Ontario: Draft Guide - Soil Management - A Guide for Best Management Practices

The Ontario Ministry of the Environment (MOE) has released a draft best management practice guide concerning soil management for public review and comment until January 18, 2013.  The MOE explains on the entry in the Environmental Bill of Rights Registry:

Every day, in Ontario, large amounts of soil are being moved to support development activities. This excess soil is mainly generated by excavation during construction and redevelopment activities, and often cannot be reused at the site of generation. Excess soil must be managed in a safe and sustainable manner in order to maintain a healthy economy while protecting the environment.

The ministry encourages the reuse of excess soil, where appropriate, provided that the use does not have a potential to cause adverse effect on human health and the environment, or impairment of water quality, as described under the ministry’s Acts and Regulations. It is the responsibility of all parties who generate, haul or receive excess soil to ensure that it is being managed in an environmentally sound manner in accordance with all regulatory requirements. The ministry would like to clarify some best management practices when engaging in soil management activities.

The proposed guidance document “Soil Management – A Guide for Best Management Practices” is attached for your review and comment. This proposed Best Management Practices guide is intended to provide essential guidance on many aspects of soil management. Please provide comments on the proposed guidance document to support safe, sustainable soil movement and reuse. The ministry will evaluate all comments received to determine if future actions for soil management are required.

The proposed document would provide guidance for the management of excess soils generated from construction and redevelopment projects with a focus on those soils generated from brownfields redevelopment activities taken to commercial fill operations. While the guidance may be applicable to a wide variety of soil management projects, they are not intended to apply to small scale construction such as maintenance and repair activities or construction activities at single-dwelling residential properties based on the volumes generated.

The Soil Management - A Guide for Best Management Practices document only addresses the management of soil (soil as defined by Ontario Regulation 153/04 (O. Reg. 153/04)). The document provides guidance on how to handle excess soil from a source site where it is generated, through to the transportation of the excess soil to a site where the soil can be reused for a beneficial purpose, such as site alterations, re-grading, or filling in excavations, or to soil stockpiling sites for temporary storage. These activities must meet any relevant regulatory requirements and should ensure that there is no adverse effect.

This proposed guidance document would promote some of the best practices that are currently being exercised by those who actively manage excess soil across the province. The proposed guidance is intended to assist municipalities and conservation authorities in their oversight of fill operations through their existing permitting regimes. This proposed guidance will help to provide consistency across the province in expectations for excess soil management.
Soil Management – A Guide for Best Management Practices currently focuses on five key areas of interest:

• Soil reuse at civil construction and other commercial development activities;
• Soil generation at source sites, assessment and management;
• Soil acceptance at receiving sites, assessment and management;
• Procurement practices for the removal and management of excess soils;
• Temporary Soil Banking (soil stockpiling).

As part of the Best Management Practices document, the ministry is not intending to introduce new standards that apply to soil movement. The ministry does however anticipate supporting industry in the development of complementary industry code of practices, such as guidance for Qualified Persons for the development of appropriate soil standards for receiving sites.

The ministry encourages all comments and input into the proposed guidance document. The ministry is looking for particular input into what terms within the document require further definition and recommendations on how to define terms within the document, such as “large-scale”.

A copy of the draft guide is available at: For Consultation - Soil Management - A Guide for Best Management Practices. 

Shaun Fluker on Bill 2 in Alberta: Implications for Landowner Participation

Click on the following link to read a comment by University of Calgary Assistant Professor Shaun Fluker on Alberta Bill 2 (Responsible Energy Development Act) and it implications for landowner participation: Bill 2 and its implications for landowner participation in energy project decision-making.  Fluker's observations on the bill include the following:

Bill 2 contains no statutory obligation on the Regulator to conduct a hearing either before or after it makes a decision on whether to approve a proposed energy project.  Bill 2 repeals the statutory hearing rights provided to a landonwer in section 26(2) of the ERCA to contest an energy project application, and does not replace them.

While it may sometimes seem unfair when rules are changed in the middle of a game...

... that is the nature of the game when one is dealing with goverment programs.

That was the statement made by the Ontario Divisional Court in a recent decision dismissing an application for judicial review of actions take (or not taken) by the Ontario Power Authority and the Ontario Minister of Energy in connection with green energy Feed-in-Tariff projects.  A long list of project proponents (118 in total) sought declarations from the Court that the OPA and the Minister "acted unreasonably in failing to process applications in accordance with" the OPA's own rules and that the Minister's new "Directions" in the FIT program are "unfair, discriminatory and ultra vires the enabling legislation".  The Applicants also sought an order requiring the OPA to process their existing FIT applications in accordance with the previous FIT Program Rules.

The complaint was that changes made to the FIT Program Rules were unfair to those project proponents who had already applied under the old rules - the new rules would apply to all outstanding project applications that had not already reached a certain point in the review/approval process.  Included with the new rules were lower prices to be paid for the electricity generated by FIT projects.

