Excess soil management regulatory proposal

Description of regulation

The Ministry of the Environment and Climate Change (MOECC) is engaging Ontarians on an Excess Soil Regulatory Proposal (regulatory proposal) that proposes a new regulation and key complementary regulatory amendments related to the management of excess soil.

In January 2016, MOECC sought input on a proposed "Excess Soil Management Policy Framework" (framework) through EBR Registry # 012-6065. The proposed framework included a series of actions guided by key goals and principles. Based on input received from this proposal, the framework was finalized in December 2016.

Now, the MOECC and partner ministries are moving ahead with completing key commitments under the framework and this plain-language regulatory proposal has been developed in response to these commitments as referenced below:

• The development of a new excess soil reuse regulation, supported by complementary amendments to existing regulations including Regulation 347 (Waste) and Ontario Regulation 153/04 (Records of Site Condition), made under the Environmental Protection Act (EPA), and Ontario Regulation 332/12 (Building Code), made under the Building Code Act, 1992 (Actions 1, 2 & 18).
• The development of new reuse standards and sampling guidance for excess soil, to support the proposed new excess soil reuse regulation (Actions 12 & 13).
• Clarification on approval requirements related to temporary sites and processing sites (Action 5).

It is anticipated that this regulatory proposal will be finalized before the end of 2017.

Regulatory Proposal

Attached, for your comment, is a plain-language regulatory proposal, including proposed excess soil reuse and sampling standards, and a document associated with the proposed standards titled Rationale Document for Reuse of Excess Soil at Receiving Sites. The following is a summary of the attached proposals.

Proposed New Excess Soil Reuse Regulation and Amendments to Existing Regulations

The proposed Excess Soil Reuse Regulation would define "excess soil" as excavated soil that leaves a project area (a construction or development site). Excess soil would be designated as waste from the time it leaves a project area, and would remain a waste until:

• it is deposited at a final receiving site that is not a waste disposal site and that is governed by a site specific instrument or by-law;
• it is deposited at an infrastructure project, if it originates from an infrastructure project belonging to the same proponent; or
• it is deposited at a receiving site that is not a waste disposal site and that is not governed by a site specific instrument or by-law, so long as:
  • the excess soil is appropriate based on MOECC’s excess soil reuse standards;
  • the excess soil has been used for one of the specified uses, subject to certain restrictions; and
  • the receiving site is not being used primarily for the purpose of depositing excess soil.

It is proposed that the proponent of a project ensure that an excess soil management plan (ESMP) is prepared in two general circumstances 1) if more than 1000m³ (about 100 truckloads) of excess soil is being removed from a project area, or 2) if any part of the project area has or had a potentially contaminated activity that may have affected a planned area of excavation. A plan would be required to be completed, certified by a qualified person, and key information registered on an online excess soil reuse registry before excess soil leaves a project area. Qualified person would be defined in the proposed regulation. The proposal includes required contents of an ESMP including soil characterization, confirmation of appropriate receiving sites, and a tracking system. The proposed regulation would require certain records to be kept and online registration of movements of excess soil.

The proposed regulation would provide clarification on when Environmental Compliance Approvals are required under Part V of the EPA. It is proposed that temporary excess soil storage sites would not require such approvals if certain conditions are met. Various types of excess soil processing would require approvals, and some types of on-site processing would be exempt from approvals. The proposed regulation would also provide requirements associated with the use of these facilities. The proposed regulation would clarify situations where haulers of excess soil would not require approvals, and where hauling records are required to be available and retained.

Reuse of Excess Soil at Receiving Sites

Excess soil should be treated as a resource, where it can be appropriately reused. Reuse of excess soil at a receiving site that is not a waste disposal site would be determined by an applicable site specific instrument or by-law. If the receiving site is not a waste disposal site and is not governed by a site-specific instrument or by-law, excess soil could be deposited in accordance with the proposed excess soil reuse standards. These standards may be contained in a document to be referenced by the regulation to be titled Reuse of Excess Soils at Receiving Sites.

