The first phase of the implementation of the new Regulation respecting the traceability of excavated contaminated soils began on November 1st. Announced on June 29, 2021 by the Minister of the Environment and the Fight against Climate Change, Mr. Benoit Charrette, the Regulation responds to growing concerns over the illegal dumping of contaminated soil in Quebec.
The Regulation applies to soils containing contaminants from human activities, from their site of origin to their final receiving site. It introduces a new provincial computerized tracing system, Traces Québec, developed and managed by the not-for-profit organization Attestra on behalf of the government of Quebec.
The Regulation does not apply to projects that began before the date on which it came into force.
Structure and functioning of the Regulation
The Regulation prescribes the steps to be followed in connection with the new traceability system, including the information that must be entered into the Traces Québec system. All persons who are required to communicate information or documents pursuant to the Regulation must be registered in the computer system. Carriers of contaminated soil must use a device that transmits the geographic position of the location of their cargo to the computer system in real time.
The owner of the soil, the carrier, and the receiving site manager must enter various information and documents into the computer system, including the authorization allowing the receiving site manager to operate the site, the agreement between the project owner and the manager of the site where the soils are to be discharged, and a copy of the rehabilitation plan approved by the Minister.
The owner of the soil, the carrier, and the receiving site manager must also log certain information onto a tracking slip in the computer system, including the category or categories to which the contaminants in the soils belong, the values thereof below, equal to or above those listed in schedules to the Land Protection and Rehabilitation Regulation and the Regulation respecting the burial of contaminated soils.
Meeting the prescribed time limits for entering information in the computer system is important, as failure to do so can lead to sanctions. For example, both the project owner and the carrier must be registered in the computer system at least 24 hours before transportation begins.
The Regulation also contains specific rules for large quantities of contaminated soils that are to be transported by multiple routes, for soils transported outside Quebec, and where the receiving site of the contaminated soils is a ship or a train.
Administrative penalties and penal sanctions
Chapter IV of the Regulation prescribes monetary administrative penalties ranging from $2,500 to $10,000, as well as penal sanctions of $7,500 to $6,000,000 for legal persons. These penalties and/or sanctions apply to various violations and/or infractions, including failure to register in the system or to provide required documents, as well as not respecting the time limits for doing so, or failing to use a device compatible with the Traces Québec system.
According to the draft Regulation respecting the fees payable with respect to the traceability of excavated contaminated soils, published in the Gazette officielle du Québec on July 21, 2021, fees of $2.00 per metric tonne of contaminated soil are charged to the owner of the soil, the receiving site manager, the project owner or the person responsible for an accidental discharge of hazardous materials, as the case may be. The fees must be paid in full within 30 days after notification, by the Minister, of the notice of claim of the amounts owed to the Minister. This notice of claim will be sent directly by the Ministry.
Impact of the new Regulation on existing regulations
The Regulation also entails amendments to the Land Protection and Rehabilitation Regulation, including by modifying the type of activity in respect of the reclamation of certain contaminated soils, applicable time limits, declarations of compliance and changes to the list of categories of industrial and commercial activities to which sections 31.51, 31.52 and 31.53 of the Environmental Quality Act apply. The Regulation respecting contaminated soil storage and contaminated soil transfer stations is also amended to strengthen certain control-related actions, particularly as regards the prohibitions applicable to the dumping of contaminated soils in certain locations.
Coming into force
The Regulation takes effect progressively as of November 1st, 2021, in three phases, applying first to large-scale projects and projects where the risk of illegal management is high, then to medium-scale projects and, finally, to projects of any size.
As of November 1st, 2021 (start of phase 1), the Regulation will apply only to work begun on or after that date involving the transportation of a quantity of contaminated soils equal to or greater than 5,000 metric tonnes. Excluded from phase 1 are works involving transportation of contaminated soils by ship or train, work required following an accidental discharge of hazardous materials or an unexpected discovery of contaminated soils, and soils from temporary receiving sites.
As of January 1st, 2022 (start of phase 2), the Regulation will apply to all new projects involving transportation of a quantity of contaminated soils equal to or greater than 1,000 metric tonnes excavated during work underway before, on or after that date. Such projects are only subject to the Regulation if they are not covered by a contract, if the invitation to tender in respect of the work was issued after the date on which the Regulation was made or, if no invitation to tender was issued, if the contract was signed after the Regulation came into force. Also covered are all contaminated soils leaving a contaminated-soil treatment centre, a transfer centre or storage station, except those contemplated by sections 8, 9 and 10 of the Regulation respecting contaminated soil storage and contaminated soil transfer stations and similar facilities.
As of January 1st, 2023 (start of phase 3), the Regulation will apply to all transportation of excavated contaminated soils on or after that date, regardless of the date on which the excavation work began, the invitation to tender was published or the contract was signed.
The regulation on fees also came into force on November 1st, 2021, but until December 31st, 2021, it applies only to the transportation, from the site of origin, of a quantity of contaminated soils equal to or greater than 5,000 metric tonnes, excavated during work that began on or after November 1st, 2021. As of January 1st, 2022, it also applies to the transportation of any quantity of contaminated soils equal to or greater than 1,000 metric tonnes, but certain conditions and exemptions will apply until January 1st, 2023.
Exemplary practices for contractors and carriers
By using the system on a voluntary basis until the relevant application date, depending on the circumstances, contractors and carriers will have the opportunity to test the system without any consequences and gradually implement new policies.
Carriers will be able to access the Traces Québec system as of January 1st, 2022 and can receive training and coaching adapted to their needs. Use of the system becomes mandatory for them as of January 1st, 2023.
For any questions regarding the Regulation respecting the traceability of excavated contaminated soils, please don't hesitate to contact Nicolas Dubé or Nicolas Cayouette.