Proposed regulatory changes for the beneficial reuse of excess soil at pits and quarries in Ontario

Background

Aggregate extraction must occur where aggregate deposits exist, and the land use is considered temporary in nature. Following the completion of excavation, approval holders must rehabilitate the site. Under the Aggregate Resources Act (ARA), rehabilitate means to treat land where aggregate has been excavated so the use or condition is restored to the former use or condition or is changed to another use or condition that will be compatible with the use of adjacent land. After the aggregate approval has been surrendered, the future land use is approved by the local municipality under the Planning Act where applicable. On Crown land, approval holders must complete rehabilitation requirements and surrender the approval to the Crown. The area would be subject to the existing Crown Land Use Plan, approved under the Public Lands Act.

New provincial requirements exist under the Environmental Protection Act (EPA) for soil (i.e., excess soil) that is removed off-site during construction activities to another site. The On-Site and Excess Soil Management Regulation, Ontario Regulation 406/19 (the Excess Soil Regulation), and the document Rules for Soil Management and Excess Soil Quality Standards adopted by reference, includes risk-based quality standards for the safe reuse of excess soil.

Note: this proposal does not apply to materials that are inert but are not excess soil under Ontario Regulation 406/19.

Proposed Ontario Regulation 244/97 changes

To remain consistent with provincial requirements under the EPA, the following regulatory amendments under the ARA are being proposed:

1. All approval holders (existing and future), that are authorized to import material that meets the definition of excess soil for rehabilitation purposes, at a minimum, follow the applicable standards and rules in Rules for Soil Management and Excess Soil Quality Standards under O.Reg. 406/19 under the EPA based on future property use and site conditions with three exceptions:
   1. Excess soil placed below the water table must follow the soil management rules for environmentally sensitive areas under O.Reg. 406/19, which means these areas would be limited to the most stringent (table 1 under the EPA) quality standards.
   2. On Crown land, in areas above the water table, the acceptable soil quality is limited to the applicable quality for agricultural and other property use as defined under O.Reg. 406/19, so that future land use is not limited.
   3. Except in circumstances described in a. and b., and when no other alternative is available, a site- specific standard developed through the use of the Beneficial Reuse Assessment tool (BRAT) in accordance with O.Reg. 406/19 may be used, subject to authorization from the ministry of Northern Development, Mines, Natural Resources and Forestry (NDMNRF).
2. In addition, to support oversight of the importation of excess soil under the ARA, NDMNRF proposes that all aggregate sites:
   • keep written records that are available on request that identify the source site, quality, quantity and placement location of excess soil received for reuse at the site
   • retain a Qualified Person (QP) (as defined by O.Reg.153/04, EPA), if placing large quantities (> 10,000 m³) of excess soil and/or if placing excess soil below the water table, to provide written confirmation that:
     1. suitable soil quality is received for reuse based on conditions at the site and the approved future land use in the rehabilitation plan
     2. the final placement of excess soil on the site is overseen by a QP
3. For existing licence holders authorized to import fill to facilitate rehabilitation, add rules in regulation, that when followed, would enable approval holders to make specified changes to their site plan without the need for ministry review (i.e., self-filed amendment).

Changes include:

• to a different soil quality that is consistent with the rules described in 1. above, and the rehabilitation plan for the site, and
• remove conditions relating to sampling, reporting and approval requirements that are not consistent with the new framework under the EPA.

Where an ARA approval authorizes the importation of inert fill and no specific quality standard is identified, aggregate approval holders are to, at a minimum, follow the applicable Excess Soil Quality Standards under O.Reg. 406/19 under the EPA based on the future property use and site conditions. This means that if the site plan authorizes importation of, for example, “clean soil”, “clean fill”, or “inert fill”, but does not identify that it meets specific criteria for quality, then the suitable soil quality will be determined in accordance with the regulation under the ARA and considering the conditions at the site, the future land use identified in the approved rehabilitation plan.

NDMNRF proposes to rescind policy, A.R. 6.00.03, Importation of Inert Fill for the Purpose of Rehabilitation, and replace with the following:

Applicants proposing a future aggregate site:

• Will demonstrate that the quantity of excess soil estimated to be received is consistent with that quantity necessary to achieve the site conditions specified in the rehabilitation plan to support the proposed future use. This is consistent with the Excess Soil Regulation requirements for other reuse sites, i.e., that the quantity of excess soil deposited or to be deposited at the reuse site must not exceed the quantity necessary for the beneficial purpose and the primary use of the site must not be the deposit of excess soil.
• Will provide detail on the site plan that makes the applicable excess soil quality obvious in accordance with the Aggregate Resources of Ontario Site Plan Standards.

Applicants on existing approved sites will:

• Follow soil quality standards for agricultural and other property use under the EPA on private land when the future use is not identified in the approved rehabilitation plan, so that future uses of the property are not limited.
• Complete consultation as directed by the ministry if requesting to make a significant change such as, to the rehabilitation plan and/or change the amount of fill (i.e. quantity) approved for importation on the site plan.

Future and existing sites will:

• Follow the Best Management Practices for Aggregate Pit and Quarry Rehabilitation, available on the Ontario Society of Professional Engineers website when importing and placing excess soil.
• For applications proposing to fill-to-grade, potential impacts to the community from the fill operation and prolonged life of the site will be considered.
• Liquid soil will not be authorized for importing under the Aggregate Resources Act.

If an aggregate site approval holder wishes to import liquid soil to be processed for use, they should continue to seek authorization under the EPA for this activity, which is to be conducted outside of the licenced area. Operators should be aware that other restrictions may apply (zoning, site alteration bylaws, partial site surrender).

Anticipated outcomes

1. Consistency with provincial requirements for the reuse of excess soil at reuse sites throughout the province.
2. Increased flexibility for aggregate site approval holders to plan for and undertake rehabilitation in a cost-effective manner and creates opportunities for diverse post-extraction landforms and land uses.
3. Record keeping and oversight by a QP provides reassurance that suitable soil quality is used to facilitate rehabilitation post-extraction at pits and quarries in Ontario.

Regulatory impact statement

The anticipated environmental, social, and economic consequences of the proposal are expected to be neutral to positive.

The proposed regulatory changes would improve clarity and certainty for aggregate site approval holders which in turn would be expected to result in environmental protections against any potential adverse impacts. Clear rules for the reuse of excess soil may provide an opportunity for a source of revenue that can be used towards rehabilitation costs.

The cost for record keeping and oversight by a QP (where importing more than 10,000 m³ of excess soil) are beyond the requirements under the EPA for a reuse site governed by an instrument (i.e., approval under ARA) but are necessary to support oversight under the ARA. An estimated cost of approximately $350,000.00 over a ten-year period is expected. This cost would apply to aggregate site approval holders who are authorized or seek authorization to import large quantities of excess soil to facilitate rehabilitation of the site.