What You Should Know: Digging Into Ontario’s Excess Soil Regulation and Reporting Changes
Neelmoy Biswas, P.Geo., & Ishtiaque Khandker, P.Geo.
The excess soil reuse planning requirements of the Ontario Ministry of the Environment, Conservation and Parks’ (MECP) On-Site and Excess Soil Management Regulation (O. Reg. 406/19) took effect on Jan. 1, 2023.
This regulatory change exposes property owners, developers, and contractors to new risks and additional legal requirements. Here, we break down what you need to know to safeguard your organization against fines and sanctions and remain compliant.
Background on Excess Soil and Related Regulations
In recent years, the MECP shined a new light on soil, a non-renewable resource, and provided clarity on the proper management of excess soil to promote sustainability by ensuring that this valuable resource doesn’t go to waste.
Why the shift? Every year in Ontario, an estimated 25 million cubic metres of excess soil is generated, typically from excavation during construction. For decades, the practice has been to remove excess soil that can’t or won’t be reused at the existing site to an off-site location.
Now, however, the goal is to maximize the reuse of the soil on-site or to reuse excess soil for beneficial purposes. If the reuse of excess soil is not managed properly, water quality, agricultural areas, and human and environmental health can be negatively impacted.
Soil management practices, such as local reuse, identifying receiving sites that can beneficially reuse excess soil, and proper management and tracking of excess soil, have many benefits, including:
- Decreasing greenhouse gas emissions by minimizing the removal and transport of excess soil.
- Reducing illegal dumping and inappropriate relocation.
- Limiting road damage.
- Decreasing the amount of reusable soil going to landfills.
- Saving on costs associated with transporting and landfilling excess soil.
To help you understand and prepare for the changes brought about by O. Reg. 406/19, the MECP is implementing the regulation in phases.
On Jan. 1, 2021, some portions of the regulation came into effect, including the Rules for Soil Management and Excess Soil Quality Standards and regulatory exemptions for certain circumstances, e.g., soil management activities that are low-risk.
In April 2022, the MECP elected to temporarily pause some of the requirements of O. Reg. 406/19 (e.g., filing a notice on the Registry, assessment of past uses [APU], sampling and analysis plan [SAP], soil characterization report [SCR], excess soil destination assessment report [ESDAR], and excess soil tracking, etc.) to allow contractors, developers, municipalities, and relevant stakeholders adequate time to gain a better understanding of the regulation and for the MECP to consider amendments to improve the regulation.
The paused requirements came back into effect on Jan. 1, 2023, with amendments that make the excess soil regulation more practical, focus on high-risk soil management activities, remove requirements for low-risk projects, and provide flexibility for excess soil storage.
The MECP amendments:
- Revise the excess soil regulation such that the reuse planning requirements are not applicable to low-risk project areas where a given property’s current or last uses were agricultural or other, residential, parkland, and institutional (as defined in Reg. 153/04). Other triggers for reuse planning may still apply.
- Remove the maximum size limit for soil stockpiles, which was 2,500 m3. Other soil storage requirements continue to apply.
- Provide clarification that drainage works, under the Drainage Act, are a type of infrastructure, and the sampling frequencies included in the Soil Rules document apply to Areas of Potential Environmental Concern (APEC), both horizontally and vertically. The extent of the APECs horizontally and vertically must be confirmed through in-situ sampling.
Beginning Jan.1, 2023, the testing, tracking, and registration phase took effect for applicable excess soil projects. These requirements are exempted for circumstances detailed in Schedule 2 of O. Reg. 406/19. From a big-picture view, this phase is about accountability and documentation.
Let’s dig in:
- Prior to testing, an APU for the project area must be completed under the supervision of a Qualified Person (QP), as defined in Reg. 153/04, as amended. The purpose of the APU is to determine APECs in the project area where the generation of excess soil is expected.
- Following the completion of the APU, an SAP for the project area must be completed in alignment with the sampling frequencies included in the Soil Rules document.
- Under the supervision of a QP, the SAP must be implemented through in-situ sampling, stockpile sampling, stormwater management pond sediment sampling, and/or leachate sampling. And, an SCR must be prepared.
An ESDAR that summarizes the estimated volume and quality of soil to be removed from the project area must be prepared. The ESDAR should also include:
- Any soil processing works (if applicable).
- Approximate dates when shipping of excess soil from the project area will commence.
- When the excess soil is fully removed from the project area.
- Information regarding the receiving sites (e.g., reuse site, Class 1 Soil Management Site, Class 2 Soil Management Site, locate waste transfer facility, landfill, or dump).
The Excess Soil Tracking System used must be able to track information for each load of excess soil that is removed from the project area. The tracking system must be capable of storing the following information:
- Location of the excavated areas and stockpiles and the associated soil quality.
- Quality of each load of excess soil.
- Quantity of each load of excess soil.
- Location of the receiving site(s).
- Date and time of when the excess soil was shipped from the project area.
- Personnel responsible for overseeing the loading of excess soil into transportation vehicles.
- Name of the excess soil transportation company, name of the driver, and the number plates associated with the transportation vehicles.
- Date and time when the receiving site received each load of excess soil.
- Contact information of the receiving site representative who acknowledged the receipt of each load of excess soil.
- Confirmation that the vehicle and volume for each load of excess soil that left the project area is the load that was received by the assigned receiving site.
The tracking system also needs to be able to produce reports in response to inquiries regarding each load of excess soil and must include methods and procedures to verify the accuracy of the information and prevent fraud.
Additional requirements for the ESDAR and the Excess Soil Tracking System are summarized in the Soil Rules document.
Filing a Notice in Registry
Project leaders must file a notice in the Registry maintained by the Resource Productivity and Recovery Authority (RPRA) prior to removing excess soil from the project area. In certain circumstances, subject to meeting criteria listed in O. Reg. 406/19, a notice may be filed in the Registry after the excess soil is shipped off-site.
The notice must be updated within the timelines specified in O. Reg. 406/19 and include information regarding the amount of excess soil deposited at receiving sites and the date when the last load of excess soil was removed from the project area or Class 2 Soil Management Site, as the case may be. Additional details regarding filing a notice in the Registry are summarized in O. Reg. 406/19.
Per O. Reg. 406/19, an APU, SAP, SCR, and ESDAR must be completed under the supervision of a QP prior to the filing of a notice in the Registry, unless regulatory exemptions apply to the project. Hence, it is vital that project leaders, developers, and contractors retain QPs at the early stages of a project to ensure regulatory compliance.
Gannett Fleming has QPs who can serve your excess soil needs thanks to our thorough understanding and practical implementation of the excess soil regulation and sustainable soil management practices. We are available to assist you not only with compliance with the amended regulation but also its final component – restrictions on depositing at a landfilling site or dump – which will go into effect on Jan. 1, 2025.
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