1. Directly reference…

1. Directly reference Section 28 Regulations made under the Conservation Authorities Act, as a site specific instrument in the rules document in order to clearly address the connection between excess soil and natural hazards from flooding and erosion and the need to ensure source water protection.

The proposed framework places great emphasis on municipal site-alteration and fill by-laws for regulating reuse sites; however, the proposed regulation would continue to provide for the application of conservation authority regulations and permit requirements to those portions of receiving sites that are within conservation authority regulated areas. Also, the placement of large quantities of excess soil could have adverse effects to source water quality and quantity, specifically within designated vulnerable areas, as identified in Source Water Protection Plans.

2. Lower proposed threshold for the application of reuse site rules from 10,000 m3 (i.e. 1,000 dump trucks) to 1,000m3 (i.e. 100 dump trucks) and require an ‘Excess Soil Destination Assessment Report’ for all movements of excess soil equal or above 1,000 m3 (i.e. 100 dump trucks).

As proposed, the regulation exempts reuse site operator rules for all reuse sites planned to receive less than 10,000m3 of excess soil, which is a high threshold. Lesser amounts of fill which are misplaced can destroy wetlands and cause significant (albeit incremental) erosion and flood plain impacts. A more appropriate threshold for reuse site rules would be 1,000 m3, and the threshold be lowered to this amount of fill to bridge the proposed gap. The proposed regulation would require an Excess Soil Destination Assessment Report to be prepared only in instances where the excess soil project would involve remediation of contaminated land. The Province could consider a tiered approach to this lower threshold where criteria would still apply, and be scoped appropriate to the volume or where significant volumes of fill are moved, but do not include the remediation of contaminated land.
These reports would simply identify each reuse site including the municipal address of each reuse site; identify additional alternative reuse sites in the event that the primary site cannot be used and provide an estimate of the quality and quantity of excess soil that will be deposited at each location. These requirements are not arduous and should apply to most, if not all, excess soil movements to assist site specific regulators (municipalities).

3. Expand upon the meaning of “Adverse Effect” for the operation of reuse sites to harmonize with other environmental law administered by MECP.

The regulation indicates that where reuse site operator rules apply, the operator shall ensure that: “procedures are established and implemented to ensure that the storage of excess soil for final placement in respect of an undertaking at the reuse site does not cause an adverse effect.” This provision should be expanded to the final placement of excess soil generally and not simply to any temporary “storage” measures on site. Secondly, the term adverse effect within the context of reuse sites should be expanded to include an adverse effect upon natural hazards, watershed hydrology, drinking water source protection designated vulnerable areas, and “Environmentally Sensitive Areas,” as defined in the proposed rules document. Given that the proposed regulation relies upon local administration of local by-laws for the regulation of the operation of reuse sites, the reuse site provisions must be supported by existing environmental law that protects the local environment, including natural hazards, watershed hydrology and sources of municipal drinking water supplies.

4. Ensure clarity as to when provincial standards apply and assist with local implementation.

The proposed regulation sets out quality and quantity standards in two separate tables based on the whether or not local by-laws adequately direct both excess soil quality and quantity for reuse sites. In order to effectively implement the regulation, local jurisdictions will likely have to update their existing by-laws to meet the new provincial rules. In this context, MECP needs to proactively reach out to inform and build local regulatory capacity to ensure that the local regulation of reuse sites is efficient and effective.

5. Efficient and effective enforcement is required at both the provincial and local levels

The proposed enforcement improvements for provincial MECP officers are supported and will serve to address the needed capacity with respect to enforcement tools. The Province has committed to, “Work with municipalities, conservation authorities, other law enforcement agencies and stakeholders to increase enforcement on illegal dumping of excess soil.” Consultation between MECP and Conservation Ontario as to how enforcement of illegal dumping of excess soil can be accomplished would be strongly encouraged and joint training opportunities should be considered.