Excess soil regulatory proposal and amendments to Record of Site Condition (Brownfields) Regulation

Description of the regulation

Ontario is proposing to introduce changes that will make it safer and easier for more excess soil to be reused locally.

We are proposing to clarify rules associated with managing and transporting excess soil, limit the amount of healthy soil being sent to landfill and lower greenhouse gas emissions from the sector, while continuing to ensure strong environmental protection.

The proposed excess soil regulation would clarify the requirements for the reuse of excess soil, providing clear, risk-based options for safe reuse. This will reduce cost and liability associated with the management of excess soil and divert more soil from landfill.

This will be achieved through a new excess soil regulation and consequential amendments to O. Reg. 153/04 (Records of Site Condition Regulation) and Regulation 347 (General - Waste Management) under the Environmental Protection Act (EPA).

We are also introducing changes O. Reg 153/04 under the EPA to clarify rules and remove unnecessary barriers to redevelopment and revitalization of historically contaminated lands.

The proposed amendments would address practical challenges and reduce barriers to redevelopment and revitalization of historically contaminated lands, putting vacant, prime land back to good use, while protecting human health and the environment.

Purpose of the regulations

Excess soil

We are delivering on our Made-in-Ontario Environment Plan commitment to protect our land by taking steps to properly manage local soil and brownfields, ensuring valuable resources don’t go to waste, reducing the risk of contaminants and redeveloping and revitalizing brownfields.

Excess soil reuse is also a growing concern to the development community challenged with finding acceptable reuse locations, and to municipalities who are concerned about the quality of soil being deposited in their municipalities and that local landfill capacity is being reduced by soil disposal.

• Trucking excess soils 60-100km to landfill and other location, rather than greater reuse onsite and locally, creates significant costs and greenhouse gas concerns
• Managing excess soils represents an estimated 14% of overall construction costs, with trucking and tipping fees being a large part of that cost
• An industry study has reported that projects that use excess soil management best practices for local soil reuse have reported an average cost savings of nine per cent
• Municipalities have indicated significant cost savings from reuse of excess soils locally

The proposal would increase opportunities for the appropriate and beneficial reuse of excess soil. This would:

• recognize excess soil as a resource
• set clear rules to increase reuse opportunities and reduce soil relocation costs
• reduce clean excess soil going to landfill as waste
• lower greenhouse gas emissions associated with excess soil movement
• protect human health and the environment

The proposal would clarify that a project leader is responsible for managing and relocating excess soil generated by the project. Relocation of soil would be based on the level of contaminants in the soil using flexible risk-based reuse standards.

The proposal would clarify when the waste designation applies to the movement and disposal of excess soil, replacing or simplifying waste-related approvals with regulatory rules for low risk soil management activities.

The proposal would improve transparency and accountability for generators, haulers and receivers of excess soil to address concerns about illegal relocation of soil. The proposal would improve the ability to take enforcement action against polluters who inappropriately deposit soil.

To better align with the proposed excess soil regulation, we are also proposing complementary and clarification amendments to O. Reg. 153/04 and to Regulation 347, both made under the EPA, to clarify when Environmental Compliance Approvals (ECAs) are needed.

Brownfields redevelopment

We are also proposing amendments to O. Reg. 153/04. The proposed amendments would address practical challenges and remove unnecessary barriers to redevelopment and revitalization of contaminated lands. They aim to put prime land back to good use.

Amendments would remove requirements that are not needed to support good environmental outcomes related to the redevelopment of brownfield properties. These amendments reduce delays, provide more certainty, and increase the economic viability of brownfields projects. They would also encourage more redevelopment of brownfields while maintaining protection of human health and the environment.

Other information

This proposal builds on substantial input from stakeholders, including industry, municipalities, consultants, professional organizations, environmental non-profit and community groups and the public. Input has been considered in the development of this regulatory proposal.

Attached, for your comment, are the following:

• Proposed regulations (legal wording)
  • A new proposed On-Site and Excess Soil Management Regulation
  • Complementary and burden reduction amendments to O. Reg. 153/04 (Record of Site Condition)
  • Amendments to O. Reg. 347 (Waste)
• A proposed document to be adopted by reference in the On-Site and Excess Soil Management Regulation titled "Rules for On-Site and Excess Soil Management."

