Ontario's new rural dilemma: how to cope with the growing influx of construction waste

Thursday, May 2, 2013

Four years of construction activity generates as much fill as was removed to create the Suez Canal. And more and more of it is ending up in rural areas, causing headaches for farmer and municipalities alike

by MARY BAXTER

The Zajacs and Sztogryns live miles apart and operate very different farm businesses, but they have one thing in common. They have had to confront a major problem now facing Ontario (though from opposing sides): how to deal with material excavated from the province's construction sites.

Veterinarian Michael Zajac and his wife, Judie, own a 99-acre horse and sheep farm in Mount Albert, a five-minute drive from Newmarket, in the town of East Gwillimbury. They chose their location in 2000 because they required a tranquil environment for the pregnant mares that are their business's bread and butter. Less than a decade later, the Zajacs lost their prized tranquility to dump trucks carrying massive amounts of fill to neighbouring properties.

Two hours south in Pelham, near St. Catharines, Larry and Jane Sztogryn bought about 28 acres, also in 2000, and planned to develop a nursery operation. In 2010, they signed a deal to accept fill to make improvements they claim are related to their nursery and farming activities. Two-and-a-half years later, their project remains incomplete because of confusion over municipal bylaws and complaints that the couple claims amount to harassment.

The Residential and Civil Construction Alliance of Ontario estimates annual construction activity in the province results in the excavation of one square kilometre of excess soil 25 metres high. A four-year accumulation would equal the amount of fill removed to create the Suez Canal. With the development of a new light rail transit line in Toronto, the Highway 407 extension project that begins this year and ongoing condo development, one thing becomes very clear about this $2.4 billion industry: it's growing.

A lot of this fill ends up in garbage dumps. More and more though, it's ending up in rural areas. With its burgeoning presence come new challenges for farmers and even some risks.

At first, the Zajacs were matter of fact about the fill project taking place next door. "When representatives of the property owners went to council, they said they were just going to fill up what they had taken out during their gravel pit process," Judie Zajac recalls. "I don't have a problem and I think if you talked to most people that are fighting this, they don't have a problem with it if it's done in a proper manner."

Property owners Nick Marchese of Mount Albert Pit Inc. and Jim Harrison had proposed to dump 1.3 million cubic metres of clean fill to restore two former gravel pits to agricultural-rural use. They predicted a rate of 100 truckloads a day for about seven to 10 years. The plan called for 0.6 metres of topsoil.

East Gwillimbury issued them a permit in 2008. By July 2010, the Zajacs realized the operation had crept close to their fence line and appeared to have expanded substantially beyond the area in which the permit allowed them to operate. The pile was as tall as a small office building. "They weren't filling in a hole; they were redesigning a landscape, which was unacceptable in our view," Zajac says.

Photos posted on the website of East Gwillimbury Citizens for Clean Water and Air, a citizens' activist group the couple founded, show rusted metal and PVC pipe as well as broken brick and concrete. Moreover, there seemed to be far more trucks than proposed and the noise spooked the horses. Some broke loose.

Then, early in the fall, while Judie Zajac was holding a foal while her blacksmith trimmed its hoofs, a truck banged. The foal struggled, knocked her off balance and broke her nose. "That's when my husband decided that was about enough and wrote a letter and went in to talk" to council, Zajac says.

Council revoked the fill permit in November 2010. In February 2012, the company filed an application for a phase two effort to fill in another part of the quarry. The application is on hold until the municipality considers some tough new changes to its site alteration and fill bylaw. The revised legislation is expected to go to council for a vote this spring.

Water table threatened?
The Zajacs remain concerned about the mound. Environment ministry tests have shown a small amount of contamination but not enough to act on, Judie Zajac says. She fears hidden contaminants will eventually work their way into the area's water table. She wants more testing.
The second phase proposes to remove the mound, but Zajac says it would add fill to an area below the water table. Areas below water are identified as potential fill locations on a map Mount Albert Pit Inc.'s consultant, fabian papa & partners inc., used in a public meeting. "It's a lake," Zajac says, estimating it to be 30 to 40 feet deep. "It's got fish in there; they have fish fries there in the summertime."

