February 24, 2022 Cathy…

February 24, 2022

Cathy Curlew
MNDMNRF – RPDPB – Resources
Development Section
300 Water Street
2nd Floor, South Tower
Peterborough, Ontario K9J 3C7

Re: ERO 019-4801
Aggregate Resources Act, R.S.O. 1990
Ministry of Northern Development, Mines, Natural Resources and Forestry
Dear Ms. Curlew:

Following is the submission from Gravel Watch Ontario (GWO; gravelwatch.org) in response to the request for comments on the Proposed regulatory changes for the beneficial reuse of excess soil at pits and quarries in Ontario (January 10, 2022).

ABOUT GRAVEL WATCH ONTARIO
Gravel Watch Ontario is a province-wide coalition of citizen groups and individuals that acts in the interest of residents and communities to protect the health, safety, quality of life of Ontarians and the natural environment in matters that relate to aggregate resources.

GWO recognizes the obligation to protect agricultural lands, water resources and the natural environment, all of which are essential for building a climate-resilient Ontario for future generations. GWO works with and on behalf of our members and communities throughout the province to advocate that policies regulating aggregate extraction not result in permanent loss of farmland or rural landscape amenities and do not damage the integrity of the water resources supplied by the rural landscape. Gravel Watch Ontario has commented on government planning and aggregate policies for over 15 years.

We would like to thank the Resources Development Section, MNDMNRF for presenting this Proposal to our board members. We have found the timeline for comment to be insufficient. This proposal is multi-faceted and complex. The supporting materials, related links, correspondence and numerous reference documents require careful review and cross referencing. The ensuing narrative is organized in relation to each section of the proposal including GWO comments following.

PROPOSAL DETAILS

Background
Aggregate extraction must occur where aggregate deposits exist and the land use is considered temporary in nature.......After the aggregate approval has been surrendered, the future land use is approved by the local municipality under the Planning Act where applicable.

New provincial requirements exist under the Environmental Protection Act (EPA) for soil (i.e. excess soil) that is removed off-site during construction activities to another site. The On-Site and Excess Soil Management Regulation, Ontario Regulation 106/19 (the Excess Soil Regulation), and the document Rules for Soil Management and Excess Soil Quality Standards adopted by reference, includes risk-based quality standards for the safe reuse of excess soils.

GWO COMMENTS
Initially, the Ministry of the Environment and Climate Change identified the need for integration and alignment of the excess soil framework with the Aggregate Resources Act (ARA). ERO 019-4801 proposes changes to remain consistent with provincial requirements under the EPA.

Proposed Ontario Regulation 244/97 changes

1. All approval holders (existing and future)….. at a minimum follow the Rules for Soil Management and Excess Soil Quality Standards under O.Reg. (Ontario Regulation) 406/19 under the EPA based on future property use and site conditions with three exceptions:

GWO COMMENTS
• The type of property use at the site matters because it determines which Table of quality standards applies. Under the regulations, the excess soil must meet the applicable excess soil quality standards in order not to be designated as waste.

GWO RECOMMENDATION
• Remove the word future.

The Three Exceptions As Written in the Proposal
a) Excess soil below the water table must follow the soil management rules for environmentally sensitive areas under O.Reg. 406/19.
b) On Crown Land, in areas above the water table, the acceptable soil quality is limited to applicable quality for agricultural and other property use as defined under O.Reg.406/19
c) Except in circumstances described in a and b, and when no other alternative is available, a site-specific standard developed through the use of the Beneficial Use Assessment Tool (BRAT) in accordance with O.Reg 406/19 may be used subject to authorization from the Ministry of Northern Development, Mines, Natural Resources and Forestry (NDMNRF)

GWO COMMENTS
(a) Below Water Table
• Excess soil must not be placed below the water table regardless of the most stringent EPA quality standards being applied (Table 1). The proposal fails to include the leachate analysis/screening levels detailed in the Excess Soil Quality Standards.
• There is uncertainty associated with placing any soil below the water table and its effect on the groundwater system.
• There is uncertainty associated with contaminant transport (particularly metals) when soil is placed below the water table.
• O.Reg. 406/19 Section 2(1) states the regulation does not apply in respect of the final placement of excess soil on the bed of a surface water body.

