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Things to consider:
Soil Quality

The most significant risk of ineffective soil management is causing an adverse effect or degradation of the receiving site, with potential secondary impacts on the neighbouring environment and public health. As recommended by the MOECC document Management of Excess Soil – A Guide for Best Management Practices (BMP), it is important to understand both the quality of excess soil from the source site, as well as the quality of soil at the receiving site.

The MOECC encourages excess soil reuse so long as there have been proper analyses, conducted by a qualified person (QP), of both the source and receiving sites to demonstrate appropriate reuse with no potential to cause an adverse effect. These analyses should use a risk-based approach to evaluate concentrations of individual contaminants and the potential impacts on the pre-existing conditions of the area where soil is to be reused. At a receiving site, a QP should specifically consider:
  • Soil type and permeability;
  • Source water protection areas;
  • Natural hazard areas;
  • Surface water features;
  • Natural heritage features;
  • Wetlands; and
  • Groundwater systems
See "Soil Quality" in the MOECC BMP below.

The QP would also be responsible for completing a fill management plan, which in part, requires: “…identification of appropriate soil quality and soil types for excess soil to be received at the site as determined by the QP based on site location/sensitivity, anticipated land use, ground water use/sensitivity, pre-existing site conditions or other factors as to ensure that there is no likelihood of adverse effect;”1 see Fill Management Plan and "Qualified Person" in the MOECC BMP for more.

Example:
Centennial Park, Sarnia
In 2012, residents reported soil contaminants surfacing in the park, which were tested and revealed to include petroleum hydrocarbons, polycyclic aromatic hydrocarbons, lead and asbestos. The contamination was likely related to fill that was previously brought in for reclamation purposes. Remediation is expected to cost at least $5.5 million, however, as of May 2016, this had not begun.

The MOECC is currently developing numerical standards for the management and placement of excess soil that provide for environmental protection and sustainable re-use of soil. Considerations for these standards are further described in the MOECC Excess Soil Management Policy Framework.
The MOECC document Management of Excess Soil – A Guide for Best Management Practices(BMP) on soil quality and qualified person:
Soil Quality
“Understanding whether the placement of soil may cause an adverse effect or a degradation of the pre-existing condition of the Receiving Site requires knowledge of the quality of the excess soil from the Source Site and the quality of soil at the Receiving Site.
Excess soil reuse is encouraged where chemical analyses of soil at the Source and Receiving Sites determine that the soil is appropriate to be reused at the Receiving Site. The analyses should be based on the specific conditions at the sites, including the history of the sites, and take into consideration the intended and/or anticipated future land uses of the Receiving Site. Soil placement should not degrade the existing conditions at a Receiving Site; for example, a new contaminant should not be introduced to the Receiving Site and the concentration of an existing contaminant should not be increased at the Receiving Site. When determining if excess soil is appropriate for a Receiving Site, consideration should also be given to the physical characteristics of the excess soil, including soil type and geotechnical suitability.
Professional expertise and judgment will be necessary to inform the assessment and the extent of testing to be undertaken including a reasonable identification of potential contaminants based reviewing the history and conditions of the sites.
Mixture and dilution of contaminated soils to reduce the concentrations of contaminants should not be undertaken.
Ontario Regulation 153/04 sets out soil standards which apply when a Record of Site Condition (RSC) is being submitted for filing. These soil standards are not intended to address overall soil management activities. Additional information on the use and application of these standards can be found later in this document within the section entitled, ‘Ontario Regulation 153/04 and the Soil and Ground Water Standards’.”3

Qualified Person (QP)
“The owner/operator of a Receiving Site should retain the services of a QP to undertake an assessment to establish the current site condition of the soil and ground water to ensure the site is appropriate to be used as a Receiving Site. Appropriateness of the site should be based on, and take into consideration soil type and permeability in addition to nearby receptors and features, such as source water protection areas, natural hazard areas, surface water features, natural heritage features, wetlands and their areas of hydrologic influence, and ground water recharge rates, patterns and areas. Consideration should also be given to the future land use for the site, including potential agricultural uses and capacity.”4
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DEFINITIONS

Things to consider: When addressing soil quality issues in a by-law, a municipality should consider including definitions for “adverse effect”, “contaminant”, “contaminated fill”, “excess soil”, “qualified person” and “soil”. Outlining clear definitions can help promote consistency in quality of soil managed across site alteration projects.

