Ontario’s Excess Soil Management Policy Framework

Posted on: Tuesday, April 4th, 2017

What is Excess Soil?

Excess soil is soil that is generated in excess to requirements at a construction/development site or project (“source site”). It could include naturally occurring materials commonly known as earth, topsoil, loam, subsoil, clay, sand or gravel, or any combination thereof.

Excess soil is not needed at the source site after it has been excavated and as such, it must be moved to a new, off-site, location. Temporary storage is sometimes required before the excess soil can be brought back into the system to be used for beneficial reuse at the originating site. Alternatively, it may be sent to a new “receiving site” for permanent relocation.

The Problem

Management of excess soil has become a growing concern for municipalities, provinces, non-governmental organizations, conservation authorities and industry members largely due to a lack of clarity and a patchwork of existing legislation. There are issues associated with illegal dumping of soil, site-alteration by-laws, commercial fill operations, and the tracking of excess soil which all relate to concerns over the quality of excess soil and the overall protection of the environment, water and human health. An additional concern relates to the impact on greenhouse gas emissions which are created through the transportation of excess soil around the province.

Furthermore, much of the existing oversight for managing excess soil focuses on responsibility over “receiving sites” (sites that accept and receive excess soil and where the soil remains) as opposed to “source sites” (sites that generate excess soil). There are two main problems associated with this. Firstly, the current policy tools that apply in relation to receiving sites leave some gaps in terms of authority as there are various bodies who oversee regulation. Secondly, there is a lack of regulation over source site responsibility and management which leads to problems in terms of monitoring the tracking and re-use of excess soil.

In recognition of these concerns, the Ministry of Environment and Climate Change (“MOECC”) has finalized an Excess Soil Management Policy Framework (the “Framework”). This Framework provides principles to guide policy and program development, describes problems with existing policy and the division of current roles and responsibilities and further outlines policy needs, actions and priorities.

Purpose of the New Framework

As noted on the Environmental Registry, the proposed Framework embraces two key goals:

  1. to protect human health and the environment from the inappropriate relocation of excess soil; and
  2. to enhance opportunities for the beneficial re-use of excess soil and to reduce greenhouse gas emissions associated with the movement of excess soil.

In order to achieve these goals, the MOECC intends to build upon existing policy tools relating to excess soil management and implement sustainable practices through the use of new regulatory requirements and new standards for excess soil.

Key Features of the Framework

Some of the key features and areas of particular concern that are addressed in the framework are as follows:

  • to implement procedures aimed at increasing local re-use of excess soil in order to reduce greenhouse gas emissions and increase sustainable development;
  • to improve technical direction and establish best practices regarding standards for the reuse of excess soil;
  • to develop clear guidance to inform requirements for the sampling and analysis (i.e. testing) of excess soil;
  • to put materials, such as excess soil, back into the system for more effective reuse where it is safe to do so;
  • to move to a system which focuses on life-cycle management by placing more attention on the generators of excess soil at source sites, as they are in the best position to support its reuse;
  • to develop a new regulation under the Environmental Protection Act, R.S.O. 1990, c. E.19 requiring larger and/or riskier source sites to develop and implement excess soil management plans certified by a qualified person and made available to MOECC and local authorities;
  • to explore the potential of including the preparation of an excess soil management plan as a matter to be listed when a permit is issued before excavation;
  • to develop guidance to help ensure that proponents consider excess soil management throughout the environmental assessment process;
  • to implement a new by-law language tool as a resource for municipalities in developing or updating clean fill and site alteration by-laws; and
  • to develop educational tools respecting excess soil management at receiving sites to better inform municipalities in the development or updating of by-laws.

In addition there are proposed legislative amendments to the following Acts:

  • Municipal Act, 2001, S.O. 2001, c. 25 - an amendment to allow site alteration by-laws to apply in conservation authority regulated areas;
  • Aggregate Resources Act, R.S.O. 1990, c. A.8 - amendments to increase authority to make future regulations about record keeping on aggregate operations (i.e. fill records);
  • Environmental Protection Act, R.S.O. 1990, c. E.19
    • to amend the definition of inert fill in Regulation 347 (Waste) in order to clarify when excess soil is a waste and link this to standards for reuse; and
    • to amend the requirements under Regulation 153/04 (Records of Site Condition) relating to excess soil brought to a site, record keeping of receiving sites used and roles of qualified persons.

Implementation 

The Framework proposes a gradual implementation plan which prioritizes the contemplated actions based on feedback received throughout the consultation process. Engagement and sub-working groups will be developed which are composed of actors with key interests who can provide input on the proposed policies, technical matters, guidance and overall implementation, including coordination with external programs. The Framework outlines some proposed actions which are currently underway and discusses both short and long term goals.

Conclusion 

This Framework was developed in response to concerns regarding the oversight and management of excess soil within the current system and the need for increased protection to human health and the environment. Currently, several pieces of legislation and regulations apply to specific aspects of excess soil management and, for the most part, is not directly regulated by MOECC.

The MOECC is thus focused on providing stronger direction and outlining clear, enforceable rules which help to identify and clarify the roles and responsibilities of the various actors involved with the management of excess soil. The overall focus is to create a single, cohesive policy framework that fills the current gaps in existing legislation.

To read the final version of the Excess Soil Management Policy Framework which was released in December 2016 click here.

The content of this Blog is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.

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