Excess soil

Context

Excess soil is soil that has been dug up during activities that cannot be reused on the site where it was excavated and must be moved to another site.

As urban areas intensify, opportunities to reuse soil on-site become limited. Limited reuse results in excess soil needing to be transported away from the development sites for reuse or disposal. Excess soil reuse is a growing concern to the development community challenged with finding acceptable reuse locations. An estimated 25 million cubic meters of excess soil is generated in Ontario every year. Hauling and disposal are significant construction costs for infrastructure and development. Excess soil travels long distances (65 kilometers or more in many cases) for reuse or disposal, emitting large quantities of greenhouse gases.

Improper management of excess soil can negatively affect ground or surface water quality and/or quantity, natural areas, and agricultural lands and can be associated with local issues like noise, dust and truck traffic.

Currently, excess soil is often disposed of as waste, reducing local landfill capacity. Some of that soil could be reused.

The development of a new excess soil regulation supported by amendments to existing regulations including O. Reg. 347 and O. Reg. 153/04 made under the Environmental Protection Act supports key changes to excess soil management. Changes include:

• clarifying that excess soil is not a waste if appropriately and directly reused
• development of flexible, risk-based reuse excess soil standards and soil characterization rules to provide greater clarity of environmental protection
• removal of waste-related approvals for low risk soil management activities
• improving safe and appropriate reuse of excess soil by requiring testing, tracking and registration of soil movements for larger and riskier generating and receiving site
• flexibility for soil reuse through a Beneficial Reuse Assessment Tool to develop site specific standards;
• landfill restrictions on deposit of clean soil (unless needed for cover)

Proposed On-Site and Excess Soil Management Regulation and related amendments to O. Reg. 153/04 and O. Reg. 347

The proposed regulation would set rules related to the relocation and reuse of excess soil. Excess soil leaving a project area would not be designated waste provided:

1. The quality and quantity of excess soil relocated is appropriate for the intended use based on referenced rules or other instruments
2. The excess soil is being directly transported to a reuse site for final placement
3. The operator of the reuse site has consented in writing to the deposit of the excess soil; and
4. The excess soil is dry and remains dry until it is finally place

Excess soil that has been relocated to a reuse site and is determined to not meet the above conditions would be designated as waste and appropriate actions could be required to meet these or other appropriate conditions. This waste designation could be applied to the excess soil for up to five years after the completion of the undertaking in which the soil was used, after which any concerns regarding the soil would be addressed using other provisions in the Environmental Protection Act to prevent adverse effects.

The proposed regulation would clarify when waste-related Environmental Compliance Approvals (ECAs) are not required. Generally, hauling of excess soil would not require a waste ECA, but it would be subject to certain rules, including requiring a hauling record (could be electronic or paper) for all movements of excess soil. Soil that is excavated in a project area and is subject to certain types of passive processing (e.g. passive aeration) on site would not require a waste ECA. It is also proposed that, so long as certain requirements are met, the project leader may store soil at a temporary soil storage site and undertake low risk soil management activities (e.g. size-based sorting and passive aeration) without requiring a waste ECA.

It is proposed that, subject to some exceptions, project leaders of certain projects generating excess soil would be required to conduct excess soil management actions before any excess soil leaves the project area. These actions would be required if the project area has never been used for an industrial use or other specified commercial uses; the primary purpose of the project is to remediate contaminated land; or the project is located inside a settlement area and involves more than 2,000m³ of excess soil leaving the project area. Some actions are not required in some other circumstances, including if less than 100m³ of excess soil is taken directly to a waste disposal site, if the excess soil must be removed for emergency purposes, if the excavation of excess soil is necessary for the maintenance of infrastructure, or if excess soil is being reused in a similar or less sensitive use.

Undertaking excess soil management actions would involve certain requirements, including in some cases characterizing the soil to determine the concentrations of contaminants in the soil. It would also include identifying appropriate receiving sites and tracking excess soil movements. Key actions would be required to be registered on a public registry. Excess soil characterization must be prepared or supervised by a qualified person and implemented by the project leader.

The proposal would also restrict the deposit of clean soil at landfill sites, unless needed for cover.

