Overview…

Overview

The Ministry of the Environment and Climate Change (MOECC) is receiving comments through EBR Posting 013-0299 for a Regulatory Proposal that proposes new regulation related to the management of excess soil in Ontario. The MOECC finalized a framework “Excess Soil Management Policy Framework” with actions guided by key goals and principles, in December of 2016. The MOECC and partner ministries are moving ahead with completing the key commitments of the framework including the regulatory proposals which include:

•   The development of a new excess soil reuse regulation supported by complementary existing regulations including Regulation 347(waste), Regulation 153/04(records of site condition),Regulation 332/12(building code act 1992(actions 1,2,&13)

•   The development of new reuse standards and sampling guidance for excess soil, to support new excess soil reuse regulation (actions 12&13).

•   Clarification on approval requirements related to temporary sites and processing sites(action 5) Comments

•   The designation of “excess soil” as excavated soil that leaves a project area will ensure that any soils removed from a site will receive the designation and will be required to be handled as waste.

•   Regulations are needed that recognize that under the current policies, soils are being inappropriately relocated to locations for disposal or reuse without proper characterization of the waste and to sites that do not have approvals to receive the material.

•   The requirement to have an excess soil management plan (ESMP) for more than 1000m3 of excess soil or for any project which has or potentially had contamination activity on the planned area of excavation will ensure that the material is characterized, goes to a proper receiving site and tracked. There still needs to be some regulation for amounts of less than 1000m3.

•    Record keeping which is available in an online registry would allow full transparency on the movement of excess soils within Ontario.

•   The proposed regulation needs to be clear on what is classified as a temporary receiving site or a processing site. Approval requirements will need to be clear with regards to when approvals are required. Records of quantities, quality, retention times, and hauling records will need to available to allow full transparency.

•   The regulations need to be favourable to the retention, treatment and reuse of soil on the existing site. The regulation should recognize that the movement of excess soil as waste to areas outside the producer area is not preferred.

•   Moving of excess soil has implications for greenhouse gas emissions which contribute to climate change. Local reuse of the excess soils can reduce greenhouse gas emissions by reducing the distances travelled for reuse or disposal.

•   While there is existing legislation, regulation and , control documents, by-laws and policies which address different aspects of excess soil management such as environmental compliance, records of site conditions for brownfields, and municipal permits there needs to be one overall policy framework with regulation and enforcement to ensure the proper movement, reuse or disposal of excess soils.

•   The designation of excess soil as a waste until it meets the requirements of the regulation would ensure that the excess soil is characterized similar to any other waste in Ontario and would have to meet similar requirements with regards to its movement, reuse or final disposal.

•   The Framework recognizes that excess soil should be treated as a resource and should be appropriately reused if possible. The regulation should recognize that municipalities should be able to regulate through by-laws the reuse of excess soil on a site, allowing the reuse of excess soils in accordance with proposed reuse standards in the regulation.

•   The proposed regulation recognizes that the proposed excess soil reuse standards need to be developed for different land uses, ground water potability and for different volume categories. The regulation will need to recognize that each movement or reuse onsite of excess soil will have to be evaluated separately on a case by case basis.

•   The regulation will need to recognize that alternatives to existing methods are developing rapidly with regards to treatment options, alternative uses, and innovative soil projects that will support beneficial reuse opportunities.

•   The regulation includes requirements related to excess soils and sampling. Characterization as part of the ESMP will ensure reuse or disposal only at appropriate sites. Reporting of the sampling results will ensure the transparency of the final receiving site.

•   The regulation needs to reflect that the excess soils regulation needs to be consistent and complimentary to the existing Ontario Regulation 153/04 soil management requirements.

•   The Regulation needs to put greater responsibility on the source site owners that generate excess soils to ensure the excess soil from their property is properly characterized, reused if possible and if relocated, relocated to the closest approved site to reduce greenhouse gas emissions. The characterization, movement and final end use needs to be properly documented with a central depository for the documents to be retained and available.

•   The regulation will need to reflect that there is responsibility to protect naturally sensitive areas, watercourses, heritage features and farmland when relocating excess soils.

•   Municipal by-laws would benefit from an Ontario wide regulation on the relocation and placement of excess soils. There would be less incentive to move excess soil in to municipalities who do not have by-laws or don’t not have the resources to monitor the movement of excess soils into or out of their municipality.

•   The regulation should allow Municipalities to control excess soil management as appropriate in their planning and development positions and through their municipal contracts and infrastructure.

•   It is agreed that the goal of the regulation is to “protect human health and the environment from inappropriate relocation of excess soil” and to “enhance opportunities for beneficial reuse of excess soil and reduce greenhouse gas emissions associated with the movement of excess soil.

•   There is concern that there may be lack of enforcement tools to properly ensure that the ESMP is produced and followed. Will the rules be bent due to lack of enforcement?

•   This regulation needs to be enforced at a provincial level. There will be movement of excess soils in some cases across several municipal boundaries before it is reused, treated or disposed of. Municipalities do not have the resources to enforce the proposed regulations. Comments from Area Municipalities within Oxford County

•   The definition of “shoring” is not in the building code, which will not translate well into any new legislation.

•   The 1000m3 threshold needs to be better defined as to when it becomes applicable. Is it only when 1000m3 is moved to a different site? Would movement within a subdivision be considered the same site? Some residential projects require the movement of over 1000 m3 of soil.

•   The relationship between “soils” as defined in the Ontario Building Code (OBC) and the proposed Excess Soils Regulations needs to be better defined.

•   Could the requirements of the proposed framework be addressed through site plan approval rather than the OBC? Municipalities already have strained resources with regards to OBC enforcement.

•   There is concern on what is considered a “contaminant” and what the definition of “adverse” would be. Would the release of “radon” or “methane” considered a “contaminant” causing “adverse” effects. Are current testing practices and methods capable of capturing all “contaminants” causing “adverse “effects.

•   Repair and maintenance of Municipal drains needs to be considered repair of infrastructure and exempt from the regulation.

•   Secondly, ESMPs are also proposed to be exempt for the removal of soil where the volume does not exceed 100m3 and the excess soil is being transported directly to a waste disposal site (including soil banks and excess soil processing sites). Would the clean outs/muck removal often fall into this category? If not, we could comment that this waste disposal site definition be expanded to include other receiving sites?

•    The regulation needs to recognize that there needs be an intensive education component associated with the implementation of any new regulation, particularly education towards owners of receiving sites. The responsibilities and liabilities of receiving excess soils on a site needs to be clearly defined.

Peter M. Crockett, P.Eng.
Chief Administrative Officer County of Oxford

[Original Comment ID: 209793]