A spokesperson from fabian papa did not respond to Better Farming's request for an interview and the phone number listed for Mount Albert Pit Inc. was not in service. Neil Harrison, son of Jim Harrison and who farms his father's property, also did not reply to Better Farming's request for an interview.

"If we're talking about a low spot on a field, a couple of truckloads, that's no big deal – it probably doesn't affect the groundwater, doesn't affect surface drainage," says Peter Jeffery, a senior researcher with the Ontario Federation of Agriculture. "But when you start talking multitudinous numbers of truckloads, that's a different issue . . . So what does that do to the whole nature of the landscape? What happens if the next-door property suddenly gets raised 10 or 15 feet? And what's in that stuff? If you're farming next door, that's probably a consideration."

It's not only about the property next door. In the past two years, there have been media accounts of at least three instances of contaminated fill ending up on rural land. Perhaps the most widely publicized case of contamination from construction fill occurred on a Teviotdale farm when dairy farmers Ben and Maria Berendsen filed a lawsuit in 1994 against the provincial government, claiming that highway construction waste buried on the farm had severely affected their cows' health and productivity. In 2011, after 17 years of litigation, the Berendsens reached an undisclosed resolution with the province. The resolution, however, did not include an admission of liability by the province.

The Berendsen's former farm is a prime example of the devastation that can happen when contaminated soil is found, says Jeffery. "The taxes haven't been paid on it for I don't know how long. The municipality won't seize it for taxes because it becomes theirs then. It's theirs to deal with. They don't want it. It's the same as old gas station sites that sit there because nobody will buy them."

(Bruce Whale, mayor of Mapleton township, where the property is located, says that the municipality met with Ben Berendsen a year ago to discuss the issue of back taxes and negotiations are ongoing.)

The greatest impact on agriculture by far, however, is related to the increasingly stringent measures municipalities are taking to manage the growing amount of fill appearing within their boundaries.
Most of the province's municipalities have site alteration bylaws, but many are outdated. There's widespread concern at the municipal level that, when fill operators run into resistance in one municipality, they will simply move operations to another municipality that lacks the bylaws to manage them.

Definitions vague
The Ministry of the Environment responded to the problem in late 2012 by releasing draft best management practices to clarify the rules and practices for those who manage the soil. No firm date has been set for a final publication.

Cathie Brown, senior advisor for the Association of Municipalities of Ontario, says the practices' definitions are vague. There are gaps not addressed, such as how to recuperate damage to roads when the fill activity is being regulated by another jurisdiction like a conservation authority. The practices require reviewing many different pieces of legislation in order to understand them "which is difficult for many folks to do." They are also voluntary.

"We need to put soil conservation into a larger provincial context," Brown says. "There may be a need for actual regulation to ensure adherence, especially where contaminated fill is concerned."

Tara Roy-DiClemente, an East Gwillimbury councillor, notes that current provincial regulations treat excess fill "as if it were a waste product." She refers to the standardized tables used in brownfield redevelopment regulations to define the types of fill that can be put into an already contaminated site to clean it up. The tables are the only definitions of fill. In many cases, however, it's greenfield soil that is dug up. "So philosophically we need to talk about it."

Better definitions are needed, she says. Without these, if a municipality is approached with a proposal to fill a decommissioned gravel pit, "we don't have the tools to say what you can put in that safely. There needs to be some sort of environmental criteria."

Scugog township, north of Whitby, got around the problem by requiring site alteration and fill permit applicants to negotiate a contract with the municipality. The requirement was introduced last year, says Beverly Hendry, Scugog's chief administrative officer. The approach is "a little bit more site-specific." The township can compel permit holders to test results. It can evaluate and even reject fill based on where it's coming from. "We define the soil standards . . . We have access to the site any time we want."

