How ‘Clean Fill’ Became a Dirty Word

With a proposal to flatten his farm fields, a Mono farmer stepped squarely into the centre an environmental hornets’ nest.

September 11, 2015 | | Back Issues

When you look across Doug Cox’s farm from the corner of Mono Centre Road and 5th Line, all you see are gently rolling green fields, not the two gullies hiding in the back corner of the property. They’re not much bigger than a rural building lot, but these hollows are deep, steep and all but bare – a pox on the otherwise pastoral property, and a persistent stress on the mind and pocketbook of this sheep farmer.

The sandy slopes do not hold topsoil. Grass grows in thin patches. They’re too steep to work with machinery, and too dangerous for grazing sheep. The forest on the other side of the property line that cuts through the gullies hides opportunistic coyotes who steal ewes and lambs under the eyes of the patrolling sheepdogs. On a property that’s only 43 acres – small for a working farm – these seven acres sit idle.

So when someone came to Cox, 68, with the idea of filling them in, he was keen. After 35 years of living with these worthless hollows, he was enthused by the possibility of filling and grading them flat enough that he could work the land with machinery and grow hay. The plan would allow him to increase his sheep herd and make his farm more profitable. He would also net a payoff for taking the fill. All he needed was approval from Mono town council.

It was at that point Cox planted both feet squarely into a hornets’ nest of an issue that is bedevilling rural municipalities across the Greater Golden Horseshoe – how to deal with the vast and increasing quantities of fill being generated by the region’s building boom.

The volume of excess soil, what most of us call “dirt,” excavated from construction sites across the province has grown to as much as 25 million cubic metres a year, according to the Residential and Civil Construction Alliance of Ontario. That represents about 3 million truckloads, enough soil to fill the Rogers Centre 15 times over. Disposal of the soil costs about $1.7 billion annually

Of all that soil, about 15 per cent, or about 7.5 million tonnes, is contaminated. In theory, the contaminated soil is directed to an approved site, but according to the Ontario Soil Regulation Task Force (OSRTF), “There is no federal or provincial regulation that specifically tracks, assesses and enforces the movement and disposal of this dirt” – which is raising serious concerns about how much contaminated fill is making its way into the countryside.

A shaky proposal from a rookie broker

Cox brought his first plan to council in March 2014, seeking an exemption from the town’s fill bylaw. It said fill projects could be no bigger than 250 cubic metres – about 30 truckloads – and use only locally sourced fill. In a one-page letter, Cox announced his intentions to import up to 20,000 truckloads over six months – roughly 300 truck trips in and out a day, six days a week.

He attached a letter of intent from his contractor Itolo Mallozzi of Construction Logistics & Technologies Group Inc. that was unsettling in both its poor grammar – “We accept Grade “A” Clean File only….We estimate 15 to 20-thousands loads over six month period” – and its utter lack of technical detail – “We understand that we are free to proceed without Permits or Surveys (not required).”

Council was alarmed by the size of the proposal and couldn’t access CLTGI’s website or confirm the company even existed. It refused to consider the proposal without more information.

That shaky first exchange sent both council and Cox racing off to do their homework – Cox to compile a more robust application and the town to completely revamp its fill bylaw.

With the Mallozzi connection, Cox may have had a run-in with the opportunism the booming and poorly regulated industry has begun to attract. He says Mallozzi told him the project would have been his first.

Fill brokers, the middlemen who take excess soil from contractors and find a place to dump it, can reportedly make as much as $20,000 a week. According to OSRTF, disposing of contaminated soil at an approved landfill site costs $750 or more a load, while clean fill costs $50 a load, creating a huge incentive to flout a weak regulatory system and turn a blind eye to details like dumping permits and soil tests.

The result is that in a growing number of cases, instead of being properly disposed of at an approved site, contaminated soil is ending up in the countryside, masquerading as clean fill.

In a growing number of cases, instead of being properly disposed of at an approved site, contaminated soil is ending up in the countryside, masquerading as clean fill.

In a growing number of cases, instead of being properly disposed of at an approved site, contaminated soil is ending up in the countryside, masquerading as clean fill.

A revised proposal meets a revised bylaw

For his part, Cox had long since grown frustrated with Mallozzi’s evasive answers about the source of his fill and moved on to work with an established soil contractor called SoilCan, a company with several successfully completed farm fill projects on its resumé, including a 40-acre fill project on a farm in Tottenham.

