Extending Grandfathering for Infrastructure Projects and Providing Additional Flexibility for Excess Soil Reuse

ERO number
019-2462
Notice type
Regulation
Posted by
Ministry of the Environment, Conservation and Parks
Notice stage
Decision
Decision posted
Comment period
October 6, 2020 - November 20, 2020 (45 days) Closed
Last updated

This consultation was open from:
October 6, 2020
to November 20, 2020

Decision summary

We have amended several regulations related to excess soil under the Environmental Protection Act, and related documents, in response to delays to infrastructure and development projects as a result of COVID-19, and to support flexible reuse of excess soil.

Decision details

We have finalized amendments to the following regulations under the Environmental Protection Act:

  • Reg. 406/19 (On-Site and Excess Soil Management)
  • Reg. 153/04 (Records of Site Condition)
  • Regulation 347 (Waste – General Management)

We made these amendments in response to delays faced by industry and others resulting from the COVID-19 pandemic, and to provide additional regulatory flexibility.

Amendments to O. Reg. 406/19 (On-Site and Excess Soil Management)

The amendments include:

  1. Extending the date before which a project leader must enter into a contract in order to be grandfathered (exempt) from soil reuse planning provisions that will come into effect by 1 year, from January 1, 2021 to January 1, 2022. This change responds to concerns that some projects planned under current rules have been delayed due to COVID-19. This does not affect provisions in the regulation coming into effect on January 1, 2021.
  2. Recognizing assessments to determine the likelihood that contaminants have affected soil, or sampling and analysis plans and associated reports, completed for a project before January 1, 2022 as assessments, plans and reports under the regulation. This ensures these studies do not have to be repeated for a project commencing based on those studies.
  3. Replacing the need for a waste-related Environmental Compliance Approval (ECA) with standard rules for:
    • facilities storing and processing excess soil for resale as a landscaping or garden product
    • operations storing residential quality soil for local reuse two low-risk activities

This reduces burden associated with local reuse of low risk, better quality soil. Rules relate to the amount and quality of excess soil at these sites, and some other management requirements to prevent adverse effects.

  1. Rules related to soil storage are modified so that soil can be stored near a property boundary if the amount of soil is small, the time of storage is short, or the storage is in a road right of way. The rule for placing salt-impacted soil is also more flexible since the requirement to place it at least 2 metres above a water table has been removed. Other restrictions have been retained.
  2. Enabling an ECA in relation to stormwater pond sediment to specify alternative soil management requirements from those in the regulation. This provides project-specific flexibility using a mechanism with a high degree of provincial oversight.
  3. Revising the laboratory procedure used to test contaminants in leachate to be the ministry’s Synthetic Precipitation Leaching Procedure (mSPLP). Other methods may continue to be used for a year, until December 31, 2021
  4. Specifying that the excess soil registry to be used for filing notices will be delivered by the Resource Productivity and Recovery Authority, under the Resource Recovery and Circular Economy Act (RRCEA). Mechanisms under the RRCEA, such as a letter of direction, will ensure that:
    • appropriate integration of other third-party systems is enabled
    • various stakeholders and users will influence the development of the registry
  5. Specifying that this regulation applies to crushed rock, enabling it to be managed as excess soil when being reused. This provides a clearer framework for the management and reuse of this material.
  6. Specifying that this regulation applies in relation to soil or crushed rock deposited for final placement at an aggregate pit or quarry, including for rehabilitation purposes.
  7. Revising the leachate screening value in the Excess Soil Standards for arsenic and molybdenum to reflect background groundwater concentrations.
  8. Other minor amendments to provide clarification, correct references and address other clerical matters.

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

The amendments include:

  1. Exempting temporary health and residential facilities from the need for a record of site condition (RSC) if it is in response to the COVID-19 pandemic and its effects. This was a consequential amendment related to previous changes under the Emergency Management and Civil Protection Act (EMCPA).
  2. Correction of cross-references.

Amendments to Regulation 347 (General – Waste Management)

Consequential amendments have been made to align with the amendments in O. Reg. 406/19 related to retail landscaping soil depots, providing that excess soil leaving a retail landscaping soil depot is not designated as waste if the specified criteria are met.

Amendments to technical documents

Amendments have also been made to related technical documents to implement the regulatory amendments made. These updates are included in this decision notice and involve the following documents:

  1. Rules for Soil Management and Excess Soil Quality Standards, incorporated by reference in O. Reg. 406/19
  2. Protocol for Analytical Methods Used in the Assessment of Properties and Excess Soil Quality under Part XV.1 of the Environmental Protection Act
  3. Beneficial Reuse Assessment Tool and Related Guide
  4. Rationale Document for Development of Excess Soil Quality Standards

Purpose of the amendments

The changes will:

  • ensure that grandfathering provisions are expanded to accommodate project delays resulting from COVID-19 operational impacts
  • reduce construction costs associated with managing and transporting excess soil through added flexibility and reduced approval
  • continue to ensure strong protection of human health and the environment
  • support delivery of actions in Ontario’s Made-In-Ontario Environment Plan, including:
    • recognizing excess soil as a resource
    • developing clear rules to support beneficial reuse of excess soil

We will continue to work collaboratively with stakeholders and Indigenous communities to ensure the regulations are implemented effectively.