The Divisional Court found that the standard of review of the Minister's decision (in making and applying the new FIT rules) was reasonableness; the Court had to give considerable deference to the decision of the Minister.  In the end, the Court did not agree with the Applicants that the decisions in question were unreasonable.  In response to the argument made about legitimate expectations, the Court said:

Turning then to the ground of legitimate expectations, it is perhaps useful to begin with a definition of what the principle of legitimate expectations involves. The principle was set out in Canada (Attorney General) v. Mavi, 2011 SCC 30 (CanLII), [2011] 2 S.C.R. 504 where Binnie J. said, at para. 68:

Where a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the representations said to give rise to the legitimate expectations are clear, unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision maker’s statutory duty.

Once again, I find little to which the applicants can point that would constitute a representation that is “clear, unambiguous and unqualified”. The statements to which the applicants do refer that were made by Ministers Smitherman and Duguid do not, on their face, amount to representations that are unambiguous and unqualified. They are also not directed specifically to the applicants. Rather, they were statements of general application. In addition, the statements were clearly made in relation to the FIT Program itself and have to be read with, and understood in the context of, the detailed requirements and conditions of that program to which I have made reference above. Read in context, the applicants could not reasonably assert a legitimate expectation based on these statements that the criteria for the FIT Program or the process under it would not change.

The Court also disagreed with the Applicants that they had gained any vested rights through their involvement in the FIT program application process.  Likewise, the Court found that there was nothing to prevent the new FIT rules from having retroactive effect.  It was in the course of communicating this conclusion that the Court made its comment about changing the rules of the game mid-course.  As with tax laws, "no one has a vested right to continuance of the law as it stood in the past".  When planning one's affairs based on the current state of legis

Read the decision at: Skypower CL I LP et al. v. Minister of Energy (Ontario) et al.

100,000 Hits!

Law of the Lands - Farm, Energy & Enviro Law has reached the 100,000 hit mark!  Thanks to all my readers. 

Happy Harvesting!  To those "lucky" enough to be at it still...

Court of Appeal rules dock at end of right-of-way can stay

The Court of Appeal has released its decision in a right-of-way case I argued before it on October 11.  The Court overturned a trial decision that prohibited the appellant landowners from using their right-of-way to a lake to access a dock they had constructed in the lake.  The local conservation authority had granted a permit for the dock, but the owners of the right-of-way opposed the presence and use of the dock. 

 

On behalf of the Court of Appeal, Justice Goudge ruled that the right-of-way in question was one of general use and that accessing the dock was not an overburdening use of the right-of-way.  Importantly, he stated that, "what the user does immediately after leaving the right of way cannot be said to affect the use made of the right of way at all.  Accessing the dock does not extend the right of way beyond the shoreline."

 

Read the decision at: Kendrick et al. v. Martin et al.

Landowner has to pay engineer's cost for withdrawn Drainage Act petition

The Agriculture, Food and Rural Affairs Appeal Tribunal has ruled that a landowner who petitioned a municipal drain and then withdrew the petition is still on the hook for engineer's costs already incurred before the withdrawal.  The landowner had petitioned to have his property added to another municipal drain that was being petitioned by neighbouring landowners.  However, when he learned of the cost of joining the drain and when his drainage problems appeared to be alleviated by a neighbour's private drainage works, the landowner sought to withdraw his own petition.

 

The Tribunal found that the landowner should be responsible for the added costs of the engineer related to surveys and designs for extending the drainage works onto the withdrawing landowner's lands.  A ruling was made that the $7,500 cost would be assessed to the non-participating landowner as a special benefit assessment.

 

Read the decision at: Van Driel Drain.

Manure company not exempt from employment standards requirements

The Ontario Labour Relations Board has ruled that a manure transporting and spreading company is not a "farm" within the meaning of the Ontario Employment Standards Act ("ESA").  Organix Matters Inc. ("Organix") was found by the Ministry of Labour to have violated the overtime provision in the ESA; employees worked in excess of the maximum hours of work permitted by the Act, were not paid at the overtime rate, and worked more than the maximum number of hours without required breaks for meals or rest.

Organix does the primary tillage and injects manure into the soil thereby ensuring an even application of nutrients and reducing odour and nitrogen losses. Organix uses large pieces of agriculture equipment with specialized tire rims to prevent soil compaction to ensure the best root growth for crops and the best crop yields. Organix’s process is fast and efficient. What traditionally took a week can be done in half a day. Farmers use Organix because it is cost effective and efficient. The farmer gets the benefit of Organix’s spreading processes without having to make the large capital investment of buying the equipment.

Spring is Organix’s busiest season with the early application of manure on winter wheat plants to meet its nitrogen requirements. Organix then fertilizes hay and corn. When the first crop of hay has been taken there is an immediate requirement for the application of manure so that the second planting of hay is not burned. In the summer, Organix fertilizes summer soybeans and white beans. In the fall, Organix fertilizes winter wheat before snow falls, because under the Nutrient Management Act fertilizer can not be applied to frozen ground. In the winter, Organix’s operations are mostly suspended with the exception of assisting farmers if a manure pit overflows.

Organix argued to the Labour Relations Board that it was a farm operation and, therefore, the overtime provisions did not apply.  However, the Board found that Organix employees are not engaged in farming; it is a commercial operation which provides a service to approximately 200 farms, and Organix employees do not have a direct employment relationship with the farmer.  The Board did not agree that Organix is involved in the primary production of farm produce; it provides ancillary services. 

