The Link – February, 2010

Moving surplus soil

By Dianne Saxe

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.

 
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.

Reg. 511/09 will eventually make major changes to this issue:

1. There will be a new Part XII: Soil to the regulation.

2. 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.

3. Soils that have been proven to meet Table 1 may still be freely transported and deposited.

4. Soils with higher levels of contamination, (e.g. meeting 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, and therefore will always require an RSC before conversion to a more sensitive use. (s. 32 of the Regulation)

5. Records of Site Condition must now be supported by reports documenting and quantifying all movements of soil on and off an RSC property. (see new s. 27 to 34 of Schedule A.)

6. 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. This should significantly increase the cost of disposing of surplus soils from construction projects.

For more details, see http://envirolaw.com

About Dianne Saxe

Dianne Saxe is one of the world’s top 25 Environmental Lawyers, according to Euromoney’s Best of the Best, 2008. Lexpert recognizes her as one of the best in Canada.