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O. Reg. 775/20: ON-SITE AND EXCESS SOIL MANAGEMENT

filed December 21, 2020 under Environmental Protection Act, R.S.O. 1990, c. E.19

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ontario regulation 775/20

made under the

Environmental Protection Act

Made: December 16, 2020
Filed: December 21, 2020
Published on e-Laws: December 21, 2020
Printed in The Ontario Gazette: January 9, 2021

Amending O. Reg. 406/19

(ON-SITE AND EXCESS SOIL MANAGEMENT)

1. (1) The definition of “Class 2 soil management site” in subsection 1 (1) of Ontario Regulation 406/19 is amended,

(a) by striking out “other than a Class 1 soil management site” in the portion before clause (a); and

(b) by striking out “or” at the end of clause (a) and substituting “and”.

(2) Subsection 1 (1) of the Regulation is amended by adding the following definitions:

“crushed rock” means a naturally occurring aggregation of one or more naturally occurring minerals that is mechanically broken down into particles that are smaller than 2 millimetres in size or that pass the US #10 sieve; (“roche concassée”)

“residential development soil depot” means a soil bank storage site that is temporarily operated for the purpose of managing, on a temporary basis, excess soil that will ultimately be transported to a reuse site for final placement in respect of an undertaking at a reuse site; (“dépôt de sols pour aménagement résidentiel”)

“retail landscaping soil depot” means a soil bank storage site that is operated for the purpose of producing excess soil for landscaping or gardening products that is to be promptly packaged for retail sale to meet a realistic market demand, or to be offered for retail sale to meet a realistic market demand; (“dépôt de vente au détail de sols pour aménagement paysager”)

(3) The definition of “excess soil” in subsection 1 (1) of the Regulation is revoked and the following substituted:

“excess soil” means soil, crushed rock or soil mixed with rock or crushed rock, that has been excavated as part of a project and removed from the project area for the project; (“sols de déblai”)

(4) The definition of “Excess Soil Standards” in subsection 1 (1) of the Regulation is amended by striking out “November 19, 2019” and substituting “December 8, 2020”.

(5) The definition of “Registry” in subsection 1 (1) of the Regulation is revoked and the following substituted:

“Registry” means the registry described in section 50 of the Resource Recovery and Circular Economy Act, 2016 (“Registre”)

(6) The definitions of “soil bank storage site” and “soil processing site” in subsection 1 (1) of the Regulation are revoked and the following substituted:

“soil bank storage site” means a waste disposal site, other than a Class 2 soil management site, at which excess soil is managed on a temporary basis and that is operated, by a person who is not the project leader for all of the projects from which the excess soil was excavated, for the primary purpose of storing the excess soil from one or more projects until the excess soil can be transported to a site for final placement or disposal; (“site d’entreposage pour banque de sols”)

“soil processing site” means a waste disposal site, other than a Class 2 soil management site or a soil bank storage site, at which excess soil is managed on a temporary basis, that is operated for the primary purpose of processing excess soil, including processing in order to reduce contaminants in the excess soil; (“site de traitement de sols”)

(7) Subsection 1 (1) of the Regulation is amended by adding the following definition:

“topsoil” has the same meaning as in subsection 142 (1) of the Municipal Act, 2001; (“sol arable”)

2. Section 2 of the Regulation is amended by adding the following subsection:

(2) Despite paragraph 2 of subsection (1), this Regulation applies to the deposit and final placement of excess soil at a pit or quarry for reuse at the pit or quarry, including for the purpose of rehabilitating the pit or quarry.

3. Section 3 of the Regulation is amended by adding the following subsection:

(8) Despite the requirements under subsection (2), excess soil that leaves a retail landscaping soil depot is not designated as waste as long as,

(a) the excess soil meets the soil quality standards set out in the Soil Rules for the purposes of this subsection; and

(b) the excess soil leaves the retail landscaping soil depot pursuant to a purchase of soil of less than 25 m3.

