Thought Leadership

How will Ontario’s new excess soil regulations impact your project?

January 18, 2022

By Fernando Contento, P. Geo and Alicia Kimberley, MSc., P.Geo.

Update: As of April 21, 2022 the Ministry of the Environment, Conservation and Parks (MECP) has approved the immediate delay of the implementation of Phase 2 of the O.Reg.406/19 requirements to January 1, 2023.

The MECP has approved a pause of the Implementation of Phase 2 of Ontario Regulation 406/19 – On-Site and Excess Soil Management which came into effect January 1, 2022. This pause of the regulation allows stakeholders to garner a healthier understanding of the regulation requirements until January 1, 2023*.

As a result of the implementation delay, soil assessments completed before January 1, 2023 not conforming with O.Reg. 406/19 are to be recognized. However, the previous contract exemption date of January 1, 2022 remains*.

Although, this pause has been made effective as of April 21, 2022, stakeholders are encouraged to utilize this grace period to align existing and future projects with the regulatory requirements, coming into effect January 1, 2023*.

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Have you ever driven by a construction site and marveled at the huge hole in the ground? Maybe you wondered what will be built there. But did you ever wonder what would happen to all the soil that was removed?

If you’re a developer, you know that soil must go somewhere. Now, as of January 1, 2023*, the MECP has implemented the second phase of new regulations on acceptable ways to handle excess soil.

Excess Soil is the soil, or soil mixed with rock, that has been excavated as part of a project and removed from the project area or site. In the past, handling excess soil was like the “Wild West” – with little to no oversight or regulation. In the light of these new regulations, it’s important for you to understand how you can and cannot handle excess soil. You’ll want to work with an expert who understands the impact these regulations will have on your projects.

In the past, without clear guidelines, project owners often attempted best management practices – with varying degrees of success. As a result, there were inconsistencies throughout the industry. The lack of guidelines led to a variety of negative impacts, including an increased risk of human and environmental impact, large volumes of clean fill being directed to landfill sites, and brownfield redevelopment barriers. The inconsistencies resulted in project delays. Extra costs could pile up if a potential receiving site wasn’t satisfied with the due diligence assessments completed at a particular source site. Under the old system, excess soil could move so quickly that potentially unsuitable excess soil would wind up on project sites, which resulted in unnecessary environmental impact and additional costs.

Now, most Ontario projects will be subject to O.Reg. 406/19 Excess Soil Rules and Excess Soil Planning Requirements. This is the second phase of implementation (the first phase went into effect on January 1, 2021, implementing provisions relating to waste designation and reuse or disposal of materials). We anticipate that this second phase of regulations will equal the proverbial playing field. It will require specific documentation and tracking measures for excess soil. Project owners will also be required to file a notice in the Excess Soil Registry, before beginning the removal of excess soil from their project area. The MECP’s goal is for you to be able to reuse the soil on site so there’s less excess as well as less transport. Plus, when transport is necessary, you’ll know the quality of the excess soil, which will lessen the potential human and environmental impacts.

What does this mean for you? It’s time to get prepared. It’s important that you begin the appropriate testing on your sites now. This will ensure that your project keeps moving and avoids delays, in addition to complying with the new regulations.

 

 

In the past, handling excess soil was like the “Wild West” – with little to no oversight or regulation.

Each project will now require five steps when transporting excess soil off-site to a Reuse Site, Class I Soil Management Site, or a Class 2 Soil Management site.

  1. Assessment of past uses
  2. Soil characterization report
  3. Soil sampling and analysis plan
  4. Destination assessment report
  5. Development of tracking system

 

[Note: this Regulation does not apply to the excavation of soil that is hazardous waste or asbestos waste, the operation of a pit or quarry from which consolidated or unconsolidated aggregate (within the meaning of the Aggregate Resources Act) is excavated (including the use and production of recycled aggregate in the pit or quarry), the excavation of topsoil in accordance with a permit issued under the Aggregate Resources Act, the production of peat from a peat extraction operation, or the final placement of excess soil on the bed of a surface water body.]

We’re already advising clients on how to make sure their projects will comply. Every project site is different, and each one is subject to varying degrees of the requirements. Some projects may exempt from the most rigorous sampling and testing requirements, including agricultural greenfield sites, parkland sites, and some infrastructure project sites. As we have begun working with clients, we’ve already learned some important lessons:

  • Start early
  • Utilize a Qualified Person that is well versed in the regulations to ensure adequate assessments and testing is being carried out. There are many instances where certain activities and/or locations may be exempt from particular components of the regulation.
  • Get creative – don’t just cart the soil away

Having a knowledgeable and experienced consultant assess your specific site can help reduce potential risks associated with inadequate testing and assessments, future scheduling delays, and unanticipated costs. To learn how these new regulations will impact your project, contact akimberley@geiconsultants.com or fcontento@geiconsultants.com for a site-specific plan.

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