SoilCan brought in an engineer to survey Cox’s property and came up with more specific numbers that were about a third of Cox’s earlier plan: 56,263 cubic metres or about 7,000 to 7,500 truckloads in “Phase 1” to fill the two holes in the back of the property totalling 2.7 hectares (6.8 acres). Critics hear “Phase 1” and wonder what’s next, but Cox says the only other project in his sights if phase 1 goes well is a smaller depression behind his house that would take about another 1,000 loads.

Meanwhile, looking at similar issues arising in other municipalities within trucking distance of the GTA, and seeing Cox’s impending application as the tip of the iceberg of potential new fill projects, Mono council scrambled to amend and update its fill bylaw. It removed the old 250 cubic metre limit, but introduced a $2,000 application fee plus a $20,000 security deposit to cover the cost of hiring expert reviewers. Another $20,000 performance bond is required once a permit is issued (though any residue from the initial deposit can be applied against it).

The same day the new bylaw came into effect, August 27, 2014, SoilCan contacted council to file Cox’s new fill application and was informed of the new fees. The timing was too perfect. It seemed to Cox as if the bylaw was amended specifically to stop him, by either making it unaffordable to file, or requiring him to put down money to hire the experts required to defeat him.

“For some reason they’ve got a hate on for me,” Cox says. “I’m the villain in this situation. I’m just a farmer trying to make a living. They’re going to have all the farmers out of business with these regulations.”

Mono’s director of planning Mark Early defends the new fees as standard practice for such large-scale developments. “You’re putting in probably clay soils on top of sand and gravel soils, so you’ve got a change in hydrology and hydrogeology. There’s a lot of issues we have to look at, not just a grading plan that we’ve received from Mr. Cox. That’s the same as any development application. You put up an application fee and whatever it costs us to review it is what you’re going to pay, and there’s no guarantee that you’re going to get an approval. We’re not putting the cost of a development application on the general taxpayers.”

Carmela Marshall, director of the OSRTF, says the municipal bylaw needs even further strengthening to deal with ongoing oversight of fill operations. “The operator should follow best practices to ensure the soil they are accepting is clean. However, there is no provincial legal requirement for them to do so. So if the municipality has not ensured, through requirements in their bylaw and a compliance monitoring regime that this is being done, there will be no motivation for operators to follow any sort of best practices.”

Marshall says Mono needs to implement tipping fees to cover costs such as independent soil testing. The township of Scugog, for example, charges a tipping fee of $2 per cubic metre, an amount that would ratchet up disposal costs on Cox’s property by another $100,000.

What’s normal on a farm?

Cox and SoilCan balked at the town’s $22,000 up-front cost and thought maybe they could find a way around it. Instead of submitting their application to Mono, in early 2015 they appealed to the Normal Farm Practices Protection Board, a provincial authority with the power under the Farming and Food Production Protection Act to protect farmers from nuisance complaints and exempt them from local bylaws that interfere with anything that can be deemed a “normal farm practice.” After a pair of prehearings earlier this year, the NFPPB agreed to hear Cox’s case this November.

Sheep farmer Doug Cox says filling the gullies on his property to increase his herd and improve his profits is a normal farm practice. But in the absence of regulatory oversight, neighbours fear soil and water contamination. Photo by Pete Paterson.

Sheep farmer Doug Cox says filling the gullies on his property to increase his herd and improve his profits is a normal farm practice. But in the absence of regulatory oversight, neighbours fear soil and water contamination. Photo by Pete Paterson.

Cox’s critics worry that Cox and SoilCan may have found a loophole to circumvent local bylaws and get the project approved without addressing legitimate community concerns. Spearheading this dissent are Cox’s immediate neighbours to the east, Elaine Kehoe and her husband Lewis Baker.

The fill wouldn’t be visible from the Kehoe’s house, which is sheltered behind trees on the 25-acre property they call “Sanctuary,” but the fill site abuts their property line. Standing there in a few years, you might have to crane your neck to look up at Cox’s newly levelled fields.

Kehoe says the community was not adequately notified or consulted about the project, or about the NFPPB hearing. She also worries about truck traffic on Airport Road. But her primary concern is contamination and water supply. “When you’re putting 7,000 truckloads of soil down on a property, unless you’re putting the proper culverts and doing everything necessary, that’s going to pack down. Our well is 285 feet down. Any diversion whatsoever and I’m going to end up dry,” she says, adding that owners of other neighbouring properties have similar concerns.

