Delivering Ontario’s Excess Soil Management Policy Framework Proposed Regulatory Package Overview Industry Information Session City of Ottawa June 19, 2017 Ministry of the Environment and Climate Change
Why Are We Proposing This Regulatory Package? • Recent industry studies have estimated that: • Approx. 26 million cubic metres of excess soil is generated in Ontario annually (RCCAO, 2017). • 75% of projects surveyed reported transporting excess soil an average of almost 65 kilometres, generating a significant amount of greenhouse gas (OSPE, RCCAO, GTSWCA, 2016). • The management of excess soil is a significant concern in urban centres and surrounding communities. • MOECC committed to develop a policy framework in Ontario’s Great Lakes Strategy • In January 2014, MOECC released a Best Management Practices Guide • In January 2016, based on a request that was made, MOECC, with the support of other ministries, completed a review under the Environmental Bill of Rights of the need for excess soil-related policy. • Key concerns and policy needs raised related to excess soil management: • illegal dumping of soil and poor quality soil being inappropriately relocated; • greater source site responsibility to ensure excess soil is characterized and relocated appropriately; • more clearly defined provincial, municipal and conservation authority roles; • better tracking of excess soil to the sites where it is reused; • improved standards for reuse of excess soil and direction on soil sampling; and • greater integrated planning to encourage reuse.
Why Are We Proposing This Regulatory Package? • In December 2016, following outreach, MOECC released an Excess Soil Management Policy Framework to guide policy development, with two key goals: • Protect human health and the environment from inappropriate relocation of excess soil • Enhance opportunities for the beneficial reuse of this soil and to reduce greenhouse gas emissions associated with its transportation • Includes 21 actions, divided into key areas (source sites, receiving sites, reuse, etc.) Regulatory Proposal • Ontario is seeking public input on an Excess Soil Regulatory Proposal that includes a new regulation and complementary regulatory amendments related to the management of excess soil. • The regulation would help to ensure excess soil is properly assessed for potential contaminants and is relocated to appropriate receiving sites. • This regulatory package recognizes excess soil as a resource and promotes a system which strives for environmental protection, local beneficial reuse, consistency, fairness, greater enforceability and flexibility. • The ministry is seeking feedback on this proposal; it is posted to the Environmental Registry for comment from April 24, 2017 to June 23, 2017.
Overview • Excess soilmeans soil and sediment, which is to be removed from a property or project area as part of a development project.This proposed regulation would help ensure it is relocated appropriately. Presentation Overview • Documents posted on EBR for consultation • When is excess soil waste; when is it not waste? • Requirement for an Excess Soil Management Plan • Tracking and record keeping • Registration • Excess soil characterization • Excess soil reuse standards Note: Deck paraphrases the proposal documents posted on the environmental registry. Please also refer to those documents. S. Coelho, Dec. 2016, Yonge and College MOECC, Nov. 2015
Proposed Regulatory Package on EBR for Consultation 1. Proposed Excess Soil Regulatory Package. The contents include: • A NEW proposed Excess Soil Reuse Regulation , including provisions requiring an excess soil management plan, requiring tracking and registration of excess soils, and specifying when excess soil is waste • Schedule A, providing the contents of an excess soil management plan • Schedule B, providing requirements related to excess soil characterization, which are intended to be placed in a separate document referenced by the regulation • Schedule C, providing excess soil reuse standards and approaches, which are intended to be placed in a separate document referenced by the regulation • Proposed consequential amendments to Regulation 347 (General Waste Management) • Proposed consequential and minor amendments to Ontario Regulation 153/04 (Records of Site Condition) • Proposed new excess soil-related purpose for the Environmental Site Registry and proposing a Minister’s regulation related to operation of the excess soil component of the registry • Proposed amendment to the Building Code pertaining to applicable law 2. Rationale for Reuse of Excess Soil At Receiving Sites: Provides rationale for the proposed standards in Schedule C of the regulatory package