We are proposing complementary amendments to O. Reg. 153/04. These proposed amendments seek to align the requirements in O. Reg. 153/04 for soil being taken to Record of Site Condition or phase two properties, with the new rules for excess soil being proposed in the On-Site and Excess Soil Management Regulation.

It is proposed that O. Reg. 347 be amended to clarify that excess soil is not part of the definition of "inert fill". It would also clarify operational requirements to support exemptions from ECA requirements for certain excess soil-related activities.

It is proposed that the regulatory proposal be phased in over time.

• Excess soil provisions related to more flexible reuse rules and waste designation and approvals would come into effect in January 2020
• Aspects of the excess soil regulation related to sound soil management planning (e.g. sampling, tracking and registration) would come into effect no later than January 2021
• Restrictions on landfilling would come into effect in January 2023* allowing time to ensure alternate reuse approaches are available as needed
  
  *When extending the consultation period for this proposal from 30 to 47 days, we also corrected this number from 2022 to 2023. This minor edit ensures this information is aligned with the French Proposal Notice and the Proposed On-Site and Excess Soil Management Regulation. Contact information can be found below if there are any questions.

Rules for On-Site and Excess Soil Management

This document would be incorporated by reference into the excess soil regulation. It would contain the rules related to the following key elements:

• An assessment of past uses, sampling and analysis plan, excess soil characterization
• Requirements for excess soil tracking systems
• Destination assessment and identification
• Declarations required of the project leader and qualified person
• Applicable soil quality standards and related reuse rules

Beneficial Reuse Assessment Tool (BRAT)

We are proposing alternative rules and approaches to develop site specific standards at a reuse site. As with the standards contained in the Rules for On-Site and Excess Soil Management document, these alternative rules aim to promote greater reuse of excess soil and the protection of human health and the environment.

The BRAT has been developed by the MECP to allow a qualified person to generate site specific standards in a streamlined way using a spreadsheet model. This model is similar to the Modified Generic Risk Assessment approach utilized in O. Reg. 153/04.

Site specific standards developed using other risk assessments (or in certain situations developed using the BRAT) may also be recognized through a legal instrument.

Brownfields redevelopment

Context

Brownfields are undeveloped or previously developed properties that may be contaminated. They are usually former industrial or commercial properties that may be underutilized, derelict or vacant. A Record of Site Condition summarizes the environmental condition of a property, based on the completion of environmental site assessments, and supports brownfields redevelopment.

Under O. Reg. 153/04, a Record of Site Condition must be filed on the Ministry's public registry if there is a change in property use from an industrial, commercial or community use to a more sensitive use, such as residential, institutional, agricultural, or parkland.

Amendments to O. Reg. 153/04 (Record of Site Condition)

The Ministry is proposing amendments to O. Reg. 153/04 to reduce delays, enhance clarity and provide more certainty to support development project timelines. These amendments would increase the economic viability of brownfields projects and encourage more redevelopment of brownfield properties.

The proposed amendments include reduced requirements to fully delineate contaminants (i.e. additional sampling) for properties going through the Risk Assessment process when contamination is already well understood. The amendments would also provide flexibility on meeting standards where exceedances are caused by the use of a substance for safety under conditions of snow and ice, discharges of treated drinking water, and the presence of fill that matches local background levels.

Other proposed amendments would remove the requirement for a Record of Site Condition for specific low risk redevelopment situations, including converting:

• Low-rise commercial buildings to mixed-use residential with commercial on main floor
• Temporary roads in construction areas to residential
• Indoor places of worship to residential
• Industrial or commercial to indoor agriculture in or on the same building

O. Reg. 153/04 amendments would come into effect immediately upon filing, enabling some in-progress projects to benefit from the changes.

Other public consultation opportunities

MECP will meet with excess soil key stakeholder organizations to discuss the proposal and will post the proposal on the regulatory registry.

Regulatory impact statement

Excess soil

The regulatory proposal would impact those in the construction and development industry involved with the movement of excess soil, as well as reuse sites that receive excess soil, soil processing sites/soil banks and haulers who transport excess soil. The implementation of the proposal is expected to result in overall cost savings for industry members, and generate economic, social and environmental benefits for the province.

Three types of costs are anticipated from implementing the regulatory proposal for industry members: (a) administrative costs, (b) operating costs, and (c) cost savings.

