Summary of Issue
Things to Consider
When developing a site alteration or fill by-law, municipalities should consider soil as a resource with potential beneficial reuse that can minimize landfill waste, greenhouse gas emissions and illegal dumping from site alteration operations. Reuse also promotes soil conservation.
Some municipalities have put restrictions on potential fill sources and types. This is often done to discourage the importation of fill from the urban areas of the Greater Toronto Area (GTA) and sometimes to discourage fill from sources that carry a public stigma such as fill from recycling facilities and vac truck dewatering facilities.
The Excess Soil Regulation, however is intended to build confidence in the reuse of excess soil.
As stated in a recent staff report from Township of King regarding a proposed updated Site Alteration By-law: “The requirements of the By-law and provincial regulations provide regulatory mechanisms to control fill [1] quality so a specific source restriction is not necessary and may be contrary to provincial policy for reuse and recycling.”
Municipalities may consider referencing the relevant Ontario regulations under the Prohibitions section of their by-laws. See King Township example below.
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
One of the key objectives of the Excess Soil Regulation is to foster confidence in the beneficial reuse of excess soil.
Prior to the Excess Soil Regulation, some municipalities, out of environmental concerns and/or in response to resident nuisance complaints, had instituted a prohibition on all fill importation or drafted by-laws that function as de facto prohibition against reuse sites by having a wide range of limitations and conditions. The prohibition approach is now potentially contrary to provincial policy direction that supports reuse in appropriate circumstances.
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
By-law Sections
General Prohibitions and Regulations
Things to Consider
Some municipalities may use the Prohibitions section of the by-law to reference requisite obligations to obtain all other approvals as required from any other government or authority, or compliance with any other obligations.
Sample Language
“PROHIBITIONS”
Ontario Regulations
3.9 No Person shall conduct, undertake, cause, permit or carry out Site Alteration unless the Fill:
a) Complies with the requirements of Ontario Regulation 406/19 and Ontario Regulation 153/04;
b) Does not contain putrescible materials;
c) Does not contain Contaminants; and
d) Is free of termites, pests and Invasive Species including the eggs and seeds of such species.” [1]
Things to Consider
Because an absolute prohibition may not be in keeping with provincial policy, municipalities should consider other tools that can be effective methods of regulating fill operations without functioning as a defacto ban. For example, requiring permits and agreements, registered on title, with detailed requirements such as providing a Fill Management Plan and fees. These provisions, similar to those outlined in Commercial Fill Operations can provide municipalities with some level of protection and security. [See Commercial Fill Operations for more information].
Sample Language
Excerpt from a municipal staff report:
“Why Allow Fill Importation?”
In response to citizen pressure and the desire to protect the environment of the municipality some municipalities have instituted a ban on all fill importation or have drafted By-laws that are so onerous that it is very difficult for landowners to import fill regardless of the purpose. The prohibition approach is contrary to provincial policy for reuse and recycling.
The MECP Excess Soil Policy Framework states;
Managing excess soil in a responsible way is integral to building sustainable communities. Improper management can result in impacts to ground or surface water quality and/or quantity, natural areas and agricultural lands, and cause a number of local issues including concerns regarding noise, dust, truck traffic, road damage, erosion, drainage and other social, health and environmental concerns. Proper management of excess soil can result in a number of benefits to the environment and economy.
The Mayors message on economic development for the Township of King includes:
We have long appreciated the uniqueness of our picturesque countryside and welcoming small town feel that defines King Township. Poised on the major corridor of Highway 400, just minutes north of Toronto, King Township is the ideal place for a flourishing business, Without congestion or urban sprawl. In King Township you truly have the best of both worlds.
The (proposed Site Alteration and Movement of Fill) By-law is designed to meet these philosophical objectives. Site alterations and filling can enhance the Township and environment through:
Improved drainage, creation of noise berms, stabilization of slopes;
Increased suitability of lands for buildings, employment activities, and recreation;
Enhancement of natural features such as ponds and wetlands;
Improved use of agricultural lands; and Rehabilitation of aggregate extraction areas.” [2]
Resource
An alternative to prohibitions is to bolster the requirements within the by-law. An example can be found in the proposed by-law of the Town of Mono [3] which does not have a Prohibitions section, but has rigorous and comprehensive elements in the following sections: General Provisions, Requirements for the Issuance of a Permit, Enforcement and Penalties and Offences.
A part of the by-law provisions, municipalities should consider provincial prohibitions that may be relevant to their local area. One example is the Oak Ridges Moraine Conservation Act that prohibits site alterations in the Oak Ridges Moraine Area unless as permitted by the Oak Ridges Moraine Conservation Plan. [See Oak Ridges Moraine Conservation Plan for more information].
References
[1] King Township Proposed Site Alteration By-law XXXX This is a temporary site while the public engagement process is underway. Site Alteration By-law Review | SPEAKING - Your voice, our community. For a permanent location – search www.king.ca
[2] Township of King – By-law 2021- XXXX Site Alteration and Movement of Fill Township of King. This is a temporary site while the public engagement process is underway. Site Alteration By-law Review | SPEAKING - Your voice, our community. For a permanent location – search www.king.ca
[3] Town of Mono - By-law 2020-XXXX, a By-law to Regulate Site Alteration and Movement of Fill within the Town of Mono. Town of Mono | Home