4. (1) Paragraph 1 of subsection 5 (1) of the Regulation is revoked and the following substituted:

1. The quality of the excess soil that has been finally placed or that is intended to be finally placed at the reuse site must not exceed the following:

i. The applicable excess soil quality standards as determined in accordance with the Excess Soil Standards, unless subparagraph ii applies.

ii. Subject to subsection (4), if the excess soil does not meet an applicable excess soil quality standard mentioned in subparagraph i in respect of a parameter, the site-specific excess soil quality standards developed for the reuse site in respect of that parameter in accordance with subsections (3) and (5).

(2) Sub-subparagraph 3 iii B of subsection 5 (1) of the Regulation is revoked and the following substituted:

B. an undertaking related to infrastructure,

(3) Subsections 5 (2) and (3) of the Regulation are revoked and the following substituted:

(2) For the purposes of subparagraph 1 ii of subsection (1), only a qualified person shall develop and apply site-specific excess soil quality standards for the reuse site or supervise the development and application by a supervisee.

(3) The qualified person described in subsection (2) or the supervisee shall use the Beneficial Reuse Assessment Tool to develop and apply site-specific excess soil quality standards in accordance with the Soil Rules.

(4) Subsection 5 (5) of the Regulation is revoked and the following substituted:

(5) If the qualified person is retained by the operator of the reuse site, the qualified person shall,

(a) complete a declaration attesting to the accuracy of the information and the assumptions provided as inputs for the Beneficial Reuse Assessment Tool; and

(b) ensure that the operator of the reuse site is given a copy of the declaration and the output worksheet generated when using the Beneficial Reuse Assessment Tool.

(5.1) If the qualified person described in subsection (2) is retained by a person other than the operator of the reuse site, including by the project leader of the site from which the excess soil is excavated, then before the person responsible for the retaining permits any excess soil that is subject to a site-specific excess soil quality standard to be deposited at the reuse site,

(a) the person who retained the qualified person or the qualified person shall ensure that the operator of the reuse site receives the declaration and output worksheet mentioned in clause (5) (b) and any other reports the qualified person prepares in respect of the reuse site to support the development of the site-specific excess soil quality standard; and

(b) the qualified person shall ensure that the reuse site operator is authorized to rely on the documents mentioned in clause (a), with that reliance to be based on any assumptions, reuse site characteristics or other conditions that apply to the site-specific excess soil quality standard that the qualified person developed when using the Beneficial Reuse Assessment Tool.

5. (1) Subsection 6 (1) of the Regulation is amended by adding “or excavated crushed rock” after “excavated soil”.

(2) Subsection 6 (2) of the Regulation is amended by adding “or excavated crushed rock” after “Excavated soil” at the beginning.

(3) Subsection 6 (3) of the Regulation is amended by adding “or excavated crushed rock” after “excavated soil”.

(4) Subsection 6 (4) of the Regulation is amended by adding “or excavated crushed rock” after “excavated soil” in the portion before paragraph 1.

(5) Subsection 6 (5) of the Regulation is amended by adding “or excavated crushed rock” after “excavated soil” in the portion before clause (a).

(6) Subsection 6 (6) of the Regulation is amended by adding “or excavated crushed rock” after “excavated soil”.

6. Section 7 of the Regulation is revoked and the following substituted:

Management Exemption

Certain depots, exemption from ss. 27, 40 and 41 of the Act

7. (1) The management of excess soil that is dry soil at a retail landscaping soil depot or a residential development soil depot is exempt from sections 27, 40 and 41 of the Act if the following conditions are met:

1. The amount of excess soil stored at the retail landscaping soil depot or residential development soil depot at any one time must not exceed the amount set out in the Soil Rules for the purposes of this section.

2. If the retail landscaping soil depot or residential development soil depot is operated on land owned by another person, the operator must obtain the written consent of the owner of the land to operate the depot.