Adverse Effect
When adverse effect is defined in a by-law, the definition should reference The Environmental Protection Act, R.S.O 1990, c. E.19 (EPA) definition, as recommended by the MOECC BMP. This definition is as follows:

“‘Adverse Effect’ means one or more of:
  1. impairment of the quality of the natural environment for any use that can be made of it;
  2. injury or damage to property or to plant or animal life;
  3. harm or material discomfort to any person;
  4. an adverse effect on the health of any person;
  5. impairment of the safety of any person;
  6. rendering any property or plant or animal life unfit for human use;
  7. loss of enjoyment of normal use of property; and
  8. interference with the normal conduct of business.”5
Contaminant
Defining contaminants or contaminated soil is important for municipalities to regulate soil quality and should be tailored based on the required quality standards used in each by-law.
Contaminant should be simply defined per its EPA definition, as done in the MOECC BMP and shown below:

“‘Contaminant’ means any solid, liquid. gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that may cause an adverse effect;” 6

Contaminant definitions can also incorporate further specifics on the municipality’s soil quality standards.

Many by-laws use Table 1 standards of the “Soil, Ground Water and Sediment Standards for Use under Part XV.1 of the Environmental Protection Act” published by the MOECC dated April 15, 2011, as amended. However, the MOECC BMP recommends: “QPs using the Standards in Tables 1-9 must ensure they are aware of how the Standards were developed, and the important assumptions behind the Standards are considered when they are applied to excess soil management activities.” 7
(See Ontario Regulations 153/04 discussed in the MOECC BMP for more information)
The MOECC document Management of Excess Soil – A Guide for Best Management Practicesprovides the following guidance on using Ontario Regulation 153/04 standards:
“Ontario Regulation 153/04 and the Soil and Ground Water Standards
Ontario Regulation 153/04 sets out standards for soil, ground water and sediment which apply when a Record of Site Condition (RSC) is submitted to the MOE for filing on the Environmental Site Registry. The generic contaminant standards are set out in, “Soil, Ground Water and Sediment Standards, for Use under Part XV.1 of the Environmental Protection Act” dated April 15, 2011, (Standards) and are referred to as Tables 1 through 9. These Standards assume certain conditions at an RSC property as well as an intended property use. The property uses are categorized in Ontario Regulation 153/04.

The Table 1 Standards or “Background” values were developed from the Ontario Typical Range data collection program for soils. The program involved collection of uncontaminated surface soil from around the province. Naturally occurring concentrations vary throughout Ontario. Table 1 Standards are a statistical estimate of the upper levels of provincial background concentrations. Roughly 98% of uncontaminated Ontario soils will be below the Table 1 Standards for a specific substance. For some individual chemical substances, Table 1 Standards may be higher than ambient concentrations at a Receiving Site. The Standards set out in Tables 2-9 were developed using scientific models and technical assumptions in order to meet specific objectives designed to support the redevelopment of brownfield sites in Ontario.

The Standards are not intended to address overall soil management activities. For example, the Standards are based on assumed contaminant volumes and loadings and do not account for wide variance in soil volume and contaminant loadings which may occur with general soil management.

In some cases, the Standards may not be appropriate for assessing soil being imported to a Receiving Site without consideration being given to the rationale document used in their development. A QP should consider the appropriateness of the proposed application of the Standards and whether the assumptions used in the development of Standards remain valid. The rationale document is entitled, “Rationale for the Development of Soil and Ground Water Standards for Use at Contaminated Sites in Ontario, revised version April 15, 2011”.

