The soil movement limits imposed by regulation 153/04 on July 1,
2011 have greatly complicated the task of contractors and
developers wishing to obtain or dispose of excess construction
soil. Strictly speaking, the new regulation only applies if the
destination site wishes to be able to obtain a Record of Site
Condition. However, since it would be foolish for a property owner
to lightly give up the option of obtaining a Record of Site
Condition for future sale or development, knowledgeable property
owners across the province are starting to follow the new rules,
and to insist on receiving only soil that has been tested and
proven to meet Schedule I (background) levels of contamination.
This is causing growing concern in the construction industry. In
addition, contractors and developers are often frustrated by the
lack of consistency in soil management rules between different
municipalities. A recent bylaw review by Hatch, Mott, McDonald
concluded that 23 of 85 municipalities reviewed have a relevant
bylaw that mentions soil quality. Of these, 14 prohibited
unacceptable material without reference to either the
Environmental Protection Act or specific soil criteria
under Reg. 153/04; eight referred to the Environmental
Protection Act, but not to 153/04; and only one (the Town of
Georgina) defined acceptable fill by reference to Table 1 of
Soil, Ground Water and Sediment Standards for Use under Part
XV.1 of the Environmental Protection Act, April 15, 2011,
adopted under Reg. 153/04. This uneven patchwork causes
As a result, soil that could otherwise be beneficially reused
can end up expensively in landfill sites, increasing the cost of
infrastructure and other public and private projects, while other
sites become unwittingly contaminated by accepting fill. According
to the ministry, they
"encourage the reuse of excess soil as fill, where
appropriate, provided that the use of the excess soil does not have
a potential to cause an adverse effect or impair water quality as
described under the ministry's Acts and Regulations. It is the
responsibility of all stakeholders who generate, haul or receive
excess soil to ensure that the excess soil is being managed in an
environmentally sound manner and in accordance with all regulatory
Since that simply begs the question of what soil can be moved
where, the Ministry of the Environment might develop a Best
Management Practices document for soil management in Ontario. The
BMP could have a structure similar to Reg. 153/04, whether or not
the receiving site demands a Record of Site Condition. That is,
The whole process would be overseen by a Qualified Person, as
defined in 153/04;
based on detailed characterization, both of the receiving site
and the soil to be moved;
in accordance with a formal Soil Management Plan for the source
of the soil and a Fill Management Plan for the receiving site;
whose implementation is recorded in detail;
the receiving site would be managed much like a transfer site
for solid waste, with signage, security, dust and noise controls,
traffic management, storm water management, a contingency plan,
etc., and possibly public consultation and financial
Municipalities and government agencies could incorporate the BMP
Plan into their tendering process, at least for large projects
dealing with previously contaminated sites.
A BMP process would not determine, in advance, the soil quality
requirements for any particular site, but they might help to ensure
that major soil movements would be of known and recorded
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
In June, 2016, Justice Faieta of the Ontario Superior Court of Justice awarded damages of $57,712.31 plus interest against legal counsel who failed to file a claim within the required limitation period.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).