environmental law: managing fill: when in soil waste, and where...

Environmental Law: Managing Fill: When in Soil "Waste", and Where Can it Go? Date: Tuesday, November 20, 2012 | 8:30 am Location: Twenty Toronto Street Conferences and Events (OBA Conference Centre) 20 Toronto Street, 2nd Floor, Toronto Agenda: 8:00 am - Registration & Breakfast 8:30 am - 10:00 am Program followed by Q & A period Chair: Kristi Ross, Fogler Rubinoff LLP Legal Speaker: Janet Bobechko, Blaney McMurtry LLP Technical Speakers: Kathleen Anderson, Assistant Director, Central Region, Ministry of the Environment Hon Lu, Senior Project Manager, MMM Group

Blaney McMurtry LLP - 2 Queen Street East, Suite 1500 - Toronto, Canada www.blaney.com

Environmental LawManaging Fill: When is Soil “Waste”, and Where can it Go?Tuesday, November 20, 2012OBA Conference Centre

JANET L. BOBECHKOCertified Specialist (Environmental Law)

Direct Tel. 416.596.2877Direct Fax. 416.594.2435Email [email protected]

© 2012 Janet L. Bobechko

Agenda

Review of soilOverview of O. Reg. 347Why excess soil is an issueWhere can you take excess soilWhat needs to change?Remediation options – end productsMovement of soilBest Management PracticesRecent caseConsultant concerns and liability

What is the issue with soil?

When faced with any work involving the handling of soil, owners are forced to determine what category the soil falls into.

Is the soil “clean”What does “clean” mean?Does “clean” mean different things in different contexts?What are the options for “clean” soil?What are the options for “dirty” soil?

Definition of “Soil”

“soil” means, except for the purposes of shallow soil property as defined in section 43.1, unconsolidated naturally occurring mineral particles and other naturally occurring material resulting from the natural breakdown of rock or organic matter by physical, chemical or biological processes that are smaller than 2 millimetres in size or that pass the US #10 sieve.

Ontario Regulation 153/04 as amended

Definition of “Shallow Soil”

O. Reg. 153/04 as amended s. 43.1

“shallow soil property” means a property of which 1/3 or more of the area consists of soil equal to or less than 2 metres in depth beneath the soil surface, excluding any non-soil surface treatment such as asphalt, concrete or aggregate

Definition of “Shallow Soil”

“soil” means, for the purposes of the definition of shallow soil property, unconsolidated naturally occurring mineral particles and other naturally occurring material resulting from the natural breakdown of rock or organic matter by physical, chemical or biological processes that are smaller than 2 millimetres in size or that pass the US #10 sieve, and includes a mixture of soil and rock if less than 50 per cent by mass of the mixture is rock. O. Reg. 511/09, s. 21

Classification of soil

“soil type” means soil texture class as determined pursuant to Figure 3.16 and Chapter 3 of the Soil Survey Manual, United States Department of Agriculture, Natural Resources Conservation Service, published at its website.

http://soils.usda.gov/technical/manual/contents/chapter3.html

Fig. 3.16

Environmental Protection Act Definitions

s. 25 “waste” includes ashes, garbage, refuse, domestic waste, industrial waste, or municipal refuse and such other materials as are designated in the regulations


s. 25 “waste disposal site” means,(a) any land upon, into, in or through which, or building or structure in which, waste is deposited, disposed of, handled, stored, transferred, treated or processed, and(b) any operation carried out or machinery or equipment used in connection with the depositing, disposal, handling, storage, transfer, treatment or processing referred to in clause (a)


s. 25 “waste management system” means any facilities or equipment used in, and any operations carried out for, the management of waste including the collection, handling, transportation, storage, processing or disposal of waste, and may include one or more waste disposal sites.

