocate all costs associated with oversight to the permit holder.
o This would include the use of qualified persons and peer review consultants
o Ensure costs of enforcement to the municipality are considered and embedded in the fee structure
Undertake regular and random site audits and sampling which ensure:
o Unrestricted access to the reuse site at any time
o Unrestricted access to all reports and documents, soil tracking software
o Sampling of soil, surface water and groundwater
Use the registry for the Excess Soil Regulation to support municipal enforcement efforts.
Issues relating to liability
Ensure municipal liability is limited through vetted legal review of any conditions documents (agreements, contracts) deposits and securities.
Issues relating to community confidence
Illustrate that the costs of fill management are not borne by the taxpayer through a user-pay model that is based on cost recovery.
Require a public information process that reflects the size and risk of the activity
o Example, a public information centre [2] for large site alterations or hydro-excavation
o For small activities, make the permit database searchable by the public.
Utilize the hauling and registry requirements of the Excess Soil Regulation which support greater transparency and accountability in the movement of soil and beneficial reuse.
Advice from the Field
The following is a summary of practical examples gleaned from interviews with experienced practitioners whose municipalities have developed, and continue to develop, mechanisms for rigorous oversight of reuse sites while aiming to build community confidence in the fill management sector.
Keep Municipal Instruments Nimble
The fill sector is an actively evolving industry. Changes such as the Excess Soil Regulation, increasing use of hydro-vac extraction and therefore increased amounts of liquid soil, challenges facing smaller generating sites such as landscapers, pool builders, garden centres, contractors’ temporary soil transfer sites in finding locations to place soil and even the economics of excess soil is changing with the profitability of receiver sites, increasing.
Municipalities can remain nimble in this ever changing field, by adopting the Excess Soil Regulation and then “trimming down” the by-law itself from specific details relating to soil quality, tracking, screening, audit sampling etc., and putting all the details into a companion document that can be easily updated or amended as changes are required. See W-S (LINK) guideline document. The province has taken a similar approach with the creation of its Rules document; Part I of this document, Soil Rules, may be updated without the need to amend the regulation.
The Town of Mono has updated its Site Alteration and Fill By-law (currently draft, awaiting adoption). The document references O.Reg. 406/ 19 as follows:
In the PROVISIONS section:
“No Person shall conduct any Site Alteration and Movement of Fill unless the Fill: Complies with the requirements of Ontario Regulation 406/19 and Ontario Regulation 153/04;”
Build Trust With Transparency and Good Communication
Some community members do not trust the effectiveness of the various tools and mechanisms that aim to manage excess soil. In response, some municipal councils have had to resort to either completely banning the importation of soil or establishing permitting rules that are sufficiently onerous such that they function as a defacto prohibition against beneficial reuse. A system that relies on the tireless vigilance and advocacy of local residents chasing illegal dumping activities, or a protracted political permitting process, is hard to maintain and can result in unintended consequences of little or no reclamation or reuse of a valuable resource. And, the Excess Soil Regulation does not have in-depth consultation or outreach requirements.
Potential solutions:
Develop supporting documents such as a Rationale Document (Link to Town of Mono example) a Guideline Document (Link to Whitchurch-Stouffville – Guideline for a Site Alteration and Fill Permit example'.) This will foster transparency by clearly stating the reasoning behind by-law and/or permitting requirements.
Requirements to conduct public information sessions or postings with opportunities for stakeholders to have questions and concerns addressed. (note: Whitchurch-Stouffville Public Information Centre)
Requirements in permits and agreements that require data and information sharing. (See East Gwillimbury) [3]
Build on the Excess Soil Regulation
There are areas where a municipality may choose to build on the requirements of the Excess Soil Regulation. As a key example, there are elements of the Excess Soil Regulation that apply to large project areas (+ 10,000 m3 ) such as the requirement to register and track excess soil from the source site to the final placement reuse site (described above in Section 2.4 – Excess Soil Planning requirements). These requirements would not necessarily apply to smaller projects, unless the municipal instruments call for them.
Potential solutions:
Consider requiring applicants to use a tracking tool, as part of the permitting process, for medium sized (or larger) reuse sites or as appropriate. There are various software applications specifically developed by the private sector for soil tracking. Importantly, the municipality must be granted full access to the database generated by the tracking tool.
Utilize the expertise of Qualified Persons and require frequent sampling. Many communities that accept and permit fill remain adamantly against any soils that have come from a processing facility. Practitioners advise that the availability of pristine soil is increasing rare. Municipal by-laws can be amended to increase the utilization of QPs and rigorous sampling to help overcome the stigma of soils that have been upgraded or reclaimed at a certified facility. Reclaimed soils can, with proper scientific oversight, be redeployed in appropriate, low-risk locations.
