Large quantities of soil excavated in Canadian construction projects are relocated to other sites. Until now, the practice has been sporadically regulated by provincial governments. In 2019, both the Ontario and Québec governments are proceeding with new regulatory schemes that, for the first time, will impose legal requirements on the movement and disposition of excavated soil.
The Ford Government in Ontario has decided to proceed with a new regulatory regime for excess soil first proposed by the former Wynne Government. The new proposal is similar with a few key differences, notably a ban on depositing clean soil in a landfill starting in 2023. The proposal was posted for public comment on the Environmental Registry until June 17, 2019, and the Ministry of the Environment, Conservation and Parks is currently reviewing one hundred and twenty submissions. As some parts of the new On-Site and Excess Soil Management Regulation are proposed to come into effect on January 1, 2020, we anticipate that the new Regulation will be finalized before the end of this year.
“Excess soil,” defined as soil excavated as part of a project and removed from the project area, will be designated as a “waste” under the Environmental Protection Act, unless it is directly transported to a “reuse site,” a “soil bank storage site,” a “temporary soil storage site” or a “soil processing site.” If excess soil is deposited at a reuse site, there must be a beneficial purpose for the filling. If the reuse site is not governed by a permit issued by a municipality or conservation authority, soil quality must meet either new generic standards or site specific standards developed using a new online tool. The new generic standards are generally more stringent than the existing site condition standards for contaminated properties. If the reuse site is governed by a permit, soil quality has to meet those standards or less stringent quality standards imposed by the issuer. Municipalities and conservation authorities cannot impose more stringent quality standards.
Beginning in 2021, before excess soil may be removed from a project, a “Qualified Person” must assess past land uses, prepare a sampling and analysis plan and soil characterization report (if the assessment identifies an historic potentially contaminating activity), and prepare an excess soil destination report. These requirements will not apply if the soil is from an infrastructure project and the reuse site is also an infrastructure project. There are exemptions for smaller and lower risk excavations.
In addition, starting in 2021 notice must be filed in the Registry and then updated within 30 days of the removal of the excess soil from the project area. An excess soil tracking system will also be required. Before excess soil may be accepted at a reuse site for more than 10,000 m3 of excess soil, the reuse site operator has to file notice in the Registry and have procedures in place to account for every load.
Like the former proposal, the biggest issue with the new regulatory scheme is expected to be a shortage of appropriate reuse sites. Without assuming authority over the permitting of reuse sites, the Ontario Government will leave that task to increasingly reluctant municipal governments. The situation will only get worse when excess fill is banned from landfill in 2023.
Numerous large-scale infrastructure projects in the Montréal metropolitan area have contributed to a construction boom. The province estimates that projects generate approximately 2,000,000 metric tons of contaminated soil per year, of which certain industry groups estimate 10% to 25% is not disposed of in compliance with environmental regulations. Instead, contaminated soil is often found dumped on prime farmland or on vacant lots.
In response to media scrutiny on the illegal dumping of contaminated soil following a series a failed prosecutions, the Québec government proposed in April 2019 the adoption of a regulation on the traceability of excavated contaminated soil. The draft regulation is being studied in committee following industry comments; however, it is largely expected to adopt the Traces-Québec system developed by industry group Réseau-Environnement to tackle illegal dumping.
This system is currently being used as part of a pilot-project applicable to contractors performing public contracts in certain boroughs in Montréal, but is expected to be made applicable to both the public and private sector in the coming months, through amendments to regulations applicable to contaminated soil in Québec, and the adoption of additional measures.
The regulation of contaminated soil in Québec is already subject to a triad of regulations: Land Protection and Rehabilitation Regulation, CQLR c Q-2, r 37; Regulation respecting the burial of contaminated soils, CQLR c Q-2, r 18 and the Regulation respecting contaminated soil storage and contaminated soil transfer stations, CQLR c Q-2, r 46. The draft regulation proposed by the Québec government will enact traceability measures from source to site of final disposal. This process requires that every transport of excavated contaminated soil be tracked in real time from the site of origin to the agreed unloading site.
Until the adoption of the final wording of the regulation is made available, we will not know the full extent of the obligations incumbent upon those involved in the chain of custody of contaminated excavated soils; however, it is likely that the owner, carrier, and person responsible for the receiving site will each have to input information via an online system prescribed by the Minister and submit an electronic tracking slip which will track the soils for the duration of their transportation to the site where they will be unloaded.