The soil movement limits imposed by regulation 153/04 on July 1, 2011 have greatly complicated the task of contractors and developers wishing to obtain or dispose of excess construction soil. Strictly speaking, the new regulation only applies if the destination site wishes to be able to obtain a Record of Site Condition. However, since it would be foolish for a property owner to lightly give up the option of obtaining a Record of Site Condition for future sale or development, knowledgeable property owners across the province are starting to follow the new rules, and to insist on receiving only soil that has been tested and proven to meet Schedule I (background) levels of contamination.
This is causing growing concern in the construction industry. In addition, contractors and developers are often frustrated by the lack of consistency in soil management rules between different municipalities. A recent bylaw review by Hatch, Mott, McDonald concluded that 23 of 85 municipalities reviewed have a relevant bylaw that mentions soil quality. Of these, 14 prohibited unacceptable material without reference to either the Environmental Protection Act or specific soil criteria under Reg. 153/04; eight referred to the Environmental Protection Act, but not to 153/04; and only one (the Town of Georgina) defined acceptable fill by reference to Table 1 of Soil, Ground Water and Sediment Standards for Use under Part XV.1 of the Environmental Protection Act, April 15, 2011, adopted under Reg. 153/04. This uneven patchwork causes considerable confusion.
As a result, soil that could otherwise be beneficially reused can end up expensively in landfill sites, increasing the cost of infrastructure and other public and private projects, while other sites become unwittingly contaminated by accepting fill. According to the ministry, they
“encourage the reuse of excess soil as fill, where appropriate, provided that the use of the excess soil does not have a potential to cause an adverse effect or impair water quality as described under the ministry’s Acts and Regulations. It is the responsibility of all stakeholders who generate, haul or receive excess soil to ensure that the excess soil is being managed in an environmentally sound manner and in accordance with all regulatory requirements.”
Since that simply begs the question of what soil can be moved where, the Ministry of the Environment might develop a Best Management Practices document for soil management in Ontario. The BMP could have a structure similar to Reg. 153/04, whether or not the receiving site demands a Record of Site Condition. That is,
- The whole process would be overseen by a Qualified Person, as defined in 153/04;
- based on detailed characterization, both of the receiving site and the soil to be moved;
- in accordance with a formal Soil Management Plan for the source of the soil and a Fill Management Plan for the receiving site;
- whose implementation is recorded in detail;
- the receiving site would be managed much like a transfer site for solid waste, with signage, security, dust and noise controls, traffic management, storm water management, a contingency plan, etc., and possibly public consultation and financial assurance.
Municipalities and government agencies could incorporate the BMP Plan into their tendering process, at least for large projects dealing with previously contaminated sites.
A BMP process would not determine, in advance, the soil quality requirements for any particular site, but they might help to ensure that major soil movements would be of known and recorded quality.