Summary of Issue

Things to Consider

Municipalities that have significant excess soil activity increasingly rely on Fill Management Plans as part of the permit and agreement conditions. FMPs should be completed by a qualified person once a site assessment has demonstrated the receiving site is suitable for excess soil placement.

The following list is provided by the MECP’s Best Management Practices [1]

A Fill Management Plan may also include:

copies of any documentation regarding municipal or conservation authority licences/permits, or any other site-specific instruments that may be relevant;
identification of appropriate soil quality and soil types of excess soil to be received at the reuse site;
dust, odour, noise and invasive species (plant and animal) control measures;
site security measures, such as clear signage at the site;
specification of routes that the municipality indicates should be used for hauling;
protocol for incoming excess soil specifying:
- that incoming loads of soil have documentation that includes appropriate and representative soil assessments and analysis confirming the soil quality is acceptable for the reuse site;
- that visual and olfactory inspections will be conducted on all incoming loads to screen for odour, visible staining or debris;
- contingency measures for load rejections; and,
- a record keeping system to create and store written documentation to track each incoming load of excess soil.
stormwater management plan;
erosion and run-off controls;
audit sampling protocols (designed by a QP) sufficient to produce results that would be representative of the volume of excess soil that is being received; and
soil placement/segregation protocol sufficient to identify where excess soil from each project area has been placed at the reuse site, such that it can be assessed if required.”

Various by-laws have different lists of what is to be included in FMPs, but the above list can be considered.

Short Form References

This page makes reference to:

the “Excess Soil Regulation” which is the short form for the Ontario Regulation 406/19 On-Site and Excess Soil Management made under the Environmental Protection Act.
the “Rules document” which is the short form the reference document to the regulation entitled Rules for Soil Management and Excess Soil Quality Standards
MECP BMP -which is Ministry of Environment, Conservation and Parks document of Excess Soil – A Guide for Best Management Practices.
Brownfields regulation refers to Ontario Regulation 153/04

Key Takeaways

While the Excess Soil Regulation does not require FMPs (i.e. plans at reuse sites), the owner/operator of the reuse site should consider developing one. The FMP may be a useful tool to integrate all regulatory requirements, including those from the Excess Soil Regulation as well as a municipality’s by-laws or other site-specific instruments. For example, there are additional requirements for reuse sites receiving 10,000m3 or more of excess soil that come into effect on January 1, 2022 and are provided in Section 19 of the Excess Soil Regulation, and work completed per the below could be documented in the FMP. Requirements include:

Completing a notice on the MECP registry and implementing procedures for excess soil received.
Requirements for project leaders generating excess soil (from project areas) and haulers of soil, such as site assessments and soil characterization, that will be relevant for reuse site operators. These requirements will result in information that will be helpful for a reuse site operators to determine if excess soil from a project area is appropriate for reuse in their undertaking. The information / data gathered in these requirements may also be included in a municipally required FMP.

Key Resource

For further information, see MECP’s Factsheets (https://www.ontario.ca/page/handling-excess-soil with an overview of relevant regulatory requirements, best management practices, FAQs and key definitions related to:

Source sites
Reuse sites
Soil Quality & Beneficial Reuse
Offsite Soil Management – Temporary Soil Storage and Processing
Stormwater Pond Sediment Management
Qualified Persons and Sampling
Infrastructure Projects

Resources

Fill Management Plan Example:

The City of Barrie [2] had a Fill Management Plan conducted by Trinity Consultants to establish the best management practices for managing excess soil in a manner that promotes sustainability and protects the natural environ (surface water and ground water). The property in which was the receiving site of the excess soil was located in a highly vulnerable aquifer, which the owner must take reasonable actions to protect the quality of the surface water and groundwater. The Plan Included:

Importation of Fill
Soil and Groundwater Assessment
Assessment of Fill Source Sites
Dust and Noise Controls
Traffic and Transportation Management
Visual Inspection of Imported Material
Record Keeping
Imported Fill Placement Location Map
On-Site Storage of Fill Awaiting Placement
Invasive Species

By-Law Sections

Requirements for Issuance of a Permit

Things to Consider

It is a best practice to include the requirement for a reuse site to submit a Fill Management Plan in by-law permit requirements.

Due to the extensive requirements of a Fill Management Plan, municipalities may leave it to the discretion of the Director to determine if a receiving site owner must provide a Fill Management Plan, with the exception of large site operations that should generally be required to have an approved Fill Management Plan. Alternatively, municipalities could choose to identify Fill Management Plan components that are applicable to larger sites but not smaller ones.

