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Ontario’s Proposed Excess Soil Regulations: Effects & Benefits

Written by Abimbola Badejo, Staff Writer

Where do the soils excavated from our basements go? Our backyards, neighbors’ backyards or into our drinking water?

Background

Soil is an important natural resource that needs to be conserved for sustainability and hygienic reasons. Numerous activities and projects such as construction, mining, contaminated site remediation, expansive archaeological projects, etc., require soil excavation.

The excavated soil is used to refill the vacant land or removed from the project site as “excess soil” left over from a project. The disposal of excavated soil however, posses a challenge for the contractors undertaking the projects as the receiving sites or facilities for excess soils are either far, unavailable or result in expensive transportation costs.

In certain instances, this problem has resulted in illegal dumping of excess soils onto farmers fields and vacant lands across Ontario, without the appropriate consideration of soil quality or dumping location. A 2018 CBC story on illegal dumping estimated the amount of illegal soil dumped in Ontario could annually fill Rogers Centre, home of the Toronto Blue Jays, sixteen times.

Aerial view of Rogers Centre, Toronto (Photo by Tim Gouw from Pexels)

Previous Government Reactions

To tackle the problem of illegal excess soil dumping, the Ontario Environment Ministry released a guidance document titled: “Management of Excess Soil – A Guide For Best Management Practices.” There was no obligation for compliance to the guidance document and thus the illegal practice continued.

With illegal dumping continuing in the province, the Environment Ministry released of a legal document which required compliance. The legal document, Regulatory Framework on Excess Soil Management, was made to clarify the responsibilities of excess-soil generators and a list of requirements guiding the sampling and analysis, soil characterization, tracking and dumping of excess soils. The Excess Soil Management proposal was posted on the Environmental Registry of Ontario for public comments from concerned stakeholders for two months in 2017; and afterwards an amended proposal implementing changes influenced by the comments was released.

The Latest Regulatory Proposal

With the Ontario election in the June of 2018 resulting in a change of government, the regulatory proposals for excess soil management were put on hold. On May first, the government issued its an updated proposal for the management of excess soil.

The proposed Excess soil regulatory proposal and amendments to Record of Site Condition (Brownfields) Regulation have the following features:

  • A revised approach to waste designation, where excess soil is considered waste and should be treated as one according to Part V of the Environmental Protection Act 1990 (Waste Management); unless the relocated excess-soil is reused in an appropriate way or is deposited at a final receiving site that has appropriate approval documents,
  • Reduced regulatory complexity, where waste related approvals for low-risk soil management activities may no longer be required, provided certain requirements are met,
  • Flexibility for soil reuse through a beneficial Reuse Assessment Tool to develop site-specific standards and to provide a better understanding of environmental protection,
  • Improving safe and appropriate reuse of excess soil by quality soil testing, tracking and registration of soil movements for larger and riskier generating and receiving sites,
  • Landfill restrictions on clean soil deposit unless it is required for cover.

Once promulgated, the transition phase into the new regulations will take place over the period of 2 to 3 years, where the more flexible excess-soil reuse regulations, such as the amended Record of Site Conditions (O. Reg. 153/04), are already in effect. Other amendments, such as excess soil management planning and landfilling restrictions will come into effect between 2020 and 2022, to allow time for the production of alternative excess soil reuse approaches.

Benefits of Policy

From an environmental perspective, the proposal’s call for some regulatory key points are quite sustainably beneficial. Registering and tracking the excess soil movement from excavation source to receiving site or facility will minimize illegal dumping. Transporting and illegal dumping of the excess soils is a source of concern because excavated soil is a source of trapped Greenhouse Gases (GHG). Inappropriate tipping of a considerable amount of excess soil will result in the release of a significant amount of GHG in the atmosphere. Moreover, vigorous testing and analysis of the excess soils meant for landfill will ensure that contaminated soil is properly disposed of as hazardous waste, instead of illegally covering it up at a landfill where is poses a threat as a potential source of contamination to ground water.

Excess Soil Market Impact

Economically, implementing the excess soil management policy will be beneficial to contractors and will encourage them to be more proactive in making their Excess Soil Management Plan (ESMP) in favor of excess soil reuse. This will assist in developing alternative, better and cheaper ways of reusing their excess soils; or selling off some (or all) of the excavated soils to a buyer,  who will put it to good use.

In addition, there has been a report of excess soil “black market” emergence in the industry; where contractors are avoiding the higher costs of tipping at provincially regulated designated facilities in exchange for illegal tipping at ignorant landowners’ fields. These landowners are receiving the excess soils at a small fee from the contractors, without consideration for the quality of the soil and possible environmental effect in the future. Implementation of the policy will minimize the expansion of this market, especially because of the registration and tracking requirements of the excess soil load and the approval documents required of the receivers.