Aggregate Recourses Act

“aggregate” means gravel, sand, clay, earth, shale, stone, limestone, dolostone, sandstone, marble, granite, rock or other prescribed material; “earth” does not include topsoil and peat;

Importation of Inert Fill for the Purpose of Rehabilitation, Lands & Waters Aggregate & Petroleum Resources April 14, 2008

The management of inert fill to be brought onto a particular site is governed by Regulation 347 of the Environmental Protection Act (EPA), which defines inert as earth or rock fill or waste of a similar nature that contains no putrescible material or soluble or decomposable chemical substance. If the results from a bulk analysis meet the criteria in Table 1 of the Ministry of the Environment’s (MOE) “Soil, Ground Water and Sediment Standards for Use under Part XV.1 of the Environmental Protection Act”, as amended, the material is considered as “inert fill”.

O. Regulation 347 Definitions

“soil mixture” includes a mixture of soil and liquids, sludges or solids, where,(a) the mixture cannot be separated by simple mechanical removal processes; and(b) based on visual inspection, the volume of the mixture is made up primarily of soil or other finely divided material that is similar to soil;

Waste exemptions O. Reg. 347

3. (1) The following wastes are exempted from Part V of the Act and this Regulation:1. Agricultural wastes.…5. Inert fill.6. Rock fill or mill tailings from a mine.7. Material set out in subsection (2).

Definition of Inert Fill O. Reg. 347

means earth or rock or waste of a similar nature that contains no putrescible materials or soluble or decomposable chemical substances

Exemption O. Reg. 347 (Jan 2013)3 (2) The material referred to in paragraph 7 of subsection (1) is any of the following:1. Municipal waste, hazardous waste or liquid industrial waste, …. if,

i. the waste is transferred by a generator for direct transportation to a site to be wholly used at the site in an ongoing agricultural, commercial, manufacturing or industrial processor operation that,

A. is used principally for functions other than waste management, andB. does not involve combustion or land application of the waste … [deleted composting ref.] O. Reg 347

O. Reg. 347 Exemptions

17. Waste asphalt pavement transferred by a generator for direct transportation to,

i. a site at which it is to be used as construction aggregate, orii. a site at which waste asphalt pavement is processed for use as construction aggregate and at which no disposal of waste or processed waste takes place.

Subject waste O. Reg. 347

“subject waste” means,(a) liquid industrial waste,(b) hazardous waste, and(b.1) waste that was characteristic waste but that has been treated so that it is no longer characteristic waste, if the waste may not be disposed of by land disposal under subsection 79 (1)

Characteristic waste O. Reg.347

“characteristic waste” means hazardous waste that is,(a) corrosive waste,(b) ignitable waste,(c) leachate toxic waste, or(d) reactive waste

Leachate Toxic O. Reg. 347

“leachate toxic waste” means a waste producing leachate containing any of the contaminants listed in Schedule 4 at a concentration equal to or in excess of the concentration specified for that contaminant in Schedule 4 using the Toxicity Characteristic Leaching Procedure

Cover material O. Reg. 347

“cover material” means soil or other material approved for use in sealing cells in landfilling

Organic soil conditioningO. Reg. 347

“organic soil conditioning” means the incorporation of processed organic waste in the soil to improve its characteristics for crop or ground cover growth

What’s missing?

No definition of soil in O. Reg. 347No definition or exemption for excess soil No legal guidance on what to do with material that does not fit definition of inert fillFor exemption no definition of “wholly” or “land application”In absence of clarity conservative view is that excess soil that does not meet Table 1 is “waste” and dispose of accordingly

Due DiligenceDocumentation Requirements for Section 3 ExemptionsMOE guidance manual provides some direction.

Registration Guidance Manual For Generators Of Liquid Industrial And Hazardous Waste, April 1995 Amended December 2009 Amended June 2011

http://www.ene.gov.on.ca/stdprodconsume/groups/lr/@ene/@resources/documents/resource/std01_079529.pdf

To maintain the validity of the exemptions ….. the carrier must comply with s. 3 (3) of Reg. 347.

Due DiligenceThe carrier must have in his or her possession a document from the owner or operator of the site to which the material is being transported, and this document must:

i)indicate that the owner or operator of the site agrees to accept the materialii) specify the use that will be made of the material, andiii) stipulate that the transported material is being shipped to an ongoing process or operation that is currently in operation, if the exemption refers to an ongoing process or operation.

