On October 17, 2023, the MECP released ERO #019-7636, proposing regulatory amendments to Ontario Regulation 406/19 On-Site and Excess Soil Management and the associated Rules for Soil Management and Excess Soil Quality Standards, to encourage greater reuse of low-risk excess soils and prevent reusable soil from being disposed of in landfill. These proposed amendments would come into effect on January 1, 2024.
Overall, the proposed amendments aim to streamline and clarify regulatory requirements for managing excess soil, providing greater flexibility in certain operations, while maintaining environmental protection measures in place.
The proposed amendments are summarized below:
New Waste Environmental Compliance Approval (ECA) Exemptions
Exempt the following types of Class 1 facilities from sections 27, 40 and 41 of the Environmental Protection Act (EPA) resulting in an exemption from the need to obtain a waste ECA. These facilities would be required to register a notice on the Excess Soil Registry operated by RPRA for compliance and general awareness purposes before commencing and upon closure of operations.
- Topsoil and landscaping reuse depots. Would amend Section 7 of O.Reg. 406/19 to include topsoil reuse facilities. Expanding the max volume of soil storage to 25,000 m³ at any time for a maximum of one year. Excess soil at these facilities would need to be topsoil (per OPSS 802) or "other excess soil that can be sold to meet a realistic market demand as a landscaping product." LEA can provide a QP to develop the procedures required to be implemented to account for the source, type and likely quality of received soil and to prevent adverse impacts from storage or processing, and records would be required of sites from which soil was received and to which soil is distributed.
- Aggregate reuse depots. These would be a new type of facility that would only accept used/recycled aggregate excavated from a Project Area and was not general fill or mixed earth (e.g., granular A or B). Maximum storage volume of 25,000 m³ at any time for up to one year. Aggregate brought to the depot could be stored and processed using low risk methods (e.g., mixing, sorting) to make an aggregate product. The aggregate must meet community property use standards or, if untested, there are no visual/olfactory/historical indication of contaminants. LEA can provide a QP to develop the procedures required to be implemented to account for the source, type and likely quality of received soil and to prevent adverse impacts from storage or processing, and records would be required of sites from which soil was received and to which soil is distributed.
- Small liquid soil depots. These would be a new type of facility that would only accept liquid soil from various Project Areas (e.g., hydrovac slurries, SWM pond sediment) for "low risk" processing. Excludes high risks liquid soils and material from cleaning out sewage works. Limited to 200 m³ of liquid soil and 2,000 m³ of dewatered or solidified soil at any one time and storage for six months. Requires liquid soil storage in leak proof containers and impermeable surface. Facility requires controlled access (e.g., gates, fencing), spill containment and clean up equipment. Does not supersede requirements under the Ontario Water Resources Act (OWRA), including any requirements for sewage works approvals.
Enhanced Reuse Opportunities for Salt-Impacted Soil
- More flexibility regarding the use of salt-impacted soil (i.e., electrical conductivity, sodium adsorption ratio) in locations where such soil is anticipated to have minimal impact.
- Salt-impacted soil would be permitted for undertakings at community, institutional, parkland or residential properties if an expert (e.g., licensed landscape architect) identifies areas and depths where salt-impacted excess soil would not affect existing or future vegetation.
- In agricultural properties, it can be used in areas that are not used for growing crops or pasturing.
Amendments to Class 2 Soil Management Sites and Waste Transfer Facilities
- Expansion of allowable volume of excess soil at Class 2 soil management sites and local transfer facilities to 25,000 m³.
- Replace Director’s notification with requiring the filing of a notice on the Excess Soil Registry if accepting greater than 2,000m3 of dry excess soil.
- Enable public bodies to lease properties for the purpose of operating a Class 2 site.
- Allow soil from different project areas to be mixed into one stockpile if there is confidence that the soil is of similar quality and if there is no evidence of contamination. Tested soil must remain separate from untested soil.
- Allow salt-impacted excess soil to be stores at Class 2 and LWTF sites.
Hauling Record Exemptions and Clarifications:
- Proposal to remove the requirement for a hauling record under certain circumstances, such as the direct transport of small quantities of dry excess soil or the transportation of packaged landscaping products. Hauler must still be able to provide information verbally if requested.
- Amending O.Reg. 406/19 to clarify that the Project Area operator must confirm that the hauling record is accurate and require the operator to identify contingency plans for the hauler should the soil not be accepted at the intended receiving site.
Exemption from Reuse Planning Requirements for Landscaping Projects:
- Exempt landscaping projects within enhanced investigation project areas from certain reuse planning requirements, based on less than 100 m3 being excavated and the absence of potential contamination.
- Landscaping projects are limited to providing landscape care and maintenance services, installing trees, shrubs, plants, lawns or gardens, and the construction of walkways, retaining walls, decks, fences and ponds.
Responsibilities of a QP for Liquid Soil Dewatering or Solidification
- Clarify that QPs are responsible to undertake reasonable investigations to confirm that adverse effect would not result from the use of these polymers, or their breakdown products, for this purpose in soil.
- This conclusion is not intended to serve as a guarantee.
Clarifications of Sampling and Analysis Requirements:
- Amendments would clarify the sampling and analysis requirements for where the existing framework was needlessly confusion, difficult or restrictive.
Greater Flexibility for Soil Storage Adjacent to Water Bodies:
- Proposal to allow soil storage within 30 meters of a water body for specific projects, subject to certain conditions to prevent adverse impacts on the water body.
Other Clarifications and Corrections
- Various proposed amendments to clarify regulatory requirements and ensure consistency and accuracy.
- With respect to leachate analysis, clarify that if petroleum hydrocarbons and metal parameters are only being sampled because of the mandatory sampling and analysis plan requirements (i.e., they were not also associated with a potentially contaminating activity), they do not need leachate analysis as well.
Of particular note in these proposed regulatory amendments is the new types of Class 1 facilities, which will provide more tools and flexibility for well-informed Project Leaders, Contractors and QPs to establish the appropriate depot(s) for their Projects.
LEA is encouraged by this proposal and is currently preparing comments to share our thoughts on these proposed amendments. Please let us know if you have any questions or comments, which you would like to have communicated by LEA on your behalf.
To consult with one of our experts on the above please contact:
Drew Chevalier, P.Eng., QPESA