For many years, the Ministry of the Environment has talked about adopting a Materials Management policy to regulate the movement of soils from one property to another. In the absence of such a policy, different Ministry of the Environment offices have taken different approaches. Some have argued that only "inert fill" can be moved from one property to another, which they have interpreted to mean soil meeting Table 1. This restrictive interpretation has rarely been followed in practice, though; most developers will accept Table 2 soils to a Table 2 site, and Table 3 soils to a Table 3 site.
December's amendments to Ontario's Regulation 153/04 will not only drive up the cost of remediating contaminated sites: they will also drive up the cost of disposing of "clean" surplus soil from construction projects.
Surplus soil movement is a huge business, but it has obvious risks. For one thing, a later Phase I ESA will give no clues as to the potential contaminants in a site that has received fill from elsewhere. For another, sites that have received Table 2 soils may, as a result, cease to meet Table 2 when standards change, and may face expensive cleanups or landuse restrictions. Third, some soil receiving sites have found unpleasant surprises in the "clean fill" they have accepted. And fourth, regulators have been very inconsistent in what they permit.
The new amendments will mean major changes for everyone who must handle surplus soil:
- The new standards on "how clean is clean?" are much more stringent, and include more parameters, than the standards that have been in effect for the last 16 years. Thus, many soils that used to meet Table 1, 2 or 3 won't meet them any more, and old soil characterization reports are no longer reliable.
- Soil sampling requirements have become much tighter. All soil brought to an RSC property must first be rigorously sampled and analyzed for all contaminants " that may reasonably be expected to be potentially present" - see Schedules E and F.
- Many developers used to insist that any Table 2 or 3 site could receive Table 2 or 3 soils. Not any more. Under the new rules, only soils that have been proven to meet Table 1 may still be freely transported and deposited.
- Soils with higher levels of contamination, (even if they meet the new Table 2 or 3) may only be transported to properties that are already contaminated, and were previously used as gas stations, garages, dry cleaners or industries. Such sites will always require an RSC with a Phase II ESA before conversion to a more sensitive use. (s. 32 of the Regulation)
- Records of Site Condition will require reports documenting and quantifying all movements of soil on and off an RSC property. (see new s. 27 to 34 of Schedule A.)
- Soil stockpiled on a property during investigation or remediation must be segregated by suspected level of contaminant, and each stockpile must be separately sampled and analyzed. (s. 35 to 36 of Schedule E)
All of these rules will come into force no earlier than July 1, 2011, and possibly later, depending upon when certain 2007 statutory amendments are proclaimed in force. However, cautious landowners may start to follow them immediately, and several bankers say they will too. This should significantly increase the cost of disposing of surplus soils from construction projects.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