The downside

If you get the classification of soils wrong there are regulatory consequencesEPA prohibits the deposit of waste unless approvedMOE has ability to issue orders for the removal of wastes. 43 Waste Removal order

Waste Removal Order - s. 43 EPA

If waste deposited upon, in, into or through any land or land covered by water or in any building not approved as a waste disposal site.Director may issue order to remove the waste and to restore the site:

issued to an owner or previous owner;a person who otherwise has or had charge or control of the land or building or waste;an occupant or previous occupant of the land or building; or,a person that a Director reasonably believes engaged in prohibited waste disposal activity

KEY: remove waste no matter where it is

RSC Properties

MOE has adopted new, mainly more stringent, soil, groundwater and sediment standards as of July 1, 2011

Soil, Ground Water and Sediment Standards for Use Under Part XV.1 of the Environmental Protection Act Ministry of the EnvironmentApril 15, 2011

http://www.ene.gov.on.ca/stdprodconsume/groups/lr/@ene/@resources/documents/resource/stdprod_086516.pdf

New Standards

When the new standards came into effect many more properties overnight became “contaminated”Concern now what to do with the excess soil from these propertiesProperty/ soil may meet Table 2 or Table 3 StandardsWhere can the soil go?Table 1 Standard - is this “inert” for all uses?

New Standards

MOE has clear rules in relation to how move and test for soil that is moving between RSCpropertiesThe rules are set out in Part XVI of O. Reg. 153/04 as amended

Ontario Regulation 153/04

PART XII SOIL - Soil brought from another property

55. (1) Soil that did not originate at a RSC property may be brought from another property to a RSC property to remain there following the filing of a record of site condition only where the RSC property,

(a) is being used or has been used, in whole or in part, for one of the uses described in clause32(1) (b);

. . .

(2) Soil referred to in subsection (1) may onlybe brought to an RSC property referred to in subsection (1) where a qualified person has ensured in the course of the phase two environmental site assessment with respect to the RSC property that the requirements of Schedule E regarding soil brought to the phase two property have been met and the RSCproperty is the same as or within the phase two property. O. Reg. 511/09, s. 27.

(3) Despite subsection (1), soil that did not originate at a RSC property may be brought from another property to the RSC property to remain there following the filing of a record of site condition if either of the following circumstances apply:

1. A qualified person conducting or supervising the phase two environmental site

assessment has determined that the soil meets the standards set out in Table 1 of the Soil, Ground Water and Sediment Standards with respect to all contaminants in the soil to be brought from the other property to the RSCproperty and the determination was made during the course of a phase two environmental site assessment and, with necessary modifications, in

accordance with the provisions in Schedule E that apply to soil brought to the phase two property with respect to a RSC property described in subsection (1).

2. A qualified person has determined that a record of site condition may be submitted without a phase two environmental site assessment, the record of site condition is to be

submitted or has been submitted and the qualified person who is conducting or supervising or has conducted or supervised the phase one environmental site assessment has determined in accordance with Schedule F that soil intended to be brought from the other property to the RSC property meets the standards set out in Table 1 of the Soil, Ground Water and Sediment Standards with respect to all contaminants in the soil to be brought from the other property to the RSC property. O. Reg. 511/09, s. 27.

(4) Soil that did not originate at a RSC property and that is brought from another property to a RSC property to remain at the RSC property following the filing of a record of site condition shall be used at the RSC property solely to backfill an excavation or for final grading. O. Reg. 511/09, s. 27.

Q. is this land application?

Sampling of soil to be brought to the phase two property

34. (1) Samples of the soil referred to in section 32 shall be collected and selected for analysis so as to obtain representative results that locate any areas in the soil being sampled where a contaminant may be present at concentrations greater than the applicable site condition standard for the contaminant.

