Until recently, the management of soil in Ontario happened outside of the Ministry of the Environment’s regulations because the strict interpretation of legislation required that all but pristine soil be disposed of as waste. In January 2014, however, the MOE released a new guidance document, Management of Excess Soil – A Guide for Best Management Practices, to bring increased rigour to the reuse of soil; to encourage its beneficial reuse but to protect against environmental contamination from its inappropriate management. Through our extensive soil and environmental management experience, MMM is able to help clients interpret the new guidelines to their advantage.
The Guide Basics
This guide outlines several important best practices for soil excavation, storage, and reuse:
- a Qualified Person (QP), as defined in O.Reg. 153/04, should oversee any site where soil management is undertaken
- the QP can use risk assessment techniques to direct the soil management at receiving sites
- site owners wishing to obtain a Record of Site Condition (required for the development of several land uses) must meet certain requirements, such as the frequency of sampling for imported soil and reporting requirements for the site
Soil Management by a Qualified Person
Consistent with the Environmental Protection Act, the Guide recommends that soil management be conducted under the supervision of a QP. The QP at any site where soil management will be undertaken (e.g., source sites, receiving sites and temporary storage sites) establishes representative characterization of soil, inspections of soil transfers, acceptable criteria for receiving sites, and implementation of a record keeping system that would allow an audit of material when a concern is raised about a source site.
MMM’s Infrastructure and Environment team of recognized QPs have developed effective soil management plans for a variety of sites to meet project requirements and comply with the identified best management practices. In our experience, the right QP can provide certainty to the development process through scientific support for soil quality criteria and providing site engineering to manage possible adverse effects from soil movement. For a wide variety of projects, MMM’s team provides assistance in the development of cost-effective, yet responsive soil management programs.
Obtaining a Record of Site Condition
Under the Environmental Protection Act, owners of sites to be redeveloped for a more stringent land use (e.g., industrial use to residential use) must file a Record of Site Condition (RSC) prior to obtaining a building permit. Also, municipalities may require RSCs as part of the development approval process, particularly for sites where contaminants are identified or for sites to be conveyed for municipal purposes (e.g., road allowances, parks, easements, etc.). If the owner of a receiving site wishes to obtain a RSC, MMM’s QPs can assist so that processes follow the Guide.
If no soil or groundwater contamination is identified at the receiving site, imported soil must meet the MOE Table 1 background Site Condition Standards (SCS).
The Guide promotes the use of risk assessment techniques, which MMM has successfully utilized at receiving sites to develop property-specific soil standards to support the reuse of excess soil in a manner that prevents adverse effects to human health and the environment, including the impairment of water quality as described in Ontario’s Acts and Regulations. The Guide is clear that SCS established under O. Reg. 153/04 would not necessarily apply to receiving sites. To comply with the Guide, the receiving sites will require a level of characterization (under the supervision of a QP) to ensure that the placement of excess soil will not create contamination, particularly, where it did not exist before. Where measures are not incorporated to prevent adverse effects, the MOE can issue orders for mitigation.
Implications for the Development Community
The Guide has brought rigour to the management of soil in Ontario by defining expectations for the protection of the environment. As a regulator, the MOE has confirmed that it will enforce existing regulations when the movement of excess soil causes adverse environmental effects, without establishing the Guide as new legislation. Through the implementation of site characterization and diligent record keeping that is recommended by the Guide, parties responsible for source and receiving sites can manage soil effectively, without intervention by the MOE.
MMM’s experienced QPs can create and file a Record of Site Condition, complete risk management analysis, and direct the discretionary application of the Guide to best reflect the level of risk resulting from soil and site characteristics and optimize development plans for our clients.