Intervenor: Vol 23. No 4 October - December 1998

MoE Proposal May Increase Soil Contamination In Ontario

The Ministry of Environment (MoE) is proposing to amend the definition of inert fill in Regulation 347. The proposal would classify inert fill into four different classes and would facilitate the redistribution of contaminated soil into uncontaminated sites.

Class I inert fill is based on rural parkland background values of soil in Ontario and may be deposited anywhere without restrictions. Class II inert fill is based on urban parkland background values of soil in Ontario and may be deposited at any site, including within confined lakefill, but not in ecologically sensitive areas. Class III may be deposited in agricultural, commercial and industrial areas, again including within confined lakefill but nor residential or ecologically sensitive areas. Finally, Class IV inert fills can be deposited in areas zoned for commercial and industrial use but not agricultural, residential or ecologically sensitive areas. The proposal states that the criteria in each of the four Classes are fully "protective of human health and the environment."

The proposed definition of inert fill and the excess soil management criteria are being harmonized with clean up criteria established under the recently revised Guideline for Use at Contaminated Sites in Ontario. The MoE's rationale for adopting this approach is that it permits greater flexibility and allows clean up requirements to be tailored to less rigorous generic criteria for all sites. Moreover, by continuing this approach in the management of excess soil, the proposed amendment will allow contaminated soils to be used as fill in areas significantly less contaminated than the fill itself. For example, a site in Markham recently zoned as industrial may have relatively clean soil in comparison to an industrial site in downtown Toronto. However, as a result of the proposed amendment, the Markham site would now be allowed to receive more heavily contaminated soil from the Toronto sites as use for fill. The proposed amendment thus has the very real potential to redistribute contaminated soils to uncontaminated lands.

The proposed amendment would also permit the deposit of Class I fill in ecologically sensitive areas, including a Provincial Nature Reserve or Provincial Park, an Area of Natural or Scientific Interest or an environmentally sensitive wetland. MoE's proposal ignores the fact that the main purpose in designating land as "ecologically sensitive" is to preserve and protect its natural features and ecological functions.

The proposal also fails to provide for any regulatory oversight or control. For example, the MoE will not require contaminated soil to be sampled or tested to verify whether the soil and rock fill meets the standards set out in the four classes of fill. The proposal also fails to impose any requirement on the regulated community to provide sampling records to the MoE. This raises the issue of whether the MoE intends to verify compliance with the proposed amendment and take appropriate enforcement action to address violations.

Ramani Nadarajah is a lawyer at CELA