Proposed Designation of Excess Soil as a Waste • The proposed regulation would designate excess soil as a waste when it leaves a project area • Excess soil would cease being a waste once it is relocated to an appropriate receiving site that is not a waste disposal site. • The designation of excess soil as a waste ceases at the moment at which at which one of the following occurs: • the excess soil is deposited at a receiving site that is governed by a site specific instrument or by-law, • the excess soil is deposited at a receiving site that is not governed by a site specific instrument or by-law, and all of the following criteria are met: • the excess soil is deposited at the receiving site is in accordance with the Ministry’s proposed Reuse of Excess Soil At Receiving Sites, and • the excess soil has been used at the receiving site as backfill for an excavation, for final grading, to fill a depression to the grade surrounding the depression, or to achieve a grade necessary for planned development or landscaping, and • The receiving site is not being used solely or primarily for the purpose of depositing excess soil. • if the excess soil originates from an infrastructure project, the excess soil is deposited at a project area of an infrastructure project that belongs to the same proponent. • Site specific instrument or by-law includes a site alteration permit under the Municipal Act and a license under the Aggregate Resources Act • In 2., above, excess soil may be stored at the receiving site for 90 days before use, unless use is at an infrastructure project (no time limit)
Excess Soil and the Waste Designation Excess Soil is NOT Designated Waste Excess Soil is NOT Designated Waste Excess Soil is Designated Waste Temp. Storage Site Project Area (Source Site) Receiving Site Processing Sites/Soil Banks • Not waste if at site with site specific instrument • Not waste if reused on appropriate site within 90 days • Not waste if at infrastructure project of same proponent • Not waste if reused on-site • Becomes waste when moved off-site • Waste if undergoing on-site processing • Haz Waste is waste from time of excavation Landfill
Waste-Related Approvals and Requirements • The proposed regulation would clarify when approvals are needed such that excess soil that is in a condition for reuse and is going to a receiving site for reuse, would not require approvals • Excess soil at a processing site continues to be designated as a waste and waste-related ECAs would continue to be required for processing sites, including soil banks • Temporary excess soil storage sites (no processing,) would not require approvals but some conditions apply, including maximum 2 years storage, known receiving sites, controlled by same proponent or a public body. • Transport of excess soil to a processing site or land fill would be required to use an approved waste hauler (see bolded lines); but transport to a final receiving site for reuse would not • Hazardous waste and liquid waste must be managed as waste with appropriate approvals • Vacuum truck soils would be waste and waste system approvals would be required • Sediment, including from a storm water pond may be dewatered on-site and managed as excess soil Temp. Storage Site (no ECA) Project Area (Source Site) Receiving Site (No ECA) Processing Sites/Soil Banks (ECA) Landfill (ECA)
Proposed Requirement for an Excess Soil Management Plan • This proposed regulation is intended to shift more of the responsibility of excess soil management to the source site owner to help ensure excess soil is properly relocated. This is achieved through requirements to prepare and follow an excess soil management plan for specified projects. • An excess soil management plan would be required to be prepared and key information registered in accordance with the regulation prior to any excess soil leaving the project area • There would be 2 key triggers for a source site owner to be required to prepare a Plan for a project: • Quantitative Trigger - if 1000m³ or greater of excess soil is to be moved off site • Qualitative Trigger - if excess soil is coming from an area with a current or known past potentially contaminating activity (i.e. an activity that may have caused contamination, such as fuel storage or industrial processing) • Some exemptions are proposed from the need for a Plan: • Emergencies (e.g. spills and emergency infrastructure failure) • Regular maintenance of infrastructure • If the volume of excess soil does not exceed 100 cubic metres and the excess soil is taken directly to a waste disposal site • Excess soil transfers between infrastructure projects where the proponent is the same • If the project area is on Crown land • If the project area is outside of a settlement area and does not include an area of potential environmental concern or properties that have been used for industrial or certain commercial uses (e.g. gas station)
Proposed Requirement for an Excess Soil Management Plan • The proposed required contents of a Plan are specified in Schedule A; mandatory components of a Plan would include: • project area description and ownership • project description and soil management requirements • involved QP(s) and contractors • excess soil sampling plan and excess soil characterization • excess soil receiving site locations, ownership and property information • tracking system and description of records being kept • statements certified by the QP and proponent relating to the veracity of information provided, the work under taken to support the plan, and the completeness of the plan • a cumulative record of excess soil moved (receiving sites, volume, quality) • a record of plan modifications • Excess soil management plans would be prepared and certified by a qualified person • Professional Engineers and Professional Geoscientists, as defined in s. 5 of O. Reg. 153/04 • A QP shall not act as the QP responsible for completing an ESMP for a project if the QP has a direct or indirect interest in the project. • No person would be able to construct a building, if the building includes shoring, unless an ESMP has been prepared and registered in the Registry. This is proposed to be applicable law under the Building Code.
