Excess soil management regulatory proposal

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.