Fill Control: Testing New MOE Guidelines

NRU
Sept. 17, 2014
By Edward LaRusic

With the pace of development in the GTA not abating, the regulation of fill operations continues to be a challenge for municipalities. One of the first to try out the new Ministry of the Environment guidelines, the City of Burlington is drafting a site alteration by-law to give the municipality greater control over what fill gets dumped where.

Solicitor Charles Loopstra (Loopstra Nixon LLP) has been following the issues caused by fill operations in the Greater Toronto Area. He told NRU that fill operations are causing pressure on municipalities to update their site alteration by-laws.

The biggest thing that municipalities need to ensure, said Loopstra, is that they’ve got “loopholes” covered that may allow companies to dump soil without municipal oversight.

“A number of cases where I’ve run into is that [a hauler] will bring in soil and say ‘I’m just stockpiling it’ or ‘I’m running a triple mix soil screening operation’ or ‘I’m building an airport,’” Loopstra said. “There has to be some kind of balance between the planning legislation to allow for proper development and the environmental concerns with regard to site alteration from the point of view of contamination and of taking agricultural lands out of production.”

Based on January 2014 Ministry of Environment guidelines for fill operations, a draft site alternation by-law hasBurlington councillors hoping it will give the city the strength it needs to regulate fill operations.

Burlington councillor Marianne Meed Ward said that the city’s draft site alteration by-law will give the municipality “more teeth” to go after companies that are altering sites without permits.

“We needed the teeth to deal very specifically with the situation that was happening at the [Burlington Executive Airpark]. That situation really showed us that it’s really important to have a fill by-law that is up to date in terms of what we’re seeing on the ground.”

The draft zoning by-law was crafted in the middle of a difficult fight between the city and the Burlington Executive Airpark. The city had become concerned with the amount of fill that was being transported to the site, located in the rural area know as 5260, 5296, 5300, 5316 and 5342 Bell School Line and 5351 Appleby Line. It requested the owner apply for a site alteration permit. The airpark claimed that aerodromes fall under federal jurisdiction, so it is not subject to the municipality’s site alteration by-law.

The Ontario Court of Appeal disagreed. June 11, 2014 it ruled that the municipality’s by-law should apply as long as it does not impinge federal aeronautic power.

Meed Ward said that municipality’s ability to deal with issues, such as those related to the airpark, will be strengthened under the new by-law.

“Everybody [will be] under the same rules, and our public, wherever they might live, is under protection, not only for the quality of fill that is used to alter a site, but how close that large berm can be...if [a berm] is too steep or too close to a neighbouring property we can change the slope and the grading and regulate the drainage issues as well.”

Meed Ward added that under the existing site alteration by-law the city isn’t charging enough to cover the cost of staff processing applications. She noted that accepting fill on a site can make the owner “hundreds of thousands of dollars.”

“Essentially, taxpayers were subsidizing an activity that is highly profitable.”

The proposed site alteration by-law was created using the Ministry of the Environment guidelines. It will require applicants to obtain a qualified person to prepare and certify a soil management plan, a fill management plan, a soil testing program and a traffic and transportation plan for hauling soil. The by-law also contains provisions related to the size of fill operations. Small scale operations, containing 500 cubic metres or less of soil will not require a permit. Operations over 5,000 cubic metres will trigger additional requirements such as a comprehensive site alteration agreement, rehabilitation of the site and haul route pavement condition. A stop work order provision has also been included.

Under the guidelines the city can also request additional programs such as one for ground water monitoring. And the guidelines add new restrictions such as preventing site alteration during bad weather.

Meed Ward said that many residents feel that the city’s rural areas are threatened by the amount of fill that is being produced in the Greater Toronto Area.

“Some of the fill [is from] Burlington or [Halton] region, but some of it is coming from outside our borders as well… we needed to make sure that we protect the quality and amount [of fill], regardless of whether it’s an airpark or a farm. We need to not only charge appropriate fees, but ensure appropriate protections, and our [new] by-law gets us there.”

Council will consider the draft site alteration by-law, proposed to replace the city’s 2003 by-law, at its meeting September 22.