Excess Soil Registration and Registry Required Registration • The new Excess Soil Reuse Regulation would require, in an online registry, registration of a notice that an Excess Soil Management Plan (ESMP) has been completedprior to any excess soil leaving a project area that required a Plan. • Key information from a Plan would be registered, not the full plan. • Registration would occur prior to excess soil being moved, and periodic updates would be required describing movements of excess soil. • Excess soil quality registered would be by category(e.g. applicable generic standard, site specific standard,…). • Registry requirements proposed for some excess soil movements not subject to ESMP (e.g., infrastructure projects, stormwater pond maintenance 1000m³ or greater). Registry • MOECC is assessing third party administration of this online registry together with other programs supporting excess soil reuse. • The online registry would be a component of the environmental site registry under Part XV. 1 of the EPA. Notice of Excess Soil Management Plan Preparation (conceptual) Registration #: • Pre-Movement • Project area location • Project description – general • Proponents/contact info • QP/contact info • Excess soil quality category, and volume • Intended receiving sites (including land fill, banks…) • Certifications, e.g. plan is complete, info is true • During/After Movement • Receiving site(s) location/contact info/ soil use • Quality taken by category, and volume • Start/end dates • Hauler/contact info • Certifications, e.g. all excess soil has been reported, info is true
Proposed Tracking and Record Keeping Requirements Required Tracking System • A key objective of the proposed regulation is to ensure that excess soil is tracked • The proponent must ensure that a soil tracking system is developed and implemented, as part of the Plan, to enable the movement of excess soil to be tracked from the time it is excavated within a project area to the time it reaches the final location where it is deposited. • The QP shall ensure that the tracking system includes auditing procedures to ensure the system is being implemented and is able to produce necessary records. Required Records • To help ensure traceability of soil movements, certain records would be maintained. • Excess soil hauling record • ALL soil movements, and required to be available with the truck (could be electronic) • Would provide information on quality category, quantity, source site, receiving site, time and date leaving and being deposited, and contacts for the sites • A copy would be retained by the source site, receiving site and the hauling company • Cumulative record of excess soil movements • Only source sites required to complete an ESMP • Total amount of excess soil moved from a particular project area to each receiving site, documenting the total quantity and quality category of excess soil taken. • A copy of these records would be held by each party for a minimum of 5 years.
Proposed Sampling Requirements (Schedule B) • Excess Soil Characterization Requirements • Excess Soil characterization requirements, including sampling requirements, would, preferably, be in a document referenced by the regulation and supported by guidance • Characterization requirements would be applicable to sites for which a Plan is required • Key elements of the characterization required include a phase one environmental site assessment, a sampling and analysis planand an excess soil characterization report • Sampling is mandatory in areas associated with a potentially contaminating activity or a past land use that was industrial or specified commercial uses, such as gas stations • Minimum sampling frequency provided for in-situ sampling and sampling in stock-piles • Minimum parameters to be tested are provided
Proposed Reuse of Excess Soil at Receiving Sites (Schedule C) • An excess soil management plan would be required to identify appropriate receiving sites by comparing the quality and quantity of the excess soil to the applicable standard for a receiving site based on: • MOECC excess soil reuse rules, including standards; or • Standards in a site specific instrument or by-law. • New proposed MOECC excess soil reuse standards are modeled from brownfields redevelopment standards; for the final regulatory package, these standards may be in a separate document adopted by reference in the regulation). • Proposed excess soil reuse standardsincludes: • Land use-based and potability-based standards (similar to brownfields Tables 2 and 3) • Table 1 of the brownfields standards would required in certain circumstances • Are proposed to have three size categories: up to 350m3 (can be justified to 1000m3) which are the same standards as the brownfields regulation; up to 5000m3 and infinite volume. • Rules provided for reuse in certain circumstances: environmentally-sensitive areas; salt in soil; natural background; agricultural land; and soil originating from an APEC • Additional standards being developed for sub-surface, where no buildings are present, under pavement, at aggregate pits, and other scenarios • The proposed regulation recognizes a new Site Specific Beneficial Reuse Assessment Tool (under development) to allow alternative site specific standards to be developed by a QP • Alternative risk assessments, such as community-based risk assessments, are also proposed to be acceptable through more formalized procedures.
