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Canada | Publication | October 6, 2021
The Regulation respecting the traceability of excavated contaminated soils was published in the Gazette officielle du Québec (Regulation) on July 7, 2021, and will come into force on November 1, 20211. It will, however, be implemented in phases, with the last phase scheduled for January 1, 2023. This Regulation is, for the Ministry of the Environment and the Fight against Climate Change (MEFCC), a tool to combat illegal dumping of contaminated soils, which damages both the environment and the contaminated soils management industry. In fact, it is estimated that 10 to 25% of the contaminated soils excavated in Quebec are not discharged in sites authorized by the MEFCC2.
The Regulation’s purpose is to ensure excavated contaminated soils traceability through the mandatory use of Traces Québec, a computerized traceability system provided by the MEFCC3.
The Regulation applies to excavated soils contaminated by human activity (including sediments), regardless of the degree of contamination4. However, it does not apply to excavated contaminated soils transported to or by aircraft5. As a general rule, the Regulation applies from the time the excavated contaminated soils leave their site of origin.
However, in certain cases provided in section 3, the obligations related to traceability are set to begin at a different time, namely: (i) for soils covered by sections 86, 97 or 108 of the Regulation respecting contaminated soil storage and contaminated soil transfer stations9, from the time the soils are no longer covered by these sections or the conditions provided therein are no longer met10 or from the time the soils are transported to be discharged on a site other than their site of origin; (ii) for soils transported from their site of origin to a treatment facility dedicated exclusively for their treatment and operated in accordance with an authorization issued pursuant to section 22 of the Environment Quality Act (EQA)11, from the time these soils are transported from this facility to be unloaded at a site other than their site of origin.
As previously mentioned, excavated contaminated soils will be traced using Traces Québec, in which the various stakeholders must first register and then log the information set out in the Regulation on a tracking slip in order to track the movements of the soils from their site of origin (or from the time provided in section 3 of the Regulation for the cases provided in this section) to the final receiving site.
The typical sequence of events is as follows. The owner of the excavated contaminated soils, the project owner for work in charge of excavating contaminated soils on a linear infrastructure project or the party causing the discharge of hazardous materials, as the case may be, registers in the computer system if the quantity of soils to be transported is greater than 200 metric tonnes12.
The owner of the soils, the project owner for work or the party causing the discharge selects a receiving site in the computer system, which will be authorized to receive the soils based on the nature and level of contamination of the soils13, and completes a tracking slip for any transport of contaminated soils before the soils may leave their site of origin. The information to log on to a tracking slip is provided in the Regulation14and includes the designation of the site of origin, the name and address of the carrier of the soils, the name of the driver and the registration number of the vehicle used to transport the soils, the concentration values of contaminants in the soils and the categories of contaminants (except if the soils have been excavated following a discharge of hazardous materials or discovered unexpectedly15), the quantity of soils to transport as well as the date of transportation and the time the carrier left the site of origin.
The owner of the soils, the project owner for work or the party causing the discharge must, before the first transportation of the excavated contaminated soils, notify the MEFCC of the estimated total quantity of soils to be transported16.
If the estimated total quantity of soils to be transported is more than 200 metric tonnes, the owner of the soils, the project owner for work or the party causing the discharge must provide the MEFCC, within 15 days after the last transportation of the soils, with an attestation stating that all of the excavated soils have been recorded on a tracking slip17. The person qualified to give such attestation must not have filled out the tracking slips or have been required to do so,18 nor have been the person who excavates the soils or one of its employees, and must (1) be a member of a professional order and have at least three years of experience in site characterization and site rehabilitation or (2) hold a postsecondary diploma in a scientific discipline and have at least five years of experience in site characterization and site rehabilitation19.
The owner of the soils, the project owner for work or the party causing the discharge obligations are adapted if the excavated contaminated soils are discharged outside Quebec or unloaded on a boat or a train20.
Note that the owner of the soils, the project owner for work or the party causing the discharge may authorize another person to perform in his or her place any obligation set out in the Regulation through the computer system21 .
The obligations set forth in the Regulation will apply to the carrier of the soils only as of January 1, 202322. If the quantity of soils to be transported is greater than 200 metric tonnes, the carrier of the soils will have to be registered in the computer system23. It must indicate on the tracking slip that the excavated contaminated soils have been properly loaded onto the vehicle used for their transportation and provide the telephone number of the device used to allow for the transmission to the computer system, for the entire duration of the transportation of the soils, of their geographic position24.
The manager of the receiving site of the excavated contaminated soils also has certain other specific obligations, in addition to its registration in the computer system25. If more than 200 metric tonnes are to be transported, the manager of the receiving site must have confirmed to the MEFCC that it agreed with the owner of the soils, the project owner for work or the party causing the discharge, as the case may be, that the soils may be discharged at the receiving site, before the soils can leave their site of origin26. The manager of the receiving site is also required to enter certain information on the tracking slip, including the registration number of the vehicle used to transport the contaminated soils, the date and time at which the carrier arrived at the receiving site and whether the soils will be reclaimed or eliminated, when these two options are offered at the receiving site27.
