On December 4, 2019, the Ontario Minister of the Environment, Conservation and Parks announced that the provincial government would be moving forward with the excess soil management regulation under the Environmental Protection Act.
The regulation, O. Reg. 406/19: On-Site and Excess Soil Management, provides for a staged approach.  The first stage concerning rules for the reuse of soils was to come into effect on July 1, 2020, however this has been delayed to January 1, 2021 due to COVID-19. The second stage concerning requirements for the testing, tracking and registration of excess soils, will come into force on January 1, 2022. The third stage imposes restrictions on the landfilling of soils that meet Table 2.1 standards for sensitive uses (such as residential use) as of January 1, 2025.
The regulation allows the reuse of excavated soils (where certain conditions are met) from construction sites and infrastructure development which would otherwise be transported to a landfill for disposal. The volume of landfilled excess soils to date is concerning, as capacity at landfills is limited. Much of the excess soils that have been diverted to landfills in the past could have been reused for another purpose, such as backfilling or final development grading, if permitted. The new regulation will allow excess soils to be used for these beneficial uses.
Excess soils will be able to be accepted at one of the following locations:
- a Class 1 soil management site (a soil bank storage site or a soil processing site);
- a Class 2 soil management site, which is a temporary waste disposal site that is either located on the project site from which the soils were excavated or operated by the project leader;
- a reuse site, provided conditions are met;
- a local waste transfer facility; and
- a landfill (after January 1, 2025, soils meeting Table 2.1 standards will be restricted unless for beneficial purposes on the landfill site such as cover or berms).
Under the regulation, excess soils will be required to be transported to a Class 1 soil management site or a landfill as waste unless all of the following conditions apply:
- The excess soil is directly transported to a reuse site from a project area, a Class 1 soil management site, a Class 2 soil management site or a local waste transfer facility;
- Except if the owner or operator of the reuse site is the project leader for the project from which the excess soil was delivered, the owner or operator of the reuse site or a person authorized by the owner or operator has consented in writing to the deposit of the excess soil at the reuse site;
- The excess soil is dry soil and remains dry soil until it is finally placed at the reuse site, or, if it is not dry soil, the deposit of the excess soil at the reuse site is authorized by instrument; and
- Specified conditions are met, as applicable depending on whether or not the reuse site is governed by one of six identified instruments.
Generic Excess Soil Quality Standards have been developed by the Ministry for the purpose of assessing the quality of the excess soils to allow for their use at a reuse site. These standards are applied to reuse sites accepting 350 m3 or more of excess soils.
In addition, the Ministry has developed a tool for the creation of site specific excess soil quality standards, the Beneficial Reuse Assessment Tool (BART) for use where generic standards may not be met and site specific standards would be appropriate.
The regulation will require a considerable amount of advanced site planning, as a number of steps must be taken before excavation occurs, including an Assessment of Past Uses in respect of the project site and properties either wholly or partly within 250 m from the project site, a sampling and analysis plan, a soil characterization report and an excess soils destination assessment report.
This regulation and rules for excess soil management have been long-awaited by many. The reuse of excess soils will reduce the unnecessary landfilling of essentially clean soils and will also reduce the cost of disposing of otherwise useful soils.
Useful Links:
Rules for Soil Management and Excess Soil Quality Standards
Environmental Registry of Ontario Decision Notice
Environmental Registry of Ontario Decision Notice Regarding Delay
This blog post was written by Cheryl Gerhardt McLuckie, a member of the Environmental Law team. Cheryl can be reached at 613-369-0365 or at cheryl.mcluckie@mannlawyers.com.