Bastiaan Benschop, who milks 800 goats in Scugog, says the changes complicated his efforts last year to obtain clean fill from the township's road works projects to fill in a low area in a field.

Benschop often used to get two to five loads of fill from the municipality as it cleared ditches nearby.

"There are some hills where we live and so sometimes we get a little washout," he explains.

This time, though, he needed several truckloads and, when he approached the township in May 2012, he was instructed to apply for a permit and make a presentation to council. Following his presentation, the municipality determined that Benschop did not need a permit after all because its bylaw exempts municipal road maintenance activities.

Rural entrepreneurs
The hurdles Benschop encountered pale against the challenges that faced the Sztogryns.

The couple describe themselves as entrepreneurs. They own a home theatre and security business in Pelham's business district and, in the past, operated a string of area gas stations. But Larry Sztogryn says they conduct many farming activities on their rural property, including growing potted shrubs and trees as well as hay to sell to nearby horse farms. They also process seeds from the pine trees in their property's bush and harvest wild hickory nuts and berries.

They planned to kill two birds with one stone by establishing an elevated gravel lane to access the bush and making it wide enough to use for growing potted material. They also planned to fill a low spot in the field and create "a nice landscaped area in which I could put solar panels in to order get off the grid and power the property," Sztogryn says. The berm would also provide a windbreak for the pots and a place to grow miscanthus. He also hopes eventually to add a greenhouse or hoop house.

In 2010, the couple made arrangements with Markham-based Brennan Paving and Construction to obtain clean fill from a local municipal reconstruction project. "They said that they wanted to bring soil and the gravel and I said, well, that's perfect with what I want. They agreed to do whatever I wanted there within reason at no charge." Sztogryn says no money ever changed hands.

Trucks began dropping off fill on November 23, 2010. Eleven days later, they stopped. The construction company was told there was a bylaw issue and a neighbour had complained, Sztogryn says. "That's when we did an investigation and there was no bylaw issue."

Over the next few months, other complaints flooded in. The work was blocking a creek. The fill was contaminated. Used material from a gas station was being dumped. They were breaking a clean yards bylaw.

Conservation authorities investigated, as did the Ministry of the Environment (MOE) and the municipality. Soil samples tested negative for contaminants.

Sztogryn blames a dispute with a neighbour on an unrelated matter for the stream of complaints. "We've broken no laws, no bylaws, no law whatsoever – we haven't broken anything, period," he says. "But we have been harassed to the point where we are not comfortable on our own land."

Trucks resumed fill transportation in May 2011 and then the municipality introduced a half-load bylaw for their road that remained in effect until July and then was introduced permanently in December.

In 2011, other companies, subcontracted by Brennan, had also begun dumping at the Sztogryns. One day, six to eight loads of concrete slabs arrived. Sztogryn says he was at the doctor's, otherwise he would never have allowed the loads. The MOE would have allowed him to keep the concrete, but the material generated more negative public reaction. The Sztogryns tried unsuccessfully to persuade the municipality to pay for the removal of the material, but ended up having to pay for it themselves.

For months, Pelham council debated the development of a new site alteration and fill bylaw to create greater control over projects such as the Sztogryns'. Finally, this year it passed an environmental protection bylaw that requires those who want to use fill – even if it is from their own property – to obtain the municipality's permission. Normal farm practices are exempt. It also gives bylaw officers the authority to enter properties to monitor the projects. The bylaw was passed in March.

The couple have not determined their next steps.

One rule for all
Other farmers in the municipality are shocked by the bylaw's restrictive terms and their implications, regardless of the normal farm practices exemption.

"They basically made one rule and one rule for all but they did not understand and do not understand the term ‘normal farm practices,'" says Louis Damm, who grows flowers and wholesales them to garden centres across the province.

