Top Ten Risks of the Commercial Fill Dump-site Deputation Report for Council and Staff Feb. 2gth, 2011

citizens in Durham

This presentation aims to make it clear that the province has not given municipalities adequate regulatory tools to safely manage commercial fill operations and all the risks associated with them, and until they do, municipalities need to enact bylaws and zoning regulations that will effectively prohibit these operations on sensitive lands like the Oak Ridges Moraine. Commercial fill operations are defined in the Scugog and Uxbridge fill by-laws as:

"commercial fill operationv-means the placing or dumping offill involving remuneration paid, or any other form of consideration provided, to the owner or occupier of the land, whether or not the remuneration or consideration provided to the owner is the sole reason for the placing or dumping of thefill;

We became knowledgeable about commercial fill operations after Earthworx Industries started dumping fill into a rehabilitated gravel pit on Lakeridge Road last May after receiving a fill permit from Scugog Township.

he Township of Scugog has found that some of the soil tested contained concentrations of petroleum ns, polyaromatic hydrocarbons, and heavy metals above acceptable concentrations levels, and has

ordered the operation to stop dumping, however the trucks continue to arrive. There have been thousands of truckloads of fill coming in on lands that are considered sensitive and zoned agricultural. The risks involved with these operations are described in following slides.

(Slide 3) Risk 1 Lack of Provincial Regulation

The Province of Ontario, through the Environmental Protection Act and the Ministry of the Environment have regulations regarding the clean-up of brownfield sites -"brownfields"being described by the MOE website as abandoned, idle, or under-utilized industrial and commercial properties where the previous property use caused environmental contamination. The land may need to be cleaned up before it can be redeveloped.

However, so called "clean fill" dump sites, which often accept excavated soils from Brownfields, are not within the jurisdiction of the MOE leaving a dangerous void in the protection of human and ecological health

Brownfield Remediation Stated in the MOE guidelines for the remediation of brownfield sites, "the frequently selected option for managing contaminated soil is off-site disposal." (Records of Site Condition A Guide on Site Assessment, the Cleanup of Brownfield Sites and the Filing of Records of Site Condition pg. 26) Commercial fill dump sites can take full advantage of this fact.

(Slide 5) Risk 3 No Definitions

The Environmental Protection Act and the accompanying regulations fail to define what is "clean fill" and what is "contaminated fill" or contaminated soil.

Soils coming from Brownfields may be considered "clean" by one set of standards and "contaminated" in another.It is left up to the Municipality to regulate this complex issue through site-alteration by-laws.

'Borrowing" MOE Regulations for use in Fill By-Laws

Risk 4 deals with the efforts of municipalities to regulate imported soils.

Given the lack of provincial regulations for fill dump sites, municipalities have been struggling to deal with this issue through their site-alteration by-laws.

Municipalities, especially relatively small ones such as Scugog and Uxbridge, often lack the funding, staff and expertise required to monitor and regulate these operations.

Given the lack of provincial regulations for fill dump sites, municipalities have been struggling to deal with this issue through their site-alteration by-laws. Clearly, these by-laws were never intended to deal with the risks that commercial fill dumps pose to healthy native soils and precious groundwater resources. The municipalities have tried to cope by often "borrowing" MOE regulations that were NEVER designed for use at a fill dump site.

The Ministry of the Environment's Soil and Ground Water Tables

These tables are sometimes referenced in municipal site-alteration by-laws. The MOE prescribes these tables for use when filing a Record of Site Condition which is a document that gets filed (on a voluntary basis) when you are going from one property use such as commercial or industrial to a more sensitive property use. In essence, they are prescribed for use as minimal cleanup standards at contaminated sites. An example of one of these tables is shown here. This shows a few of the 120 contaminants along with the maximum concentration levels aloud in soils for a specific property use

(Slide 8) The CCME

According to the Canadian Council of Ministers of the Environment (CCME), who are referenced numerous times in MOE documents, their Soil standards are for the cleanup of contaminated sites and must not be used to judge the contamination of clean sites. They represent "clean down to" levels at contaminated sites and not "pollute up to" levels for less contaminated sites.

