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Jan 20, 2020

On December 4, 2019 the government of Ontario announced that it has finalized and is implementing the On-Site and Excess Soil Regulation (O.Reg. 406/19) under the Environmental Protection Act (EPA). The new regulatory framework provides clarification on the responsibilities for both generators and receivers of excess soil in Ontario. The regulation defines excess soil as soil that has been excavated that must be removed from the project area. Complementary and clarification amendments have also been made to:

Dillon understands that the new Regulation would hold our clients responsible for the proper management of excess soil generated by their projects and/or operations. This would have an immediate effect on budgets through costs related to:

  • Increased project lead time
  • Increased administrative burden 
  • Increased project expenses, in particular for soil sampling requirements

Non-compliance with the Regulation could lead to fines, orders and other penalties issuable under the EPA.

The new regulation comes into force in the following phases:

December 4, 2019: brownfields redevelopment amendments
January 1, 2021: reuse rules and the waste designation
January 1, 2022: testing, planning, tracking, hauling records and registration
January 1, 2025: restrictions on landfilling soils

As of January 1, 2021, excess soil will be designated as waste from the moment it leaves a project area unless it is reused in accordance with the rules set out in the regulation. These rules are briefly summarized as follows:

  • The excess soil is being directly transported to a reuse site, a soil bank storage site, soil processing site, a temporary excess soil management site, or a local waste transfer facility
  • Soil quality must meet the new Excess Soil Standards at a minimum and the quantity of excess soil must be consistent with the beneficial reuse specified for the reuse site: 
    • Where the site is governed by a site-specific instrument such as an ECA, Aggregate Act Licence, or Municipal Bylaw Permit, there are other conditions which might apply.
  • Site-specific quality standards may be developed for the reuse site by a Qualified Person (QP).

The regulation also includes provisions to address the growing liquid soils industry (e.g. horizontal drilling, hydrovac for daylighting). In brief, certain types of soil processing would be allowed to occur on-site at a project area prior to excess soil being hauled away without the need for an ECA.

As of January 2022, the requirements for testing, tracking of soil and the registration of projects where excess soil will be generated come into force, requirement of hauling records, and larger reuse site registration come into effect. These requirements can be summarized as follows:

  • The project leader must file a notice in the Registry and ensure the documents in the following sub-bullets are prepared, before excavating and track each load of excess soil unless excepted by the Regulation:
    • Assessment of past uses
    • Sampling and analysis plan
    • Soil characterization report
    • Excess soil destination assessment report. 
  • Project leaders will also be responsible for tracking each load of soil being transported from the project area.
  • The owner and operator of a large reuse site where >10,000 mof excess soil is expected to be deposited for final placement must file a notice in the Registry, and develop procedures to account for every load, and to ensure that the storage of excess soil does not cause an adverse effect.

Contracts entered into before January 1, 2021 with respect to the management of excess soil from the project are grandfathered until January 2026.

The above is a brief introduction to and summary of the Regulation, there are many more changes as well as caveats. Moving forward, you should always contact a QP when you are planning to generate or receive excess soil. This email should not be interpreted as legal advice and is simply being shared to notify you of the upcoming regulatory changes as they may have an impact on your properties and/or operations.

Dillon has been closely following the development of this new regulation and has been involved in the consultation process from the outset. Our team can provide support for understanding how this new regulation and revisions to complementary regulations may impact your projects and your company’s operations.

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