He's concerned about who will be interpreting whether a farm's activities are considered normal practice. The current council might exempt a nursery's routine site alteration and fill activities, but that's no guarantee the next one will, he says.

Damm wonders if the decision to use normal farm practice will force farmers to enlist the help of the provincial Normal Farm Practices Protection Board more often to protect their rights.

He's also troubled by the lack of consultation. No one from the municipality ever visited his farm before the bylaw was developed, he notes, even though he had been vocal about his concerns.

John Langendoen, whose 120-acre nursery wholesales its perennials, flowered shrubs and shade trees throughout northeastern North America, is also concerned about how a future council will interpret normal farm practice. He points out that the provincial normal farm practice protection legislation is not very detailed because it is meant to cover a wide variety of farming types. "It doesn't go into a discussion about land grading or digging up ponds." The lack of specifics therefore puts the onus of interpretation of the legislation "on whoever reads it."

He says the town's bylaw was hastily put together and lacked clarity. "Why create a bylaw that risks farming?" he asks. "There's enough challenge out there as a farmer."

Dave Augustyn, Pelham's mayor, says there was considerable public discussion about how to develop a bylaw. Public meetings and open houses have been held and there was opportunity to comment on a draft bylaw.

He defends the decision to use normal farm practices as the method to define and exempt farm activity. What was normal farm practice 25 years ago may not be normal farm practice today and vice versa, he says. "As I understand it, that determination of normal farm practices actually is a living, breathing dynamic feature. And so the bylaw, by having it totally exempt for normal farm practices, it means that it lives and can adapt. And as a normal farm practice develops, then that's exempt."

He points out that farm businesses are open for interpretation "at any time" under the Normal Farm Practices Protection Board. "That's where it's interpreted. So it won't be at our council chamber." Council has made it clear that "we don't want to stand in the way of farming."

Moreover, he says that "we couldn't figure out another way to do it." If they had exempted agricultural land, then the situations that prompted the formulation of the bylaw – such as the Sztogryns' project – would have also been exempted. So "we looked for what was the best mechanism in which to say is it a farm or is it not a farm?"

All of the municipal representatives interviewed, including Augustyn, spoke of their approaches to managing fill as templates for other municipalities to follow. But proof is in the practice.

For example, while Augustyn and many Pelham farmers consider the Sztogryns rural residents, the couple maintains that their site alterations have an agricultural component. "We are not just a big estate lot," Larry Sztogryn asserts. "The building which we built here, it's not extravagant because we put the barn together with the house, so it is a large building. It appears as if it's a very large residence, however it is not."

Ironically, if the couple can prove their alterations are agriculturally motivated, Pelham may have lost jurisdiction because of the very bylaw it developed to manage fill.

"I don't want to speak about a specific situation," Augustyn says. "But if it's a normal farm practice, it's a normal farm practice and they'll be exempt." BF

With files from Susan Mann

How the MOE views best management practices
Below are highlights from the Ministry of the Environment's draft soil management best management practices.

Best management practices for source sites:
It is recommended that all sites that generate excess soil requiring off-site management retain the services of a Qualified Person (QP) as described under Section 5 of Ontario Regulation 153/04 – Records of Site Condition (O. Reg. 153/04), to develop a Soil Management Plan.
It is recommended that excess soil not be transported from a Source Site to a potential Receiving Site without confirmation of a Fill Management Plan from the Receiving Site.
Once excess soil is removed from the Source Site for off-site management, it is recommended that the QP obtain and maintain written documentation from the Receiving Site confirming that the soil was received and the quality and quantity was acceptable.
The Source Site should make available any and all documentation, including all past environmental site assessment information, to the Receiving Site QP, if requested.