By-laws can incorporate Fill Management Plans into site alteration permits through one of the following:

Option 1: Requiring permit applicants to provide a Fill Management Plan that follows the MECP BMP;

Option 2: The Director determines required Fill Management Plan components on a case by case basis; or

Option 3: Specifying required Fill Management Plan components in the by-law.

If applicants are not required to specifically follow the MECP BMP, best management practices should be considered when chosen components are developed.

Sample by-law language is provided below for each option.

Option 1

Referring to the MECP BMP can be a way to generate consistency between municipal by-laws. The BMP can be incorporated as follows:

Sample Language

“A person applying for a Site Alteration Permit shall submit the following, if required by the Director:

4.06.05 detailed plans including but not limited to a Soil Management Plan, Fill Management Plan, Traffic and Transportation Management Plan and an environmental soil testing plan, all prepared and certified by a Qualified Person, in accordance with the ‘Management of Excess Soil – A Guide for Best Management Practices’;” [3]

Option 2

If a municipality agrees that Fill Management Plan requirements can vary by case with comparable effectiveness, they may choose to include a permit requirement as follows:

Sample Language

“Where a permit has been issued under this By-law, no person shall place or dump fill, remove any topsoil or fill, alter the grade of land, or perform or permit any site alteration except in accordance with this By-law, the terms and conditions of the permit and any agreement entered into with the Corporation pursuant to Section 7 of this By-law, which conditions may include, but are not limited to:

(ii) require the provision of a Fill Management Plan, in accordance with the Guidelines, which describes the operational protocols for the site that can be monitored by staff of the Corporation to confirm compliance with conditions;” [4]

Option 3

By writing detailed Fill Management Plan requirements in a by-law, permit application and evaluation processes will likely be simplified by eliminating the requirement to reference a secondary document. However, best management practices should be considered when these requirements are developed to promote consistency between by-laws. An example permit requirement is as follows:

Sample Language

“An application for a site alteration permit is not considered to be complete until all of the following are submitted to the satisfaction of the Chief Building Official;

c) a Fill Management Plan, the requirements of which are set out in Section 19 of this by-law;” [5]

Things to Consider

Large Site Operations

Municipalities should consider how Fill Management Plan requirements may vary for large scale operations, for example, the MECP BMP indicates that a qualified person should always be required to complete the Fill Management Plan. This by-law example requires large site owners to:

Sample Language

“5.01.01 retain a Qualified Person to prepare a Work Plan that includes the recommendations of the Ministry of the Environment in the document titled “Management of Excess Soil – A Guide for Best Management Practices”. Such Work Plan shall be to the satisfaction of the Director and shall include, but is not limited to including the following:

ii. Fill Management Plan; […]

5.01.02 retain a Qualified Person to ensure that the site alteration operations are proceeding in accordance with engineering and environmental best practices and the established Work Plan;

5.01.02 retain a Qualified Person to report in writing on a regular basis or as determined by the Director that the site alteration is in accordance with Subsection 5.01.01 of this By-law;”[6]

If a municipality decides Fill Management Plan component requirements will not vary, the following additional requirement for large scale operations may be included:

Sample Language

“Every Fill Management Plan accompanying an application for a permit under this by-law must be stamped by a qualified person approved by the Chief Building Official.” [7]

Penalty

Things to Consider

Requiring a Fill Management Plan and clearly defining what the plan should include, (i.e. outlining by-law specific components or referencing those outlined in the MECP BMP), makes best practices become defensible. Enforcement can be further enabled by including a penalty, like below, that an owner can ensue if a Fill Management Plan is not completed:

Sample Language

“Any person, including a corporation, who contravenes any provision of this by-law, the terms or conditions of a Permit, an Agreement, a Fill Management Plan or an Order under section 444 or section 445 of the Municipal Act, 2001, or an order issued under this by-law, is guilty of an offence:

Every person who is guilty of an offence under this by-law shall be subject to the following penalties:

a) upon a first conviction, to a fine of not less than $100 and not more than $50,000;

b) Upon a second or subsequent conviction for the same offence, to a fine of not less than $400 and not more than $100,000;

c) Upon conviction for a continuing offence, to a fine of not less than $100 and not more than $10,000 for each day or part of a day that the offence continues. The total of the daily fines may exceed $100,000;

d) Upon conviction of a multiple offence, for each offence included in the multiple offence, to a fine of not less than $100 and not more than $10,000. The total of all fines for each included offence is not limited to $100,000.” [8]