A Plain Language Guide to the Proposed Excess Soils Management Regulation in Ontario

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1 A Plain Language Guide to the Proposed Excess Soils Movement of excess soil continues to receive public attention in Ontario and other jurisdictions across Canada, due to uncertainty over the quality of soil being relocated and whether soil is being beneficially reused. In particular, illegal dumping, oversight of commercial fill operations and other activities related to excess soil generation and movement have caused increasing public concern. Background On April 16, 2018, the Ontario Ministry of the Environment and Climate Change (MOECC) posted a revised Excess Soil Management Regulation to the Environmental Bill of Rights registry (ERO ). This regulation is intended to help implement the Excess Soil Management Policy Framework published by the Ministry in December The Framework is guided by two key goals: 1. Protect human health and the environment from inappropriate relocation of excess soil; and, 2. Enhance opportunities for the beneficial reuse of excess soil and reduce greenhouse gas emissions associated with transporting excess soil. In support of this framework, the proposed regulation is intended to: 1. Clarify where excess soils may be reused; 2. Enhance and clarify the responsibility and accountability of the generators of excess soil; 3. Improve the transparency and public accountability of the practice of excess soils management in Ontario; and 4. Reduce the burden of excess soils management related to brownfields redevelopment. What is Excess Soil? Excess soil means soil and sediment, which is to be removed from a property or project area as part of a development project. A key consideration to the management of excess soils under the proposed regulation is the designation of materials moved off-site as waste, and hence regulated as such until reaching an approved receiving or reuse site, or if specific exemption criteria are met. To ensure that excess soils are tracked and managed properly, a number of key requirements have been included in the proposed regulation. These have been summarized in the following sections. Excess Soils Management Plans and Tracking of Excess Soils in Ontario Prior to any excess soil leaving defined project areas, detailed excess soil management plans (ESMPs) meeting specific requirements and prepared by a Qualified Person (QP) will be required for movement of larger amounts of excess soil and soil excavated from higher risk sites, including an assessment of soil quality. An ESMP is required for the movement of excess soil if: Over 2,000m 3 (~200 truckloads) of soil is being removed from a project area; The excess soil is removed from a project area where a potentially contaminating activity (PCA) has been identified (i.e. regardless of soil volume). ESMPs are not required in specific circumstances including: The project area is not used and has never been used, in whole or in part, for an industrial use or for specific commercial uses, e.g. a garage, a bulk liquid dispensing facility or a dry cleaning facility; ENV_TB-V1_Q3_18 Success Through Science 1

2 The amount of soil being moved is less than 100 m 3 and the excess soil is being transported directly to an approved waste disposal site; The soil being removed poses an immediate risk to the public. A registry of all ESMPs filed in Ontario is anticipated. Specific rules surrounding amendments to the ESMPs and filing notices of completion have also been proposed, and will require filing with the Registry. Excess Soil Characterization As part of the ESMP, a sampling and analysis plan to characterize the material to be excavated and/or moved is mandatory if the project area: Was used for industrial or selected commercial purposes; or The assessment of past uses identifies a potentially contaminating activity. An excess soils characterization is comprised of the following: A sampling and analysis plan; Implementation and execution of the sampling and analysis plan; and, Preparation of an excess soil characterization report that incorporates a review and evaluation of the results of the sampling and analysis plan; The soil being moved meets the definition of a top soil; the project area has never been used for industrial or specific commercial purposes; and the excess soil is being moved directly to an approved reuse site for use as a top soil. New Sampling Requirements Excess soil characterization must provide a representative assessment of the areas of impact and assist with soil segregation. Sampling methodology is preferred to be in-situ (undisturbed soil) due to the increased heterogeneity in stockpiled soil and potential changes in contaminant concentrations due to exposure to ambient environmental conditions (i.e. temperature fluctuations, oxygen levels, increased moisture, etc.). As such, the excess soil regulations prescribe specific requirements with regard to the number of samples to be collected, either for in-situ characterization or stockpile (ex-situ) sampling. For a project site requiring movement of <600 m 3 of excavated material, a minimum of three (3) soil samples are required. For sites requiring movement of up to 10,000 m 3 of excavated soil, one (1) soil sample is required for every 200 m 3 of excavated material. For sites requiring movement of >10,000 m 3 of excavated soil, one (1) soil sample is required for every 200 m 3 of excavated material up to 10,000 m 3 and at least one (1) soil sample is required for every 450 m 3. A more detailed breakdown of in-situ sampling frequency is provided in Table 1. Table 1: in-situ Sampling Frequency by Soil < ,000 5, ,000 10, ,700 13, ,000 6, ,450 10, ,150 13, , ,000 7, ,900 11, ,600 14, ,000 2, ,000 8, ,350 11, ,050 14, ,000 3, ,000 9, ,800 12, ,500 14, ,000 4, ,000 10, ,250 12, ,400 15, Characterizing stockpiles requires a different sampling frequency from in-situ sampling. are to be collected laterally and vertically to establish a depth profile and also account for spatial variability. Minimum sample numbers are based on sample volume as shown in Table 2 (next page). maxxam.ca Success Through Science 2

