Concerns about managing excess soils was mentioned as one of the top environmental management priorities for the regulated community in our recent survey. That’s not surprising, as much has changed since our April 2016 article in Environmental Science and Engineering Magazine, “How will Ontario’s proposed excess soil management policy work?” Most notably, this policy is now a proposed regulation.
The potential issues associated with mismanagement of soils (e.g., transport and disposal of impacted soils on farmers’ fields) have been documented in the past. It is also a “cause” that some environmental groups, including Environmental Defense, have championed.
As you may be aware, the Excess Soil Management Regulatory Proposal has gone through two comment periods. The most-recent comment period ended on June 15, 2018. If you are handling excess soils in Ontario, the following is an update on the proposed regulation and how it may affect your business.
Purpose of Excess Soil Management Regulatory Proposal
The proposed Excess Soil Management Regulation, “…aims to protect human health and the environment. It also aims to increase opportunities for the beneficial reuse of excess soil and reduce greenhouse gas emissions associated with its movement.”
Excess soil is defined as a volume of soil that has been excavated, such as during construction activities, that cannot be reused on site and must be moved to another site. The Excess Soil Management Regulatory Proposal aims to make it clear where excess soil may be reused.
As a regulation, it will also eliminate ambiguity and, perhaps, provide more consistency in excess soil management across the province.
Revisions to Excess Soil Management Regulatory Proposal
Based on the comments received, the MECP states (in general) that they have made the following key changes to Excess Soil Management:
- Revised approach to waste designation.
- Reduced regulatory complexity with some details moved to guidance.
- Phased in transition time for key regulatory requirements over two to three years to provide time for education and training and reduce potential impact to existing projects.
- Provided further flexibility for reuse through new reuse standards and a new Beneficial Reuse Assessment Tool (BRAT) to develop site-specific standards.
How you manage excess soils in Ontario is increasingly important. Photo by Luke Besley on Unsplash
Changes to Standards
As of January 1, 2020, new soil-quality standards and provisions related to waste designation will be applicable. In addition, a qualified person (P. Geo or P. Eng.) will be able to use the BRAT to generate site-specific standards using a spreadsheet for reuse sites. The goal is that the BRAT will promote greater reuse of excess soils.
Amendments will be made to O. Reg. 153/04 (Record of Site Conditions [RSC]) to ensure the regulations coincide for soils brought to RSC or phase two properties.
Other proposed amendments to O. Reg. 153/04 include flexibility on meeting standards for certain contaminants, removal of RSC triggers for select low-risk undertakings, and amendments to help support brownfield redevelopment. Some of the amendments to O. Reg. 153/04 are scheduled to be phased in sooner than January 1, 2020.
Amendments will also be made to O. Reg. 347 (General Waste Management) to clarify that excess soil is not part of the definition of inert fill.
There are numerous exemptions within the new proposed regulation that may apply to your activities. Be sure to review those exemptions to see if they apply to your project.
Excess Soil Management Plans
Beginning January 1, 2021, a qualified person will be required to prepare or supervise the preparation and implementation of an Excess Soil Management Plan (ESMP) prior to any excess soils leaving the project area. ESMPs require characterizing the soil for contaminants, developing a tracking system, identifying appropriate receiving sites, and keeping records. In addition, there will be a public registry that will hold key information from each ESMP.
Due Diligence
The Excess Soil Management Regulation will affect commercial property owners, developers, municipalities, receiving sites, construction workers, carriers, and consultants.
Since one of the goals of the regulation is to provide accountability to excess soil generators, documentation will be a significant part of this regulation. Everyone involved with the movement of soil should ensure that they receive proper documentation.
Among other things, the qualified person will need to ensure the ESMP is accurate; the source site will need to track excavated areas for volume, soil type, and quality; the carrier will need to have documents from the owner/operator in their possession; and the receiver will need to know the quality of the soil and prepare a fill management plan.
Records should be kept for a minimum of seven years after all Excess Soil Management activities have been completed.
If you are dealing with excess soils on your job site, you will want to consider the following:
- Do you have a qualified person available to prepare ESMPs?
- How much soil are you removing from the site (±2,000 cubic metres)?
- Are you working on a brownfield redevelopment or an RSC site?
Developing Internal Soil Management Policies
Aside from policies or regulations that may be developed by either the province or Environment and Climate Change Canada, you may want to consider your own corporate policy. The potential liability associated with improperly managed contaminated soils is substantial. You may want to discuss this with your lawyers and your environmental advising team.
If you have questions regarding the Excess Soil Management regulatory proposal, please contact either me or Chris Paré, P.Geo., at 519.979.7300.