Complementary and Minor Amendments to other Regulations In Regulation 347 (General Waste) • The definition of Inert fill would be amended to clarify that excess soil would no longer be a component of “inert fill”. In O. Reg. 153/04 (brownfields) • To align requirements at record of site condition sites with proposed excess soil requirements, the following amendments are proposed: • Fill quality requirements wouldmeet the new Excess Soil Reuse Standardsfor soil brought to a Record of Site Condition property • Sampling requirements would be made consistent for excess soil coming to a record of site condition property, e.g., stockpile, and, where applicable sampling leaving an RSC property • Additional amendments proposed through the Modernization of Brownfields initiative (next 2 slides) S. Coelho, Dec. 2016, Yonge and Alexander S. Coelho, Dec. 2016, Yonge and Yorkville
Proposed Modernization Amendments to the Record of Site Condition Regulation • The ministry is proposing amendments to the RSC Regulation (O. Reg 153/04) to make excess soil management on brownfields properties consistent with and complementary to proposed new excess soil management requirements (e.g. tracking/importation of excess soil). • The ministry is using this unique opportunity to propose further regulatory amendments to the RSC Regulation that will reduce burden and enhance clarity with the brownfields regulation, including: • Delineation: A regulatory amendment would provide limited ministry discretion to help clients going through the RA process to resolve site specific delineation challenges and enable the filing of a RSC. • Substances used for purpose of safety under conditions of snow/ice: An amendment would expand the existing exemption to allow QPs to also consider substances used for purpose of traffic and pedestrian safety under conditions of snow/ice. • Converting Commercial Buildings to Mixed Use: An amendment would allow property owners that are not redeveloping and not altering the building footprint to convert upper floors of low rise commercial buildings to residential without requiring a RSC.
Proposed Modernization Amendments to the Record of Site Condition Regulation • Temporary Roads Related to Development: An amendment would clarify that a RSC is not required to change this type of road to residential use. • Treated drinking water: An amendment would allow for exceedances at Record of Site Condition properties if due to treated drinking water by-products. • Naturally Elevated Concentrations of Substances: An amendment would clarify that local fill deposited onto the property is deemed to not exceed applicable site condition standards if the QP demonstrates that substances in soil does not exceed local naturally occurring concentrations of that substance and soil was deposited prior to Environmental Site Assessment work. • Day care centres: An amendment would update the definition of day care centre to a “child care centre” as defined in the Child Care and Early Years Act. • Religious Properties–An amendment would allow for religious institutions to be converted to residential without requiring a RSC.
Please Provide Comments Environmental Registry regulatory proposal posting closes June 23, 2017 Please respond through the Environmental Registry at https://www.ebr.gov.on.ca/ERS-WEB-External/ (EBR # 013-0299) or send comments to: MOECC.LandPolicy@ontario.ca If you have questions on this proposed package, please contact Sanjay Coelho at firstname.lastname@example.org by phone at 416-326-5107.
Appendix: Process Flowchart All Excess Soil Movements • Plan project • Minimize excess soil • Determine amount of excess soil and if any PCAs Is an excess soil management plan required? Determine receiving site considering waste designation No • If necessary, use waste hauler • Ensure hauling record with truck Retain hauling records Yes Registration Not all proposed registration requirements are shown If Excess Soil Management Plan is Required (in addition to above) Create notice that plan has been prepared Register soil movements, regularly Close off record Prepare Excess Soil Management Plan Implement Plan • Complete soil characterization • Phase 1 ESA • Sampling Plan • Sampling and analysis • Report Identify intended receiving sites • Close off Plan • Retain copy of Plan and records Cumulative record of soil movements maintained Plan tracking system Tracking system implemented – from excavation to reuse Building permit issued Create and maintain source site record in registry