Regulatory framework for the reclamation of slightly contaminated soil

In August 2019, several amendments to the Land Protection and Rehabilitation Regulation (“LPRR”) and the Regulation respecting contaminated soil storage and contaminated soil transfer stations (“CSSTS”) came into force to guide and further promote the reclamation of slightly contaminated soil. Several of these new provisions were then repealed and integrated, on December 31, 2020, into the new Regulation respecting the regulatory scheme applying to activities on the basis of their environmental impact (“RABEI”). The most recent version of the Guide d’intervention – Protection des sols et réhabilitation des terrains contaminés (a guide to soil protection and rehabilitation of contaminated sites, in French only), published by the Ministry of the Environment and the Fight Against Climate Change (“MEFCC”) and updated in May 2021, also incorporates these regulatory changes.

The term “slightly contaminated soil” refers to A-B soil, which is soil that contains contaminants at a concentration above criterion A but equal to or below criterion B (Schedule I of the LPRR).

The following is a brief overview of the principles that now surround the reclamation of slightly contaminated soil.

1. Reclamation of excavated contaminated soil

The characterization of the soil present in a contaminated site makes it possible to identify the type and level of contamination, so as to determine the possible reclamation, treatment or landfill options.

The various options for managing excavated soil are presented in Table 5 and in the excavated soil management matrix in Schedule 5 of the Guide d’intervention. In particular, the table and matrix list the options available for managing slightly contaminated soil. For example, this soil can be used as a substitute for clean materials for the revegetation of degraded sites or as infrastructure material. It can also be used as backfill in excavations.

2. Environmental authorization, declaration of compliance or exemption

The new environmental authorization regime now includes the possibility of using a declaration of compliance or an exemption from the application of section 22 of the Environment Quality Act (“EQA”) in order to reclaim slightly contaminated soil on a site other than the original site.

2.1 Declaration of compliance

The declaration of compliance is a mechanism under the EQA to streamline the environmental authorization process for activities deemed to be of low environmental risk.

The reception of slightly contaminated soil on another site is eligible for a declaration of compliance if the total volume of contaminated soil received on that site does not exceed 10,000 m3, regardless of whether this volume is achieved as the result of one or more projects. Also, the soil must be intended for reclamation on that specific site and must not contain asbestos.

The owner of the site that will receive the slightly contaminated soil must file the declaration of compliance with the Minister at least 30 days before commencing the activity and certify that the activity will comply with the terms, restrictions and prohibitions set out in the regulations.

The declaration of compliance must include the information and documents provided for in section 41 of the RABEI, as well as the characterization study provided for in section 2.12 of the LPRR. A declaration of compliance form is available (in French) on the MEFCC website. If necessary, the declarant must update the information and documents provided in his or her declaration of compliance as soon as possible.

Under the CSSTS, the reclamation of slightly contaminated soil through a declaration of compliance is subject to the prohibition on depositing more contaminated soil on less contaminated soil.

2.2 Exemption from environmental authorization

The exemption from the environmental authorization regime is a mechanism in the EQA to streamline the environmental authorization process for activities deemed to have negligible environmental risk.

The reception of slightly contaminated soil on another site may be exempted from the need to obtain an environmental authorization if the total volume of contaminated soil received on that site does not exceed 1,000 m3, regardless of whether this volume is achieved as the result of one or more projects. Also, the soil must be intended for reclamation on that specific site and must not contain asbestos.

Under the CSSTS, the reclamation of slightly contaminated soil through an exemption is subject to the prohibition on depositing more contaminated soil on less contaminated soil.

2.3 Environmental authorization

The reception of slightly contaminated soil on another site remains subject to environmental authorization in other cases, particularly if the total volume of contaminated soil received on the site exceeds 10,000 m3.

Further to the requirements of section 16 of the RABEI, the application for authorization for a contaminated soil reclamation activity must include a soil monitoring program at the entrance to the site where the soil will be used for reclamation purposes, as well as a characterization study of the state of the soil on all or a part of the land where the soil will be used for reclamation purposes.

Under the CSSTS, the MEFCC may, on a case-by-case basis, authorize the deposit of slightly contaminated soil on less contaminated soil, unless the receiving site is intended for housing.

3. Control measures

Chapter IV of the LPRR provides for additional control measures for the management of slightly contaminated soil. These measures apply to contaminated soil reclamation projects that are subject to a declaration of compliance or an exemption from Ministerial authorization.

Slightly contaminated soil must be used within 30 days from its reception on the site of its planned reclamation. In addition, the owner of the site receiving the slightly contaminated soil must verify the acceptability of the soil before receiving it. Various information must be recorded in a logbook when the soil arrives, including the quantity of soil and the nature and concentration of contaminants. The analytical reports used to produce the characterization study of the soil received must be appended to the logbook. In the case of reclaimed soil with a declaration of compliance, additional soil analyses must be carried out upon receipt and recorded in the logbook. The logbook and the documents received must be kept for five years.

In the case of projects for the reclamation of slightly contaminated soil that are subject to an environmental authorization, the time limit for the use of the soil and the keeping of a logbook may be set by this authorization.

4. Characterization study

Chapter V of the LPRR provides that a person who is preparing to receive slightly contaminated soil that is intended for reclamation must, before receiving this soil, carry out a characterization study of the portion of land on which the soil will be received. This study excludes the characterization of groundwater and surface water.

The characterization of the receptor site for slightly contaminated soil must be carried out for all projects for the reclamation of this soil, whether they are subject to an authorization under section 22 of the EQA, exempt or covered by a declaration of compliance. The study must be carried out by a professional or by a person qualified in the field, but it does not have to be certified by an expert authorized under section 31.65 of the EQA. The analyses of soil samples taken as part of the characterization study must be carried out by a laboratory accredited by the MEFCC.

If the characterization study reveals the presence of contaminated soil beyond criterion B, the person who commissioned the study must register a notice of contamination pursuant to section 31.58 of the EQA.

5. Traceability of excavated contaminated soil

The new framework for slightly contaminated soil provided by the LPRR, the CSSTS and the RABEI is completed by the traceability system for excavated soil, per the Soil Protection and Contaminated Sites Rehabilitation Policy – 2017-2021 Action Plan. This system should allow for better control of the origin, movement and destination of excavated soil. To this end, the Regulation respecting traceability of excavated contaminated soil was adopted at the end of June 2021, with a gradual entry into force starting in November 2021.