(2) At least one soil sample shall be analyzed for each 160 cubic metres of soil for the first 5,000 cubic metres to be assessed at each source from which soil is being brought to the phase two property, following which at least one sample for each additional 300 cubic metres of soil which is to remain on, in or under the phase two property shall be analyzed.

Remediation Options

Needs to be clear communication between consultant and client as to what are the end products from remediationDoes the remediation option end up with concentrated waste to be removed at the end of the process?Does the remediation option leave any “waste” on siteDoes the remediation option have a cost benefit analysis for excess disposal?

Blog: source by RegFlagDeals.com-Forum“How to dispose of excess soil?”

“You could get one of those Rhino bags from HD. I think a 6 cubic yard bag/bin is $130 for pickup and disposal…but I think the bag itself costs something like $300 so might cost somewhere around 160.”

“Rhino bags don’t come close to 6 cubic yard. For the price of a rhino bag or filling up one of those soil bags you can rent a small bin from a disposal company and fill it up much more.”

continuation of blog

“Down the toilet, 1 tablespoon at a time!”

“Put a retaining wall around it and make a raised garden. Add a little landscaping detail and I’m sure your wife will love the idea.”

“Aren’t you supposed to eat the spoonful of dirt? At least that’s what I recall in those old time jailbreak movies.”

continuation of blog

“I have the same issue, I need to order a bin within these few days for about 7 yards of dirt. I am also looking for recommendation on a cheap cleanfill removal.”

“Put a sign on your lawn advertising “Free clean fill”. Someone will knock on your door relatively immediately. I’m sure there’s someone in the area needing to build up their grade and needing fill.”

MOE Draft Best Management Plan

While the Government has no mandate to engage in regulatory discussions it has undertaken a consultation on Best Management Practices for excess soil from large construction projectsConsultations ongoingEBR posting soon ???

Best Management Practices for Handling Excess Construction soils in OntarioResidential and Civil Construction Alliance of Ontario RCCAO

www.rccao.comNovember 2012

Bloom Stakeholder Forum Report

Bloom released its report on Sustainable Solutions: A Concept for a Soil and Material Management Campus in Sept 2012

Region of Waterloo a leader in the areaConcept campus will use approvals

http://www.regionofwaterloo.ca/en/aboutTheEnvironment/resources/WMMPFinalBloomForumReportOct2012.pdf

Fill Site - unwanted?

Municipalities are struggling with what to do with the fill that is coming in from outside their boundariesClarington- passed by-law prohibiting outside fillFill permits are harder to come byAMO is assisting municipalities grapple with the reality of unwanted fill

Greenbank Airport expansion. GREENBANK -- Greenbank Airport owners prepared to make renovations at the local airfield. June 6, 2012 Celia Klemenz / Metroland

Greenbank AirportScugog issued the Regional Road 47 airport a site-alteration permit on October 15, 2012 paving the way for Greenbank Airways to start trucking in the estimated 2.5-million cubic metres of soil they need to upgrade the airportthe maximum number of heavy haulers allowed under the airport's permits -- 17 per hour, up to 200 each day No stipulation as to where fill comes fromNeed approval of sites

http://www.durhamregion.com/news/article/1520214--scugog-issues-long-awaited-permit-to-greenbank-airport

Recent case law

Township of Uxbridge v. Corbar Holdings Inc. et al., 2012 ONSC 3527 (CanLII) .

Large property on Oak Ridges Moraine to be used for 300,000 cubic metres of fill Defence that it was a “normal farming practice”. Court held that it was not a normal farming practice to dump 30,000 loads of fill

Liability Exposure for QP

Be much more vigilant and much more thorough on Environmental Site Assessments (ESAs) and intended disposal optionsNeed to know and understand(a) new standards;(b) new definitions; (c) remediation options and outcomes; and (d) due diligence procedures

Liability Exposure for QP

Potential to expose QPs to considerably more liabilityNeed dialogue between QP and client regarding potential limitations to manage expectationsLimitation sections of reports should be explicitLiability for breach of contract will depend on terms but may also include negligence and potential regulatory liabilityDocument, document, document