On October 6, 2021, the Regulation respecting the fees payable with respect to the traceability of excavated contaminated soils28 was published in the Gazette officielle du Québec and will come into force on November 1, 2021. This regulation provides that fees of $229 per metric tonne of soils are payable by the owner of the soils, the project owner for work or the party causing the discharge30 for any quantity of contaminated soils transported from their site of origin31. However, for the cases provided in section 3 of the Regulation, the fees are payable from the time the excavated contaminated soils are transported from a receiving site32 and are payable by the manager of that site33. The fees must be paid in full within 30 days following notification by the MEFCC of a notice of claim34.
Implementing the Regulation and the Regulation respecting the fees payable with respect to the traceability of excavated contaminated soils will take place in three phases35. The first phase is scheduled as of the coming into force of the two regulations on November 1, 2021, and will run until December 31, 2021: the two regulations will apply solely to the transportation, from the site of origin, of a quantity of contaminated soils equal to or greater than 5,000 metric tonnes, excavated in connection with work having begun on or after November 1, 2021.
The second phase will begin on January 1, 2022, and the two regulations will then apply to the transportation of a quantity of contaminated soils equal to or greater than 1,000 metric tonnes, from the site of origin or from a receiving site, unless the soils are covered by a private agreement entered into on or before July 7, 2021, (the date on which the Regulation is enacted) or the soils are covered by a contract entered into following a public call for tenders or by the private sector of which the notice was published on or after July 7, 2021.
The final phase, which will begin on January 1, 2023, provides that the two regulations will apply to all transportation of excavated contaminated soils carried out on that date or thereafter, regardless of when the excavation work of these soils will have begun. The provisions of the Regulation applicable to the carrier of the soils will also apply as of January 1, 2023.
Ibid.
Section 8 covers the case of contractors that, in the same field of activity and within the normal course of such activities, are likely to contaminate small volumes of soils in various locations; contractors may then recover such soils, transport them to and store them on one of its sites or in similar sites under the conditions set out by the regulation.
Section 9 covers anyone who, as a result of an accidental spill, recovers contaminated soils with an unknown level of contamination.
Section 10 covers linear projects or cases in which, due to the size of the land area, it is impossible to store contaminated soils on the site of origin.
CQLR, c Q-2, r 46.
Section 3 of the Regulation also provides the same for soils that, notwithstanding sections 8 to 10 of the Regulation respecting contaminated soil storage and contaminated soil transfer stations, are in a situation similar to any of those provided for in these sections.
CQLR, c Q-2.
If the quantity of soils to be transported is equal to or greater than 200 metric tonnes, the owner of the excavated contaminated soils, the project owner for work in charge of excavating contaminated soils on a linear infrastructure project or the party causing the discharge of hazardous materials, as the case may be, if not registered in the computer system, must authorize a person to fulfill in his or her place the obligations that must be fulfilled through the computer system (Regulation, s 8, para. 2).
The receiving site manager must indicate, at the time of its registration in the computer system, if its activities are exempt or provide, as the case may be, a copy of the authorization issued under section 22 of the EQA, a statement of compliance provided under section 31.0.6 of the EQA or a rehabilitation plan approved by the MEFCC (Regulation, s 10).
Regulation, s 12.
Ibid, s 13, para. 2.
Ibid, s 15.
Ibid, s 16, para. 1.
It can therefore not be the owner of the excavated contaminated soils, the project owner for work in charge of excavating contaminated soils on a linear infrastructure project or the party causing the discharge of hazardous materials.
Regulation, s 16, sub-para. 2.
Ibid, s 5.
Ibid, s 37, last sub-paragraph.
Ibid, s 8, sub-para. 1, para. 1.
Ibid, s 17 and 24.
Ibid, s 8, para 1 (3°) and sub-para. 3.
Ibid, s 18.
Ibid, s 19.
Regulation respecting the fees payable with respect to the traceability of excavated contaminated soils, M.O., 2021, (2021) GOQ II, p 4209-4210.
The fees payable will be indexed on January 1 of each year (Regulation respecting the fees payable with respect to the traceability of excavated contaminated soils, s 7).
Regulation respecting the fees payable with respect to the traceability of excavated contaminated soils, s 5, sub-para. 1.
Ibid, s 4 (1°).
Ibid, s 4 (2°).
Ibid, s 5, para. 2.
Ibid, s 6.
Regulation, s 37 and s 8 of the Regulation respecting the fees payable with respect to the traceability of excavated contaminated soils.
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The US Supreme Court has ruled that a “pure omission” under Item 303 of Securities and Exchange Commission Regulation S–K cannot give rise to a private action for securities fraud under Section 10(b) and Rule 10b-5(b) of the Securities Exchange Act of 1934.
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