Summary of Issue

Things to Consider

A significant risk of ineffective soil management is causing an adverse effect or degradation of the reuse site, with potential impacts on the environment and public health. It is important to understand both the quality of excess soil from the source site/project area, as well as the quality of soil at the reuse site. There can be significant impacts if proper soil analyses have not been conducted.

The appropriate soil quality for a reuse site is determined through use of the generic excess soil quality standards provided in Part II of the Rules Document (entitled Excess Soil Quality Standards), or through use of the Beneficial Reuse Assessment Tool (can be used by or under the supervision of a QP), or through risk assessment.  The applicable standards are determined or agreed to by the reuse site owner or operator.  If there is a site-specific instrument, such as a municipal fill permit, that recognizes a need for fill and includes conditions related to the quality and/or quantity of soil that may be deposited, then the conditions in that site-specific instrument apply.

The MECP BMP encourages excess soil reuse so long as, if needed, there have been proper analyses, conducted by a qualified person (QP), of both the Project Area (source site) and reuse site (receiving sites) to demonstrate appropriate reuse with no potential to cause an adverse effect. These analyses should use a risk-based approach to evaluate concentrations of individual contaminants and the potential impacts on the pre-existing conditions of the area where soil is to be reused. At a reuse site, a QP should specifically consider:

• Soil type and permeability

• Source water protection areas;

• Natural hazard areas;

• Surface water features;

• Natural heritage features;

• Wetlands; and

• Groundwater systems.

Per the BMP the QP would also be responsible for completing a Fill Management Plan, which in part, requires: “…identification of appropriate soil quality and soil types for excess soil to be received at the site as determined by the QP based on site location/sensitivity, anticipated land use, ground water use/sensitivity, pre-existing site conditions or other factors as to ensure that there is no likelihood of adverse effect;” [1] [See Fill Management Plan Issue page].

[1] Ministry of the Environment Conservation and Parks.  Management of Excess Soil – A Guide for Best Management Practices (https://www.ontario.ca/page/management-excess-soil-guide-best-management-practices)

Short Form References

This page makes reference to:

• the “Excess Soil Regulation”  which is the short form for the Ontario Regulation 406/19 On-Site and Excess Soil Management made under the Environmental Protection Act.

• the “Rules document” which is the short form the reference document to the regulation entitled Rules for Soil Management and Excess Soil Quality Standards.

Key Takeaways

As part of determining whether excess soil can be placed at a reuse site, two types of standards can be used: (see Resource section below for a more detailed description of the MECP Soil Quality standards)

• Generic excess soil quality standards, provided for 2 different volumes – small volume up to 350 m3 and volume independent for greater than 350 m3.

OR

• Site specific standards – Site-specific standards can be developed through the BRAT or risk assessment (which may include risk management measures), and/or through a site-specific instrument (e.g. municipal fill by-law, Aggregate Resources Act Licence). Whether BRAT or RA are used or not, municipality can set alternative soil quality standards (relative to the generic standards) which it approves via a site-specific instrument.

For both categories, the standards are supported by more detailed rules which provide additional clarity and flexibility such as proximity to water body, salt impacted soil, soil mixed with compost etc. through a by-law or related permit process, a municipality can deviate from these rules.

Municipalities can use quality standards in their by-laws that are the same as ministry’s generic standards, or adopt their own standards (which could be done using the Beneficial Reuse Assessment Tool or a risk assessment approach as described in the Rules document).  If a municipality does not reference standards that are different, then the Provincial generic standards become default. 

If it is determined that the excess soil is not of suitable quality to be directly reused, it  may be remediated (cleaned), either on-site or at a soil remediation facility, or taken to a landfill. . Depending on the method of processing used on-site, an ECA for waste may be required.

Beneficial Reuse Assessment Tool (BRAT) - BRAT is  a tool to allow a Qualified Person (QP) to change site specific parameters, such as depth to water table, etc. to develop site-specific standards, BRAT can also be used in conjunction with an instrument for use of various "site use characteristics" such as building prohibition, hard cap, etc. As stated above, the Rules document also provides an approach for risk assessment.

It is important to review all relevant sections of the Excess Soil Regulation and the Rules document when seeking to make these determinations. For example, there are rules about when an instrument is needed for both the BRAT and risk assessment to be used.

Rules for Specific Types of Soil and Reuse Sites The Rules document (Part I, section D) provides rules for reuse for specific types of soil and specific types of reuse sites (e.g. excess soil blended with compost; salt-impacted soil,, soil for growing crops and pasture; environmentally-sensitive areas). Through a site-specific instrument (e.g. a municipal fit by-law), a municipality can deviate from these rules.