Practice Points for Lawyers

When asked to give an opinion in relation to where can excess soil go …. take a deep breath

understand what type of soilunderstand the volumeis there an emergency or is it development relatedunderstand all definitionsensure proper documentation if relying on an exemptionconduct due diligence on optionswork with consultants and contractorsbe realistic with client about risks and liabilitiesreview insurance and approval documentation

Take Away Points

Excess soil is still confusingBe aware of all definitionsNeed to understand disposal optionsConduct due diligence to understand where soil ends upBest Management Plans – are interim onlyNeed clear legislative guidance for certaintyEnsure contractual documents are clearDocument, Document, Document!

Thank you!If you have any questions,

or would like more information, please

contact:

© 2012 Janet Bobechko

JANET L. BOBECHKOCertified Specialist (Environmental Law)

Direct Tel. 416.596.2877Direct Fax. 416.594.2435Email [email protected]

Hon Q. Lu, P.Eng, MCIP, RPP

Senior Project Manager, Associate

MMM Group

Ontario Bar Association Panel Managing Fill: When in Soil "Waste", and Where Can it Go?

Brownfields Redevelopment and Integrated Soil Management

The Art and Science of Managing Excess Fill

Talk will focus on:

• Making the connections between brownfields remediation processes and development projects with large soil volumes

• Dealing with excess contaminated soils and the creation of sustainable soil management strategies, in order to effectively manage escalating costs

• Investment in aging infrastructure, road, and transit as well as large urban revitalization has brought forth the implications of excess soil production and movement, and its impacts in the communities that these projects take place in

• Various strategies and project barriers in dealing with impacted excess soils and large development projects, how these are managed, and the practical implications of dealing with large soil volumes in urbane community settings.

Evolution of Approach: Brownfields and Remedial Strategies

Remediation and Development Challenges

• One of the biggest financial and technical challenges is dealing with excess fill and contaminated soils

• Market for recycled soil is complex, uneven, & uncertain

• Municipalities are struggling against rising costs from large municipal infrastructure projects & an uneven municipal policy

• More stringent regulations O.Reg153/04

Context and Emerging Issues

• Residential and Civil Construction Alliance of Ontario (RCCAO) estimates that up to 15% more for disposal and transport of excess construction soils for standard municipal road, sewer and water projects.

• Difficult to determine, but RCCAO estimate that 20 million cubic metres of soil is generated each year in Ontario.

• Regulations surrounding the handling of this “clean” soil is uncertain and guidance is welcome

• Municipalities and lenders will apply most conservative brownfield standards in an effort to avoid potential liability.

• In some cases, more restrictive municipal by-laws have been applied that limit the disposal of soils and further drive up costs.

• Onus on contractors and land owners to deal with excess soil issues through contractual means.


Case Studies in Managing Excess Fill to Achieve

Sustainability Objectives and Cushion Financial Constraints

Case Study 1

Case Study 3:

Concrete Works

Case Study 2:

Film Studios

ENVIROMENTAL LEGACY

FUTURE OF FILM

REMEDIAL EXCAVATION ACTIVITIES

BIOREMEDIATION

Bioswale Installation

Mega Stage Under Final Construction

Concepts to Watch Out for….

Function Starts to Define Form

Soil Management Concept Facility

ADMINISTRATIVE BUILDING (ACCELERATOR CENTRE CONCEPT) - Shared Office Spaces (Partners)

- Shared Laboratory - Space for Soil Brokerage

- Community Meeting Spaces (meeting rooms, classrooms, education areas)

SOILS TREATMENT AREAS

Trea

tmen

t/ P

roce

ssin

g B

uild

ing

(So

il, W

aste

wat

er)

SOIL BANK AREA -"Clean" Soil / Material -Separated stockpiles per geotechnical parameters (e.g. silt, sand, aggregate) -Drop-off Bays

PROCESSED MATERIAL - Stockpiles of Materials that were treated - Separated stockpiles per geotechnical parameters (e.g. silt, sand, aggregate)