Utilize facilities to treat liquid soil. Hydro-vac excavation is becoming increasingly popular for efficient “daylighting” services and other small public works activities. The Excess Soil Regulation refers to the soil generated from this process as “liquid soil” (note, however, that some of the materials hydro-vac trucks may suck up may not meet this definition, such as wastewater) and provides some requirements related to the management of this material that municipalities can build upon; for example, a local instrument can authorize the placement of liquid soil at a reuse site. To reiterate, excess soil can be dry soil or liquid soil.
From the perspective of the Excess Soil Regulation, liquid soil can be received and processed at a Class 1 soil management site (which would hold an ECA for waste), a reuse site or a Liquid Waste Transfer Facility. There are also various types of on-site processing of liquid soil that can be done without an ECA for waste, including passive dewatering, at the source site/project area. For local waste transfer facilities, requirements in the Excess Soil Regulation and in the Rules document would need to be met, but if this is done then the facility would not require an ECA for waste. Section 25 of the Excess Soil Regulation provides the basis for local waste transfer facilities.
Some examples of how liquid soil is addressed by municipalities are below:
The Town of Whitchurch-Stouffville, contracts out any required hydro-vac extraction for the Town’s public works activities. The United Soils Management (USM) site has a permit from the Town to receive hydro-vac liquid soil. USM uses the Eagle 2 - Multiple Gas Monitor during their on site screening/inspection of the hydro-vac material before allowing the material to remain on site. The liquid soil is not treated or remediated on site. If for any reason the material is not acceptable, the hydro-vac operator is required to suck all of the material back up, and clean the inspection bay. Since the liquid soil must meet the same soil quality standards as the dry material imported into the site, they do not dry the material out prior to it entering the site for permanent placement.
The Town of East Gwillimbury is considering an alternative approach to requiring a phase 1 environmental assessment for each location by developing a “sight and smell” checklist (see 3.3.6 below) to help mitigate the potential of cross contamination from multi-site extraction.
Establish permitting thresholds for small and large reuse sites. As of January 1, 2022, the Excess Soil Regulation provides additional requirements for reuse sites receiving 10,000m3 or more of excess soil (reuse sites related to infrastructure projects are an exception). As noted above, this includes completing a notice on the ministry’s excess soil registry and implementing procedures for excess soil received (inspecting and tracking each load, preventing adverse effects).
Some municipalities (Town of Mono, Town of East Gwillimbury) are considering mirroring the provincial regulation in its by-law by developing thresholds for permitting requirements, based on quantities that capture the intent of the regulation. For example, a reuse site that is greater than 10,000 m3 would be considered commercial and would therefore require Council approval and with that, an agreement that includes annual and quarterly reporting, ongoing sampling, tracking software, securities etc. However, permits below this threshold would be issued under staff direction, with requirements that match the scale, context and soil quality. The intent is to efficiently and appropriately provide small scale beneficial reuse site opportunities and curb illegal dumping. (See inset – Town of Mono)
Note: There are different tools available to municipal staff to ensure rigor and accountability in the permitting and monitoring process even at a moderate scale, such as sight/ odour testing before the excess soil is placed on site, and follow up sampling inspections on site. For medium sized sites, a topographical survey can be requested, to ensure adherence to the agreement. Additional limitations can be set and tied to the permit regarding frequency of use, quantities that ensure the site remains a small site, as intended.
Institute Cost Recovery
Permitting, oversight and enforcement costs can be recovered through fees and financial assurances. East Gwillimbury has a fee schedule LINK that charges $1 per cubic metre (currently under review, to change to $1.48). The revenue covers administration costs, but it can also be used to undertake legal action to shut down illegal sites.
“By using fees from a legitimate site to stop soil movement to unmonitored illegal sites, helps to level the playing field in favour of the permit holders. “
There is also an economic development argument for the institution of cost recovery fees that ultimately support the rigorous oversight of reuse sites in a community. One municipality has an ongoing application for a long-standing local developer that is building in the municipality, but faces expensive soil relocation costs because of the municipal fill restrictions. The application for a fill site, if approved, would potentially have a “trickle-down economic development boost” by supporting lower building costs to residents.
Potential solutions:
Additional costs incurred by the municipality can be charged back to the permit holder, such as the use of a peer review professional to assess data provided by the permit holder, and to undertake site inspections and sampling.
A large security deposit, typical for commercial operations, may be too onerous for a small site , but an additional fee attached to the municipality’s tipping fee can serve as an incrementally derived security, to be set aside in the event the reuse site closes and works are required to complete the terms of the approved agreement.