For example, the Lakeridge site was not a contaminated site to the knowledge of anyone including the MOE, however, these MOE tables are being referenced thereby allowing the existing healthy soils at the site to be potentially degraded to that of lower grade brownfield soil. The repercussions of this have never been assessed.

(Slide 9) "Best Science"

Also to consider, is the fact that starting in July 20 11, today's "Best Science" has deemed it necessary, regarding the majority of the 120 contaminants listed in the tables, to considerably decrease the maximum acceptable concentration levels for these contaminants in soil. In effect, many standards considered acceptable today for protecting human and ecological health will no longer be acceptable for use once the new tables come into full effect. Point being is that the science used to develop these tables is by no means absolute. As well, these tables come with statements of limitations that must be recognized.

As stated in the Technical Update for the "Rationale for Site condition standards in 01 Reg. 153104" 4. Use of the Tables of Site Condition Standards "The tables of Site Condition Standards referred to in the RSC Regulation were derived for use in the assessment and remediation of the majority of contaminated sites in Ontario and filing a RSC for those properties. The numeric criteria contain many assumptions that are appropriate for use at contaminated sites being redeveloped under Ontario RSC legislation, regulations and guidelines. However, some of these assumptions may not be appropriate for other uses of these numeric criteria. It is recommended that use of these numbers for other purposes occur only with a thorough understanding of the development process, assumptions used, and the potential consequences, and after discussion with the Standards

Development Branch of the Ministry of the Environment"

Some municipalities have stipulated in their site-alteration by-law that fill complying with table 1 standards is acceptable, table 1 being described as background soil conditions achievable just about anywhere in Ontario where there has been no point source contamination. However, these same by-laws contain a Table 2 consideration which leaves me to wonder in what circumstance it would be acceptable to contaminate healthy soils up to this limit in clear contradiction to the recommendations of the CCME?

autions for using MOE Tables

"Clean sites" should only be accepting fill that is consistent with table 1 standards-Table 1 being described as background soil conditions achievable just about anywhere in Ontario where there has been no point source contamination. For all other tables, the MOE rationale document states: "The generic SCS (site condition standards) approach is intended to protect "typical" receptors potentially exposed at contaminated sites rather than the most sensitive of all possible receptors." RATIONALE FOR THE DEVELOPMENT OF SOIL AND GROUND WATER STANDARDS FOR USE AT CONTAMINATED SITES IN ONTARIO, Dec. 22 2009, pg. 4) Places like the Oak Ridges Moraine, highly vulnerable to these operations, are anything but "typical" as the

sitive unique ecological and hydrological features Soil Reports and the "Qualified Person"

This brings me to a contention held by some that having a "qualified person" involved in the operation gives it some sort of safe operation stamp of approval.

Indeed for the Lakeridge site, a professional engineer (or in other words a qualified person) is retained to review soil origin reports, and a qualified person is (perhaps) on the other end preparing or having prepared assessment reports of the soil origin property.

Just to put things into perspective, the professional engineer for the Lakeridge site presented soil origin reports to the township and the MOE staff earlier this year and the MOE officers found the reports to be and I quote "inadequate, incomplete and inaccurate". As well, months later, and after the fill permit was revoked by the township due to an adverse soil test, the MOE ordered the Scugog fill site to produce a report indicating all the soil origin sites and the quality of the soil received. At that time, the MOE found that these reports did not satisfy the requirements of their order. Why is this the situation if "qualified people" are involved in this process?

Ignorance of the Prescribed Use of These Reports

One reason may be that these "reports", or "assessments" of the soil origin sites, now being used as a record at the commercial fill dump site, were never prepared for use by the fill dump site operation. They were prepared for a specific circumstance, for a specific objective, for a specific person at a specific moment in time-perhaps years ago. This again is another unfortunate and potentially catastrophic consequence of using regulations, reports and tables outside of the use for which they were prescribed.

(Slide 13) Risk 7 Water and Soil

This slide speaks to the special risks involved with commercial fill operations and dump sites.

The risks are to the very things that sustain us as a society-our soil, and our water, particularly our groundwater.

"Groundwater is a shared, natural resource that is essential for the current and future health and well being of the residents of Ontario; once contaminated it is very difficult and expensive to restore."