QPs using the Standards in Tables 1-9 must ensure they are aware of how the Standards were developed, and the important assumptions behind the Standards are considered when they are applied to excess soil management activities. The assumptions and methods used in the development of the Standards are fully described in the rationale document. In undertaking this assessment, the QP should take into consideration the effects of loading associated with the concentrations of individual contaminants in soil and the impacts on the pre-existing, ambient conditions at the site, including the introduction of new contaminants to a Receiving Site. This will likely require a QP who is qualified to prepare or supervise a risk assessment, as set out section 6 of Ontario Regulation 153/04.

When considering the applicability of the Standards for use at a particular site, it is important to note that elevated concentrations of contaminants when compared to the Standards do not necessary imply that:
  • there is a risk to human health or the environment;
  • remediation is required; or
  • excess soil should be considered a waste

An elevated concentration when compared to the Standards may suggest that additional site-specific studies, evaluations or assessments are warranted. These additional site-specific studies, evaluations or assessments should, at a minimum, be done in accordance with these best practices.”8
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Resources:
For more information on current brownfields standards, refer to the Rationale for the Development of Soil and Ground Water Standards for Use at Contaminated Sites in Ontario
Contaminated Fill
In order to promote beneficial reuse of soil, municipalities may want to consider having by-laws with quality allowances beyond Table 1 standards of the “Soil, Ground Water and Sediment Standards for Use under Part XV.1 of the Environmental Protection Act”. These allowances can be written into definitions relating to contaminants as shown in the example below that recommends Table 1 standards but allows site-specific exceedances as approved by the municipality:

"'Contaminated Fill' means
  1. any Soil that does not meet the Table 1 Standards, unless the Applicant has demonstrated to the satisfaction of the Director that the existing ambient soil quality of the receiving site does not meet Table 1 Standards or that the Placing or Dumping of Soil that meets Table 2 Standards would not have a detrimental effect on ground water;
  2. any Fill that contains putrescible material; and
  3. bio- solids created by the paper manufacturing process, either in the form of pure paper fibre bio-solids or as mixed with other material to form products known as "nitro- sorb", " sound sorb", or other products with similar composition.”9

Qualified Person
The MOECC BMP defines a qualified person based on section 5 and section 6 of Ontario Regulation 153/04, as is written in the by-law example below. "Qualified person" is defined specifically for the purposes of submitting a record of site condition for filing. Municipalities may want to consider the need for qualified persons to be assisted by other specialists, such as agrologists, archaeologists and arborists.

The MOECC is currently developing new regulation for the management and placement of excess soil, which may include an updated definition for “qualified person” that builds upon the definition below (see MOECC BMP below for more).
The MOECC BMP outlines: “Those who manage excess soil are encouraged to retain the services of a Qualified Person (QP) within the meaning of section 5 of Ontario Regulation 153/04. QPs are professional geoscientists and professional engineers. A QP who is retained should be someone who can exercise professional judgment based on his or her experience in order to advise on appropriate reuse options for the excavated soil or excess soil, and make these decisions based on appropriate analysis and characterization of the soil. The QP should use a risk-based approach and take into consideration the effects of loading associated with the concentrations of individual contaminants in soil and the impacts on the pre-existing, ambient conditions at the site. This will likely require a QP who is qualified to prepare or supervise a risk assessment, as set out section 6 of Ontario Regulation 153/04. Depending upon the intended beneficial reuse of the excess soil, the QP may need to consult with others to make decisions on the appropriateness of the excess soil for reuse, such as an agrologist if soil is to be used for an agricultural purpose.”12
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“‘Qualified Person’ means a licensed professional as stated in the EPA Section 168.1 and further described at length in Part II of O. Reg. 153/04”10
Soil
The first definition for soil below is used in the MEOCC BMP and is in accordance with Ontario Regulation 153/04. However, many by-laws use the second more general definition for soil that allows a broader range of material to be regulated.