3. The operator of the retail landscaping soil depot or residential development soil depot must ensure that the quality of the excess soil accepted and managed at the depot meets the excess soil quality standards set out in the Soil Rules for the purpose of this section.

4. If excess soil is processed while being stored at the retail landscaping soil depot or residential development soil depot, it must be processed in accordance with any requirements governing the processing that are set out in the Soil Rules and by one of the following methods:

i. Passive aeration.

ii. Mixing of soil, if the soil being mixed with it is of similar quality to it and the mixing is not carried out for the purpose of diluting the concentration of contaminants in the soil.

iii. Soil turning.

iv. Size-based sorting.

v. Sorting for the purpose of removing debris.

5. The operator of a retail landscaping soil depot must provide written notice to the Director in accordance with subsection (3),

i. before the excess soil begins to be deposited at the retail landscaping soil depot, if the depot commences operation on or after January 1, 2021, or

ii. within 90 days after January 1, 2021, if the depot was operating before that date.

6. The operator of a residential development soil depot must ensure that a notice described in subsection (4) is filed in the Registry,

i. before the excess soil begins to be deposited at the residential development soil depot, if the depot commences operation on or after January 1, 2022, or

ii. if the depot was operating on the day this section comes into effect, on January 1, 2022.

7. Excess soil from a residential development soil depot must not be deposited for final placement in respect of an undertaking at any reuse site identified in the Soil Rules for the purposes of this provision.

8. The operator of the depot must only operate either a retail landscaping soil depot or a residential development soil depot, not both.

9. The operator of a retail landscaping soil depot must provide written notice of the closure of the depot to the Director in accordance with subsection (5) within 90 days after the closure of the depot.

10. Any other conditions set out in the Soil Rules with respect to the deposit and storage of excess soil at a retail landscaping soil depot or residential development soil depot must be met.

(2) Before excess soil is managed at the retail landscaping soil depot or residential development soil depot after December 31, 2020, the owner or operator of the depot shall ensure that the following steps are taken:

1. Procedures are developed and applied to account for every load of excess soil to be deposited at the retail landscaping soil depot or residential development soil depot.

2. Procedures are developed and applied to ensure that the storage of excess soil at the retail landscaping soil depot or residential development soil depot does not cause an adverse effect.

(3) For the purposes of paragraph 5 of subsection (1), the written notice must include the following:

1. The location of the retail landscaping soil depot.

2. The name of the operator of the retail landscaping soil depot.

3. If the operator does not own the property on which the retail landscaping soil depot is located, a letter from the owner of the property indicating that the owner has given the operator consent to operate the depot on the property.

4. If the operator does not own the property on which the retail landscaping soil depot is located, the name, mailing address, postal code, telephone number and email address of the owner.

5. If the retail landscaping soil depot commences operations on or after January 1, 2021, the date on which the storage and, if applicable, processing, of excess soil is expected to begin.

6. If the retail landscaping soil depot is in operation before January 1, 2021, an estimate of the amount of excess soil stored at the site.

7. If an instrument mentioned in paragraph 4 of subsection 3 (2) has been issued governing the retail landscaping soil depot, identification of the body that issued the instrument, the date the instrument was issued and to whom the instrument is issued, and, if there is an instrument identification number, that number.

8. A declaration by the owner or operator of the retail landscaping soil depot stating that the steps described in paragraphs 1 and 2 of subsection (2) have been and will continue to be taken.

(4) For the purposes of paragraph 6 of subsection (1), the notice filed in the Registry must include the following:

1. The location of the residential development soil depot.

2. The name of the operator of the residential development soil depot.

3. If the residential development soil depot commences operations on or after January 1, 2022, the date on which the storage and, if applicable, processing, of excess soil is expected to begin.

4. If the operator does not own the property on which the residential development soil depot is located, the name, mailing address, postal code, telephone number and email address of the owner.

5. If the residential development soil depot is in operation before January 1, 2022, an estimate of the amount excess soil stored at the site.

