The issue of fill control has been high on the agenda for many municipalities in the GTA over the past year.  In response to numerous requests from municipalities, the Ontario Ministry of the Environment (MOE) is preparing a Best Management Practices document to aid municipalities and conservation authorities in the regulation of “clean fill” sites.

Since its creation 40 years ago the MOE has declined to regulate the disposal of excess clean fill, which is primarily a by-product of land development and construction.  The only exception until recently was the MOE guidelines on acceptable quality for fill placed in bodies of water, such as Lake Ontario where the Leslie Street Spit accepted excess fill for decades.  With the closure of the Spit to soil, large volumes of fill have been deposited in commercial fill sites north, east and west of Toronto.  The MOE position on these sites has historically been that it has no jurisdiction unless there is contamination, or the fill material constitutes “waste” for the purposes of Part V of the Environmental Protection Act.  As a result, regulation of fill sites has defaulted to municipalities or conservation authorities (where fill is placed on regulated lands).

In 2010, as a result of a situation where the owner of a fill site took the constitutional position that a municipal fill by-law did not apply because it was developing the site for use as an airport, the MOE decided to intervene directly.  A series of Orders were negotiated with the owner of the fill site, largely dealing with quality control procedures.  Provisions put in place included a requirement for pre-testing of material prior to filling, audit sampling and the retaining of a Qualified Person (QP) to independently supervise the fill operation.

At the same time, rural municipalities in the GTA began pressuring the MOE to assume jurisdiction over clean fill, on the basis that those municipalities had insufficient resources and expertise to regulate under their Fill Control and Site Alteration By-laws.  The MOE response was to commit to the preparation of a guideline that can be used by municipalities and conservation authorities as a regulatory tool.  The first draft of Soil Management – A Guide to Best Management Practices was circulated in June 2010 in a first round of consultation with municipalities and industry groups.  The next draft is expected in the near future.

The draft document proposes best management practices for both source sites and receiving sites.  It recommends that all sites generating excess soil requiring management off-site retain the services of a QP to develop a Soil Management Plan, which would include a requirement for complete characterization of soils to be excavated.  The MOE proposes that the municipality (or conservation authority) would impose a licence condition requiring confirmation of a Fill Management Plan from the receiving site prior to the acceptance of any fill.  While such a requirement may be reasonable and feasible for projects where large volumes of fill need to be managed, it remains to be seen whether it can be practically applied to smaller construction projects.

For the receiving site, the draft document recommends the imposition of a requirement that a QP be retained to prepare a Fill Management Plan that includes appropriate soil quality criteria, characterization and pre-approval of fill from all source sites, dust and noise controls, traffic and transportation management, extensive record-keeping, audit sampling and a soil placement/segregation plan.  The MOE also suggests that the posting of security be considered.  The inevitable result of these measures will be increased costs for the construction industry for the disposal of excess fill.

Once the MOE finalizes its guidance document, municipalities would be well advised to review their Fill Control and Site Alteration By-laws, and consider whether amendments are in order.  For many municipalities, there will likely be significant resource implications related to oversight of a much more complex regulatory regime.