3 Table 2: Stockpile (ex-situ) Sampling Frequency by Soil < ,050 2, ,200 2, ,350 2, ,500 2, ,700 2, ,900 3, ,100 3, ,300 3, , ,500 3, ,100 1, ,700 3, ,250 1, ,900 4, ,400 1, ,100 4, ,550 1, ,300 4, ,700 1, ,500 4, ,850 2, ,700 5, >5, [(volume-5000)/300] At a minimum, soil samples collected in support of an ESMP should be analysed for the following parameters: i. Petroleum hydrocarbons F1 (C6-C10) F2 (C10-C16) F3 (C16-C34) F4 (C34-C50) Benzene Toluene Ethylbenzene Xylenes ii. iii. Metals Antimony Barium Boron Chromium Copper Molybdenum Selenium Thallium Vanadium Arsenic Beryllium Cadmium Cobalt Lead Nickel Silver Uranium Zinc Sodium Adsorption Ratio (SAR) and Electrical Conductivity (EC), unless the soil is to be finally placed either at a location where the soil will be affected by the same chemicals or at an industrial / commercial location to which the non-potable soil standards apply. iv. Any contaminants of potential concern (COPCs) identified during the assessment of past uses. v. Soil samples excavated and/or stockpiled from storm water management facilities shall be: Subject to excess soil stockpile (ex-situ) sampling requirements only after the soil has been dewatered on-site; Otherwise soils shall be sampled in-situ. Analysed for (in addition to parameters in i) and ii) above): o Polynuclear Aromatic Hydrocarbons (PAHs) o Electrical Conductivity (EC) o Sodium Adsorption Ratio (SAR) vi. Leachate analysis should be performed on the parameters identified as COPCs during the assessment of past uses. Specific sampling frequencies for soils submitted for leachate analyses are as shown in Table 3 (next page). maxxam.ca Success Through Science 3

4 Table 3: Mandatory Leachate Analyses Requirements Sampling Plan in-situ sampling of an area of potential environmental concern (APEC) ex-situ (stockpile) soil sampling Minimum Soil for Leachate Analysis Three (3) samples per APEC 10% of the number of samples submitted for bulk COPC analysis (see Table 1 above) in addition to the minimum 3 samples per APEC (see note 1 below) Three (3) samples per stockpile 10% of the number of samples submitted for bulk COPC analysis (see Table 2 above) in addition to the minimum 3 samples per stockpile Note 1: Additional sampling may not be required if the QP can provide rationale regarding why additional sampling is not required to meet the general and specific objectives of the excess soil characterization. Every Soil Characterization Report used to support an ESMP should contain the results of a robust field quality assurance (QA) program which includes, but is not limited to a minimum of: One (1) field duplicate per ten (10) samples One (1) equipment /field blank per ten (10) samples; and One (1) trip blank where applicable; New Analytical Standards New standards have been developed to clarify where excess soil can be reused. The applicable standards may be determined using generic tables of excess soil standards provided as part of the proposed regulation, or site-specific standards may be developed using acceptable tools or approaches enabled by this regulation, including the newly developed Beneficial Reuse Assessment Tool (BRAT). The excess soil standards tables, and the standards within the tables, vary based on factors such as property use, soil volume and site conditions. The applicable standard is determined by matching these variables to the site where the excess soil will be finally placed. This variety of approaches and tables is intended to facilitate greater reuse of excess soil while helping to ensure that public health and the environment are protected. New Excess Soils Reuse Standards have been developed for three different property uses: Agricultural; Residential / Parkland / Institutional; and Industrial / Commercial / Community, in different groundwater settings: potable; and non-potable, and based on the volume of excess soil being generated: Dependent Uses for <350 m 3 ; and Independent Uses. The following key points provide a summary of the applicability of regulatory criteria to excess soils. If the excess soil meets Ontario Regulation 153/04 Table 1 standards, the soil is fit for reuse on the specific type of property use; For excess soils 350 m 3, Tables 2-9 of O. Reg. 153/04 are to be used 1 ; For excess soils 350 m 3, Tables 1 and Tables of the Excess Soils Reuse Standards are to be used; If the excess soil originates from a site with a COPC that is listed in one of the Excess Soils Reuse Tables, then Leachate Screening Levels must also be verified (the exception is soil that meets Table 1 Standards). Taking into account the large quantities of soil that this framework aims to address and the frequent increased variability of analytical data of soil samples, the regulation allows for a new method of attainment requirement. This method allows for single point exceedances of Table 1 criteria and still be considered clean if the following criteria are met: 90% of the data for each specific parameter is below the Table 1 standard; No single sample within the data set can exceed the applicable ceiling value as referenced in the Rationale Document for Reuse of Excess Soil at Receiving Sites; The upper 95% confidence limit of the mean concentration of the samples must be less than Table 1 criteria; A minimum of 20 soil samples are collected (if less than 20 samples, single point compliance continues). 1 Tables 2 9 of the Soil, Groundwater and Sediment Standards as referenced in O. Reg, 153/04 may be used for soil volumes up to 1,000 m 3 with rationale provided by the QP maxxam.ca Success Through Science 4

5 Amendments to Existing Regulations Amendments to O. Reg. 153/04 and Reg. 347 have also been posted to align these with the proposed Regulation for managing excess soils in Ontario. In O. Reg. 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. To align requirements at record of site condition sites governed by O. Reg. 153/04 with proposed excess soil requirements, the following amendments are proposed: Fill quality requirements would meet the new Excess Soil Reuse Standards for soil brought to a Record of Site Condition (RSC) property; Sampling requirements would be made consistent for excess soil coming to an RSC property, e.g., stockpile, and, where applicable sampling leaving an RSC property; Additional amendments proposed through the Modernization of Brownfields Initiative. Current Status As currently posted to the EBR, and if passed in the legislature, this regulation would come into force on January 1, 2020 with specific sections in the regulation not coming into force until January 1, However, this is subject to change. For more information, please contact: enviro@maxxam.ca Or maxxam.ca Success Through Science 5