Excess soil management regulatory proposal

ERO number
013-2774
Notice type
Regulation
Act
Environmental Protection Act, R.S.O. 1990
Posted by
Ministry of the Environment, Conservation and Parks
Notice stage
Decision Updated
Decision posted
Comment period
April 16, 2018 - June 15, 2018 (60 days) Closed
Last updated

Update Announcement

This is the second regulatory proposal the ministry has posted on the Environmental Registry for Excess Soil Management (EBR #013-0299). All comments received on the previous proposal were considered as part of the decision making process on this revised proposal.

This consultation was open from:
April 16, 2018
to June 15, 2018

Decision summary

We are implementing regulatory changes related to the management of excess construction soil and redevelopment of brownfield sites. These changes will reduce soil management costs and promote brownfields redevelopment, while protecting human health and the environment.

Decision details

Ontario has finalized and is implementing new regulatory changes that will make it safer and easier for more excess soil to be reused locally and will reduce barriers to revitalize historically contaminated lands. The following have been finalized, all of which fall under the Environmental Protection Act (EPA):

  • a new On-Site and Excess Soil Management Regulation
  • complementary and burden reduction amendments to O. Reg.153/04 (Records of Site Condition)
  • complementary amendments to Regulation 347 (General: Waste Management)
  • complementary amendments to O. Reg. 351/12 (Registrations under Part II.2 of the Act - Waste Management Systems)
  • a document adopted by reference in the On-Site and Excess Soil Management Regulation titled "Rules for Soil Management and Excess Soil Quality Standards"
  • Beneficial Reuse Assessment Tool and Related Guide

These regulatory changes support the delivery of 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
  • redeveloping brownfields

This regulatory framework:

  • provides clear rules on managing and reusing excess soil
  • limits soil being sent to landfill
  • reduces greenhouse gas emissions from soil transportation
  • reduces current burden and cost of excess soil management, while continuing to ensure strong environmental protection
  • removes barriers to brownfields redevelopment

The regulatory changes will do the following:

  1. Reuse of soil - The On-Site and Excess Soil Management Regulation will clarify requirements for the reuse and management of excess soil, including risk-based standards for safe reuse. The regulation also clarifies when the waste designation applies to the movement and disposal of excess soil and replaces or simplifies waste-related approvals with regulatory rules for low risk soil management activities. These provisions will come into effect on July 1, 2020.
  2. Excess Soil Planning Actions - Subject to exceptions, project leaders of certain projects generating or receiving excess soil will be required, starting January 1, 2022, to conduct excess soil management actions before any excess soil leaves the project area, including in some cases characterizing the soil to determine the concentrations of contaminants in the soil. It would also include identifying appropriate reuse sites and tracking excess soil movements. Key information would be required to be registered on a public registry.
  3. Landfilling of excess soil - The On-site and Excess Soil Management Regulation will restrict the deposit of clean soil at landfill sites, unless the soil is needed for cover or functions beneficial to the functioning of the landfill. This requirement will come into effect on January 1, 2025.
  4. Brownfields redevelopment - Brownfield properties are vacant or underutilized lands previously used for industrial or commercial activities and that typically require the filing of a Record of Site Condition before being redeveloped. The amendments to O. Reg. 153/04 include reduced requirements associated with filing a Record of Site Condition. This includes a reduced need to fully delineate contaminants for properties going through the Risk Assessment process, flexibility on meeting standards in specific circumstances, and removing the requirement for a Record of Site Condition for specific low risk redevelopment situations. These changes came into effect immediately.

Anticipated outcomes

  1. A reduction in burden on developers is anticipated by replacing waste-related approvals with regulatory rules for low-risk soil management activities, such as soil hauling, low-risk processing, and temporary storage. A new online registry for larger and riskier movements will provide transparency and accountability for those responsible for managing excess soil, such as generators, haulers and receivers, which will assist in addressing concerns about illegal relocation of soil. Larger reuse sites will also be required to register. Finally, a reduced loss of landfill capacity is anticipated by redirecting the deposit of soils away from landfills and towards beneficial reuses.
  2. To better align with the On-Site and Excess Soil Regulation, complementary and clarification amendments have been made to O. Reg. 153/04, Regulation 347, and O. Reg. 351/12, all of which are made under the EPA. These amendments address practical challenges and remove unnecessary barriers to redevelopment and revitalization of brownfields and clarify when Environmental Compliance Approvals are or are not needed for certain activities related to soil.
  3. The anticipated outcomes of this regulatory framework include a reduction in construction costs by making it easier and safer to reuse excess construction soils. This will enhance housing supply while providing greater certainty of environmental protection through flexible, risk-based rules and soil reuse standards. It is also anticipated that this regulatory framework will reduce waste stigma by clarifying when excess soil would be not be considered a waste.

