The Ontario Ministry of Environment and Climate Change (MOECC) recently posted notice on the Environmental Bill of Rights Environmental Registry of the regulatory changes to the management of excess soil (Excess Soil Management Regulatory Proposal, ERO# 013-2774). Excess soil is soil that has been dug up, such as during excavation activities, and cannot be reused at its original site and must be moved off site. There is much controversy in the Province of Ontario and other provinces concerning the management of excess soil as there are claims and growing evidence that some companies mix clean soil with contaminated soil, some companies dispose of contaminated soil as clean soil, and other questionable practices.
The MOECC proposal clarifies where soils can be reused based on the soil characterization and aims to reduce greenhouse gasses from the transportation of soil by encouraging local reuse. The proposal also clarifies that the project leader is responsible for the management and relocation of the excess soil generated during a project to ensure proper characterization and relocation. Minor amendments to O.Reg. 153/04 and to O. Reg. 347 are also proposed.
The current proposal incorporates responses and comments from the previous proposal as well as from engagement with stakeholders and Indigenous communities. Changes from the previous proposal include:
- A revised approach to waste designation
- Reduced regulatory complexity and some details moved to guidance
- A two to three years transition time for key regulations
- Several O. Reg. 153/04 amendments to come into effect sooner
- More flexibility for reuse through new reuse standards and a Beneficial Reuse Assessment Tool to develop site specific standards
This proposal is part of the MOECC’s response to the commitments outlined in Ontario’s Excess Soil Management Policy Framework. Other actions of the framework include developing priority education, outreach and training initiatives to support implementation.
The specific regulations and proposals provided for comments are summarized below:
- A new proposed On-Site and Excess Soil Management Regulation
- Excess soil would be designated as waste when it leaves the project area unless it is reused in accordance with the rules set out in this regulation.
- If designated waste, the regulation would clarify when an ECA is not required.
- Hauling of excess soil would generally not need an ECA, but is still subject to certain rules, such as maintaining records.
- Project leaders may use temporary soil storage sites without an ECA as long as certain conditions are met.
- Unless exempted, a project leader is responsible for preparing an Excess Soil Management Plan (ESMP), which involves determining contaminant concentrations on the soil, finding appropriate receiving sites, develop a tracking system and record keeping requirements.
- Key information from the ESMP would be registered on a public registry. A qualified person (QP) would need to prepare or supervise the ESMP.
- The regulation would be phased in over two to three years.
- Amendments to O. Reg. 153/04
- Align the requirements for soil being taken to Record of Site Condition (RSC) or phase two properties with the new rules for excess soil proposed in the On-Site and Excess Soil Management Regulation.
- Resolve delineation challenges experienced at properties going through the Risk Assessment process.
- Remove Record of Site Condition triggers for low risk projects.
- Provide flexibility for meeting contamination standards where exceedances are cause by substances used for ice and snow safety, discharges of treated drinking water, and presence of fill that matches local background levels.
- Amendments to O. Reg. 347
- Clarify that excess soil is no longer part of the definition of “inert fill.”
- Clarify operational requirements to support exemptions from ECA requirements for excess soil related activities.
- Proposal of Rules for On-site and Excess Soil Management
- A proposed document to be adopted by reference in the On-Site and Excess Soil Management Regulation
- Specifies 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.
- The proposed “Beneficial Reuse Assessment Tool” (BRAT)
- An alternative rules that aim to promote greater reuse of excess soil and the protection of human health and the environment
- Allows a QP to generate site specific standards using a spreadsheet model
- An additional supporting document titled “Rationale Document for Development of Excess Soil Standards”
Comments can be made on the proposal up to June 15, 2018 on the Environmental Registry of Ontario proposal site or by mail.