Ontario Plans To Amend Excess Soil and Brownfields Regulation

Written by Paul Manning, Manning Environmental Law

Ontario is proposing changes to the excess soil management and brownfields redevelopment regime.

The changes are designed to “make it safer and easier for more excess soil to be reused locally…while continuing to ensure strong environmental protection” and to “clarify rules and remove unnecessary barriers to redevelopment and revitalization of historically contaminated lands…while protecting human health and the environment.

Opponents will see this as a deregulation which will primarily benefit business interests at the cost of environmental protection, notwithstanding these assurances.

Excess Soil

The changes will include the development of a new excess soil regulation supported by amendments to existing regulations including O. Reg. 347 and O. Reg. 153/04 made under the Environmental Protection Act supports key changes to excess soil management.

Proposed changes include:

  • clarifying that excess soil is not a waste if appropriately and directly reused;
  • development of flexible, risk-based reuse excess soil standards and soil characterization rules to provide greater clarity of environmental protection;
  • removal of waste-related approvals for low risk soil management activities;
  • improving safe and appropriate reuse of excess soil by requiring testing, tracking and registration of soil movements for larger and riskier generating and receiving sites;
  • flexibility for soil reuse through a Beneficial Reuse Assessment Tool to develop site specific standards;
  • landfill restrictions on deposit of clean soil (unless needed for cover).

Record of Site Condition

Under O. Reg. 153/04, a Record of Site Condition must be filed on the Ministry’s public registry if there is a change in property use from an industrial, commercial or community use to a more sensitive use, such as residential, institutional, agricultural, or parkland.

The Ministry is proposing amendments to O. Reg. 153/04 including reduced requirements to fully delineate contaminants (i.e. additional sampling) for properties going through the Risk Assessment process when contamination is already well understood.

The amendments would also provide flexibility on meeting standards where exceedances are caused by the 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.

Other proposed amendments would remove the requirement for a Record of Site Condition for specific low risk redevelopment situations, including converting:

  • Low-rise commercial buildings to mixed-use residential with commercial on main floor;
  • Temporary roads in construction areas to residential;
  • Indoor places of worship to residential; and
  • Industrial or commercial to indoor agriculture in or on the same building.

The proposal is posted for comment on the Environment Registry until May 31, 2019. To read the full proposal, click here.

This article has been republished with the permission of the author. It was first published here .

This article is provided only as a general guide and is not legal advice. If you do have any issue that requires legal advice please contact Manning Environmental Law.


About the Author

Paul Manning is the principal of Manning Environmental Law and an environmental law specialist certified by the Law Society of Ontario. He has been named as one of the World’s Leading Environmental Lawyers and one of the World’s Leading Climate Change Lawyers by Who’s Who Legal.
Paul advises clients on a wide range of environmental law issues and represents them as counsel before tribunals and the courts. His practice focuses on environmental, energy, planning and Aboriginal law.

British Columbia intends to improve waste soil relocation regulations

by Max Collett, Norton Rose Fulbright

The Ministry of Environment and Climate Change Strategy in British Columbia intends to bring forward legislation to better regulate excess soil relocation, including waste soils, and reduce deposit of soils in landfills.

The Ministry of Environment and Climate Change Strategy has for years been aware that certain participants in the soil and waste transport and relocation industry have not been complying with the current regulations, which are reliant on source site and recipient site owners entering into a Contaminated Soil Relocation Agreement (CSRA) with the ministry.

In January 2019 the ministry issued a final policy recommendation with a series of proposed substantive amendments to the soil relocation regulations and legislation. The following are notable features of the new regulations:

  • Distinguish between soils and waste soils, and regulate the relocation of waste soils. Waste soil is to refer to soil that possesses a substance concentration greater than the lowest applicable industrial land use standard
  • Remove the requirement for a CSRA (a positive development as execution of these agreements was time consuming)
  • Introduce notification and certification requirements:
    • require that the applicant deliver advance notification to local governments as well as “indigenous groups” in the area of both source and receiving sites. (To date, the ministry has not given any indication how an applicant will be able to identify the applicable indigenous groups, which is not always obvious in areas of overlapping claims and interests)
    • require that the applicant complete chemical characterization and vapour assessments for certain waste soils and obtain certification by approved professionals. Certifications will be subject to random audits. (The introduction of approved professionals and audit verification should be a positive development and enable applicants to better control the soil relocation process and associated project scheduling. This process will be similar to that undertaken for independent remediation of contaminated sites)
  • Amend the Environmental Management Act to provide for administrative monetary penalties if soil relocation requirements are not met
  • Potentially add new requirements for landfills and high-volume receiving sites.