Comments received

Through the registry

46

By email

73

By mail

0
View comments submitted through the registry

Effects of consultation

During the 60-day consultation period, a total of 117 comments were received. Most of the feedback from the consultation was supportive of the regulatory proposal. A decision was made to proceed with the proposed amendments with changes in response to comments received, including:

  • Excess Soil Reuse Rules and Waste Approvals - increased flexibility for reuse of salt-impacted soils through revised setbacks from water bodies, increased flexibility on the quantities and storage times at temporary sites, reduced approvals on the use of solidification agents to support excess soil management activities and flexibility is provided to allow liquid soil to be received at reuse sites under certain conditions.
  • Source Site Responsibility - reduced assessment and sampling requirements and revisions of the type of infrastructure projects that trigger excess soil management planning requirements.
  • Landfills - in response to comments to treat excess soil as a resource instead of a waste, restrictions on reusable soils received at landfills, unless they are being used for final cover or for other beneficial uses. Note that a landfilling restriction was not in the proposal notice posted on April 16, 2018, but was in the proposal noticed posted on May 1, 2019.
  • Transition Timing - in response to stakeholder concerns around providing sufficient time to amend current contracts and to allow time for necessary guidance to be developed, the following revised transition dates are provided:
    • Upon filing (same as previously proposed): brownfields redevelopment amendments
    • July 1, 2020 (from January 1, 2020): reuse rules and the waste designation
    • January 1, 2022 (from 2021): testing, tracking, hauling records and registration
    • January 1, 2025 (from 2023): restrictions on landfilling soils
    • Grandfathering provisions - applicable from January 1, 2022 to January 1, 2026, to benefit source sites where work to be done is already stipulated in a contact

Supporting materials

View materials in person

Some supporting materials may not be available online. If this is the case, you can request to view the materials in person.

Get in touch with the office listed below to find out if materials are available.

Environmental Policy Branch
Address

40 St. Clair Avenue West
10th floor
Toronto, ON
M4V 1M2
Canada

Office phone number

Connect with us

Contact

Laura Blease

Phone number
Office
Land Use Policy, Environmental Policy Branch
Address

40 St. Clair Ave West
10th floor
Toronto, ON
M4V 1M2
Canada

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Original proposal

ERO number
013-2774
Notice type
Regulation
Act
Environmental Protection Act, R.S.O. 1990
Posted by
Ministry of the Environment and Climate Change
Proposal posted

Comment period

April 16, 2018 - June 15, 2018 (60 days)

Proposal details

Description of regulation

The proposal would clarify responsibility for managing excess soil and conditions for reuse of excess soil. This would help to ensure that excess soil is properly characterized and relocated to an appropriate reuse site. All comments received on the previous proposal were considered as part of the decision making process on this revised proposal.

Purpose of regulation

The proposal is related to sustainable excess soil management and reuse. The proposal aims to protect human health and the environment. It also aims to increase opportunities for the beneficial reuse of excess soil and reduce greenhouse gas emissions associated with its movement.

Excess soil is soil that that has been dug up, such as during construction activities, that cannot be reused on site and must be moved to another site. This proposal would make it clear where excess soil may be reused. Reuse would be based on the quality of the soil.

The proposal would also clarify that the project leader is responsible for managing and relocating excess soil generated by a project. This would help to ensure that excess soil is properly characterized and relocated to an appropriate reuse site. Minor complementary and supporting amendments are also proposed to Ontario Regulation 153/04 (Records of Site Condition – Part XV.1 of the Act.) (O. Reg. 153/04) and to Regulation 347 (Waste) both made under the Environmental Protection Act (EPA).

Other information

The Ministry of Environment and Climate Change (MOECC) posted an excess soil plain-language regulatory proposal on the Environmental Registry (#013-0299) between April 24 and June 23, 2017. That proposed regulatory package included a new proposed regulation, amendments to existing regulations and related sampling and reuse standards.