Kehoe says she’s spoken with 300 to 400 people in the community and most are worried about soil contamination based on reports of fill contamination elsewhere in the province. She has collected 185 signatures on a petition opposing Cox’s project, and says the NFPPB has received 125 letters of concern.

“We’re definitely not against farming. That should be clearly understood. We love the community. We love the people who are in it. This is about the potential contamination of Mono. The possibility is very real and we can’t take a chance,” she says.

Stories of receiving sites like Cox’s getting paid handsomely to accept fill heightens suspicions about whether the fill really is clean, and whether the project might be as much about the money as remediating the landscape. Some of the rumours may be the result of confusing overall disposal charges with the portion landowners receive.

Cox says the maximum he expects to make is $20 a load. “I’ll get enough out of it hopefully to replace the fencing and then fertilize and seed some fields. I’m not going to make a million bucks. I’ve heard rumours of $50 a load, but that’s not happening. And if I can make a couple bucks, so what?”

Critics also question the merits of altering the characteristic rolling hills of Mono. “Cox’s application was to ‘rehabilitate’ his land, but under the Oxford dictionary ‘to rehabilitate’ means to bring back to its original condition,” argues Kehoe. “Those hills and valleys have always been there.”

At council’s first meeting about the issue, councillor Bob Mitchell expressed the same sentiment in a statement that Cox still recounts resentfully: “I would really question that we’d want to take the landscape we have around here and try to level it out. I don’t think we want to try and start making farmland out of what we have here. I think we’re blessed the way it is.”

Cox does not feel so much blessed as besieged. “There’s no more common sense on council, not enough farmers,” he complains. “What farmer in his right mind is going to pollute his own property?” he asks, noting that if his neighbours’ wells are affected, his would be too.

Cox questions why in the heart of the Greenbelt, where the land is supposed to be preserved for farming, he must fight so hard for project that will make it more agriculturally productive. “A few years ago I applied for a severance. I wanted to sell a lot and they said, no, this is prime agricultural land. So if you can’t build houses on it then let me farm it. You can’t have it both ways. What’s wrong with creating farmland for future generations?”

The key question for the NFPPB is whether creating farmland through large-scale filling constitutes a normal farm practice. The OSRTF is recommending that the ministry of agriculture shut down the debate for good by issuing a statement that it’s not. More likely, “normal” will be considered on a site-specific basis.

A 2012 court case ruled that a 30,000-load fill project on the Oak Ridges Moraine was not a normal farm practice because it was evident the landowners had recently bought the land as a fill site. The Niagara Escarpment Commission is considering a recommendation that would require an agrologist to certify the agricultural merits of any fill plan claiming to be for farm improvement. Under these terms, Cox may have a case – he’s been farming the land for four decades and it’s hard to argue that flatter fields wouldn’t make his job easier.

Girding for the showdown

The November NFPPB hearing promises to be dramatic. Elaine Kehoe and the Mono Murmur Citizens’ Coalition (MC2) have been accepted as interested parties representing the concerns of local residents. The OSRTF’s Carmela Marshall will appear as a witness. So will Robert Iachetta, the owner of SoilCan. The town of Mono will be there with its lawyer.

Cox will be represented pro bono by Justin Stein, a self-described excavation contractor and business associate of Iachetta, who says he got involved “by accident” and would “rather be digging dirt.”

Stein is bracing for an epic “five-day court battle.” He paints himself and Cox as the David to the town’s Goliath with its high-priced lawyers and consultants. His position on the benefits of the “sustainable reuse” of excess soil could be lifted right from a Ministry of the Environment position statement.

“It’s very appropriate when a farm in Brampton grows houses. Everybody loves it. A guy wants to use that fill to create some extra farmland, that’s no good,” Stein says. “It’s really about food. When they hire lawyers, it gets blown out of proportion.”

But to the proposal’s critics who take the big picture view, the possibility that a large fill project could be deemed a normal farm practice and exempt from municipal bylaws sets a dangerous precedent that must be challenged.

“There is a major jurisdictional issue here that this is not what was meant by protecting ‘normal farm practices,’” says MC2 president Don MacFarlane. He thinks the NFPPB’s authority over fill will have to be settled before any of the finer details of the Cox case even become relevant.

