February 1, 2021
Ontario updates soil excavation regulations
New rules push for greater reuse
By ROBERT KENNALEY
THE FIRST PHASE of Ontario’s new regulation for On-Site and Excess Soil Management, Regulation 406/19 (passed under Ontario’s Environmental Protection Act) came into force on Jan. 1, 2021. Intended to ensure that excavated soils are treated as a resource to be beneficially reused wherever possible, the regulatory requirements are very different from what has come before. Subject to certain exceptions, the regulation applies to all “projects,” which are defined broadly to include (among other things) “any form of development or site alteration.” It places strict responsibilities on both generators, haulers and receivers of surplus, or “excess,” soils in Ontario.The regulation is detailed and complicated. There are numerous exemptions that will apply to exclude certain excavations and placements from some, or all, of its application. In addition, the regulatory provisions are being phased in over the next five years. There are, however, a number of key points and concepts that should, as a starting point, be generally understood by anyone involved in excavation activities in Ontario, from owners and developers down the construction ladder. Those outside Ontario will be watching the regulation’s roll-out with interest, as similar legislation will no doubt be considered across the country.
Key definitions
The regulation deems “excess soil” (excavated soil that must be removed from a project site) to be a waste that cannot be reused, stored, transported or disposed of except as specified in the regulation. It further sets out a complete code for the excavation and movement of excess soils between properties, imposing requirements for soil testing, transportation, temporary storage at processing sites or transfer facilities, the interim clean-up of soils, data tracking, re-use (on-site or at other sites) and disposal at a landfill or dump.Responsibility for the assessment, management and relocation of excess soils is placed squarely on the “project leader,” or “person or persons ultimately responsible for making decisions relating to the planning and implementation of the project.” Unless otherwise exempt under the legislation, the project leader will be responsible to have a “qualified person” prepare an assessment of the past uses of the site and determine if excavated soils are potentially impacted (at which time a “qualified person” must ensure they are properly assessed and managed). This is potentially problematic, as project leaders may not have the expertise required to make the latter determination.
Reuse and disposal options
Subject to the various exceptions, non-hazardous contaminated soils will no longer be considered waste if they are processed, through a number of specified methods (including aeration, dewatering, mixing, turning and sorting) to meet specified standards. If the standards are met, and proper recordkeeping occurs, the soils may be reused on site. They may also be placed at a reuse site, so long as the reuse is no more than what is required by the reuse site for a beneficial purpose tied to the reuse site’s operations, so long as the purpose of the site is not itself the disposal of soils. To assist participants in the process, site specific reuse options or standards may be developed using a “Beneficial Reuse Assessment Tool.” Off-site locations may also be used to store or process the soils to meet the minimum standards.Recordkeeping and reporting
The new requirements are recordkeeping and reporting intensive. From initial notices that must generally be filed by a project leader through documentation that must be kept and/or filed by the project leader, qualified persons, haulers, interim sites, reuse sites, landfills and dump sites, recordkeeping and retention is (subject to certain exceptions) fundamental to the new regime. Suffice it to say, anyone involved with excess soils will need to understand and put processes in place to meet recordkeeping and reporting obligations. The records, including contracts for the management or transportation of soils, will have to be kept for a period of seven years.Transition and application
Simply put, subject to the various exceptions set out under the Regulation, the rules established for reuse and placement/disposal of materials are effective as of Jan. 1, 2021. As regards notice, recordkeeping and materials tracking, however, these requirements will generally not be in force until Jan. 1, 2022, giving industry participants a year to become familiar with them. In addition, a grandfathering provision provides these obligations will not apply to a project leader until Jan. 1, 2026, under any soil management contract the project leader has entered into prior to Jan. 1, 2021. Finally, the regulation’s restrictions on landfilling soils will not become effective until Jan. 1, 2026, when materials that do not exceed Table 2 requirements will not be accepted at a landfill.For clarity, haulers will have to have specific information available on request as of Jan. 1, 2021, including information on the source, quality and destination of the soils they carry. By Jan. 1, 2022, they will have to have requisite records containing the specified information with them. In addition, new requirements governing the vehicles themselves will come into force in 2022.
Concluding thoughts
In short, anyone involved in the excavation, removal or placement of excess soils in Ontario will have to take steps to understand their obligations and establish processes to meet them, both in general (and, given the plethora of exceptions that can apply on a project-by-project basis) and in relation to any particular contract. In addition, and perhaps more importantly, the new regulations require treatment processes to be engaged towards cleaning up soils for reuse and, ultimately, keeping them out of our landfills. Such processes will take time, money and a plan. Given the importance of time and budget in virtually all construction projects, those responsible for project planning and costing will have to develop strategies and budgets to accommodate the requirements. This will have to occur, literally, long before a shovel actually hits the ground. Those outside Ontario should recognize that, given the environmental concerns associated with soils disposal, similar regulations may be considered in their jurisdiction and that monitoring the Ontario experience might be worthwhile.Rob Kennaley is with Kennaley Construction Law, a construction law firm with offices in Simcoe, Toronto and Barrie, Ont. He speaks and writes regularly on construction law and contract issues. For comment, or for more information, please see the firm’s website and blog, at kennaley.ca. This material is for information purposes and is not intended to provide legal advice in relation to any particular fact situation. Readers who have concerns about any particular circumstance are encouraged to seek independent legal advice in that regard.