Posts

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.

Proposed Changes to Ontario’s Toxics Reduction Program

The Ontario Ministry of the Environment, Conservation Parks (MOECP) recently issued a proposal that will change the regulation (O. Reg. 455/09) under the Toxics Reduction Act , 2009. Under the proposed regulatory amendments, the following changes would be implemented:

  • facilities with existing toxics reduction plans would no longer be required to conduct reviews of those plans;
  • certain facilities would be exempt from all future planning and reporting obligations for certain substances; and
  • facilities with existing plans would still be obligated to maintain annual reporting requirements.

The proposed exemptions would apply to the following facilities:

  • Facilities that have never planned or reported under the program, but now meet the reporting threshold for one or more toxic substances; or
  • Facilities that have been out of the program for three or more years for a toxic substance, but are coming back into the program because they meet a reporting threshold again; or
  • Facilities that are currently planning and reporting under the program, and now meet the reporting thresholds for a new toxic substance at the facility.

With respect to substances, the proposed exemptions would apply to the following obligations:

  • Creating a toxic reduction plan;
  • Tracking and quantifying toxic substances;
  • Annual Reporting on planned reductions; and
  • Reviewing the toxic reduction plan.

The rationale for the proposed changes to the regulation is that it overlaps with federal reporting requirements. The Ontario Toxics Reduction Program requires industry to report publicly on their use of toxic substances, and identify options to reduce those substances through toxic reduction plans. The Canadian federal Chemicals Management Plan requires industry to reduce the use and/or release of certain toxic substances. The federal approach is more comprehensive than the existing provincial program.

Another rationale for amending the regulation is that the MOECP claims that the Toxics Reduction Program has not achieved meaningful reductions. Preliminary results compiled by the MOECP indicate an overall reduction of 0.04% of substances used, created and released for all regulated facilities.

A costing analysis was carried out by the MOECP in conjunction with the Ministry of Economic Development, Job Creation and Trade, and it was found that the annual average net savings of this proposal will far exceed the annual average administrative costs.

The MOECP cost analysis estimated that the regulatory proposal will cost current facilities an annual average administrative cost of $818,000 to learn about the changes to the regulations and to continue reporting on existing toxics substances until 2021. These costs are offset by the total annual average administrative net savings of approximately $4 million for all facilities to stop planning and for the program to end in 2021 (when the federal government has completed its chemical assessments and taken action on many toxic substances). All cost analysis was calculated as Average Annual Present Value costs discounted at 2.5% over 10 years.

Toxics Reduction Program Map

The Ontario government maintains a website that shows the locations of facilities subject to the Toxics Reduction Act, 2009, the number of facilities with plans to reduce toxics use, and information on the number of toxics reported. Users of the website can search for for and access information from Ontario facilities that use, create, release, dispose and recycle toxic substances. They can also learn more about these substances and how facilities are taking action to reduce their creation and use to protect the environment and human health. Finally, users of the website can search by location, facility, or public health unit and use the advanced search filters such as year, sector or substance to improve your search results.

Public Comment Period Ends January 20th

The MOECP is accepting public comments to the proposal until January 20th, 2019. Comments can be submitted online or to Michael Friesen of the MOECP (416-314-0131).

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.

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.

MOECC Releases Notice of Updated Excess Soil Management Proposal

By David Nguyen – Staff Writer

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

Comments can be made on the proposal up to June 15, 2018 on the Environmental Registry of Ontario proposal site or by mail.

Ontario MOECC Issues Draft Order to Mining Company in Northern Ontario

Ontario MOECC recently issued a draft Director’s Order to Ontario Graphite Ltd. and several Directors of the company that, if finalized, will require the company to perform remedial work related to an interceptor trench, mine tailings dam, polishing pond.

The mining operation, referred to as the Kearney Graphite Mine, is located Township of Butt in the District of Parry Sound, approximately 20 km north east of the community of Kearney.

Ontario Graphite Ltd. Kearney Mine Site (Photo Credit: Sudbury Mining Solutions Journal)

Under these sections of the Environmental Protection Act and Ontario Water Resources Act, the Director may require a person who owns, or owned, or who has or had management or control of an undertaking or property, to take immediate actions and environmental measures to protect the natural environment and to prevent or reduce the discharge of a contaminant into the natural environment from the undertaking or property, or to prevent, decrease or eliminate an adverse effect.

The overall objective of the proposed Director’s Order is to amend an existing Director’s Order issued on January 26, 2016 to have the company implement a work plan for the treatment of mine water discharges as well as submit a written report prepared by a qualified person.

On April 10, 2017, Ontario Graphite Ltd. reported that the open pit was overflowing to the environment as a result of spring melt.  Ontario Ministry of the Environment and Climate Change (MOECC) staff visited the site on April 12, 2017 and observed that the collection trench used by the company to prevent acidic water from entering Graphite Lake (i.e. the interceptor ditch) had also overflowed at some point prior to the site visit.

During the April 12, 2017 MOECC site visit, company staff reported to the ministry that additional erosion had occurred on the downstream dam that separates the tailings management area from the polishing pond. Company staff did not foresee concerns for dam stability; MOECC staff, however, recommended that the company have someone with the necessary expertise undertake evaluation of the structure.

In response to the MOECC recommendation, the company retained a consulting firm to provide recommendations for any needed remedial work on the tailings dam. As detailed in the updated action plan submitted to the ministry on October 30, 2017, the company awaits receipt of the report detailing these recommendations and following receipt, will implement the recommendations noted.

In 2017, Ontario Graphite Limited reported several non-compliance incidents with water quality discharge limits specified in the Environmental Compliance Approval including acute toxicity, iron, total suspended solids and pH.  Although the company attributed some of the exceedances to the dewatering of the open pit, a consultant hired by the company as a result of the Director’s Order noted a number of recommendations that should be implemented to improve operation of the sewage works and to maintain compliance with the final effluent limits.