Soil Protection and Contaminated Sites Rehabilitation Policy

7. Registration with the registry office

7.1 Objectives 

7.2 Situations Requiring Registration with the Registry Office 

7.3 Forms of Registration with the Registry Office 

7.4 Amendment of Registration with the Registry Office Following Rehabilitation 

9. Management and reclamation of excavated soils and sediments, waters and recuperated materials

9.1 Management of Excavated Soils and Sediments, Waters and Recuperated Materials 

9.2 Reclamation of Excavated Contaminated Soils 

9.3 Reclamation of Materials Recovered During Contaminated Sites Rehabilitation

10. Recognized professionals and fee structure

Table 2: Management Grid for Excavated Contaminated Soils

Contaminated sites must not be used in ways detrimental to health, the environment or property. This can be achieved only if the site to be reused has been characterized and, if contaminated soils or wastes are present, future users have access to this information and comply with the limits and constraints on use associated with the site. This is even more important in cases where site risk management measures have been implemented and have to be maintained to allow safe use of the site.

It thus becomes essential to implement mechanisms that will allow potential buyers and their creditors to know exactly what they are buying in order to dispel the uncertainty often surrounding such transactions and to facilitate them. These mechanisms will also considerably reduce the risk that responsibility may be transferred to a buyer who has been kept ignorant of the real condition of a site.

Registration with the Registry Office¹ aims at two main objectives:

• To ensure that sites subject to normal monitoring measures and restrictions are not ignored and that these conditions are maintained;
• To dispel the uncertainty that often surrounds transactions involving contaminated sites.

¹Since the adoption of the new Civil Code, the legislation no longer uses the terms "enregistrement" and "Bureau d’enregistrement." The appropriate terms are now "registration with the Registry Office."

The owner of a site must register with the Registry Office:

• When he finds that soils contaminated in excess of the use-based generic criteria defined for the present zoning (established following a preliminary characterisation of the site) are present on his site;
• When he implements use restriction, confinement, control and monitoring measures that must be maintained to ensure the safety of the site.

The presence of contaminated soils on a site must be registered with the Registry Office by means of a Contamination Notice. Risk management measures and the usual restrictions associated with them are registered by means of a Restrictive Use Covenant.

When, following a preliminary characterisation study, the owner discovers the presence on his site of soils contaminated in excess of the use-based generic criteria defined for the present zoning, he shall notify the Registry Office of this fact by the prescribed deadlines using a Contamination Notice. Registration is not required if the contamination level of the site is below the B criterion.

Where appropriate, the Contamination Notice shall contain the following components:

• Site description (owner's name, address, legal description of the lot, name of the municipality where the site is situated);
• Present industrial activities;
• The level of contamination of the soils (with reference to the use-based generic criteria);
• The presence of an accumulation of industrial wastes, permanently stored or buried;
• Current zoning of the site;
• References to characterization studies carried out on the site.

The Registry Office will send a copy of the Contamination Notice to the MEF and to the municipality involved. This will allow the municipality to draw up a list of the contaminated sites on its territory (see Section 8).

However, implementation of this mechanism can begin only after the Environment Quality Act is amended (see Section 11.1). Once the amendments are adopted, site owners will be granted time to register the Contamination Notice.

If the rehabilitation of a site results from the application of risk management measures other than decontamination to the use-based generic criteria, the site will bear certain constraints on use. These constraints result from the fact that, although in its present condition the site does not represent significant risk, the contaminants are still in place and may, if the conditions for use particular to the site are not complied with, have an impact or again constitute a significant risk to human health, wildlife, flora or the environment.

To ensure that these constraints are respected, the owner shall register with the Registry Office a Restrictive Use Covenant on the site. This servitude shall be in favour of the Ministère de l’Environnement et de la Faune.

The Restrictive Use Covenant shall, where appropriate, contain the following details:

• A description of the confinement and control measures put in place and a list of the maintenance tasks to be carried out to ensure the integrity of the work and keep the risk down to an insignificant level;
• A description of the environmental monitoring to be carried out;
• The restrictions on soil modification, change in use, and use of the site;
• The prohibition on use of groundwater as drinking water;
• References to rehabilitation studies and plans relating to the site.

The Registry Office will send a copy of the Restrictive Use Covenant to the MEF and to the municipality involved. This will allow the municipality to complete the list of contaminated sites on its territory (see Section 8).