The ministry intends to seek government approval for these amendments in 2019. We will provide a further update once it is confirmed whether the province approves the recommendations and tables specific legislative and regulatory amendments for approval.


This article was published with permission of the author. It was first posted on the Norton Rose Fulbright website.

About the Author

Max Collett provides quality, timely and practical advice to public and private sector clients on all legal matters pertaining to complex commercial real estate development and environmental law. He assists developers, First Nations economic development companies, governmental agencies and health authorities, amongst others, to structure the ownership of projects, and acquire, finance, construct, operate and sell institutional, industrial, commercial and residential developments. He has extensive experience with legal matters pertaining to the management or redevelopment of contaminated, brownfield sites. Mr. Collett is counsel on a diverse range of projects, from complex mixed-use strata developments, complex commercial developments, health care facilities to joint venture developments on First Nations lands. He regularly assists on institutional projects undertaken pursuant to public-private partnerships. Mr. Collett also advises commercial and industrial clients on all aspects of regulatory compliance with environmental laws.

Ontario Government’s Plans on the Environment: Impact on Brownfield Development

The Ontario Government released a Made-in-Ontario Environment Plan in late 2018 in partially in response to criticism that it had no plan for addressing climate change after it cancelled the greenhouse gas (GHG) cap-and-trade program of the previous government. The plan includes several proposals that should be on interest to persons involved in brownfield development.

The Ontario government 52-page document (entitled (“Preserving and Protecting or Environment for Future Generations: A Made-in-Ontario Environment Plan”) commits to protecting air, lakes and rivers; addressing climate change; reducing litter and waste; and conserving land and greenspace. Many of the measures establish a direction but the details will have to be further developed.

With respect to contaminated sites and brownfields, the document talks about the “polluter pay”, and engaging environment business and entrepreneurs. However, it is lacking in details.

Generating GHG from Brownfield Projects

The Ontario government’s proposed replaced to the scraped GHG trading regulation is the Creating the Ontario Carbon Fund. While details are to be worked out, the plan proposes to use $400M of government funding with the aim of leveraging additional private funds on a 4:1 basis to support “investment in clean technologies that are commercially viable.” The fund will also support a “reverse auction” model whereby emitters will “bid” for funding to support their GHG reduction projects.

There is a possibility that developers involved in brownfield redevelopment could be eligible for government funding depending on if clean technologies are employed in the clean-up and GHG reductions are realized versus the traditional dig-and-dump approach to site clean-up.

2010 Photo of the former Kitchener Frame Building (Photo Credit: Philip Walker/Record staff)

Streamlined environmental approvals

The Made-in-Ontario Plan notes that environmental approvals should be prioritized for businesses that want to implement low GHG technology or approaches. This is the latest promise from the Ontario government to speed up the approval process.

Seasoned veterans in the environmental sector remember similar promises made the government on fast-tracked approvals. There are still those who remember the Environmental Leaders Program in which speedy approval was promised to companies that committed to above-compliance environmental activities and targets.

With respect to this latest promise on speedy approvals, the document is silent on if “speed” will be applied to the Environment Ministry review of site specific risk assessments (SSRA’s) that are submitted to the Ontario Environment Ministry for approval instead of following the generic clean-up standards.

Measures to promote healthy, clean soils

The Made-in-Ontario Plan plan commits to “revise the brownfield regulation and record of site condition guide” as part of a basket of measures to promote clean soils. Again, the document is lacking in details.

The previous Ontario government had proposed reasonable changes to the Record of Site Condition Regulations (O. Reg. 153/04). One important aspect of the proposed change is related to road-salt impacts on a property. As the regulations currently stands, road salt-related impacts can only be exempted from clean-up if it can be proven they are related to the application of de-icing salts on a public highway. Under the proposed changes to the regulations, the exemption will include road salt applied to a property ‘for the purpose of traffic and pedestrian safety under conditions of snow/ice’. This one change, if implemented, would save thousands of dollars in clean-up costs at many sites undergoing redevelopment in Ontario.

The previous Ontario government had also proposed a much-need excess soil regulation. There has been extensive consultation on the proposed regulation over a five-year period. If implemented, the regulation would address the gaps surrounding the ability for enforcement on mismanagement of excess soils in Ontario. It would also open up the opportunity for beneficial reuse of excess soil.

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.