6. If an instrument mentioned in paragraph 4 of subsection 3 (2) has been issued governing the residential development soil depot, identification of the body that issued the instrument, the date the instrument was issued and to whom the instrument is issued, and if there is an instrument identification number, that number.

7. A declaration by the owner or operator of the residential development soil depot, stating that the steps described in paragraphs 1 and 2 of subsection (2) have been and will continue to be taken.

(5) For the purposes of paragraph 9 of subsection (1), the written notice must include the following:

1. The location of the retail landscaping soil depot.

2. The date when the depot ceased operations.

3. Confirmation that all excess soil has been removed from the depot.

(6) If the operator of a retail landscaping soil depot becomes aware that any information in the written notice mentioned in paragraph 5 of subsection (1) is no longer complete or accurate, the operator must ensure that the Director is notified and provided with the completed or corrected information within 30 days after the day the operator becomes aware that the information is no longer complete or accurate.

(7) If the operator of the residential development soil depot becomes aware that the notice filed in the Registry in respect of the depot is no longer complete or accurate, the operator shall ensure that the notice is updated within 30 days after the day the operator becomes aware that the information is no longer complete or accurate.

(8) Where a residential development soil depot closes, the operator of the depot must update the notice filed in the Registry within 30 days after closure of the depot and must indicate the date when the depot ceased operations.

7. Clause 8 (2) (b) of the Regulation is amended by striking out “January 1, 2021” at the end and substituting “January 1, 2022”.

8. (1) Subsection 9 (2) of the Regulation is amended by striking out “project area or Class 2 soil management site” in the portion before paragraph 1 and substituting “project area, local waste transfer facility or Class 2 soil management site”.

(2) Paragraph 2 of subsection 9 (2) of the Regulation is revoked and the following substituted:

2. The date on which the last load of excess soil was removed from the project area, local waste transfer facility or Class 2 soil management site, as the case may be.

9. Section 10 of the Regulation is revoked.

10. Section 11 of the Regulation is amended by adding the following subsection:

(3) If, before January 1, 2022, a project leader undertakes an assessment of the project area to determine the likelihood that one or more contaminants have affected any soil that may become excess soil in respect of a project, that assessment shall be deemed to satisfy the requirements for an assessment of past uses required by this section for that project.

11. Section 12 of the Regulation is amended by adding the following subsection:

(6) If, before January 1, 2022, a project leader undertakes a sampling and analysis plan to analyze the concentration of contaminants of any soil in the project area that may become excess soil in respect of a project, the plan shall be deemed to satisfy the requirement for a sampling and analysis plan required by this section and a report that is prepared describing the results of implementing the sampling and analysis plan shall be deemed to satisfy the requirements of a soil characterization report set out in subsection (5) for that project.

12. Subsection 15 (4) of the Regulation is amended by striking out “or supervisee”.

13. (1) Subsection 19 (1) of the Regulation is amended by striking out “Subject to subsection (2)” at the beginning and substituting “Subject to subsections (1.1) and (2)”.

(2) Section 19 of the Regulation is amended by adding the following subsection:

(1.1) This section only applies to a reuse site that is in operation on the day this section comes into force if at least 10,000 m3 of excess soil is expected to be deposited for final placement in respect of the undertaking at the reuse site after this section comes into force.

(3) Subsection 19 (2) of the Regulation is amended by striking out “to an infrastructure project” at the end and substituting “to infrastructure”.

(4) Paragraph 7 of subsection 19 (4) of the Regulation is revoked and the following substituted:

7. If site-specific excess soil quality standards have been developed for the reuse site by a qualified person, including by using the Beneficial Reuse Assessment Tool, an indication that this is the case and the name and contact information of the qualified person who developed the site-specific excess soil quality standards.