When a Contamination Notice is issued on a contaminated site and the owner of this site has it decontaminated to the use-based generic criteria, he must amend the registration with the Registry Office so that the notice will reflect the new condition of the site. A note must also be added stating that the site has been rehabilitated.

A Restrictive Use Covenant will be amended only when the parties (owner and MEF) agree on the amendments to be made.

As the government level closest to the citizens and most familiar with the particular background and characteristics of the territories they govern, municipalities and regional county municipalities have a significant role to play in protecting the environment and population living on their territory. They are in a particularly strategic position to ensure a priori control over potentially contaminated sites.

• To draw up a list of sites found on their territory for which Contamination Notices or Restrictive Use Covenants exist on the basis of documents received from the Registry Office (see Section 7).

• To verify, for every application for a building or building extension permit, whether the site targeted is on this municipal list. If so, defer issuing the building permit until the owner has filed an environmental profile that takes into account the facts registered with the Registry Office.

• To receive from the owners and forward to the MEF the environmental profiles certified by recognized professionals for every application for a permit to construct a building or enlarge an existing building located on:

• A site where an industrial or business establishment carrying on activities likely to contaminate soils or groundwater as defined in Appendix 1 has carried on its activities or continues to do so;
• A site for which a Contamination Notice or a Restrictive Use Covenant exists;
• A site that the owner presumes to be contaminated.

• To issue building permits by the prescribed deadline unless a notice to the contrary is received from the MEF.

²From the time the Environment Quality Act is amended to this effect.

As well, regional county municipalities shall continue, as they have already been doing for some years, to identify industrial waste disposal sites as "constraint zones" in development plans.

9. Management and reclamation of excavated soils and sediments, waters and recuperated materials

9.1 Management of Excavated Soils and Sediments, Waters and Recuperated Materials

Once excavated or collected, contaminated soils must be managed so that they do not constitute a new source of contamination for the environment.

Excavated contaminated soils must be managed according to the management grid presented in Table 2. This grid promotes the management options aimed at reclamation of the soils. The soils must be excavated, transported and treated in such a way as to prevent or minimize the dilution or transfer of contaminants into a different environment.

In the management of excavated materials, the excavated contaminated soils mixed with residual materials must be segregated so as to physically separate the soils from the residual materials. Once this operation is complete, the segregated residual materials shall be managed according to their specific characteristics and the segregated contaminated soils managed according to the management grid (Table 2) of the policy. Excavated contaminated soils mixed with residual materials that cannot be segregated shall be considered contaminated soils and managed using the policy grid if they contain more than 50% soil. They shall be managed as residual materials if they contain less than 50% soil.

Contaminated sediments dredged and brought onto solid ground to be treated or buried must also be managed in accordance with the management grid presented in Table 2.

Contaminated waters found in excavation trenches must be pumped out and managed according to existing criteria and standards or, when such standards or criteria do not exist, in keeping with the capacities of the receiving environment if there is release into free water.

Demolition materials must be managed according to the guidelines described in the document entitled Guide de bonnes pratiques pour la gestion de matériaux issus du démantèlement sur un terrain contaminé [Code of Practice for the Management of Demolition Materials from a Contaminated Site] (see Section 11.10). Finally, the management of other contaminated wastes and materials must comply with the pertinent regulations in effect.

* Contaminated sites being cleaned up for a future residential use are the sites dedicated to residential use for which a characterisation has shown a contamination higher then the B value and where there is a necessity to bring outside soil for completing the restoration

** Contamination refer to the nature of the contamination and its concentration

*** Optimal treatment for hydrocarbons C₁₀-C₅₀ is defined as attainment of B criterion or reduction of initial concentration by 80% and for volatiles as attainment of B criterion. In this respect, volatiles are defined as contaminants whose boiling point is <180 °C or whose Henry’s Law constant is above 6.58 x 10^-7 atm-m³/g including contaminants identified in Section III of the soil criteria grid included in Appendix 2 to this document.

From the point of view of sustainable development, reclamation of contaminated soils is preferred. Reclamation aims at returning the soils, in whole or in part, to their initial quality and a certain utility, so that they may be reused for a maximum number of purposes with a minimum of constraints, while avoiding the contamination of new sites. On- or off-site soil treatment is an effective means of achieving this since it makes it possible to quickly and definitively reduce the concentration, load or mass of the contaminants present and their toxic potential. Consequently, application of a permanent treatment is the preferred option for enhancing the soils.