One of the most important of these is when salt-impacted soil is to be reused. Soil that is impacted with salt due to salting for vehicle and pedestrian safety can be reused if the following criteria are met:

• If soil is finally placed in an area where salting is expected e.g., future parking lot, future road; or

• At an industrial/commercial property where non-potable standards apply; or

• At least 1.5 meters below the surface

Despite the above, salt impacted soil cannot be reused in any of the following circumstances:

• Within 30 meters of a waterbody

• Within 100 meters of a potable well / an area intended for future potable well

• Where crops / pasture activities are occurring / planned (unless the soil is placed 1.5 m or greater below the soil surface)

In addition to meeting the above, the project leader or operator of the project area must also inform the reuse site owner or operator that the excess soil is from a location that may be expected to contain the chemical and, if sampling and analysis has been conducted in accordance with the regulation, the project leader or operator of the project area must provide relevant sampling results to the reuse site owner or operator, including the soil characterization report if prepared, and identified and communicated any potential risks to surface water and ground water to the reuse site owner or operator

As a second example of rules for specific types of soil and reuse sites, as outlined in the Rules document, Table 1 of the Excess Soil Standards is sometimes required to be used.  This includes, for example, when seeking to deposit excess soil on to cropland. Table 1 is the most stringent table of standards representing typical background concentrations, when available.  Table 1 needs to be met for environmentally sensitive sites, such as in or near wetlands and significant woodlands and areas with significant habitat of a threatened or endangered species, and in locations where the soil will be used for growing crops or pasture.

Things to Consider

Applicant’s Demonstration of Meeting Regulatory Requirements 

The proposed King Township Site Alteration and Movement of Fill By-law allows consideration of the use of either Generic Standards or Site Specific Standards developed from a Site Specific Risk Assessment providing the rationale is in compliance with O.Reg 406/19  It is up to the Permit applicant to demonstrate to the Township that the proposed site alteration and fill activities (including soil quality standards) are compliant with the regulation .The applicant must demonstrate that soil sampling protocols are consistent with the new Excess Soil Regulation (for fill that meets the definition of Excess Soil as defined in the regulation) and the Brownfields regulation, as amended, and the document entitled “Guidance on Sampling and Analytical Methods for Use at Contaminated Sites in Ontario”, December 1996.

Key Takeaway

Responsibility for issues related to soil quality

See the Enforcement Tab and Reg Guidance pages for information on where responsibility lies in regards to enforcement of matters related to soil quality.

Resource: Excess Soil Regulation Soil Quality Standards

Generic Excess Soil Quality Standards have been developed as part of the Excess Soil Regulation to determine if excess soil quality is appropriate for reuse at a reuse site; these Excess Soil Quality Standards can be found in Part II of the Rules for Soil Management and Excess Soil Quality Standards document. These Excess Soil Quality Standards were developed using similar models used to develop Brownfield standards under O. Reg. 153/04 - Records of Site Condition: Part XV.1 of the Act, made under the EPA  (Brownfields Regulation).

Regarding site-specific standards, sometimes excess soil that is planned to be relocated may not meet the generic Excess Soil Quality Standards applicable to the proposed reuse site.  In some cases, site-specific standards can be developed that better reflect the local conditions at the reuse site thereby enabling greater excess soil reuse but maintaining environmental protective rigour.  As noted above, these site-specific standards can be developed using either the ministry’s BRAT or by conducting a risk assessment.

For more information on the development of the excess soil quality standards please refer to the Rationale for the Development of Excess Soil Quality Standards. 

For further information on appropriate soil quality and details on soil reuse, please see MECP’S Factsheet series for an overview of relevant regulatory requirements, BMPs, FAQs and key definitions.  https://www.ontario.ca/page/handling-excess-soil

Things to Consider

Potential municipal role in oversight of soil quality

• Set appropriate soil quality standards (see above regarding the municipality’s ability to specify excess soil quality for a site)  

• Address the potential need for the municipality to change the standards (due to regulatory changes, land use changes etc.)

• As best practices, audit soil quality in the field at reuse sites, and provide a mechanism for stakeholder engagement and / or a transparent way to disseminate information

• Provide enforcement and respond to complaints for soil movements on the basis of municipal by-law.

In the example by-law language of the draft Site Alteration by-law developed by the Township of King (slated for approval in early 2021) the by-law makes explicit, the adoption of the Generic Standards through its reference to the Provincial regulation.

