On January 4, 2021, the Ministry of Environment, Conservation and Parks (MECP) posted three proposals on the Environmental Registry of Ontario. The proposals are open for comments from Qualified Persons (QPs), municipalities, and stakeholders until April 4, 2021. The three documents, listed below, provide guidance to support the brownfields program.
- Proposed updates to Records of Site Condition: A Guide on Site Assessment, the Cleanup of Brownfield Sites and the Filing of Records of Site Condition (RSC Guide)
- Proposed updates to the Procedures for the Use of Risk Assessment under Part XV.1 of the Environmental Protection Act
- Technical Guidance for Soil Vapour Intrusion Assessment
Part one of this two-part blog series will focus on excess soils at an RSC property and part two will look at clarifications regarding the use of non-potable standards and exemptions.
Note that much of the information below is from the document “Records of Site Condition: A Guide on Site Assessment, the Cleanup of Brownfield Sites and the Filing of Records of Site Condition.”
The focus of the RSC Guide is to incorporate regulatory amendments implemented in 2011 and 2019, including those related to On-site and Excess Soil Management Regulations (O. Reg. 406/19); provide an overview of legislative and regulatory requirements; and provide greater clarity on regulatory requirements.
Section 55 of O. Reg. 153/04 specifies the key requirements for bringing soil to an RSC property from another site (Image by JAHuddleston from Pixabay).
Excess Soil in Ontario
We began talking about the issue of Excess Soils several years ago (see How will Ontario’s Proposed Excess Soil Policy Work? – ESE Magazine April 2016). Last year, we recorded a webinar Ontario Excess Soil Regulation 2020 (O.Reg. 406/19).
Section 9 Excess Soil Management
The remainder of this document will focus on Section 9 of the document – Excess Soil Management and the “melding” of excess soil management under the two regulations – O.Reg. 406/19 and O.Reg 153/04.
On December 4, 2019, O. Reg. 406/19 was finalized under the Environmental Protection Act. This regulation came into effect on January 1, 2021. There is a phased-in approach to other aspects of Excess Soils and there will be additional requirements in the coming years.
Phased-In Approach for Excess Soils (O.Reg. 406/19)
- Excess Soil Reuse and Management Requirement January 1, 2021
- Excess Soil Reuse Planning Requirements January 1, 2022
- Reuse Site Requirements January 1, 2022
- Landfilling of Excess Soil January 1, 2025
Bringing Excess Soils to RSC Properties
Under 9.2.1 “General” it states, “Section 55 of O. Reg. 153/04 specifies the key requirements for bringing soil to an RSC property from another site. Together with the Excess Soil Regulation coming into effect, Section 55 of O. Reg. 153/04 and referenced sections in Schedule E to that regulation will be amended to be consistent with the Excess Soil Regulation.”
As a reuse site (soils are being brought to the property), excess soil can be brought to and placed at an RSC property where the RSC is being submitted for filing on the basis of a Phase One ESA only. This is true if the use of the RSC property is currently an agricultural or other use, commercial use, community use, institutional use, parkland use or residential use (basically anything but industrial use). In this scenario, before the excess soil is brought to the RSC property, the QP must determine that the concentration of contaminants in the soil does not exceed the applicable soil quality standards.
When excess soil is brought to and placed at an RSC property that is being submitted for filing on the basis of a Phase Two ESA, the QP must ensure that the RSC property is the same as or within the Phase Two property.
Any excess soil brought to an RSC property for final placement must be sampled and analyzed when filing an RSC, (regardless of if the RSC is based on a Phase One ESA or Phase One and Two ESA).
Sampling Excess Soil
We won’t dig into the sampling requirements, but suffice it to say that the QP bears the burden to make sure that the sampling plan is in accordance with the regulations. As stated in 9.2.2, “…the sampling and analysis must comply with either the requirements in Section 31 of Schedule E to O. Reg. 153/04, as amended, or be in accordance with a Sampling and Analysis Plan prepared under the Excess Soil Regulation. In both cases, a QP must undertake the sampling and analysis.”
Key Requirements that Apply on RSC Sites
Here are some other key points from the document under 9.2.3
- during a field investigation for a Phase Two property, if soil is stockpiled on the RSC property for reuse on the RSC property, it will be stored in stockpiles according to contaminant and concentration of contaminant (s. 35);
- ensuring soil in stockpiles is appropriately sampled and analyzed (s. 36);
- taking precautionary measures before and during remediation (s. 37-39); and,
- undertaking confirmatory sampling (s. 39).
Soil Previously Placed at an RSC Property
In Section 9.2.5, they address a site that may have received and placed excess soil before starting an RSC. In this situation, there may be opportunity to use work completed under the Excess Soil Regulation to support the RSC process, as follows:
- If the soil that was previously placed at the property was sampled and analyzed in accordance with the requirements set out in the Excess Soil Regulation, the excess soil met the applicable excess soil quality standards (and not site-specific excess soil standards), and reports to this effect are available, then this previously-placed excess soil will not be viewed as a Potential Contaminating Activity (PCA) (i.e., “importation of fill material of unknown quality”) under O. Reg. 153/04.
- If the soil that was placed at the property that is now the subject of an RSC was not sampled in accordance with the Excess Soil Regulation, then this soil movement to the property will be viewed as a PCA under O. Reg. 153/04.
Site-Specific Standards at an RSC Property
Finally, under 9.2.6, they address site-specific standards. “The Excess Soil Regulation includes a Beneficial Reuse Assessment Tool (BRAT) and allows risk assessments to be used to develop site-specific standards for reuse of excess soil at a site. However, if an undertaking at a site (e.g. the redevelopment of a commercial property into a residential use property) will result in an RSC being filed, these approaches under the Excess Soil Regulation cannot be used (emphasis added). O. Reg. 153/04 includes similar approaches to develop site-specific standards, the Approved Model and accepted risk assessments. The approaches and associated rules in O. Reg. 153/04 must be used to develop site-specific standards for soil at an RSC property, including in relation to excess soil deposited at that property.”
Navigating the Excess Soils regulations with a Records of Site Condition can get confusing as we are dealing with two different Ontario Regulations. To get it “right” you need careful planning and documentation.
For more information on RSCs, see our blog Redeveloping Brownfield Sites in Ontario.
If you require assistance with an RSC or other environmental matter, please contact Chris Paré, P.Geo. at 519-948-7300, Ext 114. You can also contact me at 519-948-7300 Ext. 137.