Administrative costs are anticipated for industry members to better manage and track information regarding soil movements and to achiever greater transparency and public assurance that soil is managed appropriately. Administrative costs are expected to be incurred by industry members, mainly for projects that excavate 2,000 m³ or more of soil, including cost of time spent understanding the regulatory proposal, costs of record keeping, and costs of time spent on the Registry inputting required information.

Operating costs are also anticipated for certain types of projects. The proposed regulation would require key excess soil planning components to be completed, some of which require oversight by a Qualified Person (professional engineer or professional geoscientist). Compliance costs are related to requirements for past uses assessments, soil sampling and characterization, soil movement tracking, excess soil destination reports, and Qualified Person oversight.

By implementing the proposal, industry members are expected to incur cost savings. Excess soil management is a large portion of overall costs of development, including trucking and tipping fees. The anticipated cost savings for construction projects are due to a reduction in landfilling needs and transportation needs to haul excess soil to landfills or other distant sites. Avoided costs include tipping fees at soil processing or disposal (landfilling) sites, fuel savings due to the shorter distances travelled, and the savings in truck and driver costs. Overall industry members are expected to generate significant net cost savings once all costs are considered.

Economic, social and environmental benefits are also expected to be achieved if this proposal is implemented. The proposal would encourage efficiency in the construction industry through the beneficial reuse of soil resources and the reduction of waste, potentially lowering construction costs for new residential, commercial and other types of construction.

Enabling local beneficial reuse and reducing long-distance transport and disposal to landfills is expected to reduce risks and adverse impacts on affected communities near landfill sites and along hauling routes. These include environmental and health impacts from water and soil contamination, erosion, drainage impacts, dust and noise pollution, truck traffic and road damage.

Shorter transport distances are also expected to reduce greenhouse gas emissions and air pollution, which can affect agricultural productivity, human health, property values, and ecosystems.

The ministry would be pleased to receive additional information or assessments on anticipated costs and cost savings. If provided, please try to explain how your further assessments were derived.

Brownfields redevelopment

The proposed amendments to O. Reg. 153/04 would positively impact property owners or businesses involved in the redevelopment of brownfield properties that are filing a Record of Site Condition on the Ministry's Environmental Site Registry. Filing a Record of Site Condition requires the oversight of a Qualified Person (professional engineer or professional geoscientist).

The proposed amendments would reduce requirements to fully delineate contaminants for properties undergoing a Risk Assessment where further sampling is unnecessary to achieve good environmental outcomes. This provides some flexibility based on an acceptable rationale provided by a Qualified Person to the ministry. It is anticipated that this will lower costs associated with unnecessary sampling and remove delays in the Record of Site Condition and redevelopment process.

The proposed amendments would also enhance exemptions to meeting standards in specific circumstances by providing Qualified Persons increased judgement on contaminants that exceed ministry standards while maintaining appropriate levels of environmental protection. It is anticipated that this will lower costs associated with unnecessary environmental site assessment work and remove delays in the Record of Site Condition and redevelopment process.

The proposed amendments will also remove Record of Site Condition requirements for specific low risk redevelopment situations. It is anticipated that removal of the Record of Site Condition requirement will provide cost savings for business and property owners and support them in moving forward with their redevelopment projects.

There will be a marginal administrative cost for Qualified Persons to become familiar with the regulatory amendments and gain clarity on how the ministry expects them to be applied. The Ministry will be providing outreach that aligns with the filing of the regulatory amendments to efficiently communicate Ministry expectations and minimize the cost to Qualified Persons. The Ministry will also be publishing updated guidance that includes further clarity on the proposed amendments.

Overall, the proposed amendments to O. Reg. 153/04 are anticipated to provide cost savings for property owners and developers. This will encourage more brownfields redevelopment by increasing the economic viability of redevelopment projects. Removing barriers to brownfields redevelopment supports increasing the housing supply and community regeneration through creating certainty in construction planning and timelines and reducing redevelopment costs.

Please see Bill 108, More Homes, More Choice Act, 2019 for proposed legislation.

When extending the consultation period for this proposal from 30 to 47 days, we also corrected this number from 2022 to 2023. This minor edit ensures this information is aligned with the French Proposal Notice and the Proposed On-Site and Excess Soil Management Regulation. Contact information can be found below if there are any questions.