“Soil” means “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.”13

OR

“‘Soil’ means the natural materials commonly known as earth, topsoil, loam, subsoil, clay, sand or gravel.”14

The MOECC is currently developing new policy for the management and placement of excess soil, which may include an updated definition for “soil”.

See the Definitions Page for additional definitions relevant to any site alteration or fill by-law.

GENERAL PROHIBITIONS & REGULATIONS

Things to consider: Soil quality is often regulated as a General Prohibition in site alteration and fill by-laws, based on specified soil standards either outlined in the definitions or within the provisons themselves. Soil quality requirements vary between by-laws; Table 1 of the “Soil, Ground Water and Sediment Standards for Use under Part XV.1 of the Environmental Protection Act” referenced in O.Reg. 153/04 for “Agricultural or Other Property Use” standards have become common but are potentially too onerous. Municipalities are encouraged to consider either of the following requirements:

Option 1
Below is language that references Table 1 standards but allows approved exceedances while still prohibiting specific waste material. In this example, a permit is still required for site alteration operations that are not exempt from the by-law.

“No person shall place or dump fill or cause or permit fill to be placed or dumped unless such fill:
  1. Is soil;
  2. Does not contain any putrescible organic material, demolition debris such as domestic brick and concrete, concrete fines, exposed rebar, paint or coatings, decomposable materials, plastic, asphalt, glass petroleum products or hydrocarbon materials;
  3. Meets the standards set out in Table 1 of the “Soil, Ground Water and Sediment Standards for Use under Part XV.1 of the Environmental Protection Act” referenced in O.Reg. 153/04 for “Agricultural or Other Property Use”, or less restrictive standard if permitted pursuant to a permit issued pursuant to this By-law; and
  4. Is free of staining, hydrocarbon odour, garbage and debris

  5. [...]
Notwithstanding Section 2.12 [section above], fill that is topsoil may be permitted if it meets the standards set out in Table 1 of the ‘Soil, Ground Water and Sediment Standards for Use under Part XV.1 of the Environmental Protection Act' referenced in O.Reg. 153/04, for "Agricultural or Other Property Use’.”15

Option 2
The language below incorporates a risk-based approach that generally agrees with the MOECC BMP: “Soil placement should be prohibited if existing conditions at Receiving Site would be degraded (e.g. a new contaminant would be introduced and/or the concentration of existing contaminant would increase) […] Mixture and dilution of contaminated soils to reduce the concentrations of contaminants should not be undertaken.”16

“The placing or dumping of fill shall not introduce any new contaminant (as listed in “Soil, Ground Water and Sediment Standards for use under Part XV.1 of the Environmental Protection Act” referenced in O.Reg. 153/04) to a lot or increase in concentration of an existing contaminant on a lot.”17

If a municipality wanted to consider allowing like-to-like soil placement, where the only standard required is that the excess soil quality was no worse than the receiving site soil quality, the above clause could be used as a stand-alone general prohibition. However, municipalities should evaluate the risks of contamination if considering this approach, as well as ensure all other best soil management practices are followed.

Limitation
Limiting accepted material to be only soil as defined by Ontario Regulation 153/04 may be too restrictive for some operations, municipalities may want to allow more material than that which falls under this definition of soil, while still ensuring environmental protection. Refer to the example below, with a relating provision in the Requirements for Issuance of a Permit section.

“No person shall place or dump fill or cause or permit fill to be placed or dumped unless such fill complies with the standards established by the Ministry of Environment and Climate Change for clean fill, as described in Sections 4.5.20 of this By-law.”18

Wherever a by-law uses the phrase “Clean Fill” or “Clean Soil”, it should be further defined in the Definitions sections or by a detailed description. See Section 4.5.20 below for the relevant description of "Clean Fill" as used in the provision above.