FUTU

RE

EXPA

NSI

ON

AR

EA

TREATMENT AREA 1

RESEARCH AREA PARTNER WITH

UNIVERSITIES OR OTHER RESEARCH ORGANIZATIONS

TREATMENT AREA 2

TREATMENT AREA 3

Region of Waterloo’s Feasibility Approach

• Have initiated a Feasibility Study for concept of a "Soil and Material Management Campus "

• Stockpile excess clean fill as per MOE BMP

• Looking to ideally form partnerships for treatment and reuse of impacted materials

Netherland’s Integrated Soil Management Approach

The Netherland’s Innovative Approaches to Soil Treatment, Farming, Banking, and Brokering

CL:AIRE Initiatives: Waste Code of Practice • Provides greater clarity over what is waste and

what is not • Greater clarity leads to consistency and

certainty • Improved efficiency in soil management • Supports diversion from landfill • Supports reduction in primary aggregate use • Supports reduction in haulage costs

www.claire.co.uk/CoP

“This risk based approach offers potential for

fundamental change to remediation

economics and sustainable use of materials”

David Oram, National Grid and SAGTA

speaking at Code of Practice launch, 11

September 2008

CL:AIRE Industry

Academia

CL:AIRE’s Position

CLG

Defra

Environment

Agency HPA

HCA

Government

WAG

SEPA

DoE NI

Implementing the CoP - 1

Donor and receiver may be a single site or separate sites

in the 2 scenarios above

Suitable for direct use without treatment

(not waste) Receiver site Donor site

On-site treatment

(waste until treatment complete) Receiver site Donor site

Off-site recovery or disposal

(waste unless/until off-site treatment

complete or exemption applies) Donor site Multiple options

Closing Thoughts…

Questions and Discussion



MMM Group Limited

[email protected] | www.mmm.ca

mailto:[email protected]

http://www.mmm.ca/



MMM Group

Ontario Bar Association Panel Managing Fill: When in Soil "Waste", and Where Can it Go?

Brownfields Redevelopment and Integrated Soil Management

The Art and Science of Managing Excess Fill

Talk will focus on:

• Making the connections between brownfields remediation processes and development projects with large soil volumes

• Dealing with excess contaminated soils and the creation of sustainable soil management strategies, in order to effectively manage escalating costs

• Investment in aging infrastructure, road, and transit as well as large urban revitalization has brought forth the implications of excess soil production and movement, and its impacts in the communities that these projects take place in

• Various strategies and project barriers in dealing with impacted excess soils and large development projects, how these are managed, and the practical implications of dealing with large soil volumes in urbane community settings.

Evolution of Approach: Brownfields and Remedial Strategies

Remediation and Development Challenges

• One of the biggest financial and technical challenges is dealing with excess fill and contaminated soils

• Market for recycled soil is complex, uneven, & uncertain

• Municipalities are struggling against rising costs from large municipal infrastructure projects & an uneven municipal policy

• More stringent regulations O.Reg153/04


• Residential and Civil Construction Alliance of Ontario (RCCAO) estimates that up to 15% more for disposal and transport of excess construction soils for standard municipal road, sewer and water projects.

• Difficult to determine, but RCCAO estimate that 20 million cubic metres of soil is generated each year in Ontario.

• Regulations surrounding the handling of this “clean” soil is uncertain and guidance is welcome

• Municipalities and lenders will apply most conservative brownfield standards in an effort to avoid potential liability.

• In some cases, more restrictive municipal by-laws have been applied that limit the disposal of soils and further drive up costs.

• Onus on contractors and land owners to deal with excess soil issues through contractual means.


Case Studies in Managing Excess Fill to Achieve

Sustainability Objectives and Cushion Financial Constraints

Case Study 1

Case Study 3:

Concrete Works

Case Study 2:

Film Studios

ENVIROMENTAL LEGACY

FUTURE OF FILM

REMEDIAL EXCAVATION ACTIVITIES

BIOREMEDIATION

Bioswale Installation

Mega Stage Under Final Construction

Concepts to Watch Out for….