“If the NFPPB has the authority to authorize what we believe are fundamentally commercial fill operations, we would see a massive influx of fill into our communities. They’re going to have probably 50 to 100 cases a year coming to them, and in the end, just as the Ontario Municipal Board has become the regulator of aggregate projects, [the NFPPB] would become the regulator of fill dumping cases,” MacFarlane predicts.

Municipalities could incur huge costs fighting at these hearings – MacFarlane estimates Cox’s case will cost the town $100,000 – and they could lose their power to turn down projects despite community concerns about dust, noise, traffic, soil and water contamination, falling property values or the inherent value of leaving rolling hills be.

“This is a big issue in our community, as aggregate has been,” says MacFarlane. “This is the new chapter in that book.”

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Contaminated fill and illegal dumping

Contaminated fill and illegal dumping are two growing problems that highlight the need for better regulatory oversight of soil excavation and fill operations.

In theory “fill” or “excess soil” destined for reuse refers to clean soil, soil that is tested and determined – although there is no enforceable technical standard of what is “clean” – to be least as uncontaminated as the pre-existing soils in the place where it’s going to be dumped.

The Ontario Soil Regulation Task Force puts some of the blame for the increasing supply of contaminated dirt on the 2001 Brownfields Act, which accelerated the development of former industrial and commercial lands. Describing itself as “a coalition of citizens’ groups and other interested parties seeking solutions to the problems of excess construction soil,” and with no other centralized monitoring authority, OSRTF has taken on the task of diligently tracking cases of questionable dumping practices.

In Peterborough County, for example, sheep farmers Ruco and Kimberly Braat gladly accepted hundreds of truckloads of free fill in 2011 as part of a barn construction project. It was only when a neighbour had some of the soil independently tested for his own use that it was found to be contaminated with polyaromatic hydrocarbons and heavy metals. The Braats are now in a $5-million lawsuit against the waste management company and the soil contractor.

Until this spring the Greenbank Airways site in Scugog Township was receiving 200 truckloads of soil a day – part of a 2.5 million cubic metre project. After local council approved spending up to $50,000 to have the site independently tested – an example of the high costs municipalities can incur to properly oversee fill operations – results showed unacceptable levels of lead and benzene, as well as bits of wood, asphalt, plastic, rubber and glass (which are also considered contaminants and not part of “clean” soil). The township has stopped Greenbank’s fill deliveries until remediation is assured.

Other examples from the OSRTF include a dump site in Lakeridge where cyanide was found at 3,000 times the acceptable limit close to a vulnerable groundwater aquifer and a “natural core area” of the Oak Ridges Moraine. And an unpermitted fill operation in the City of Kawartha Lakes, where soil that had been certified acceptable was found to greatly exceed limits for many contaminants.

The OSRTF says large-scale construction projects should be required to have a soil management plan that covers “cradle to grave” accountability. Right now, builder’s only care is to get the soil off-site. From there it can pass through fill brokers and end up anywhere.

“If you go and ask some developer in downtown Toronto where their excess construction fill is going, don’t hold your breath for an answer,” says OSRTF director Carmela Marshall. This makes it harder to keep tabs on contaminated soils and rein in the epidemic of illegal dumping all around the GTA.

Mono director of planning Mark Early says the town has investigated five or six illegal dumping sites already this year, and knows of another eight or nine across the county. He notes the number of such cases has been growing every year. “Landowners reach agreements with contractors to bring the fill in. We’ve had two instances where the landowners were unaware that it was, one, illegal, and two, potentially contaminated.”

This July, Mono landowner Hans Stiegert was issued a restoration order from the Niagara Escarpment Commission to remove 125 loads of fill he’d had dumped without a permit on his property at 7th Line and Airport Road. Stiegert has 90 days to remove all the fill to a government-approved disposal site, then landscape, stabilize and seed the land to restore it to its original condition.

The OSRTF has taken the lead in urging municipalities and the province to address the excess soils issue. It is providing guidance to municipalities in strengthening their bylaws, and has issued sweeping recommendations that involve five provincial ministries.

“Our group has identified key things that have to happen at the provincial level so municipalities are not left scrambling to figure out what to include in their bylaw, what soil quality standards are appropriate, what locations are safe for large-scale fill,” says Marshall.

The OSRTF is pushing for legislative change at the provincial level by issuing a Resolution for Clean Soil Act, based on a resolution passed by the Town of Erin last December and since endorsed by several other municipalities.