Municipalities should work with their legal team to ensure all revenues are expended against costs, and that all efforts to recover costs are legally appropriate. Municipalities may wish to reach out to the legal department of the Town of Whitchurch-Stouffville, which has undergone a thorough legal review of its fees and charges, to ensure they comply with the Municipal Act.
Dare to Innovate
The fill management field is changing rapidly and the Excess Soil Regulation brings new energy and attention to solving the wicked and persistent problems that have plagued illegal placement of excess soil.
“ Its better to approve sites and keep a watchful eye on a legal site than it is to chase illegal dumping with by-law enforcement and legal battles” Paul Neuman, Director of Engineering, Town of East Gwillimbury
Potential solutions:
Proactive municipalities are encouraged to explore creative solutions through pilot projects – like those currently being tested and under development by some municipalities, such as:
Use of video and speed boards. A requirement for a reuse site to install video cameras with a 30 day record cache at the entrance to the fill site and/or along the designated truck route. This record helps with accountability regarding transport agreements (adherence to haul routes, hours of operation, dust mitigation etc.) and provides a quick fact checking tool in response to resident complaints. Installation and maintenance costs of cameras on private property or speed boards on public rights of way, is at the expense of the permittee and all information is made available to the Town, as required.
Small quantities checklist. There are myriad examples of small excavations (especially hydro-vac activities) where the amount of excess soil is too small (impractical) to require a phase 1 environmental assessment for each site. Instead, the Town of East Gwillimbury is considering implementing an alternative approach by way of a checklist for drivers to complete upon each excavation, to check for odours and provide a visual assessment (Link to proposed checklist).
Provide an appeals process. Most municipalities require Council approval for any and all reuse sites. Applications can take many years and be very costly, both for the applicant and in staff time. One community is exploring a way to bring closure to a protracted application process by linking the application to a planning approval process, such as zoning.
Plan for continuous improvement. A local government practitioner recommends integrating flexibility and ‘continuous improvement’ into local instruments to allow the practice to benefit from inevitable ‘lessons learned’ and to adapt to refinements in rules and regulations. For large commercial sites, this can be integrated into Fill Management Plans (FMPs) as they are appendices to the council approved agreement or permit. The FMP, as an appending document can be amended as needed reflecting corrective measures, without going back to an approval process. This “living document” approach acknowledges the partnership and collaboration required in best management practices and encourages transparency and honesty in reporting incidents or unforeseen issues, rather than “burying” them to avoid penalties. It also requires the operator to upgrade its operations on an ongoing basis.
A similar approach can be applied to smaller operations, with an agreement forming the intent and the rules of engagement, including security. If the operator does not comply with the intent, or if there are significant issues, the Town can pull the permit, and thereby the operator’s ability to conduct business. But the underlying agreement and the attendant obligations, remains in place and enforceable regardless of whether the site is in operation.
Whitchurch-Stouffville enforces the new requirements by only permitting a large site for 12 months at a time, with the opportunity to extend the permit an additional 12 months upon request. There is no limit on how many times they extend the permit. The permit extension is a “simple paperwork exercise.” In the event the permit holder does not agree with the new requirements, the Town has the opportunity not to renew/ extend the permit.
Build Relationships with the Local Conservation Authority (CA)
In 2017, the Municipal Act, 2001 was amended to extend local government jurisdiction where site alteration by-laws could apply to lands that are also regulated by Conservation Authorities through their section 28 regulations. As a result, municipal by-laws should amend the reference in the Exemptions section of the by-law that references jurisdiction with respect to Conservation Areas to remove outdated exemptions that have been removed from the Municipal Act, 2001. The significance of this change is the expanded area of responsibility and jurisdiction, which for some municipalities, may be a significant increase in the spatial extent of lands subject to their by-law applicability , along with significant new overlap with lands also subject to conservation authority regulations. The change does not remove the local conservation authority’s responsibility for regulating development in relation to flooding and erosion hazards under the mandate of the Conservation Authorities Act, , but it does mean that the municipality now has expanded jurisdiction over the entirety of its municipal geography . In other words, an applicant may be required to get a permit in relation to a proposal from a municipality and a conservation authority depending upon the location of the proposed works.
Possible solution:
Municipalities will benefit from more efficient processes and consistent policy decisions and oversight by investing in strong working relationships with their counterparts in Conservation Areas. For example, East Gwillimbury staff have an understanding that when the Town issues a permit, the CA is notified and vice versa so everyone is on the same page. It is also common for the Town’s inspectors and the CA inspectors to visit reuse sites together.