In the endless struggle about the meaning of “waste”, one frequent battleground has been excess material (soil etc.) from excavations at construction sites. The Ministry of the Environment has tried and failed to introduce a rational excess materials policy. In its absence, the province has established two main benchmarks:
1. The definition of ‘inert fill’ in Reg. 347, and
2. Ontario Provincial Standard Specification 180.
Unfortunately, these two benchmarks do not match. Topsoil, natural wood, swamp material and fire debris, for example, are permitted in disposable fill by OPSS 180, but are not “inert fill” under Reg. 347. (See caselaw.) Uncrushed brick and concrete are not permitted in disposable fill, but may be “inert”. Equally challenging, actual practice in the field often complies with neither benchmark. Many clean fill sites will accept “disposable fill” that contains pieces of brick, concrete or tile; some will accept topsoil, others will not.
Chemical contaminants further complicate this picture. If soil meets MOE Table 3 residential, and is therefore clean enough to build houses on, can it be freely moved to any other residential site provided with municipal water? Most developers and engineers say yes, and this type of soil movement is common. But the MOE isn’t comfortable with the concept, and occasionally complains about it, arguing that only “inert fill” (see above) can be freely moved.
The result is to harass and confuse those who strive to comply with the law. It’s time for the Ministry to make clear, sensible, consistent rules on the movement of excess soil and similar materials.