REQUIREMENTS FOR ISSUANCE OF A PERMIT

Things to consider: Soil quality is most heavily regulated under Requirements for Issuance of a Permit. Through research and stakeholder consultation conducted by the Canadian Urban Institute, the following appeared to be the six most pertinent issues for soil quality:

Receiving Site Conditions
As outlined by the MOECC BMP, municipalities should require a qualified person to analyze the current conditions of receiving sites to determine the appropriateness of excess soil placement. The following by-law example requires permit applicants to provide:

“an assessment by a qualified person to establish the current site condition of the soil, groundwater, and stormwater to ensure the site is appropriate for the proposed site alteration;” 19

Source Site Soil Testing
In accordance with the MOECC BMP, many of the more recently updated by-laws have incorporated requirements for site owners/operators to demonstrate the excess soil being placed has been analyzed at the source site and meets receiving site standards. These requirements enable municipalities of receiving sites to have some control on source site conditions and operations, as shown in an example below of what a receiving site owner must provide:

“A description of the fill proposed to be dumped or placed including a detailed description of the source of the fill with a letter from the party from whom the fill is being acquired attesting that the fill meets the requirements for clean fill as per Section 4. 5. 20, of this By-law, the quantity of fill (expressed in cubic metres), and the proposed location of the fill on the lands, and shall include contact information, if required by the Inspector;”20

This can be further emphasized in an additional requirement for the receiving site owner to:

“Provide to the Inspector a report from a Qualified Person with knowledge in respect to the source and nature of the fill to be placed or dumped, that all fill meets standards prescribed by the Ministry of Environment and Climate Change for any current land use and any future land use for the land designated under an Official Plan approved by Council for the Township or Council for the County;” 21

Soil Quality Standards
In addition to being general prohibitions and regulations, soil quality standards are also typically incorporated into the terms and conditions of a permit agreement, as in the example below. This is another example where Table 1 of the “Soil, Ground Water and Sediment Standards for Use under Part XV.1 of the Environmental Protection Act” referenced in O. Reg. 153/04 for “Agricultural or Other Property Use” standards are referenced but may be exceeded, in this case, up to levels in Table 2 of the “Soil, Ground Water and Sediment Standards for Use under Part XV.1 of the Environmental Protection Act” with Director approval.

“Where a permit has been issued under this By-law, no person shall place or dump fill, remove any topsoil or fill, alter the grade or land, or perform or permit any site alteration except in accordance with this By-law, the terms and conditions of the permit and any agreement entered into with the Corporation pursuant to Section 7 of this By-law, which conditions may include, but are not limited to:
    c. Ensure that all fill used is soil which meets the requirements of Section 2.12 of this by-law, or subject to approval by Council, such less restrictive standard as the Director may consider appropriate in the circumstances of the particular application but such less restrictive standard shall not be less restrictive than the standards set out in Table 2 of the ‘Soil, Ground Water and Sediment Standards for Use under Part XV.1 of the Environmental Protection Act’ referenced in O.Reg. 153/04 for ‘Agricultural or Other Property Use’, and Section…” 22

The example below provides a more detailed list that may benefit enforcement:

“As a condition of the issuance of a permit, the Inspector may require the owner of the land which is subject of the permit either prior to the permit being issued or after the permit has been issued to comply with one or more of the following:
    4.5.20 Ensure that all fill used is material that does not contain any putrescible material and to the satisfaction of the Qualified Person meets any of the following criteria:
      4.5.20.1 Rock, including demolition debris such as domestic brick and concrete that does not contain cement fines, exposed rebar, paint or coatings, decomposable materials, plastic, asphalt, petroleum products, hydrocarbon materials and any putrescible organic materials,
      4.5. 20.2 Soil that the standards set out in Table 1 of the soil, Ground Water and Sediment Standards referenced in O. Reg. 153/04 as amended,
      4.5. 20.3 Liquid slurry materials to the extent that the free water is removed and the resulting wet or slurred material meets the standards set out in Table 1 of the soil, Ground Water Sediment Standards referenced in O. Reg. 153/04, and any free water from the liquid slurry that meets the standards set out in Table 1 of the Soil, Ground Water Sediment Standards referenced in O. Reg. 153/04,
      4.5. 20.4 Topsoil, sod and turf materials to be stockpiled for use as final cover only; 4.5. 20.5 Notwithstanding sections 4.5.20. 1 through 4. 5. 20.4, fill consisting of soil that meets the standards set out in Table 2 of the Soil, Ground Water and Sediment Standards referenced in O. Reg. 153/04, may be permitted by the Director on a case by case basis, where the Qualified Person provides sufficient studies to the Director in order to demonstrate that the placing or dumping of fill would not have a detrimental effect.” 23