At the other end of the spectrum, the excavation of contaminated soils and their burial in authorized sites, although much preferable to uncontrolled disposal into the environment, nonetheless means the loss for future use of the fill zone chosen, which will require monitoring and eventually require further action.

Generally, the landfill option leads to the loss of any use of the soils except when contaminated soils are used as daily covering earth in sanitary landfills (LESs). In this case, the contaminated soils are used as a substitute for clean soils.

In short, although the use of contaminated soils as cover in LESs has certain advantages and although final burial in specialized sites of contaminated soils for which there are no approved treatment technologies is unavoidable at present, systematic burial of contaminated soils or burial together with wastes in LESs must be restricted. Furthermore, it would be counter-productive if the general waste reduction and recycling efforts begun over the past few years, aimed among other things at extending the life of existing LESs and decreasing the need to establish new ones, only served to create space to bury contaminated soils.

To attain its objectives with respect to the reclaiming of contaminated soils, the MEF intends, on the one hand, to provide various incentives to improve and make more accessible final solutions and, on the other, to limit recourse to landfill. These measures are the following:

The MEF intends to encourage, through agreements with the principal governmental and private stakeholders, the development of the treatment industry so that it becomes more efficient and less expensive, by:

• Encouraging all those handling contaminated soils for which treatment centres or technologies exist in Québec to have recourse to them;

• Obliging owners of soils contaminated by volatile organic compounds (VOCs) to treat these soils. This obligation is based on the fact that in 10 of Québec’s 16 administrative regions there are some twenty bioventilation treatment centres and two thermal desorption units capable of treating these soils. These installations offer sufficient treatment capacity to meet the demand. As well, the techniques used are effective to decontaminate on-site, in piles or in reactors, soils containing volatile compounds;

• Encouraging, through the Fonds des priorités gouvernementales en science et en technologie [Government science and technology priorities fund], the development and improvement of treatment technologies offering final solutions;

• Supporting the work of the recently established Montreal Centre of Excellence in Brownfields Rehabilitation;

• Assessing the possibilities of creating economic instruments to encourage owners of contaminated sites to opt for final solutions.

The MEF intends to take various measures to limit the burial of contaminated soils alone or with other materials. These measures are listed below.

• The burial of soils containing more than 50 ppm of PCBs (polychlorinated biphenyls) has been prohibited since December 1, 1997. This prohibition, included in the Hazardous Materials Regulation adopted on October 8, 1997, is a result of Québec’s commitment following the adoption by the federal government of the PCB Waste Export Regulations (adopted on February 4, 1997).

• The burial of contaminated soils for which an authorized, effective and competitive decontamination technique exists on the territory of Québec will be restricted. A review under way of the Solid Waste Regulation (draft of the Règlement sur la mise en décharge et l'incinération des déchets [Regulation respecting the release and incineration of wastes]) is considering the prohibition of the burial of soils containing volatile compounds in concentrations in excess of B criteria.

• The importation of contaminated soils for burial will be prohibited in future (as provided in the draft Règlement sur la mise en décharge et l'incinération des déchets [Regulation respecting the release and incineration of wastes]).

• The rules governing the disposal of contaminated soils in household wastes disposal sites will become stricter (as provided in the Règlement sur la mise en décharge et l'incinération des déchets [Regulation respecting the release and incineration of wastes]). Thus, only A-B soils or B-C soils treated in optimum fashion (see Table 2) will be accepted as daily covering materials in both the present sanitary landfills (LESs) and the new more secure technical landfills (SETs). Untreated B-C or > C soils must be disposed of in authorised secure landfills including SETs or the equivalent, in distinct cells reserved solely for this type of materials. Distinct cells shall be used for each type of contamination (metal, organic, mixed). Finally, the use of A-B soils to cover these sites will be acceptable only if the top 15 centimetres are clean soil.

• A regulation will be adopted to make compulsory a fee structure for the entry of contaminated soils into technical landfills in order to allow the creation of a fund for each site to ensure post-closure environmental management of the site. This will also apply to any final contaminated soils disposal site in operation at the time this regulation is adopted. Making users pay the costs arising from the need to monitor the final disposal sites, in order words, internalizing costs, will partially restore equity with those owners who opt for definitive solutions.

