On October 18, 2024, the Ontario Ministry of Environment, Conservation and Parks (the “MECP”) proposed further amendments to Ontario Regulation 406/19 – On-Site and Excess Soil Management (the “Excess Soil Regulation”) and the Rules for Soil Management and Excess Soil Quality Standards (the “Soil Rules”) under the Environmental Protection Act (the “EPA”), aiming to streamline and make it more affordable for contractors and municipalities to reuse more excess soil locally.
The proposed amendments are available here and summarized below:
Landfill Prohibition Delayed To January 1, 2027
Section 22 of the Excess Soil Regulation prohibits disposing excess soil at landfills and dumpsites after January 1, 2025. The proposed amendments would extend this prohibition date to January 1, 2027, and provide an exemption where a Qualified Person issues a declaration that:
- The excess soil contains a parameter for which there is no applicable excess soil quality standard and there is reasonable grounds to believe the final placement of the excess soil at a reuse site may cause an adverse effect
- The excess soil contains invasive species that should not be relocated, or
- Reuse of the excess soil at a reuse site for structural purposes is not possible due to its geotechnical instability and a reuse site that may use the soil for other beneficial purposes has not been located after reasonable efforts.
Waste Environmental Compliance Approval Exemptions
The proposed amendments expand on a 2023 MECP proposal (ERO notice #019-7636), exempting certain Class 1 soil management sites, such as aggregate reuse and small liquid soil depots, from the requirement for a waste Environmental Compliance Approval. Instead, these sites would subject to specific operational rules outlined in the Excess Soil Regulation.
Improved Reuse Of Aggregate And Stormwater Pond Sediment
The proposed amendments would offer greater flexibility in soil quality standards for excess soil used in engineered aggregates or stormwater management pond sediment, particularly when reused in infrastructure projects. This flexibility in respect of these standards would apply specifically to asphalt-related contaminants and naturally occurring exceedances.
Enhanced Reuse Of Soil Between Similar Infrastructure Projects
The changes would simplify the reuse of excess soil in similar infrastructure projects, such as road-to-road projects, by allowing soil transfers between project areas and reuse sites managed by the same project leader under specified conditions. These transfers would be exempt from sections 3 to 5 of the Excess Soil Regulation, which typically govern excess soil quality standards and waste designations.
Streamlined Reuse Planning Requirements For Excess Soil Between Infrastructure Projects
The proposed amendments would exempt project leaders from certain reuse planning requirements when transferring excess soil between infrastructure sites. These include past use assessments, sampling and analysis plans and reports, excess soil destination assessment reports and associated tracking systems, as long as both sites are infrastructure-related. Unlike the current exemption, which applies only when the reuse site is owned by the project leader or a public body, the new rules allow for flexibility regardless of ownership, as long as both sites are infrastructure projects.
In-Situ Sampling for Stormwater Management Pond Sediment
In-situ sampling and testing of stormwater management pond sediment would be allowed under the proposed amendments, streamlining the compliance process. This method would adhere to the sampling frequencies specified in the Excess Soil Regulation.
Regional Mapping Of Naturally Occurring Background Concentrations
The MECP is exploring the possibility of regional mapping to mark areas with naturally occurring soil concentrations that exceed the soil excess standards, streamlining soil reuse by removing the need for individual site assessments. Currently, the Soil Rules allow excess soil with naturally occurring exceedances to meet the applicable excess soil quality standards for a reuse site if a Qualified Person can show it has a parameter that does not exceed local background levels.
The MECP is consulting further on the feasibility of regional mapping before implementation.
Further Clarifications and Amendments
The proposed amendments include minor clarifications to improve excess soil management, including:
- Streamlined soil reuse within project areas, allowing temporarily stored off-site soil to return without triggering the reuse planning requirements under sections 3 to 5 of the Excess Soil Regulation, provided it is not mixed with soil from other projects or materials. Relocation within a project area, even to areas that are not contiguous, would be treated as if the soil never left the project area
- Excess soil used temporarily in development, such as temporary driveways or access roads, need not meet excess soil quality standards under sections 3 to 5 of the Excess Soil Regulation if relocated upon project completion and free from contamination
- Clarifications addressing the inclusion of substances like conditioning agents for soil excavation and transportation in soil sampling plans, ensuring these substances are documented in analysis results and safety reports
- Proposed decreases in the sampling frequency for contaminants that are not of potential concern associated with a Potentially Contaminating Activity or Area of Potential Environmental Concern at the discretion of a Qualified Person. The sampling frequency must nevertheless remain statistically significant and rationalized
- The definition of “public body” would be expanded to include municipal corporations established under the Municipal Act, and
- The Excess Soil Regulation would permit multiple depot types by the same owner or operator at the same property or adjoining properties, excluding small liquid soil depots.
This blog post was written by Michael Hebert and Nathan Adams (primary author), members of the Mann Lawyers Environmental Law Group. Michael can be reached at 613-369-0360 or at michael.hebert@mannlawyers.com and Nathan at 613-369-0380 or at nathan.adams@mannlawyers.com.