The proposed excess soil reuse standards that would apply to different types of receiving sites are set out in Schedule C of the attached regulatory proposal. Some of the proposed standards are the same as the existing applicable site condition standards for brownfields under Ontario Regulation 153/04, and some are different due to different considerations when large volumes of excess soils are being relocated. These proposed excess soil reuse standards have been developed for different land uses, ground water potability and for three volume categories. They represent a first phase of standards development. MOECC intends to create additional standards over time to provide further flexibility for excess soil reuse (e.g. soil at depth, situations where there are no buildings). MOECC is also continuing to work closely with the Ministry of Natural Resources and Forestry to ensure the alignment of excess soil and fill policies for pits and quarries regulated under the Aggregate Resources Act.

Alternative rules and approaches are also provided to promote greater reuse of excess soil in a way that helps to ensure protection of human health and the environment. A Site Specific Beneficial Reuse Assessment Tool is also being developed which would allow site specific standards to be generated in a streamlined way using a spreadsheet model similar to the Modified Generic Risk Assessment approach utilized in Ontario Regulation 153/04. In addition, excess soil pilot projects, innovation and promoting treatment opportunities are also under consideration to further support beneficial reuse opportunities.

Sampling Direction

The attached regulatory proposal includes requirements related to excess soil characterization as part of completing an ESMP. The requirements include completing a phase one environmental site assessment (for some sites), developing and implementing a sampling and analysis plan, assessing results and completing an excess soil characterization report. These requirements are included in Schedule B to the regulatory proposal document, but are proposed, when finalized, to be in a separate document referenced by the regulation.

Record of Site Condition Regulation Amendments

MOECC is proposing amendments to Ontario Regulation 153/04 to make excess soil management on brownfield properties consistent with and complementary to the proposed excess soil management requirements. Amendments would address matters such as aligning soil importation policies.

MOECC is also proposing other amendments that would help to reduce burden and enhance clarity of Ontario Regulation 153/04.

Construction Restriction and Building Code Applicable Law

It is proposed that the Excess Soil Regulation include a prohibition on construction of shoring for excavations unless an ESMP has been prepared and registered. A reference to this provision is proposed to be added to the Building Code to make it applicable law related to the issuance of building permits. This requirement would only apply if 1000m³ or more of excess soil is removed from the project area.

Purpose of regulation

MOECC is consulting on a new proposed excess soil reuse regulation, along with amendments to Ontario Regulation 153/04 (Records of Site Condition), Regulation 347 (Waste Management), and Ontario Regulation 332/12 (Building Code), and the document titled Rationale Document for Reuse of Excess Soil at Receiving Sites, all of which are intended to provide for more sustainable excess soil management.

Consistent with the framework, these proposals have the following goals:

1. Protect human health and the environment from inappropriate relocation of excess soil; and
2. Enhance opportunities for the beneficial reuse of excess soil and reduce greenhouse gas emissions associated with the movement of excess soil.

The purpose of this posting is to invite comments on the regulatory proposal and supporting Rationale Document for Reuse of Excess Soil At Receiving Sites (attached).

The feedback will help to inform a new proposed regulation under the Environmental Protection Act, including new excess soil reuse standards, and proposed amendments to the existing regulations referenced above. MOECC appreciates feedback received to date through the various workshops and meetings with stakeholders and Indigenous communities. We will continue to actively engage with our partners as we move forward.

In addition, several other actions have been completed or are underway, some of which are intended to be finalized in 2017, to support delivery of the framework and this regulatory proposal. For example, the province intends to undertake pilot projects to support excess soil reuse in 2017 and in the longer term. MOECC will continue to actively meet with the Excess Soil Engagement Group and its three sub working groups in 2017 and beyond, to support delivery of various framework actions. Work is also underway to assess various market based tools and programs to encourage the reuse of excess soil and to support framework implementation. Some guidance materials such as the MOECC Management of Excess Soil - A Guide For Best Management Practices have also been prepared and, going forward, others will be prepared to support framework delivery.

Public consultation

This proposal was posted for a 60 day public review and comment period starting April 24, 2017. Comments were to be received by June 23, 2017.

All comments received during the comment period are being considered as part of the decision-making process by the Ministry.

Please Note: All comments and submissions received have become part of the public record.