Fill Issues and the Ministry of the Environment

1. Brownfield Regulatory Gaps

The Brownfield Regulation, O. Reg. 153/04, as amended, contains a considerable regulatory gap. Although the regulation contains specific requirements regarding quality and testing of soils coming into Brownfield sites, it does not contain any direction on quality and testing of soils excavated from these Brownfield sites. (Toronto staff report on testing soil leaving Toronto-area development sites)(E-mail from MOE Brownfields/Contaminated Sites Program Specialist).

A significant amount of excavated Brownfield soils are being deposited in “Greenfield” sites which the Brownfield Act and Regulation were meant to protect. However, there is a significant amount of evidence indicating that several receiving sites have had soils with unacceptable levels of contamination deposited on them.  In many instances, reports of soil tests performed at the Brownfield source sites do not reconcile with reports of the soil quality later independently tested at the receiving site  (Engineering report to Pickering on dump site on Sideline 14).

Action Required:

1.    The Ministry of the Environment must amend Reg. 153 to include the following:

a)    requirements for testing of excavated fill at specific minimum frequencies
b)    documentation of where all excavated soils are transported must be included in the RSC
c)    QP must sign off on the quality and quantity of soil excavated and removed from the brownfield site
d)    documentation from the receiving site indicating acceptance of the soils must be included in the RSC documentation
In essence, a Material Management Plan (MMP), such as that detailed in the Residential and Civil Construction Alliance of Ontario’s – RCCAO’s BMP (Best Management Practices for Handling Excess Soils in Ontario – by RCCAO) should  be part of the RSC process for redevelopment of Brownfield sites.

2.    A MMP should be incorporated into site-alteration by-laws, building, development and infrastructure project permits in the short term. The Ministry of Municipal Affairs and Housing (MMAH), through the planning act may also need to incorporate a MMP policy into their legislative framework, perhaps through the Planning Act, in order to attain a more consistent approach to soil management and in order to level the playing field among the various stakeholders.

2. Use of MOE Soil and Groundwater Tables  

The MOE Soil and Groundwater Tables are continuously being used outside of their prescribed use in Reg. 153/04 as no other soil quality tables exist. The Tables are being used in many instances in a manner that is inconsistent and contrary to how they are normally applied.  For example, in Reg. 153/04, uncontaminated sites are only permitted to accept Table 1 soils (Ontario Fact Sheet: Bringing Soil to an RSC Property).

As well, Environmentally Sensitive sites are only permitted to accept Table 1 soils. (Excerpts from MOE Reg.153 regarding environmentally sensitive areas), (MOE Technical Update – Environmentally Sensitive Areas” Property within 30 m of a water body). Risk assessments can be done in order to change these requirements. However, municipalities, consultants and MOE staff are advising Table 2 in these instances with no rational or risk assessment to accompany this direction (GRCA Staff report Re: Morgans Road Application, Municipality of Clarington).

As well, there were many assumptions made when these Tables were formulated (MOE Technical Update – Rationale for Site Condition Standards in O. Reg. 153/04). For example, many of the assumptions are no longer valid when the Tables are applied to large fill sites, (Excerpts from the MOE document -Soil, Ground Water and Sediment Standards for Use Under Part XV.1 of the Environmental Protection Act Ministry of the Environment July 27, 2009 ) (MOE Standards Development Branch – Rationale for the Development of Soil and Groundwater Standards for use at Contaminated Sites in Ontario). As well, these  tables are meant to be clean-down-to Tables and not pollute-up-to Tables as indicated by the CCME, Canadian Council of Ministers of the Environment (A Protocol for the Derivation of Environmental and Human Health Soil Quality Guidelines – CCME).

There is an MNR policy regarding salt impacted soils (MNR policy statement – Importation of Inert Fill for the Purpose of Rehabilitation) whereby salt impacted soils testing high in SAR readings can be deposited 1.5 metres below grade so as not to adversely impact plant growth. This policy is currently  being adopted by some large fill sites however, the impact of this policy on groundwater, at MNR aggregate sites as well as large fill sites,  has not yet been determined (E-mail discussion with MNR on impact of salty soils on groundwater). Similarly, the stratified categories in the MOE Tables are for impact on plant growth but do not consider the impact on ground water.
Finally, many planning authorities define soil quality by using the term “inert fill”. This term is vaguely defined in the MOE regulations and therefore can be interpreted in many different ways resulting in an inconsistent application of this term (“Inert Fill” discussion from LCCW presentation to Symposium).

Action required:

1.    The Ministry of the Environment needs to develop clear standards through their BMP document and through new regulation regarding soil quality for soils deposited on sites outside of O. Reg. 153/04 as amended.

2.    The MOE must currently determine if the continued use of Tables for large commercial fill operations are protective of human and ecological health when assumptions used in the creation of the tables are no longer valid.

3.    The MOE must determine whether the MNR policy regarding the deposition of salt-impacted soils 1.5 metres below grade also considers impacts to groundwater.

4.    The MOE needs to develop a clear definition of inert fill and how it relates to the MOE’s Soil and Groundwater Tables.

Regarding Action Item 4, the following 3 documents pertaining to a controversial fill operation at Burlington Airpark, demonstrate the confusion among stakeholders and the regulatory gaps concerning what is clean and inert fill and what should be considered contaminated and a waste.

July 2013 Terrapex Report

Ministry of the Environment Response to Terrapex’s (City of Burlington Consultant) July 2013 Report

Terrapex’s Response re MOE’s Comments August 2013