The Board noted further:

Organix may be considered under some legislation to be operating in farming or agriculture. Had the legislature intended the exemption to apply to commercial operations such as Organix it could have used the definitions used in other pieces of legislation under which Organix is considered an “agricultural operation,” “person engaged in the business of farming,” “agriculture,” or user of “farm implement[s]”under other pieces of legislation. The Act’s purpose is different from than other pieces of legislation because it has as its purpose, the protection of workers and the insurance of minimum employment standards.

Read the decision at: Organix Matters Inc. v. Director of Employment Standards. 

Ontario: Provincial Planning Act Policy Statement undergoing 5-year review

The Provincial Policy Statement (PPS), the document that guides municipalities in planning decisions (including severances from farm properties) is undergoing its regular 5-year review.  Draft policies have been released for public review (see Draft Policies).  The main draft policy on agricultural areas is as follows:

2.3 Agriculture

2.3.1 Prime agricultural areas shall be protected for long-term use for agriculture.

Prime agricultural areas are areas where prime agricultural lands predominate. Specialty crop areas shall be given the highest priority for protection, followed by Canada Land Inventory Classes 1, 2, and 3, and any associated Class 4 to 7 soils within the prime agricultural area, in this order of priority.

2.3.2 Planning authorities shall designate prime agricultural areas and specialty crop areas in accordance with guidelines developed by the Province, as amended from time to time.

2.3.3 Permitted Uses

2.3.3.1 In prime agricultural areas, permitted uses and activities are: agricultural uses, agriculture-related uses and on-farm diversified uses.

Proposed agriculture-related uses and on-farm diversified uses shall be compatible with, and shall not hinder, surrounding agricultural operations. Criteria for these uses may be based on guidelines developed by the Province or municipal approaches, as set out in municipal planning documents, which achieve the same objectives.

2.3.3.2 In prime agricultural areas, all types, sizes and intensities of agricultural uses and normal farm practices shall be promoted and protected in accordance with provincial standards.

2.3.3.3 New land uses, including the creation of lots, and new or expanding livestock facilities shall comply with the minimum distance separation formulae.

2.3.4 Lot Creation and Lot Adjustments

2.3.4.1 Lot creation in prime agricultural areas is discouraged and may only be permitted for:

a) agricultural uses, provided that the lots are of a size appropriate for the type of agricultural use(s) common in the area and are sufficiently large to maintain flexibility for future changes in the type or size of agricultural operations;

b) agriculture-related uses, provided that any new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services;

c) a residence surplus to a farming operation as a result of farm consolidation, provided that:

1. the new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services; and

2. the planning authority ensures that new residential dwellings are prohibited on any vacant remnant parcel of farmland created by the severance. The approach used to ensure that no new residential dwellings are permitted on the vacant remnant parcel may be recommended by the Province, or based on municipal approaches which achieve the same objective; and

d) infrastructure, where the facility or corridor cannot be accommodated through the use of easements or rights-of-way.

2.3.4.2 Lot adjustments in prime agricultural areas may be permitted for legal or technical reasons.

2.3.4.3 The creation of new residential lots in prime agricultural areas shall not be permitted, except in accordance with policy 2.3.4.1(c).

2.3.5 Removal of Land from Prime Agricultural Areas

2.3.5.1 Planning authorities may only exclude land from prime agricultural areas for:

a) expansions of or identification of settlement areas in accordance with policy 1.1.3.8;

b) extraction of minerals, petroleum resources and mineral aggregate resources, in accordance with policies 2.4 and 2.5; and

c) limited non-residential uses, provided that:

1. the land does not comprise a specialty crop area;

2. the proposed use complies with the minimum distance separation formulae;

3. there is a demonstrated need within the planning horizon provided for in policy 1.1.2 for additional land to be designated to accommodate the proposed use; and

4. alternative locations have been evaluated, and

i. there are no reasonable alternative locations which avoid prime agricultural areas; and

ii. there are no reasonable alternative locations in prime agricultural areas with lower priority agricultural lands.

2.3.5.2 Impacts from any new or expanding non-agricultural uses on surrounding agricultural operations and lands are to be mitigated to the extent feasible.

There are also other aspects of the proposed PPS that deal with agriculture, such as extraction of petroleum or aggregates from prime agricultural lands.

You can participate in the PPS review up to November 23, 2012:

Ontario is holding workshops in communities across the province. Please visit the regional workshops page or call 1-877-711-8208 if you have any questions.

To submit your comments electronically, complete this online questionnaire, or you can send written comments to:

Provincial Policy Statement Review
Ministry of Municipal Affairs and Housing
Provincial Planning Policy Branch
777 Bay Street, 14th Floor
Toronto, ON M5G 2E5
Tel: 416-585-6014 or 1-877-711-8208
Fax: 416-585-6870
E-mail: PPSreview@ontario.ca

Please note: All comments and submissions received will become part of the public record.

Comments must be received no later than November 23, 2012.