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Sifting through Ontario’s excess soil regulation

These provisions change how the construction industry operates and organizes soil removal going forward, and result in increased risks and legal responsibilities for project owners and developers to consider and manage.

In December 2019, the Ministry of Environment, Conservation and Parks (MECP) introduced Ontario Regulation 406/19: On-Site and Excess Soil Management under the Environmental Protection Act. This legislation, which is supported by MECP's Rules for Soil Management and Excess Soil Quality Standards (the Rules), creates a new framework for the excavation, removal, and transport of excess soils between two or more construction sites.

The testing, tracking, and registration requirements of this regulation were debated in Parliament for several years before becoming law on January 1, 2023. These provisions change how the construction industry operates and organizes soil removal going forward, and result in increased risks and legal responsibilities for project owners and developers to consider and manage.

What is excess soil?

Broadly speaking, excess soil is defined as any soils that have been dug up during construction activities that cannot or will not be reused at the development site. Any soil that leaves the project area is excess soil unless it is a waste. Excess soil may include:

  • Stripped topsoil
  • Crushed rock
  • Soil mixed with crushed rock
  • Soil excavated for remediation purposes
  • Liquid soils generated from hydro-excavation activities

Why is this regulation necessary?

Each year, approximately 25,000,000 cubic metres of excess soil are generated in Ontario. Although much excess soil can be safely reused, some may be contaminated. As such, it is critical to carefully consider where and how it can be repurposed.

Prior to the enactment of O.Reg. 406/19, not all construction projects required environmental site assessments before breaking ground. Some of these projects may have had excess soil that was not affected by previous property uses or adjacent properties; however, these cases are uncommon. For example, residential properties with heating oil tanks or agricultural sites that stored farm diesel or pesticides may have contaminated soils. Properties that appear to be green field sites may conceal below the surface fill materials containing impacted soil and non-soil substances such as asphalt and concrete.

This legislation was proposed in response to widespread concerns about soil dumping in the province. Not only can excess soil mismanagement result in poor ground and surface water quality, it can also cause noise, truck traffic, and road damage. In addition, we are filling landfills with soil that may not be contaminated and could be used as clean fill.

Ontario is changing the narrative on excess soil to view it as a resource as opposed to a waste, in order to support the circular economy and a healthier environment.

What does the regulation entail?

The regulation provides guidance and rules for the construction industry on the management and reuse of excess soil. These provisions intend to promote local beneficial reuse while also protecting the environment and the community. The following are some key elements of the regulation:

  • Definition of excess soil, including when excess soil is designated as a waste
  • Standards for appropriate reuse of excess soil
  • Roles and responsibilities of those on construction projects involving soil excavation

As of January 1, 2023, project leaders, as well as transporters of excess soil and owners and operators of reuse sites at which excess soil will be deposited are subject to new filing, documentation, and tracking requirements.

Prior to the removal or deposit of excess soil, project leaders must now file a notice with the Resource Productivity and Recovery Authority's Excess Soil Registry. Before filing a notice, project leaders are responsible for ensuring a qualified person (QP) prepares or supervises the preparation of an assessment of past uses of the project area, a sampling and analysis plan, a soil characterization report, and an excess soil destination assessment report. Additionally, project leaders must now develop and implement a system to track each load of excess soil during transportation and deposit in accordance with the Rules.

The registry provision is subject to certain exemptions, which are detailed in Schedule 2 of the regulation. Project leaders who prior to January 1, 2022 entered into contracts with another person for the management of excess soil from the project are also exempt; however, this stipulation will be removed on January 1, 2026.

What is a project leader to do?

It is essential for project leaders to understand how this regulation shifts the burden and expands their responsibilities, thereby increasing their overall risk exposures associated with excess soil management. According to the regulation, “the person or persons who are ultimately responsible for making decisions relating to the planning and implementation of the project” are held accountable for any excess soil removed from project areas, whether or not soil management is contracted out to a third party.

Previously, project leaders would frequently delegate responsibility for managing on-site earthworks and the removal of any excess soil to the general contractor (GC), who would then delegate responsibility for managing and disposing of the soil off-site to the hauler.

Under the new regulation, project leaders can no longer exclude, limit, or alter their liability through contract or other arrangements with third-party contractors.

As a result, project leaders will be solely responsible for regulatory compliance under the new regulation, and failure to comply may result in a variety of penalties under the Environmental Protection Act.

To reduce the risks associated with excess soil management, project leaders should take the following steps to help ensure compliance with the regulation:

  • Balance soil on-site. Reuse geotechnically suitable soil materials within the project area.
    • Top soil can be reused on-site for landscaping areas.
    • Granular material, such as crushed asphalt, can be reused on-site beneath parking areas.
  • Bring on a QP at the design stage to help guide the process.
  • Review all current and upcoming projects to see if there may be sites where there is a soil deficit.
  • Understand that even though you may be exempt from registering the project area on the registry and/or from some or all of the planning requirements, you may still need to do some due diligence soil sampling and reporting.
  • Maintain open lines of communication between all parties involved. Work with your GC to develop back up plans in the untimely event that a reuse site is closed or unavailable.
  • At the tendering stage, clearly lay out delegated responsibilities with the understanding that you are ultimately responsible for the management, reuse and/or disposal of excess soil.
  • Have your contracts/legal department prepare a reuse site agreement in advance of reuse site selection. The agreement should include quantity and quality of soil, start and stop dates for when the excess soil will be delivered, and any other caveats or limitation based on their advice.
  • For any projects that commenced prior to January 1, 2022 and will extend past January 1, 2026, assess whether you will need to file a notice on the registry.
  • Maintain reports, contracts, and records for a period of at least seven years.
  • Maintain hauling records for two years.

This regulation is an important step towards creating a greener Ontario. For assistance understanding how this new legislation affects your construction projects, please contact your Marsh representative.