Ontario’s Ministry of the Environment, Conservation and Parks recently announced it is proceeding with a temporary suspension of legislative requirements to comply with parts of Ontario’s Excess Soil Regulation until January 1, 2023. The suspended requirements had come into effect January 1, 2022.

The Excess Soil Regulation 406/19, the On-Site and Excess Soil Regulation, was finalized in 2019 and has been phased in over years, with the majority of the provisions already in place. But the ministry heard from developers and municipalities that they need more time to implement the most recent set of requirements, and to better understand their responsibilities.

Over the coming months the ministry said it aims to work with stakeholder on additional education, outreach and guidance needs to support successful implementation of the new requirements.

On March 11, 2022, the Ministry of Environment, Conservation and Parks posted on the Environmental Registry of Ontario (“ERO”) a potential “pause” of certain requirements under the regulation. This came as a surprise as phase in of the additional  requirements had come into force on January 1, 2022 and parties were already adjusting their practices to be in compliance with the requirements.

According to Janet Bobechko, a partner and Certified Specialist in Environmental Law with WierFoulds LLP, the excess soil community appeared fairly equally divided as to whether or not the pause should take place and when; if successful, it would take effect given the start of an active construction season.

Janet Bobechko - WeirFoulds LLP

Janet Bobechko, partner and Certified Specialist in Environmental Law with WierFoulds LLP.

On April 20, 2022, O. Regulation 388/22 (the “Amending Regulation”) came into effect pausing certain requirements of the Regulation until December 31, 2022.

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Bobechko and a team of lawyers from WeirFoulds recently put together an overview of the updates. The pause or temporary suspension until December 31, 2022 only relates to the following requirements of the Regulation (that came into force originally on January 1, 2022):

  • an operator of a residential development soil depot to file (and update) a notice on the Registry (s. 7);
  • a Project Leader to file (and update) a notice on the Registry prior to removal of excess soil from the project area; (s. 8-9);
  • any of the planning requirements to prepare an assessment of past uses (s. 11), a sampling and analysis plan, soil characterization report (s. 12) and an excess soil destination assessment report (s. 13) and any requirements to update those documents (s. 15);
  • any requirements to track each load of excess soil in accordance with the Soil Rules (s. 16); and,
  • to file a notice (and update) a reuse site on the Registry (s. 19).

All the other provisions of the Excess Soil Regulation and the Rules for Soil Management and Excess Soil Quality Standards remain in force, including all the key operative requirements in section 3, 4 and 5 to determine if excess soil is a waste, written consent from the reuse site, the beneficial use and that the excess soil is dry (subject to exception).

It is also important to note that the provision relating to exemption afforded by grandfathering excess soil contracts is not paused.

Bobechko advises those involved in excess soil management to immediately review existing contracts that contain requirements relating to excess soil and understand the implications of any “pause”. Reuse sites may require the planning documents be provided whether or not they were paused or exempted.

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For more information on excess soils regulations, revisit the coverage of our most recent Excess Soils Symposium, including a panel of experts involving Janet Bobechko. Click here.

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