Over a quarter of a million people depend on this water source on the Oak Ridges Moraine. This groundwater flows from the moraine making rivers and streams which flow to larger bodies of water that are used by those who live far from the Moraine.

Possible contamination via imported fill poses an unacceptable threat to clean and safe groundwater As well as considering the possibility of chemical or biological contamination from imported soil, the modification to the infiltration rate should be considered for consequences of reduced groundwater recharge. This can happen when clay is introduced as fill in significant recharge areas.

Unique landforms like the Oak Ridges Moraine are key contributors to vital ecological processes such as groundwater recharge. These risks are unacceptable.

(Slide 14) Risk 8 Environmental Liabilities

It has been suggested that municipalities can generate revenue from these operations as they can charge per truckload of fill coming in. However, this short term economic gain should not outweigh the cost of the potential long-term environmental liabilities, such as a contaminated water supply. Therefore, what is the net gain for the township and its citizens in allowing these operations to take place?

(Slide 15)Risk 9 Non-Compliance with the ORMCP

Non-compliance with the ORMCP with regards to: maintenance of Landform Conservation category limits, contamination in Areas of High Aquifer Vulnerability and, Significant Wildlife Habitat and Endangered Species Habitat potential in old gravel pits and other similar open areas. These elements can be overlooked when permits are issued.

Zoning Changes Without Due Process

(For example) If a township allows a Table 2 fill operation in an area considered to be (or planned to be) agricultural or residential, and that fill is contaminated to the Industrial/Commercia1/CommunityProperty use level, it may then be considered unsuitable for agricultural or residential use thereby potentially changing the zoning.

r(Slidel7) What can be done right now? Given the above risks, we respectfully submit the following answers:

(Slide 18) (1) Municipalities need to demand clear, effective regulations from the province to deal with the

movement of fill and the operation of commercial fill dump sites. The cumulative effects across the moraine for example, due to these types of operations could be disastrous. We need to leave a positive legacy for generations, not an environmental liability. Urgent appeals need to be made to the Ministry of the Environment and the Ministry of Municipal Affairs and Housing to address this unacceptable threat to the health of the citizens of Ontario and the health of the sensitive ecological processes which sustain us.

eanwhile, use site-alteration by-laws to prohibit these operations as Uxbridge has done (see below) and prohibit site-alterations in vulnerable areas like old gravel pits except under very specific circumstances.

2.t0 Noblthstanding anything else cmtained in this By-hw sxcapt for Sodion 3.1. no parson shall opereis a mmmefcJ& fill opemtion within the

2.6 Notwithstandinganything else wntained in this By-Iw except for Secticm 3.1, no pB@Dnshag cause, parnit or perform s slfe aneration on any lands which were pmrimsly Licenwd or permitted end us& as a pit cr quarryunder ths Aggregate R s ~ l ~ n e s Ad. R.S.O. 1990, c. A.8, as amended, (or any predecessor lsgirlatlon thoreof),or whather such lands have b w n ~ehabiliQtedar ad.

(Please see additional notes on Municipal Site -Alteration By-Laws at the end of this report.)

(Slide 20) (2) Brownfield Sites need to be-cleaned up not just dumped "somewhere else". Municipalities can demand better solutions for the clean-up and development of these sites. There is always an easier way, but an informed and more responsible way is what is necessary and obvious in this instance.

3) Municipalities need to declare fill operations what they are-a use of land and zone for them. They are not a mere site-alteration. Municipalities have the power through the planning act to declare them a use of land.

Aerodrome Issue And to add to an already complicated issue and not to distract from the main message of the presentation, there is also a contention held by the Lakeridge fill site that provincial and municipal laws do not apply as they have

declared their site an aerodrome which lies under Federal Jurisdiction.

(Slide 23)This "contention" is something that all municipalities need to be aware of as the repercussions of this statement, if left unchallenged, can be catastrophic and will make a mockery of things like the ORMCP, Greenbelt Plan and PPS.

Seek effective regulation from the Federal Government on this issue. (Please see the attached letter from Transport Canada for your reference.) Meanwhile, use the existing legislation and precedents to clearly define what powers provinces and municipalities still have over "aerodromes".

Please consider the creation of a working group within the Association of Municipalities of Ontario to litigate this issue. A united approach to litigation could ensure the best response while sharing the costs among municipalities.