This current proposal builds on the earlier proposal, with some revisions to respond to input received in response to the previous posting and through engagement sessions with stakeholders and Indigenous communities. The current proposal includes draft regulations, as well as a document to be incorporated by reference into the main regulation, that contains the proposed standards for reuse of excess soil at reuse sites and some other details.

Some of the key changes made to the proposal include:

  • Revised approach to waste designation
  • Reduced regulatory complexity with some details moved to guidance
  • Phased in transition time for key regulatory requirements over two to three years to provide time for education and training and to reduce potential impact to existing projects
  • Several of the proposed amendments to O. Reg. 153/04 would come into effect sooner
  • Further flexibility for reuse through new reuse standards and a new Beneficial Reuse Assessment Tool to develop site specific standards

This regulatory proposal also responds to actions outlined in Ontario’s Excess Soil Management Policy Framework (Framework). The Framework was released in December 2016 following a review, conducted under the Environmental Bill of Rights, 1993, of the need for new policy for managing excess soil sustainably. The Framework includes a series of actions guided by key goals and principles. A link to the Framework is included in this posting.

The MOECC and partner ministries are continuing to move ahead with completing key commitments under the Framework, including this regulatory proposal. The MOECC will continue to work with stakeholders and Indigenous communities on guidance and programs to support delivery of the Framework and related regulatory proposals. This includes development of priority education, outreach and training initiatives to support implementation.

Attached, for your comment, are the following:

  • Proposed regulations (legal wording)
    • A new proposed On-Site and Excess Soil Management Regulation;
    • Complementary amendments to O. Reg. 347; and
    • Amendments to O. Reg. 153/04.
  • 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"
  • The proposed “Beneficial Reuse Assessment Tool” (BRAT)
  • An additional supporting document titled “Rationale Document for Development of Excess Soil Standards

The following is a summary of the attached proposals.

Proposed on-site and excess soil management regulation and amendments to existing regulations

Reuse of excess soil

The proposed regulation would set rules related to the relocation and reuse of excess soil. Excess soil would be designated as waste from the moment it leaves a project area unless it is reused in accordance with the rules set out in the regulation. These rules are summarized as follows:

  1. The excess soil is being directly transported to a reuse site for final placement, the operator of the reuse site has consented to the deposit of the excess soil, and the excess soil is dry;
  2. The excess soil is taken to a reuse site governed by a site specific instrument, and subject to certain exceptions, the excess soil deposited at the reuse site complies with the quality and quantity requirements in that instrument. Where the instrument does not contain quality requirements, the rules in the On-Site and Excess Soil Management Regulation apply, and likewise if the instrument does not contain quantity requirements; and
  3. If the reuse site is not governed by a site specific instrument, the quality of the excess soil to be deposited meets the soil quality standards determined in accordance with the document Rules for On-Site and Excess Soil Management; the soil is to be used at the reuse site for a beneficial purpose; the quantity of excess soil is consistent with the identified beneficial purpose; the reuse site is not used primarily for depositing soil; and, unless an extension is granted, the excess soil is finally placed at the reuse site within one year of its deposit.

Excess soil that does not meet the above conditions would be designated as waste, unless more than five years have passed since the completion of the undertaking in which the soil was used. If the excess soil is designated waste, the proposed regulation would clarify when waste Environmental Compliance Approvals (ECAs) are not required. Generally, although hauling of excess soil would not require a waste ECA, it would be subject to certain rules, including requiring the maintenance of records. Soil that is excavated in a project area and is subject to certain types of passive processing on site would not require a waste ECA. It is also proposed that, so long as certain requirements are met, the project leader may use a temporary soil storage site to store their excess soil without requiring a waste ECA.

Excess soil management plans

It is proposed that, subject to some exceptions, project leaders of projects generating excess soil be required to prepare excess soil management plans (ESMP) before any excess soil leaves the project area, and to implement the plan. An ESMP would be required unless: the project area has never been used for an industrial use or other specified commercial uses; the primary purpose of the project is not to remediate contaminated land; and the project is located outside of a settlement area or involves less than 2,000 (m3 of excess soil leaving the project area. An ESMP is also 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, or if the excavation of excess soil is necessary for the maintenance of infrastructure.

Developing an ESMP would involve meeting a number of requirements, including in many cases characterizing the soil to determine the concentrations of contaminants in the soil. It would also include identifying appropriate receiving sites, development of a tracking system, and record keeping requirements. Key information from an ESMP would be required to be registered on a public registry. A qualified person would need to prepare the ESMP and all its components, or supervise its preparation.

