Proposed Excess Soil Management Regulation and Changes to O. Reg. 153/04

The MOECC has posted a notice on the Environmental Registry (EBR) of their intent to propose a new regulation related to ‘Excess Soil Management’ (ESM). Excess soil is defined as soil that leaves a project area (a construction or development site). O. Reg. 153/04 will be amended to reflect the ESM requirements. The MOECC has also included several notable proposed amendments to O. Reg. 153/04 that are not directly related to excess soil management, but are being included so as to update O. Reg. 153/04 all at once. It is anticipated that this regulatory proposal will be finalized before the end of 2017 (theoretically coming in to force in early 2018, though the actual implementation date has not been finalized). Highlights of the proposed regulatory changes are as follows:

Excess Soil Management Regulation

  • Exporting Soil – If you plan to remove more than 1,000 m3 (about 100 truckloads) of excess soil, or if an Area of Potential Environmental Concern is identified on the property, an Excess Soil Management Plan will need to be prepared. The ESMP will need to be based upon a Phase One ESA report.
  • Excavation/Shoring – If construction involves shoring an excavation, an ESMP will need to be prepared before a building permit is issued.
  • Importing Soil – If you plan to import soil to a property that already has an RSC, the quality of the imported soil will need to meet the standards specified in the ESM regulation. The regulation will take land use into consideration and will likely be less stringent than Table 1 SCS in most situations.

Additional Amendments to O. Reg. 153/04 

  • Exemptions for Certain Types of Impacts
    • If the soil at your property is impacted by salt, there will be a broader exemption. Currently, road salt-related impacts can only be exempted if it can be proven they are related to the application of de-icing salts on a public highway. The exemption will include road salt applied to a property ‘for the purpose of traffic and pedestrian safety under conditions of snow/ice’.
    • If the ground water at your property is impacted by chloroform or bromoform, a new exemption will be available if the impacts are caused by the infiltration of municipally treated water.
    • If otherwise un-impacted fill is present on a site that has naturally elevated concentrations of substances exceeding applicable site condition standards, a new exemption will be available for situations where a QP can demonstrate that the concentration of a substance in the fill does not exceed naturally occurring concentrations within the municipality or an adjacent municipality.
  • Building Conversions
    • If you are planning to convert upper floors of a commercial building (not more than four storeys) to residential use, and not demolishing and rebuilding or altering the building footprint, no RSC is required provided that the ground floor remains commercial and has not been used as a gas station, garage, dry cleaner or bulk liquid dispensing facility.
    • If you are planning to convert an industrial, commercial or community facility to a building used for indoor gatherings of people for religious purposes, an RSC will be required. No RSC will be required to convert a building used for indoor gatherings of people for religious purposes to residential, parkland or other institutional use.

Additional details of the proposed Excess Soil Management regulation and amendments to O. Reg. 153/04 are currently open for public consultation and can be viewed on the EBR:

Please let us know if you have any questions. We would be happy to discuss the implications of these changes with you for your ongoing and upcoming projects.

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