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

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.

4. 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.
5. 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.
6. 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
7. 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
8. 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.
9. 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.
10. Revising the leachate screening value in the Excess Soil Standards for arsenic and molybdenum to reflect background groundwater concentrations.
11. 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.