The resolution claims the province’s Places to Grow Act created the excess soils problem through its policy of urban development intensification, so now the province needs to legislate provincial standards for managing excess soil.

For more information about OSTRF recommendations, see osrtf.ca.

Who’s in charge?

In its proposal for the Cox property, SoilCan assured Mono council that the company would voluntarily follow the provincial best practices guidelines for soil disposal. However, part of the challenge of managing fill is that responsibility for the regulation and oversight required to ensure industry keeps such promises varies depending where the soil ends up.

Here’s an overview of who’s in charge where.

Municipalities

Municipalities are responsible for regulating fill within their borders through their site alteration bylaws, which results in an inconsistent patchwork of regulations across the province. While some municipalities have strong bylaws, others have none, or skirt the issue with a blanket ban.

Fill brokers quickly leapfrog to the municipalities with the weakest laws. A 2013 industry-sponsored survey of 143 municipalities surrounding the GTA found less than half had a fill bylaw and only eight referenced the environment ministry’s soil quality criteria tables. (The soil quality tables were developed to apply to brownfield sites and not intended as a standard for clean fill, but they are the closest thing we have to a soil quality standard.)

The federal government (aerodromes)

Aerodromes are federally regulated under the Aeronautics Act, potentially limiting municipal authority. Some sleepy rural airfields have become suspiciously busy accepting streams of trucks in the name of airport upgrades, and municipalities have been unclear about their rights to oversee these operations.

Ministry of Natural Resources and Forestry (quarries)

Municipal jurisdiction is also limited on quarry lands, where soil is often brought in for rehabilitation – to fill in old pits, such as the one near Hwy 89 and First Line East in south Mulmur. These sites are regulated by MNRF under the Aggregate Resources Act, and monitored by the site’s owners.

Ministry of the Environment and Climate Change

The Ontario Soil Regulation Task Force (OSRTF) has been urging the provincial government to provide more direction over the patchwork of fill regulations. Today the MOECC treats all soil as clean unless proven dirty.

That means its involvement is strictly reactionary – coming in to enforce the Environmental Protection Act when there is evidence of off-site impacts, usually identified through citizen complaints. (The MOECC spill hotline is 1-800-268-6060.)

Last year the ministry released a guidebook of voluntary “best management practices” for excess soil. The OSRTF and many municipalities have urged the ministry to take the next step and pass a clean soil act that would see best practices become law.

Last year the ministry launched a review – expected to be completed “very shortly” – to determine if such a province-wide soils policy is needed.

Conservation authorities

Conservation authorities are responsible for issuing fill permits on lands they regulate. OSRTF director Carmela Marshall says CAs typically have different, often less comprehensive requirements than municipalities, so sometimes landowners are able to proceed with fill projects on their CA lands after being rejected on municipally-regulated portions of the same property.

Niagara Escarpment Commission

Land filling and contour changes on the Niagara Escarpment require a development permit from the NEC. However, a 2013 NEC discussion paper suggests this permitting process is broken. Specifically, a significant number of permit applications were submitted after the fact, indicating “a lack of awareness” that a permit was needed “or possibly that landowners are willing to risk non-compliance and potentially a fine in order to accept the fill.” The paper also stated, “It is very difficult for the NEC staff to monitor fill quality and the potential contamination of fill being accepted on-site.”

About the Author More by Tim Shuff

Tim Shuff is a freelance writer.

Comments

7 Comments

  1. I feel for Cox, but getting paid to take fill, only means that you are taking on someone else’s problem. What is stopping Cox from buying real fill from a landscaping firm? If he was to accept fill, he would also would be making a very tidy sum of money

    Living across from a huge fill project Tottenham/Volk airfield, for the last 3 years has given me the experience that fill brokers are rich and ruthless, they are in to dump, make money and they don’t care about the legacy of contamination they leave behind.

    Editor, there is an error in Aerodromes being federally regulated with respects to fill. Fill operations at Aerodromes must comply with municipal bylaws, period. http://www.simcoe.com/opinion-story/4821365-simcoe-grey-mp-says-tottenham-aerodrome-fill-not-a-federal-issue-/ or discuss with Lisa Raitt, she recently passed a motion on fill at aerodromes.