“Section 8 Minimum Statndards ensure that all fill used in accordance with this By- law meets the MECP soil standards for the intended use of the lands to the satisfaction of the Town, provided that the fill shall not contain pcb levels higher than as permitted in Table 1 of the Rules for Soil Management and Excess Soil Quality Standards, adopted by reference in O. Reg. 406/19 ( On - Site and Excess Soil Management) made under Environmental Protection Act, R. S.O 1990, c. E. 19, as amended;”[2] 

Things to Consider

Definitions 

When addressing soil quality issues in a by-law, a municipality should consider including definitions for “adverse effect”, “contaminant”, “contaminated fill”, “excess soil”, “liquid soil’,‘dry soil”, “qualified person” and “soil”. Outlining clear definitions can help promote consistency in quality of soil managed across site alteration projects. See Definitions section for example language. 

It is recommended that  by-laws should generally only use terms that are defined in legislation and/or regulation and therefore will hold up as legal terms. For example, the terms  “Clean Fill” or “Clean Soil” are not defined in law and should be avoided.

Key Takeaway

Role of a Qualified Person (QP)

The following is from the MECP BMP.

“The owner/operator of a Receiving Site should retain the services of a QP to undertake an assessment to establish the current site condition of the soil and ground water to ensure the site is appropriate to be used as a Receiving Site. Appropriateness of the site should be based on, and take into consideration soil type and permeability in addition to nearby receptors and features, such as source water protection areas, natural hazard areas, surface water features, natural heritage features, wetlands and their areas of hydrologic influence, and ground water recharge rates, patterns and areas. Consideration should also be given to the future land use for the site, including potential agricultural uses and capacity.” [3]

Under the Excess Soil Regulation, a QP is needed for key responsibilities. As a key example, if a project leader is required to file notice in the registry prior to removing excess soil from the project area/source site, certain soil management planning requirements are required and in many instances these actions must be undertaken or overseen by a qualified person.

When filing a notice in the registry is required (for source sites/project areas) and the planning requirements are triggered, the QP is required to undertake or supervise the following components.

• Completion of an Assessment of Past Uses Report and, if necessary, a Sampling and Analysis Plan and an Excess Soil Characterization Report to understand the quality of the soil that will be excess soil; and

• Completion of an Excess Soil Destination Assessment Report to verify that intended reuse sites can accept the soil to be sent to them.

In addition, it is also notable that there are a few planning requirements that QPs are not required to oversee such as the tracking of excess soil. 

Regulatory Definition of a Qualified Person (QP)

(O. Reg. 406/19 Section 1 (1)) 1.(1) "qualified person” means, (a) subject to clause (b), a qualified person within the meaning of Section 5 of Ontario Regulation 153/04, and (b) for the purposes of subsections 5 (2) to (5), 6 (4), paragraph 7 of subsection 19 (4), section 20 and section 13 of Schedule 1, a qualified person within the meaning of section 5 or 6 of Ontario Regulation 153/04.

Plain Language Description

Within the meaning of Section 5 of Ontario Regulation 153/04 Records of Site Condition, QPs for the purposes of undertaking environmental site assessments are professional Geoscientists and professional Engineers. Further, within Section 6 of O. Reg. 153/04, a QP for the purposes of risk assessments can be an experienced Risk Assessment professional. A QP is someone who can exercise professional judgment based on his or her education and professional experience in order to advise on appropriate reuse options for the excavated soil or excess soil, and make these decisions based on appropriate analysis and characterization of the soil. A QP defined in Section 6 may complete a beneficial reuse assessment tool (BRAT) or risk assessment. A QP in Section 5 may complete the BRAT (with appropriate experience) and/or any of the other tasks identified as requiring a QP in the excess soil regulations and rules, with the exception of a risk assessment (unless they also meet the definition of a QP under Section 6). [4]

It should be noted per the Excess Soil Regulation reuse sites would be required to hire a QP only under certain circumstances, including when a BRAT or risk assessment is to be used to create site-specific standards for the reuse site. However retaining a QP in additional circumstances would be a best practice.

See:  ONEIA Best Practices for Qualified Persons for Consideration with: O. Reg. 406/19: Onsite and Excess Soil Management in Ontario   Ontario Environment Industry Association - Excess Soils Best Practices (oneia.ca) Also see factsheets on the MECP’s Excess Soil page:  https://www.ontario.ca/page/handling-excess-soil.

References

[1] Township of King, draft Site Alteration By-law xxxx 2021 LINK to be updated

[2] By- law 2020-007  Site Alteration By-law.  Town of New Tecumseth  Site-Alteration-Fill-By-Law.pdf (newtecumseth.ca)

[2] Ministry of the Environment, Conservation and Parks.  Management of Excess Soil – A Guide for Best Management Practices (https://www.ontario.ca/page/management-excess-soil-guide-best-management-practices)

[3] Ref: ONEIA Best Practices for Qualified Persons for Consideration with: O. Reg. 406/19: Onsite and Excess Soil Management in Ontario  Ontario Environment Industry Association - Excess Soils Best Practices (oneia.ca)