Function Starts to Define Form

Soil Management Concept Facility

ADMINISTRATIVE BUILDING (ACCELERATOR CENTRE CONCEPT) - Shared Office Spaces (Partners)

- Shared Laboratory - Space for Soil Brokerage

- Community Meeting Spaces (meeting rooms, classrooms, education areas)

SOILS TREATMENT AREAS

Trea

tmen

t/ P

roce

ssin

g B

uild

ing

(So

il, W

aste

wat

er)

SOIL BANK AREA -"Clean" Soil / Material -Separated stockpiles per geotechnical parameters (e.g. silt, sand, aggregate) -Drop-off Bays

PROCESSED MATERIAL - Stockpiles of Materials that were treated - Separated stockpiles per geotechnical parameters (e.g. silt, sand, aggregate)

FUTU

RE

EXPA

NSI

ON

AR

EA

TREATMENT AREA 1

RESEARCH AREA PARTNER WITH

UNIVERSITIES OR OTHER RESEARCH ORGANIZATIONS

TREATMENT AREA 2

TREATMENT AREA 3

Region of Waterloo’s Feasibility Approach

• Have initiated a Feasibility Study for concept of a "Soil and Material Management Campus "

• Stockpile excess clean fill as per MOE BMP

• Looking to ideally form partnerships for treatment and reuse of impacted materials

Netherland’s Integrated Soil Management Approach

The Netherland’s Innovative Approaches to Soil Treatment, Farming, Banking, and Brokering

CL:AIRE Initiatives: Waste Code of Practice • Provides greater clarity over what is waste and

what is not • Greater clarity leads to consistency and

certainty • Improved efficiency in soil management • Supports diversion from landfill • Supports reduction in primary aggregate use • Supports reduction in haulage costs

www.claire.co.uk/CoP

“This risk based approach offers potential for

fundamental change to remediation

economics and sustainable use of materials”

David Oram, National Grid and SAGTA

speaking at Code of Practice launch, 11

September 2008

CL:AIRE Industry

Academia

CL:AIRE’s Position

CLG

Defra

Environment

Agency HPA

HCA

Government

WAG

SEPA

DoE NI

Implementing the CoP - 1

Donor and receiver may be a single site or separate sites

in the 2 scenarios above

Suitable for direct use without treatment

(not waste) Receiver site Donor site

On-site treatment

(waste until treatment complete) Receiver site Donor site

Off-site recovery or disposal

(waste unless/until off-site treatment

complete or exemption applies) Donor site Multiple options

Closing Thoughts…

Questions and Discussion



MMM Group Limited

[email protected] | www.mmm.ca

mailto:[email protected]

http://www.mmm.ca/

1

Presentation to the Ontario Bar Association:

Proposed Best Management Practices for Soil Management in Ontario

Kathleen Anderson Assistant Director, Central Region

November 20, 2012

2

Outline

Purpose: To provide an update on the draft Best Management Practices for Soil Management in Ontario.

Presentation Overview• Background• Overview of the draft Best Management Practices• Summary of Stakeholder Consultation • Looking Forward

3

Background• Large amounts of soil are being moved to support significant economic activities and

developments throughout Ontario.

• Excess soil is mainly generated by excavation during construction activities. In most cases this soil is in “excess” to what is needed on the site. This excess soil needs to be managed in a safe and efficient manner off-site.

• The ministry encourages the reuse of excess soil as fill to avoid unnecessary disposal in landfill as long as the soil is managed in an environmentally responsible manner.

• Effective, sustainable soil management practices are important to maintaining a healthy economy and environment.

• To help facilitate the beneficial reuse of excess soil, the ministry has developed a draft “Best Management Practices for Soil Management in Ontario” (BMP).

4

Overview: Best Management Practices

• The proposed Best Management Practices document provides guidance on five areas:

• Soil source sites; • Soil receiving sites; • Temporary soil banking; • Placement of soil at civil construction and commercial

development projects; and• Procurement practices for projects which include soil

management.

