Is Ontario “Open for Business” when it comes to Excess Soil Management?

by  Grant Walsom, XCG Consultants

Since the 2013 call for a review in the
regulatory gaps surrounding the ability for enforcement on mismanagement of
excess soils in Ontario, the Ministry of Environment (now called Ministry of
Environment, Conservation and Parks – MECP) has tirelessly worked towards a
proposed Excess Soil Regulatory package for Ontario.  The efforts have
included an unprecedented process of stakeholder listening sessions,
consultations and engagement group meetings and inter-Ministerial reviews over
the past 5 years.

The proposed Excess Soil Regulatory Package
was formed through 2 separate postings on the Environmental Bill of Rights
(EBR) and is reportedly ready for Cabinet Approval.  Further, the
regulatory package is formulated with general overall acceptance by the
construction and development industry in Ontario as well as the supporting
industries (i.e., legal, consulting, laboratories) and municipalities.  It
is generally agreed that the proposed Regulation outlines possible
opportunities for beneficial reuse with sustainable considerations (examples
would be reduced truck traffic and reduced greenhouse gases creation).

We are coming to understand that the
current Conservative Provincial Government is strongly opposed to a majority of
initiatives created by the previous Liberal Government.  The Conservatives
are in favour of the red-tape reduction, streamlining operations and fiscal
responsibility.  In fact, there is now a Deputy Minister of Red Tape and
Regulatory Burden Reduction in the Ontario Cabinet.  His job is to make
Ontario “Open for Business.”  Any new Regulation such as those being
reviewed by MECP could certainly be viewed as counter-productive in terms of
red-tape reduction.    However, with the release of the Made-in-
Ontario Environment Plan on November 29, 2018, it appears that Excess Soil
Regulation will be enacted in some form in the not-to-distant future. 
There will no doubt be some changes to the proposed Regulatory package, but it
is good to see that Regulation will proceed.

To date, one of the biggest challenges that
the enforcement regime of the Environment Ministry had was the gap in how
excess soil (impacted with contaminants or not) could be classified as a “waste
material” if it’s not managed properly or if it’s illegally dumped.  We
have all seen the extensive media coverage of a number of illegal dump sites,
innocent property owners mislead on the quality of the fill they are accepting,
and private air-fields who have capitalized on the regulatory gaps in Ontario
where excess soil is concerned.  Enforcement against illegal dumping or
misrepresentation of the soil quality is not clear or easily achieved under the
current Environmental Protection Act and regulations such as Regulation 347
(Waste Management).  Minor amendments to Regulation 153/04 (Brownfields
Regulation) have also been proposed to assist in streamlining and simplifying
filing of Records of Site Condition and redevelopment of Brownfield
properties.  Further definitions of soil, waste and inert fill are also
forthcoming in the new proposed Excess Soil Regulatory package.

One of the main benefits of the proposed Excess Soil Regulation is the clarity it provides in the expectations of appropriate management of excess soil along with the steps that would be followed to provide the level of certainty that the public would expect.  It puts a heavy onus on the generator of the excess soil (or the source site) to assess the quality against a set of new standards.  The Standards were developed as a subset of the O. Reg. 153/04 Brownfield Standards, aimed at assisting in identifying acceptable and beneficial re-use of the excess soil.

Beneficial reuse of excess soil has a
strong consideration for soil quality in terms of chemical testing to assess
for contaminants; however, Ontario soils are highly variable with respect to
the geotechnical quality for engineered reuse (i.e., silt, clay, sands, gravels
and poor quality mixed fill).  Recovered excess soil may require some
screening/grading to classify the geotechnical qualities prior to identifying
an appropriate engineered and beneficial reuse.  Market-based solutions
and opportunities for excess soil supply and demand services are sure to be
identified as creative Ontarians have historically shown innovation in finding
geotechnical solutions for excess soil.  The new regulatory package allows
for this to happen to the benefit of both sender and receiver parties.
Increasingly, clients are also choosing to avoid moving soils by employing
methods to limit or even eliminate the amount of soils that have to be moved
from a poor fill site with things like landscaped architectural features or
ground improvement to treat soils in place.

Another benefit of the proposed excess soil
regulation is the placement of the responsibility to ensure and “certify” the
quality of the excess soil and the appropriate handling and re-use of the
material by the source site or generator.  This requires a shift in the
thinking around management of any excess soil materials to be assessed and
pre-planned at the beginning of a project, versus at the last minute and left
to the excavation contractor, as has historically been done.  The shift in
thinking and pre-planning may take time, but with the assistance of the
“Qualified Person” community in Ontario, the planning can be simplified.
 The industry is already starting to shift to a more responsible
management of excess soils, with the knowledge of potential Regulatory changes.
The proposed Excess Soil Regulatory package has a well-defined transition
period of two full years to be fully enacted, giving the construction and
development industry time to become used to the shift in thinking and
pre-planning as well as the procurement groups to ensure that the appropriate
assessment and characterization activities are completed.

The benefits of many aspects of the
proposed Excess Soil Regulatory package are clear and are desired in
Ontario.  The business community has hoped that the current Conservative
Government in Ontario understands that the Excess Soil Regulatory package has
been requested by the citizens of Ontario, and formulated through an exhaustive
consultation and engagement of the various stakeholders in the Province. It has
also been hoped that the current Provincial Government sees the value in many
aspects of the proposed regulatory package for management of excess
soils.  With reference to Excess Soil Regulation in the Environment Plan,
it certainly appears that the current Provincial Government does see the
value.  Further, the complimentary minor amendments to the soil and waste
definitions are needed as are the proposed amendments to the Brownfield
Regulation.

Since the June 2018 election, the construction and development industries in Ontario have been patiently waiting for clarity on how the current Provincial Government plans to proceed.  It is clear that this new legislative change will help to make Ontario open for business and it appears that the current Provincial Government agrees.  We will now see what changes to the proposed Regulatory Package will be made, hopefully, sooner than later.

This article was first published in the Geosolv website.

About the Author

Grant Walsom, P.Eng., is a Partner at XCG Consulting Limited and recognized as a Qualified Person in Ontario under the Record of Site Condition Regulation (O. Reg. 153/04). He proudly serves on the Board of Directors at the Ontario Environment Industry Association (ONEIA) and the Canadian Brownfields Network (CBN). Grant can be reached at grant.walsom@xcg.com.

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