    Kathleen Wilson

    Kathleen Wilson (@mkathleenwilson) from Caledon on Sep 29, 2015 at 8:40 am | Reply

  2. Why not apply for a permit to grade the hills down into the gully?

    Barney Beckett from Caledon Vill on Sep 30, 2015 at 8:06 am | Reply

  3. I do financial work for a company that specializes in clean fill. I have just been doing some research to know how to help them plan financially, and I found this article very interesting. It makes sense that contaminated fill and illegal dumping are becoming more prevalent, and thus better regulatory oversights of soil excavation and operations are required. Thanks for sharing this article!

    Jake White on Oct 20, 2015 at 1:01 pm | Reply

  4. In addition to Kathleen Wilson’s comment above. The issue of whether aerodromes, as federal undertakings, can be regulated by municipal fill-bylaws was settled by the Court of Appeal for Ontario in Burlington Airpark Inc. v. Burlington (City), 2014 ONCA 468 (CanLII), .

    The court decided that a municipal fill by-law does not trench on core federal power and therefore is operative. The purpose of the fill by-law was to regulate the quality of fill to prevent the use of toxic or contaminated fill in municipality; the by-law was not an attempt to regulate aeronautic activities. Burlington Airpark was required to comply with the City of Burlington’s fill by-law.

    Although aerodrome operations were found to be regulated by municipal fill by-laws, there are still many activities – farming, rehabilitation of lands – which require clarification as to whether municipalities have the authority, and jurisdiction, to regulate these activities’ fill operations.

    Stephanie G on Oct 21, 2015 at 10:20 am | Reply

  5. Re: “Too dangerous for grazing sheep”??? It’s laughable! Maybe Mr.Cox can use some of those meager “bucks” ($20 x 7,000 truckloads = $140,000) to travel to New Zealand or Switzerland and see how to raise sheep on the hills? http://www.dailymail.co.uk/news/article-2194115/Thousands-sheep-head-perilous-alpine-path-annual-beauty-contest.html My aunt’s cows were grazing on steeper hills than those in question.

    Original plan was for 20,000 truckloads, I assume it will be in faze 2, 3, 4 etc. Open the floodgate and they will come to your neighborhood. It will not stop at Mono.

    For Normal Farm Practices Protection Board to even entertain Mr. Cox complaint defies logic. First of all, the complaint is about Town of Mono rejecting fill application, but application was never filed with the Town! Second of all, LARGE fill operation is neither “farming” or “normal”.

    Mr. Cox and Soilcan will make “couple of bucks”, and we, residents of Mono and Dufferin County will be left with air and noise pollution, potential ground water contamination, heavy traffic on already deadly Airport Rd, and the bills for road repairs. Dufferin County is already crying poor in regard to road repairs and planning to raise taxes by 7 % to deal with this issue.

    As pointed recently by my friend: “I can’t help but think that for the desired outcome, simply bulldozing the crest of the hills into the hollows would achieve the same thing. Leveling of the property. Seems obvious and simple to me. In this way all the soil and material will remain indigenous.”

    The Hearing is going ahead the week of Nov. 23/15, the first day it will commence at 10:30 a.m. and 9:00 a.m. on subsequent days at the Town of Mono municipal office. Come and witness.

    Iwona Ewertowski from Mono on Nov 3, 2015 at 9:17 am | Reply

  6. TO: All MC² Members

    FROM: Don MacFarlane

    SUBJECT: Normal Farm Practices Protection Board Decision Regarding Fill Dumping Case In Mono

    As some of our members may have heard, we have received the decision on the fill dumping case of a local farmer versus the Town of Mono. The Town’s position, supported by Elaine Kehoe and MC², was upheld by the Normal Farm Practices Protection Board (NFPPB). This was a significant victory. The decision document is linked and makes interesting reading.

    The Town’s case centered on three main issues: first, that the proposed dumping project was not a “farm practice”, but instead was a commercial proposal; second, that the proponent’s project did not comply with the Town’s fill by law; and, third, that the proposed operation would do significant damage to adjoining properties, and to the overall environment. You can find significant detail about the hearing and the presentations of all the parties in a report that appears on our MC² website.

    In its decision the NFPPB basically focused on the “farm practices” issue, which is of course their central mandate. They did not discuss in any detail the reputed commercial aspects of the plan. The Board did find that the planned dumping created risks of flooding and other damage to neighbouring properties and that the plan for transporting fill to the site did not address key Town requirements. The Board reviewed the key elements of the Town by law and stated that many of the Town’s concerns were valid and were not adequately addressed in the proponent’s plan. The final NFPPB position was that, as defined by Provincial legislation, the Cox plan was not a normal farm practice.

