Regulation Roundup: How to manage excess soil through “the pause” in Ontario

Whether it is transit lines, highway construction, or pipelines, new infrastructure projects in Ontario are being proposed daily and they are essential to keeping communities functioning. But these projects also have something else in common: they may produce excess soil during construction and/or maintenance and new rules are affecting how this soil is managed.

Some of these rules have been in effect since January 2021, while other rules — currently on “Pause” — are now being implemented starting January 2023. We understand that the temporary suspension of certain aspects of Ontario Regulation 406/19: On-site and Excess Soil Management (mostly tied to filing a notice on the Excess Soil Registry) will end January 1, 2023. This temporary pause was meant to provide the various stakeholders more time to implement and better understand the various aspects of the regulation and get more buy-in from developers, municipalities, infrastructure owners and other organizations that manage excess soil.

Infrastructure owners in Ontario have always had a responsibility to ensure they manage, handle and dispose of these soils in an environmentally responsible way. But changes have arrived — and more are on their way. This temporary pause is set to expire at the end of 2022. As an infrastructure owner and project leader, what are some things to keep in mind to manage excess soil through “the Pause” and with a view to January 1, 2023?

To start, the Ontario Ministry of Environment, Conservation and Parks (MECP) remains committed to establishing rules around managing excess soils to achieve several objectives:

1. Recognize excess soil as a valuable resource
2. Reduce clean excess soil going to landfill as waste
3. Set clear rules to govern soil reuse
4. Prevent inappropriate disposal of contaminated soil

The MECP has an informational website with links to various aspects of excess soil management. The regulation references a document called “Rules for Soil Management and Excess Soil Quality Standards”— which is often called the “Soil Rules.”

Your infrastructure project will require a Qualified Person (or “QP”) that is licensed under the Professional Engineers Act or the Professional Geoscientists Act (typically a P.Eng. or P.Geo.) and is experienced in environmental site assessment. Their responsibility is to assess and review soil quality, and to prepare certain documents if a notice filing is required by the regulation.

Your QP will need to make some decisions and provide you some advice regarding what your project needs when it comes to excess soil. To do this, they will need to understand:

• What are your Project Area limits (what is the boundary of the area where you will be excavating soil)? Note that this doesn’t have to all be one property owned by the project leader.
• How deep and where within your project area will you be excavating? What volume of soil do you expect to generate?
• How much of your excavated soil can you reuse on-site, and how much will have to go offsite? Try to maximize reuse of soil on-site wherever possible.
• What information do you know about your project area already? Do you have any reports on hand such as: geotechnical report, hydrogeological report, environmental site assessments (Phase I or II ESAs), contamination overview study, soil sampling report, assessment of past uses, soil characterization report.
• Do you have another infrastructure project that could receive your excess soil as fill?

You also need to understand your excess soil quality so that it can be managed at an appropriate receiving site. This will require your QP to do some level of due diligence investigation into soil quality. Engage your receiving sites early, since they may have specific testing and soil quality requirements to meet before accepting your excess soil.

And when the Pause is over in January 2023, a new set of rules will come into effect that every infrastructure project leader should be familiar with and prepare for.

Under these rules, in some situations, a notice will need to be filed on the Excess Soil Registry before soil can leave the project area. Your QP will likely need to complete a series of reports known as the “Planning Requirements”. These reports include:

• Assessment of Past Uses (APU)
• Sampling and Analysis Plan (SAP)
• Soil Characterization Report (SCR)
• Excess Soil Destination Assessment Report (ESDAR)

It’s important to note that responsibility for these reports — and, ultimately, the responsibility for excess soil — lies with the project leader, even though they have the support of a QP and sometimes a contractor to assist with assessment, planning, characterization and reporting related to soil management.

It is also important to note that infrastructure projects are exempt from filing a notice on the Excess Soil Registry under certain circumstances, such as when the excess soil removed from an infrastructure project is placed at a reuse site that is owned by the project leader or public body and is also an infrastructure undertaking. Where possible, project leaders for infrastructure projects should consider this in their soil management planning and consult their QP for other exemptions that could apply.

The new regulation is meant to ensure that potentially contaminated soil is properly assessed and to ensure the liability for the soil rests with the project leader. That way, someone does not unwittingly accept contaminated soil at, for example, a farm or construction site.

There are three main triggers for the Planning Requirements and notice filing as of 2023:

• Cleaning up contamination
• Removing more than 2,000 m3 of soil within a settlement area
• Removing soil from a property that is or has been used for industrial use (including a rail line), a garage, a fuel or other bulk liquid dispensing facility, or a dry cleaner.

The excess soil regulation is also intended to have project leaders treat excess soil as a valuable resource, keeping clean soil out of landfills and facilitating beneficial reuse instead, together with the proper disposal of contaminated soil.

Infrastructure owners shouldn’t wait to consider the excess soil regulation in their design. Factoring the regulation into the design process at the planning stage can save time and costs. January 1, 2023 is not too far away. Use the Pause to prepare for the full implementation of the excess soil regulation and learn about management strategies specifically available to infrastructure projects.

Joel Van Popta is a professional geoscientist with Stantec and has been practicing in environmental assessment and remediation for brownfield, transportation, and energy projects since 2003. He’s recognized as a qualified person under Ontario Regulation 153/04, and he has over 19 years of experience in contaminated site assessment and remediation.

Featured images credit: Stantec.