(b) Crown Land
• O. Reg 153/04, identifies the following types of property uses:
(a) The use of land, or a building on the property for an agricultural purpose, including, but not limited to, animal husbandry, aquaculture, beekeeping, dairying, field crops, forestry, fruit farming, horticulture, market gardening poultry raising and the operation of glass- or plastic-covered greenhouses, or
(b) Any other use of land or a building on the property, other than a commercial, community, industrial, institutional, parkland and residential use
• The wording of O.Reg 153/04 is agricultural or other use rather than and other property use which may imply that all listed property uses are applicable.

(c) Beneficial Reuse Assessment Tool (BRAT)
• It appears that responsibility for oversight is being transferred from Ministry of Environment Climate Change and Parks (MOECCP) to NDMNRF.

GWO RECOMMENDATION:
• Remove all references to placing soil below the water table.
• Provide clarity regarding appropriate reuse of Crown Lands.
• MOECCP should maintain authority.
• The precautionary principle must be applied.

1. In addition, to support oversight of the importation of excess soil under the ARA, NDMNRD proposes that all aggregate sites:
• Keep written records
• Retain a qualified person

GWO COMMENTS:
• When keeping written records that are available on request, there is a lack of detail with respect to responsibility and accountability for record keeping.
• Oversight must go beyond record keeping at aggregate sites. There is no indication that NDMNRF will provide trained staff to monitor, oversee and enforce standards for excess soil filling.
• Require oversight by a QP for quantities less than 10,000 m3.

GWO RECOMMENDATION:
• Provide further detail.

3. For existing license holders authorized to import fill to facilitate rehabilitation, add rules in regulation,
that when followed would enable approval to make specified changes to their site plan without
the need for Ministry review (self-filed site plan amendments)

GWO COMMENTS
• To ensure due diligence and duty of care, government review and approval is required.

GWO RECOMMENDATION
• NO to self-filing of amendments and NO amendments to site plans without public involvement and municipal scrutiny approval.

NDMNRF proposes to rescind policy A.R. 6.00.03, Importation of Inert Fill for the Purpose of Rehabilitation

Applicants proposing a future aggregate site:
• Quantity of excess soil to be received is consistent with quantity necessary to meet rehabilitation plan and be consistent with the Excess Soil Regulation requirements for other reuse sites..…must not exceed quantity necessary.

GWO COMMENTS
This policy has been updated since the issue date of March 15, 2006.
• The title of the new policy is missing. Will “Beneficial Reuse of Excess Soil at Pits and Quarries in Ontario” replace “Importation of Fill for the Purpose of Rehabilitation?
• There is no scientific evidence provided to support the statement that the Reuse of Excess Soil is beneficial.
• Site plans can be amended by the NDMNDF

GWO RECOMMENDATION
• that rehabilitation not be rebranded as reuse sites for excess fill.

Applicants on existing approved sites will:
• follow soil quality standards for agricultural and other property use under the EPA on private land not identified in an approved rehabilitation plan, so future use of the property are not limited.

GWO COMMENT
• licensees are not applicants on existing sites

Future and existing sites will follow
• the Best Management Practices for Aggregate Pit and Quarry Rehabilitation available on the Ontario Society of Professional Engineers website
• consider community impacts for applications proposing to fill-to-grade

GWO COMMENT
• Best Management Practices has been developed without involvement of key stakeholders. OSPE is a non-government agency, no peer review, no public consultation. Municipalities and farm group associations were not included on the committee.

GWO RECOMMENDATION
• MOECCP to provide oversight of excess soil.
• Best Management Practices must be based on science to determine appropriateness of a pit and quarry as a reuse site and consist of a multi-stakeholder and multi-disciplinary team.

ADDITIONAL COMMENTS

1. Consultation and approval for license and planning applications for existing pits and quarries.
• The post-extraction, rehabilitation phase of pits and quarries as reuse sites for excess soil was not proposed or considered at the license or planning application stage. There was no consultation with Municipalities, planning authorities, agencies or the public of this change in use.
• Determining whether the site is appropriate as a receiver site for excess soil requires consideration of the health and safety of residents as well as the social and environmental impacts associated with business of excess soil movement.