    The NFPPB decision is an important step forward in the battle against fill dumping in our communities. It made clear that cases before the Board should clearly prove that the fill dumping proposal would benefit the farm operation, without risk to neighbouring properties and to the overall environment. The Board did make clear that under Ontario’s current legal framework, the local governments have the right and responsibility to regulate fill issues. (The exceptions to this mandate are aggregate mine rehabilitation projects and airport expansion or modification.)

    All of that said, we can’t be comfortable about the overall fill dumping issue. One concern is the cost of fighting such cases. The Town of Mono, much to their credit, took on an expensive battle, one which many towns and townships could not afford. Another problem is that many local governments do not have strong (or any) fill dumping by laws in place. Furthermore, the principle of payment for all costs related to dumping (testing for contaminants, road rehabilitation, regulation and safety issues related to truck traffic, hearing expenses, etc.) has not been firmly established. Finally, there needs to be much more extensive research on the environmental threats posed by fill dumping.

    In the end there are steps that can be taken to address this issue. Local governments must ensure that they have strong by laws in place, and these laws should be regularly updated as more cases and decisions are dealt with. While towns/townships have primary responsibility for the passing and managing their fill by laws, the county governments should be actively involved, as they are better able to absorb costs, they may have access to broader expertise, and the implications/threats of fill operations cross local boundaries.

    The major steps that need to be taken are at the Provincial level. Ontario needs to put in place strong controls over dumping projects. Provincial guidelines on standards for non-contamination of fill must become legally binding. Strict fill testing protocols must be put in place and regulations regarding testing compliance by fill dumping operators must be established. It must be made clear that all costs related to any fill dumping project, including regular testing, road rehabilitation, etc. are to be absorbed by the dumping company. There must be a requirement that a proponent will remove any fill which is found to be contaminated. Safety and traffic flow issues must be dealt with.

    These are just a few of the requirements that need to be addressed. With a strong and unequivocal set of rules, along with the requirement that any appeal of by law decisions to the NFPPB, or any other appeal board set up by the Province, would be paid for by the proponent. It is critical that costs related to fill dumping need to be absorbed by the users or the services, the dumpers, the profit makers, not by the citizens of local communities.

    The Province, under strong pressure from local and county governments, and from citizen groups, is beginning to think about addressing the fill dumping issue. There will be a major meeting of interested parties in the month of March. Our local governments have been invited, as has the Ontario Soil Rehabilitation Task Force, a Province-wide citizen action group with which MC² is affiliated. Hopefully, this session will be a first step in setting a strong framework for control of fill dumping.

    One caveat: the Provincial Government is the right body to set guidelines, but we need to beware. Fill dumping is a major “need” for Ontario’s big urban communities. In the past, when the Province has seen local communities as a barrier to development driven by our cities, there has been a decision to remove all local input into approval decisions for projects that impact our communities. Aggregate mining and wind turbine placements come to mind. All the negative impacts focus on rural communities, but local governments are for the most part blocked from the decision making.

    We will need to be vigilant as the Province proceeds with a fill dumping strategy. MC² will be watching and working on this issue. We will be re-establishing our Land Use Committee and dumping will be one of the main issues this group addresses. Any of our members who are interested in this issue should consider joining this Committee.

    In the end, we can take great pleasure from the recent NFPPB decision. We should appreciate the excellent work done by the Town of Mono and their lawyer, as we should thank Elaine Kehoe and Lewis Baker and their group for the tremendous amount of work they put into fighting for our community. The MC² Board also acknowledges Ed Kroeker and Ernie Rovet and some additional volunteers who contributed a great deal.

    This case is what MC² is about. Working with local governments (although we don’t always agree on issues), with other community groups, and with our own team, we can participate in some major issues, and when we win one we celebrate, and we look carefully at the next steps.

    Don MacFarlane, Mono Mulmur Citizens’ Coalition

    Don MacFarlane from Mono on Mar 12, 2016 at 9:13 am | Reply

  7. Since when did sheep need flat land to graze? I have seen sheep on top of 3 feet high walls eating the best weeds. I smell something here and it is not sheep dung.

    Niall Lawlor from Beeton/New Tecumseth on Feb 14, 2018 at 4:11 pm | Reply

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