(Side 24) Lastly this partial list is pulled from the MOE Reg 153/04 as amended and lists activities which the MOE considers to be potentially contaminating activities. I would like to draw your attention to number 2 and 71 for your reflection.

TMLE 2 POF-\7LVLY COhT~\m.~TISCAC TIITTIE?

Additional Notes for Municipal Site-Alteration By-laws

There is the crucial understanding that commercial fill operations need to be declared "a use of land" and must be addressed in the zoning by-law. However, if a municipality is going to allow commercial fill operations (or large-scale fill operations) outside of zoning regulations, consider including the following in your "site-

. .

alteration by-laws":

1) Prohibit them in sensitive areas-(ie. Areas of High Aquifer Vulnerability, Significant Recharge Areas, Environmental Protection Areas, Natural Core or Natural Linkage Areas (ORMCP), Areas within or adjacent to Key Hydrologic Features of Key Natural Heritage Features, etc. As well, they should be prohibited in Environmentally Sensitive Areas" according to the MOE definition:.

Site condition standards, environmentally sensitive areas (Section 41, Reg. 153)

41. (1) This section applies in relation to a property if,

2 ) The owner must complete a RSC (Record of Site Condition) for the property. (See the Environmental Protection Act Section XV. 1 and 0 . Reg. 153104.) This would allow the regulations under the Ministry of the Environment to kick in. In terms of the commercial fill operation, this would stipulate what "MOE Table" of soils would be allowed to be brought to the site, testing frequency etc. (One would have to ensure this is the case. This point needs to be further investigated,)

3) Stipulate that soil reports are to be current (identify acceptable time frame) and written specifically for use of the receiving site.

4) Allow for "public consultation" when these applications come up.

5) Only Table 1 soils should be allowed at sites where there was no previous point source contamination.

6) Kawartha Conservation has a good model draft by-law upon first review, however, does not consider some of the points above. This should be discussed with both Kawartha and the MOE (and neighbowing municipalities with fill "issues") in order to formulate the best possible by-law.

Transport Canada Response to Federal Jurisdiction Argument

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a ,I A N 2

Mr. John O'T#le, M.P.P. Leglsbtirre Aganmhfy dOr&rb Lea isbtke BuitdirtgQueen'sPark Totant&OM M7.4 4 A 2

I TranspanCanad%reglilates avirtlan aRk3ty in Canads mmugb w A m - Atfarbd ' Lha Canadiin'AwTEttbn Regulations, TranspwtCanada,through fbAcf, has sub 1I

jurisdiction w r amnautfes, Inohding aerodromesand all ndated bullbingror rervioea I w& for aviation pupwes, i

I Iwwld note the4 no licence,perm&,wt%wteor a p p m l Is wquked h m 7ratlapwt 1 Canads to c 6 n W c t anw&ame Wt is not in a hiituparea, Qnoe dablismed, sl am#mmea mtamply Wm ttte mfwBnt GanadlmRuBertlo~R&geIeticms.

TheA m v m m A b tidatestb safe!y, wurFty and bnd-urr mning, NMhett h ~ G m w in Cowmilnor the Minister dTmns@ndha$ slrlhaMy undRr theAet tn~BUIBM an aemdromer openrtwwith respect to tkvse or rnmmmnt of:sdlgl u n b itresoUfill has an impactan a d Q &ewrityQf a&mfiautii,

I snould clarifyt b a t t h fact ttrrrt thu alleged contaminated soil is on an aerdrame propmy dm$ r l ~ taulharke the MlnisferaCTmnqott to take totion unbertha suth~~'ty '

af theA r n e $ Ad. In srtlrsr f& the MlntsXerfo intsmm, thee ~ u K Imd M hE, some Fonnectlorrta the mkty asenwRy ofawmautks.

It is TimsgaffC a w 3?hawthat W fill behg brought antothe Scammmmesrte IsmtItltegral lo~vlatbn,and + k r d o ~ Addoes nutqplywPC~r-pecitbs Aeran~diss ho the flll. Thb b h g fbe case, my pasitim is h t tho priwiwhl GAidslryd h a Ehviranment W W hw.jurhdiCtibn m r the MI b%ngussQatth& plirtfcxrlarSW.

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