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 RSC or phase two properties, with the new rules for excess soil being proposed in the On-Site and Excess Soil Management Regulation.

We are also proposing other amendments that would help to support brownfield redevelopment and enhance clarity of O. Reg. 153/04. These amendments would help to resolve delineation challenges that are sometimes experienced at properties going through the Risk Assessment process, and remove Record of Site Condition triggers for certain undertakings considered low risk. They would also provide flexibility on meeting standards for contaminants, where exceedances are caused by 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. 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 requirements under the excess soil regulation be phased in over time. The new applicable soil quality standard and provisions related to the waste designation would come into effect on January 1, 2020. The ESMP and registration requirements would come into effect on January 1, 2021. Amendments to O. Reg. 153/04 that support brownfield redevelopment would come into effect sooner.

Rules for on-site and excess soil management

This document includes additional proposed requirements that would, in effect, form part of the proposed On-Site and Excess Soil Management regulation, since it would be incorporated by reference. It would contain the following key elements:

  • ESMP Contents, including an assessment of past uses, sampling and analysis plan, excess soil characterization, requirements for excess soil tracking systems, a destination assessment and identification, and declarations required of the project leader and qualified person; and
  • Applicable soil quality standards and related rules.

Rationale document for reuse of excess soil at receiving Sites

This document explains and provides the methodology used by MOECC to develop the proposed applicable soil quality standards which are contained in the Rules for On-Site and Excess Soil Management document.

Beneficial reuse assessment tool (BRAT) and risk assessments

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 MOECC 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. A proposed BRAT User Guide, which provides further direction on how to use this tool, is also included in this posting.

Site specific standards developed using other risk assessments may also be recognized through a legal instrument.

Other public consultation opportunities

All comments received on the previous proposal (#013-0299) were considered as part of the decision making process on this proposal

We will continue to engage stakeholders and Indigenous communities.

We will also continue to meet with the Excess Soil Engagement Group and sub working groups on governance, guidance, education, outreach, training and other programs to support implementation.

Regulatory impact statement

The regulatory proposal is intended to clarify when excess soil is a waste and where excess soil can be reused, enhance responsibility and accountability of those whose projects generate excess soil, and improve transparency.

There are many social, economic and environmental benefits to be achieved if this proposal is implemented. This proposal will provide much greater certainty that the movement of excess soil will not cause impacts to the natural environment or uses at a property as a result of unintended contaminant levels or concentrations in the soil. This proposal would also help to promote the local reuse of excess soil, which can significantly reduce greenhouse gas emissions and costs associated with transportation and landfilling. Several large scale projects generating excess soil have already adopted excess soil best management practices similar to those contained in this proposal, and have reported significant economic benefits.

It is anticipated that communities, especially those located along current excess soil hauling routes, would also see the benefits of more excess soil being put to use locally, through reduced truck traffic and associated dust issues and road damage.

Clarifying when excess soil is considered a waste, or not, would provide greater certainty regarding excess soil management requirements and would improve the Ministry’s authority to take action when waste excess soil is inappropriately relocated.

The proposed On-Site and Excess Soil Management Regulation is estimated to have minimal administrative cost impacts on business. Costs may be associated with the time needed to become familiar with the requirements of the regulation. Additional cost could be incurred for time spent maintaining records, retrieving them for potential audit and registering specified information. We welcome comments on the potential impact of the proposed regulatory package on businesses.

The proposed amendments to the Record of Site Condition regulation (Ontario Regulation 153/04) are anticipated to support brownfield redevelopment, provide clarity for delineation of contaminants for properties going through the Risk Assessment process while maintaining protection of the environment and human health. This would encourage more brownfields redevelopment by increasing the economic viability of potential redevelopment projects, including access to existing work facilities, recreational facilities, infrastructure, and transit corridors.

Supporting materials

View materials in person

Some supporting materials may not be available online. If this is the case, you can request to view the materials in person.

Get in touch with the office listed below to find out if materials are available.

Environmental Policy Branch
Address

40 St. Clair Avenue West
10th floor
Toronto, ON
M4V 1M2
Canada

Office phone number

Comment

Commenting is now closed.

This consultation was open from April 16, 2018
to June 15, 2018

Connect with us

Contact

Laura Blease

Phone number
Office
Land Use Policy, Environmental Policy Branch
Address

40 St. Clair Ave West
10th floor
Toronto, ON
M4V 1M2
Canada