Best management practices for commercial fill and other large Receiving Sites:
The ministry expects that all sites that manage excess soil will be constructed, operated and maintained in a manner that ensures the health and safety of all persons and prevents adverse effects to the environment or impairment to water quality.
Prior to establishing a site for the purpose of receiving excess soil, it is recommended that the owner of the site undertake public consultation sufficient to ensure that the local community and landowners are aware of the proposal and have an opportunity to comment on the proposal. The owner of the site should also undertake an assessment to establish the pre-fill site conditions for soil and groundwater.
The ministry recommends that all sites established to receive excess soil retain the services of a QP, as described under Ontario Regulation 153/04 (O. Reg. 153/04), to design and implement a Fill Management Plan.
The Fill Management Plan should include a rationale for site location, including considerations related to future use of agricultural lands, source water protection areas, and groundwater recharge areas.
 
Source: Ontario Ministry of the Environment draft Soil Management - A Guide for Best Management Practices

Construction fill – ‘a growing loose end'

Moreen Miller, CEO of the Ontario Stone, Sand and Gravel Association, calls fill a "growing loose end" in the province's construction industry.
To address the problem, several municipalities, industry groups and activists recommend new ways to look at fill as well as new methods and rules to manage it. This year, the Rural Ontario Municipal Association held a workshop about managing fill at its annual conference. It was also the subject of a January symposium hosted by Kawartha Conservation and Scugog Township.
"When you're digging a project, why do we treat it as if it were waste product?" asks Tara Roy-DiClemente, a councillor with East Gwillimbury. The town is one of several municipalities asking the province to take greater control over how fill is managed and used. "Dirt in other places can be perceived to be a resource."
Currently, it's cheaper for the construction industry to move dirt from projects than to retain and integrate it with the work going on. But Roy-DiClemente argues that the process is actually more expensive to the taxpayer, who not only foots the bill for infrastructure projects but also the costs of disposal of excess fill. "If there were a way for us to manage fill within that infrastructure project easily, then we might see a lower cost of infrastructure project and it's a win-win for everybody concerned," she says.
Miller says that her industry is regulated under the ground field section of the province's Environmental Protection Act. That means that if licensed pits and quarries take in fill, "it's subject to a whole series of tests or procedures it wouldn't be subject to if it was taken to a farmer's field or a vacant lot."
Many of her association's members are hesitant to accept fill because local rules could easily change. For a pit that has already completed fill activity, a change in rules could create "a significant challenge to still understand that your site is safe and clean and appropriately rehabilitated."
Miller says some in the industry are pushing to establish a way to match the hydro geological characteristics of fill with those of the location where it ends up.
"I think that's pretty complicated," she says, but the idea has merit. "But what we cannot do is ignore this any longer. It's crazy to be doing that kind of development in the GTA and not have an appropriate and clearly defined place to put excess construction material." BF

Clarington takes a tough approach
The sudden appearance of hundreds of dump trucks dropping fill in a local quarry prompted Clarington (east of Oshawa) to ban commercial fill from outside of its borders. Because the property fell under the conservation authority's jurisdiction, the municipality had no ability to control what was happening even though the trucks were using its roads, says Adrian Foster, the municipality's mayor. So, in 2012, Clarington council amended a fill and site alteration bylaw that it had already revamped in 2008. "For us the big problem was the impact on the land and particularly on the water table," he says. "We purposely took a pretty hard line."  
Foster says part of the reason they decided to make their bylaw so harsh in terms of where fill originated "was to get attention." In municipalities surrounding the Greater Toronto Area, "we've all got the same issue. The province really needs to step in so everyone's got the same set of rules and we have the ability to enforce stuff."  
The bylaw requires farmers to apply for a permit if they are importing more than 100 cubic metres of fill and to supply a grading plan. Permit fees range from $250 to $1,000 plus a fee of $1 for each square metre of fill, depending on the anticipated size of the fill operation.
Leslie Benson, the municipality's manager of transportation and design, says that so far no farmers have applied for permits. "I can't even remember having an inquiry" from a farmer. BF