• By focusing on these five areas, the ministry can promote the effective and sustainable management of excess soil for beneficial reuse.

5


The current draft Best Management Practices:

• detail the ministry’s expectations for those who manage excess soil at source sites and large commercial fill receiving sites to help ensure a consistent approach across the province.

• provides an approach that enables the continued approval and permitting by municipalities and conservation authorities, and the flexibility for local decision making and site-specific considerations.

• can assist municipalities and conservation authorities when issuing permits or approvals, or when establishing new or amended by-laws for managing excess soil.

• recommends that all activities at sources sites, receiving sites and soil banks are overseen by a Qualified Person (QP – as defined under O.Reg 153/04), including the appropriate soil characterization and quality parameters.

6


The current draft Best Management Practices:

• Recommends municipalities, government ministries and agencies incorporate best soil management practices into the tendering process for construction projects, includes determining appropriate receiving sites.

• References complementary industry codes of practice to empower stakeholders to take a leadership role for sustainable soil management.

• The BMP is an operational guidance document intended to address day to day questions/concerns being raised across the province to provide a clear and consistent approach.

7

Stakeholder Consultation - Summary

• Stakeholder consultation began on a draft Best Management Practices document in the Spring of 2011 and continued into early 2012.

• The following is a list of some of the stakeholders who have been consulted as the ministry worked to establish the content of the draft document.

• Residential and Civil Construction Alliance of Ontario (RCCAO);

• Ontario Sand, Stone and Gravel Association (OSSGA);

• Ontario Waste Management Association (OWMA);

• Municipal Engineers Association (MEA);• Kilmer Brownfields Equity Fund;• Conservation Ontario;• WATERFRONT Toronto;• Ontario Sewer and Water Main;• Members of the Ontario Bar Association;• Ontario Home Builders Association;• ENGOs;

• Association of Professional Geoscientists of Ontario (APGO) and Professional Engineers of Ontario (PEO);

• ONEIA; • Niagara Escarpment Commission• Region of Waterloo;• Partner Ministries and Agencies MTO,

MNR, MMAH,• Association of Municipalities of Ontario• Canadian Petroleum Producers Institute• Ontario Public Works Association; • Canadian Brownfield's Network;• York Region; and • City of Toronto

8

Stakeholder Consultation - Summary• The majority of stakeholders acknowledge that the draft best management

practices are an encouraging first step to address soil management issues.

• Following the recent round of stakeholder consultation, the following changes have been made to the draft best practices document:

• Additional wording to promote soil remediation at the source of generation;

• Considerations for minimizing the amount of soil excavated from source sites;

• Clarity related to “Adverse Effect:; • Considerations for soil placement on agricultural lands, source water

protection areas and groundwater recharge areas; • Changes to the time period for soil banking; • Additional considerations related to Ontario Regulation 153/04 and the

generic site condition standards; and • Minor changes to language to improve readability for stakeholders using

the best practices document.

9

Stakeholder Consultation - Summary

• Although some of the comments received are outside of the current scope of the draft best practices document, the ministry has been recording all comments received and we will continue to consider these comments as we move forward.

For example: • The current draft best practices document is not intended to resolve the

continued use of the Brownfields (O.Reg 153/04) standards outside of their intended scope and applicability.

• The current draft best practices document does not dictate criteria or standards which would apply to all fill receiving sites.

• Some of the comments received have not prompted any changes to the content of draft best management practices document, however they have helped inform the next steps and considerations for broader public consultation.

For Example: • Considerations for the need and input into specific definitions (ie: Small and

Large Scale).

10

Soil Management – Looking Forward

• The ministry recognizes the complex challenges that soil movement in the province pose to industry, the public and the environment.

• The Best Management Practices are intended to provide essential guidance on many aspects of soil management and to evaluate if future actions are needed.

• The ministry will continue to engage stakeholders, including ourprovincial partners involved in soil management.

• The ministry welcomes all input related to soil management issues.

environmental law: managing fill: when in soil waste, and where...

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