On January 26, 2016 the Ontario Government Released an Excess Soil Management Policy Framework (Framework) on the Environmental Bill of Rights Registry. The Framework proposes a path forward and guiding principles for the development of policy related to the management of excess soil. The goals of the framework are to protect human health and the environment from the inappropriate relocation of excess soil and enhance opportunities for the beneficial re-use of excess soil.
The Framework responds to widespread calls for better, clearer regulation of soil in Ontario as part of an Environmental Bill of Rights review initiated in 2014 which builds on consultations on the Guide for Best Management Practices in 2012-2013. The Framework provides 21 proposed actions for the Ministry of Environment and Climate Change (Ministry) to engage in to resolve both legislative and policy issues related to the management of excess soil.
Some highlights include:
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Mandatory and enforceable Excess Soil Management Plans at source sites, along with tracking, testing and record-keeping requirements for larger source sites.
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Clarification of requirements for Regulation 153/04 (Records of Site Condition)
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Clearer definitions of “inert fill” and “waste” provisions in the Environmental Protection Act and Regulation 347 (Waste) to define fill that can be re-used and fill that is waste.
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Development of standards for re-use of excess soils
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Possible removal of the barrier to municipal site alteration bylaw regulation in areas regulated by conservation authorities in Section 142(8) of the Municipal Act.
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Provision of minimum environmental and technical requirements to municipalities for use in site alteration and fill by-laws.
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Possible regulation under the Environmental Protection Act of interim soil storage.
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Additional record-keeping for fill being brought to licensed and permitted aggregate sites through the current review of the Aggregate Resources Act.
The new policy framework represents an interesting next step in addressing problems with soil management in Ontario. However, the policy framework continues to leave unanswered questions about how the technical standards under Regulation 347 will be developed and where the line will be drawn between re-useable soil and waste. Further, there are unanswered questions about how oversight will be provided at receiving sites for compliance with the source site Excess Soil Management Plan. In the current environment it is clear that enforcement will be key to ensuring that the Framework meets its objectives. Crucial oversight of receiving sites, as well as regulation of the nuisance effects at receiving sites appears to be left with municipalities. As of yet, the Framework does not clarify how the Ministry will ensure that Excess Soil Management Plans, which will be prepared by a Qualified Person, will protect the environment from adverse effects and be enforceable in practice. The Framework also lacks clarity about who will have access to compliance information and who will exercise oversight powers related to the Plans. Finally, the full scope of alignment of policies for aggregate sites remains to be seen.
Comments are invited on the Environmental Bill of Rights Registry until March 26.
About the author
Laura Bowman, a staff lawyer at Ecojustice.
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