(5) Section 19 of the Regulation is amended by adding the following subsection:

(7) If the owner or operator of the reuse site becomes aware that the notice filed in the Registry in respect of the reuse site is no longer complete or accurate, the owner or operator shall ensure that the notice is updated within 30 days after the day the owner or operator becomes aware that the information is no longer complete or accurate.

14. (1) The French version of subsection 21 (1) of the Regulation is amended by striking out “sont soustraits” in the portion before paragraph 1 and substituting “est soustraite”.

(2) Subsection 21 (1) of the Regulation is amended by adding the following paragraph:

9.1 The project leader or the operator of the Class 2 soil management site must provide written notice of the closure of the site to the Director in accordance with subsection (4.1) within 90 days after the closure.

(3) Section 21 of the Regulation is amended by adding the following subsection:

(4.1) For the purposes of paragraph 9.1 of subsection (1), the written notice must include the following:

1. The location of the Class 2 soil management site.

2. The date when the site ceased operations.

3. Confirmation that all excess soil has been removed from the site.

15. Subparagraph 3 i of subsection 23 (2) of the Regulation is revoked and the following substituted:

i. all excavated soil or excavated crushed rock that is affected by the discharge of a contaminant is identified and is segregated from other excavated soil or excavated crushed rock in the project area,

16. Sections 24 and 25 of the Regulation are revoked and the following substituted:

Storage

24. Except where an instrument regulates the management of soil at a site, including an instrument mentioned in paragraph 4 of subsection 3 (2), the operator of a project area, local waste transfer facility, Class 2 soil management site, retail landscaping soil depot, residential development soil depot or reuse site shall ensure that any soil, excess soil or crushed rock at the site is stored in accordance with the Soil Rules.

Processing at local waste transfer facility

25. Despite there being no authority under Regulation 347 for waste to be processed at a local waste transfer facility within the meaning of that Regulation, if the local waste transfer facility is operated by a public body or by a project leader in respect of an undertaking related to infrastructure, any excess soil stored at the local waste transfer facility may be processed at the facility by a method specified in subsection 6 (3) and subsections 6 (4), (5) and (6) apply, with necessary modifications, to the processing of the excess soil.

17. (1) Section 8 of Schedule 1 to the Regulation is revoked and the following substituted:

8. An estimate of how much excess soil will be removed from the project area, broken down by any applicable Table in the Excess Soil Standards that the excess soil meets, if it is to be finally placed at a reuse site.

8.1 A list of all substances or other materials, including any natural or synthetic polymers but not including water, that may be in the excess soil as a result of using that substance or material in the excavation process or of the mixing of that material or substance with excavated soil or crushed rock.

(2) Section 10 of Schedule 1 to the Regulation is amended by adding “and local waste transfer facility” after “soil management site”.

(3) Section 13 of Schedule 1 to the Regulation is revoked and the following substituted:

13. The applicable excess soil quality standards for each reuse site mentioned in section 12, as determined in accordance with the Soil Rules, or, if site-specific excess soil quality standards have been developed for a reuse site by a qualified person, including by using the Beneficial Reuse Assessment Tool, an indication that this is the case and the name and contact information of the qualified person who developed the site-specific excess soil quality standards.

18. (1) Paragraph 1 of section 4 of Schedule 2 to the Regulation is revoked and the following substituted:

1. The excavated soil is topsoil.

(2) Section 5 of Schedule 2 to the Regulation is revoked.

(3) Paragraphs 1 and 2 of section 6 of Schedule 2 to the Regulation are revoked and the following substituted:

1. The excess soil is excavated as part of an undertaking related to infrastructure.

2. The project leader for the undertaking related to infrastructure intends, after removing the excess soil from the project area, to finally place it at a reuse site that is owned by the project leader or a public body and that is part of another undertaking related to infrastructure.

Commencement

19. (1) Subject to subsections (2) and (3), this Regulation comes into force on the day it is filed.

(2) Sections 1 to 6 and sections 14 to 18 come into force on January 1, 2021.

(3) Sections 7 to 13 come into force on January 1, 2022.

 

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