Ontario construction groups launch video series on excess soil management

In southern Ontario, the management and use of excess soil is a growing issue.  There has long been concerns of unscrupulous players wrongly classifying contaminated soil as excess soil and managing it incorrectly.  Likewise, there has been long-standing concerns expressed by those wanting to do the right thing of ambiguous and uncertain rules with respect to determining what is excess soil and how to manage it.  As a result, honest industry participants end up hauling excess soil to landfill that could have otherwise been utilized for useful purposes.

According to data compiled by the the Residential and Civil Construction Alliance of Ontario (RCCAO), Ontario’s  construction market generates almost 26 million cubic metres of excess construction soil every year.  About $2 billion is spent annually to manage excess soil – which comes from civil infrastructure projects such as transit, roads, bridges, sewers, watermains and other utilities.  Even though most municipal roadways contain only minor amounts of salt from winter road treatment, large quantities of soil are often hauled up to 100 kilometres away to designated dump sites, rather than being reused on site or at other nearby construction sites.

“Clean excess soil can be more responsibly managed through better upfront planning,” says Andy Manahan, executive director of the Residential and Civil Construction Alliance of Ontario (RCCAO). “That’s why we co-produced a three-part video series to increase awareness that there are alternatives to the ‘dig, haul long distances and dump’ approach.”

RCCAO teamed up with the Greater Toronto Sewer and Watermain Contractors Association (GTSWCA) to produce this video series to inform the public, government and industry on the benefits of using best management practices. It’s called “The Real Dirt on Dirt: Solutions for Construction Soil Management.”

There are a lot of trucks on the road travelling 60 to 100 kilometres to dump excess soil as a waste material – and that is completely wrong, says Giovanni Cautillo, executive director of GTSWCA.

“It’s not a waste – it’s a reusable resource,” Cautillo says. “When municipalities provide guidance to contractors about where soil from local infrastructure projects can be reused, the costs of handling and disposing of soil can be dramatically reduced. Wherever possible, soil should be reused onsite, but if this is not possible, having an approved reuse site within a close distance saves taxpayers money.”

When best management practices are used, there are fewer trucks travelling long distances, causing less wear and tear to the roads – and less traffic congestion. Fewer trucks on the road reduces greenhouse gas emissions, creating a cleaner, healthier environment.

The Ministry of the Environment, Conservation and Parks (MECP) is currently reviewing draft regulations to help improve ways to manage soil on building and infrastructure projects across the province. Manahan says that “a multi-ministry approach – environment, municipal affairs, transportation, infrastructure and others – will also help to achieve a more coordinated effort.”

Are you ready for Ontario’s Excess Soil Management Regulation Changes?

by David Ngugan, Staff Writer

A breakfast and seminar session organized by ECOH Management Inc. was held on June 20th in Mississauga, Ontario.  The seminar included a presentation by Vice President Jeff Muir titled “Digging Deep – Are you ready for Ontario’s Excess Soil Management Regulation Changes?” about the upcoming changes to the Excess Soil Management Regulations. He spoke about the implications of the new regulations, including cost, the depletion of sites with capacity to accept waste soils, illegal dumping and lack of tracking, and inconsistent oversight and criteria for the management of excess soils.

Jeff Muir, VP Environmental, EHOS

Jeff spoke about the current 2014 guidelines – “Management of Excess Soil – A Guide for Best Management Practices” that gives options for the management of excess soils both onsite and offsite,  as well as best management practices for project leaders. These include having an excess soil management plan to indicate where the soil will go and a sampling and analysis plan, including soil characterization and characterization of the receiving site.

He also pointed out some issues with the guidelines, particularly in the lack of clarity regarding who is responsible for the excess soil, as the term “project leader” is loosely defined. In addition, the requirements for proper characterization of soils are not clearly defined, such as a minimum number of samples required for a specific volume of soil. Jeff added that currently, many receiving sites are usually managed by municipalities that issue permits for the receiving of excess soil, and this presents opportunities for inconsistencies between various sites.

The proposed regulations enhance the responsibility and accountability of the generators of excess soil, as well as requiring an Excess Soil Management Plan (ESMP) for high risk or high volumes of soil. Under the proposed regulations, a ESMP should consist of a description of the project area and description and ownership, the names of qualified persons and contractors, excess soil sampling plan and characterizations, a list of receiving sites, a soil tracking system, and a record of the cumulative amount of soil moved.  The new regulations will also establish a registry where ESMPs will be submitted.

Jeff concluded his presentation by stressing the importance of preplanning – have all the costs, receiving sites, and estimated volumes of soil prepared ahead of time, as well as to focus on working with ESMPs well ahead of the promulgation of the regulations.  It is anticipated that the regulations will be promulgated this calendar year.

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