Soil Quality Reporting
Documentation that can demonstrate the excess soil meets the municipality’s soil quality standards is a recommended requirement that can create clear and enforceable clauses. An example is below:

“Unless otherwise specified by the Director pursuant to Section 4.03 an owner applying for a permit under this By-law shall provide the following:
    j) A description of the fill proposed to be dumped or placed including a detailed description of the source of the fill with a letter from the party from whom the fill was acquired attesting the fill meets the requirements for fill set out in Section 2.12 of this By-law, the quantity of the fill (expressed in cubic metres), and the proposed location of the fill on the lands, and may include contact information if required by the Director;” 24
Documentation can also be requested through a site alteration plan or fill management plan, as is shown in the examples below:

“To obtain a Permit pursuant to this By-law, an applicant shall provide the following information:
    3.1.5 A Site Alteration Plan, certified by a Qualified Person, meeting the standards set out in Schedule ‘B’ of this By-law, containing Site design guidelines as set out in Schedule ‘C’ of this By-law;” 25

Where “Schedule B” outlines requirements of a site alteration plan which includes a fill management plan detailing how excess soil meets the soil quality standards (see Fill Management Plan).
1. Ministry of the Environment and Climate Change. Management of Excess Soil – A Guide for Best Management Practices
2. Ministry of the Environment and Climate Change. Proposed Excess Soil Management Policy Framework
3. Ministry of the Environment and Climate Change. Management of Excess Soil – A Guide for Best Management Practices
4. Ministry of the Environment and Climate Change. Management of Excess Soil – A Guide for Best Management Practices
5. Town of Aurora Fill By-law 4751-05.P
6. Town of Aurora Fill By-law 4751-05.P
7. Ministry of the Environment and Climate Change. Management of Excess Soil – A Guide for Best Management Practices
8. Ministry of the Environment and Climate Change. Management of Excess Soil – A Guide for Best Management Practices
9. Municipality of Clarington By-law 2088-114.
10. City of Barrie Site Alteration By-law 2014-100
11. City of Barrie Site Alteration By-law 2014-100
12. Ministry of the Environment and Climate Change. Management of Excess Soil – A Guide for Best Management Practices
13. Ministry of the Environment and Climate Change. Management of Excess Soil – A Guide for Best Management Practices
14. Whitchurch Stouffville By-law 2014-101
15. Town of Aurora Fill By-law 4751-05.P
16. Town of Aurora Fill By-law 4751-05.P
17. Ministry of the Environment and Climate Change. Management of Excess Soil – A Guide for Best Management Practices
18. Ministry of the Environment and Climate Change. Management of Excess Soil – A Guide for Best Management Practices
19. Municipality of Clarington By-law 2088-114
20. City of Barrie Site Alteration By-law 2014-100
21. City of Barrie Site Alteration By-law 2014-100
22. Ministry of the Environment and Climate Change. Management of Excess Soil – A Guide for Best Management Practices
23. Ministry of the Environment and Climate Change. Management of Excess Soil – A Guide for Best Management Practices
24. Whitchurch Stouffville By-law 2014-101
25. Township of Scugog Site Alteration By-law 62-15