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Soil movement is big business in Ontario, involving perhaps 170 million tonnes/ year, and adding about 15% to infrastructure costs. Last year’s changes to the contaminated sites regulation Reg. 153/04 have made soil movement more difficult and expensive than ever, and further cost increases are expected. For the Eglinton LRT alone, the extra costs could be $65 to $100 million.

For decades, Ontario has had confusion about what can be done with surplus soil. Table 1 soil may be “inert fill” that can go anywhere, and soil worse than Table 3 may have to go to landfill (or risk assessment). But what about the vast volume of soils that meet Table 2 or 3? Or exceed them because of natural conditions? Are these “soil” or “waste”? Can they be mixed in order to meet MOE benchmarks? Can contaminated soils be put back in the same hole they came from? Do the same rules apply to non-soil materials like aggregate? Do the new rules apply retroactively to existing soil banks? Can or should municipalities prevent soil movement? And what gives the Ministry of the Environment jurisdiction over soil anyway?

The confusion is leading to abuses such as Township of Uxbridge v. Corbar Holdings Inc. et al., 2012 ONSC 3527 (CanLII) . A couple had purchased a 108-acre property on the Oak Ridges Moraine through a holding company, planning to deposit 300,000 cubic metres of fill on the property (approximately 30,000 dump truck loads). They claimed this was a “normal farming practice”. The municipality eventually obtained an injunction to stop the dumping. The court had no trouble deciding that it is not “normal farming practice to alter the topography of lands by the depositing of large quantities of fill”.

This spring, Ontario released draft Best Management Practices for excess construction soils from large projects, based on the United Kingdom program, Contaminated Land: Applications in Real Environments. The Ontario Bar Association Environmental Law Section will have an interesting program this November on how the BMP would work, and what the alternatives are.

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