Comments received

Through the registry

21

By email

11

By mail

0
View comments submitted through the registry

Effects of consultation

The Ministry of the Environment, Conservation and Parks (Ministry) received 32 submissions on the proposal through the Ontario Environmental Registry (ERO) posting, including related e-mails or other forms of submissions.  Comments were received from industry, municipalities, consultants, professional organizations, environmental and community groups, Indigenous communities and individuals. 

Most of the feedback from the engagement was supportive of the regulatory proposal, while providing helpful information and scenarios for consideration. Following this consideration, the decision was made to proceed with finalizing the proposed amendments, with additional clarifications.

Consultation has also helped to inform implementation of O. Reg. 406/19. We heard, for example, of the need to continue efforts to make stakeholders aware of the regulatory changes coming into effect in January 1, 2021, and to make support materials available, such as factsheets on various topics of interest to specific stakeholders, such as how O. Reg. 406/19 applies to construction projects involving tunneling. In relation to the registry, we heard that users of the registry want to provide advice on how that registry will function and how it relates to other third-party systems.  The ministry will work with stakeholders to implement these suggestions, including the provision of guidance, outreach and education to support successful implementation of O. Reg. 406/19.

Connect with us

Contact

Sign up for notifications

We will send you email notifications with any updates related to this consultation. You can change your notification preferences anytime by visiting settings in your profile page.

Follow this notice

Original proposal

ERO number
019-2462
Notice type
Regulation
Posted by
Ministry of the Environment, Conservation and Parks
Proposal posted

Comment period

October 6, 2020 - November 20, 2020 (45 days)

Proposal details

In December 2019, Ontario made a new On-Site and Excess Soil Management Regulation (O. Reg. 406/19), supported by risk-based standards that will make it safer and easier for industry to reuse more excess soil locally.

In response to the COVID-19 pandemic and to provide further clarity and flexibility to support appropriate beneficial reuse of excess soil, we are now proposing amendments to O. Reg. 406/19 and O. Reg. 153/04 under the Environmental Protection Act. The proposed changes include:

  • extending the date applicable to the grandfathering provisions by which construction projects must be entered into by one year, from January 1, 2021 to January 1, 2022, to accommodate projects that are close to starting construction but delayed due to COVID-19
  • clarifying the scope of grandfathering provisions to include geotechnical studies completed by January 1, 2022, to ensure these studies do not have to be repeated
  • replacing waste-related Environmental Compliance Approvals with standard rules for operations processing excess soil for resale as a garden product, and operations managing clean soils for residential development projects
  • providing added flexibility to soil management rules such as those for soil storage and reuse of soil impacted by salt
  • enabling Environmental Compliance Approvals to specify alternative soil management requirements to provide project-specific flexibility
  • updating O. Reg. 406/19 and the Protocol for Analytical Methods Used in the Assessment of Properties under Part XV.1 of the EPA (Analytical Procedure) with the modified Synthetic Precipitation Leaching Procedure (mSPLP)
  • clarifying that the excess soil registry to be used for filing notices will be delivered by the Resource Productivity and Recovery Authority and expand the registry’s purposes to also include integration with other third-party systems supporting reuse of excess soil, such as tracking systems, soil matching systems and other non-regulatory programs, considering cost, security and other relevant matters.

Please refer to the Supporting Materials for a more detailed description of the proposed changes and rationale.

The proposed changes would:

  • reduce construction costs associated with managing and transporting excess soil
  • limit the amount of soil being sent to landfill
  • lower greenhouse gas emissions from the sector
  • continue to ensure strong protection of human health and the environment

These proposed amendments support delivery of actions in Ontario’s “Made-In-Ontario” Environment Plan including:

  • recognizing excess soil as a resource
  • developing clear rules to support beneficial reuses of excess soil and to help address issues of illegal dumping

We will continue to work collaboratively with stakeholders and Indigenous communities on the proposed amendments and to ensure the regulations are implemented effectively.

Regulatory impact statement

The proposed changes would result in additional flexibility that would facilitate more beneficial reuse of excess soil. This would result in cost savings for some projects that would no longer need to dispose of excess soil at a waste disposal site or to haul soils long distances.

Changes proposed to grandfathering provisions will ensure projects delayed due to COVID-19, and that were intended to be grandfathered under the existing provision, will still be able to be exempt from the provisions that commence in January 2022, and geotechnical work completed will not have to be repeated. This is anticipated to result in further cost savings.

Other changes provide flexibility, reducing costs of requirements in specific circumstances (e.g. removing the need for and cost of obtaining an Environmental Compliance Approval for certain low-risk activities, flexibility in temporary storage of excess soil and reuse of salt-impacted soils will reduce handling and disposal costs, etc.).

Supporting materials

View materials in person

Important notice: Due to the ongoing COVID-19 pandemic, viewing supporting materials in person is not available at this time.

Please reach out to the Contact listed in this notice to see if alternate arrangements can be made.

Comment

Commenting is now closed.

This consultation was open from October 6, 2020
to November 20, 2020

Connect with us

Contact

Laura Blease

Phone number
Email address
Office
Land Use Policy (Environment and Climate Change)
Address

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