Experience acquired to date in Québec and elsewhere shows that the final disposal and treatment of contaminated soils can be done without risk to human health and the environment. To ensure the quality of projects put forward and to guarantee that the public is informed and consulted, amendments will be made to the Regulation respecting Environmental Impact Assessment and Review to make it cover the following projects:

• The establishment of new final disposal sites for contaminated soils or the enlargement of existing sites;

• The installation of thermal units to treat soils contaminated by organochlorines.

When working on a contaminated site, underground infrastructures are frequently uncovered and buildings frequently have to be dismantled. The principle of reduction, reuse, recycling and recovery (4Rs) must be given priority in the management of demolition materials subject to disposal in authorized sites. When possible, reuse of these materials as raw material is the primary solution to be adopted. But, if the material is very contaminated, the possibility of decontaminating it must be considered so that the 4Rs principle can be applied.

When management on the basis of the 4Rs principle is impractical, the materials must be eliminated in the appropriate sites according to their level of contamination. The document entitled Guide de bonne pratique pour la gestion de matériaux du démantèlement sur un terrain contaminé [Code of practice for the management of demolition materials from a contaminated site] describes management methods for various types of contaminated and non-contaminated materials taking into account the 4Rs principle.

10. Recognized professionals and fee structure

All countries concerned with contaminated sites must inevitably some day face the same stumbling block: the full extent of the problem resulting from decades of industrial activities and waste management practices today judged inadequate is only grasped after years of action, seriously testing the capacity of government agencies to respond. The present financial context is also contributing to this disparity. The pace must be maintained, for reasons of fairness, but also either because the action taken is intended to end the impact that the sites are having on health, wildlife, flora, the environment and property, or else because it is the result of revitalisation projects that must be completed within tight schedules or be abandoned. In both cases, there may be effects not only on the public health and the quality of the environment but also on corporate economic health, financial institutions and municipal development.

The MEF cannot control the number of ad hoc demands that have to be treated within a given time frame and, under present circumstances, may see its response capacity overwhelmed. As well, recourse to the assessment of specific risks and the possibility of making the modes of risk management fit the specific conditions of each site and each project will mean that more energy is consumed in the processing of each case. This situation may become even more common as staff and resources are reduced. This means, in the short term, fewer MEF responses or very limited responses, leading to less monitoring in a area where clients (buyers of sites, the public, financial institutions, etc.), will demand more monitoring so that they can have confidence in the risk management modes selected.

To be in a position to achieve policy objectives, the MEF must therefore introduce mechanisms that will allow it to increase its effectiveness and ensure it has the resources to deal with the cases submitted within a reasonable time period. To achieve this, part of the workload and costs of analysing the projects must be shouldered by the promoters. In most cases, they have an economic interest in characterizing, decontaminating or redeveloping a site. There is thus full justification for having the promoter and, even more so, the polluter, assume some of the costs that the regulating organization must absorb. The mechanisms to be implemented by the MEF to encourage firms to take responsibility for the environment are recourse to recognized professionals (see Section 11.2) and the establishment of a fee structure (see Section 11.3).

The introduction of an accreditation system for professionals is intended to accelerate paperwork, improve the quality of studies and work carried out, and hand over more responsibility to the private area. The certification program will make it possible to ensure that studies and work are carried out in accordance with established standards. Recognized professionals will have to keep up with the requirements arising from the policy and the accompanying guides. In this way, the time devoted by the MEF to reviewing studies and recommendations on contaminated site rehabilitation work can be appreciably reduced.

It is provided that anyone who satisfies the required criteria and has a certain practical experience may be accredited. Professionals not recognized may continue to carry out studies or restoration work as they do at present. However, only recognized professionals will be empowered to certify the following documents:

• Environmental profile;
• Environmental balance sheet and risk evaluation grid;
• Work completion report.

A mechanism for regulating recognized professionals will also be introduced by the MEF.

The purpose of implementing a fee structure system is to ensure that:

• The MEF can deploy and adjust its response capacity in accordance with the demand;
• The requests filed are more uniform and the required information better prepared.

The fee structure would be imposed for various tasks that the MEF is called on to perform, such as review of a characterization study, assessment of a risk or restoration plan, or issuing of a compatibility certificate. The fee structure should vary with the scale of the cases under study. Processing of an application would be conditional on payment of the established charges. The MEF is currently reviewing its fee structure for administrative tasks. The fee structure applied to contaminated sites will be implemented in this context and require certain changes in law.