Regulatory amendments in Ontario to encourage greater reuse of excess soil

The Ontario Ministry of the Environment, Conservation and Parks has made amendments to Ontario Regulation 406/19 and the associated Soil Rules to increase soil management flexibility and support greater reuse of excess soil from housing, infrastructure, and other construction projects.

Ontario’s previous environment minister, David Piccini, first announced these amendments at Environment Journal’s Excess Soils Symposium 2023 in September. “We’d like to ensure that the regulation can be more easily understood by all parties and more easily implemented and reduce the requirements of lower risk activities to achieve greater reuse of readily usable excess soils,” said Piccini.

While the ministry is making it easier for industry to reuse leftover soil from housing and infrastructure sites, it is also protecting people and the environment and working to stop the illegal dumping of potentially contaminated soil. To reduce burden and increase opportunities for beneficial reuse of excess soil, the amendments to Ontario Regulation 406/19 – On-Site and Excess Soil Management (Excess Soil Regulation) and the Rules for Soil Management and Excess Soil Quality Standards document (Soil Rules) are in effect as of April 23, 2024.

The Honourable David Piccini, Minister of Environment, Conservation and Parks, speaks at the Excess Soils Symposium 2023, introducing amendments to the legislation. 

“Overall, the amendments do not greatly alter practice under the regulation. However, they do provide some much-needed flexibility, especially regarding salt impacts,” says Logan Jung-Ritchie, a geoscientist from Grounded Engineering Inc. in Toronto, Ont. “From my perspective, being able to re-use salt impacted soil anywhere on industrial or commercial property has the potential to positively increase the amount of soil that can be re-used. Additionally, reducing the sampling requirements for APECs [area of potential environmental concern] only impacted by salt will help curb the characterization burden in appropriate circumstances.”

Summary of amendments

Soil Management at Temporary Storage Sites and Depots:

• • The maximum amount of soil allowed at temporary storage sites (Class 2 soil management) and soil depots that are exempt from a waste environmental compliance approval has increased from 10,000 to 25,000 cubic metres, and many rules have been aligned across these sites and local waste transfer facilities for ease of implementation.
  • Public bodies operating a Class 2 site or a local waste transfer facility do not have quantity limits for managing dry excess soil.
  • Class 2 sites can now be controlled by public bodies, not just owned by them

Salt-Impacted Soil Reuse Opportunities:

• • Subject to setbacks from potable wells and waterbodies, salt-impact soil can now be placed:

1. • • Anywhere on industrial or commercial properties.

1. • • 1.5 metres or more below the soil surface at residential, parkland, institutional, or community properties to be protective of vegetation, or if within 1.5 metres of the surface, in accordance with a landscape plan prepared by an expert or with a policy prepared by a public body for their properties.

1. • • 1.5 metres or more below the soil surface at agricultural or other use properties, or if within 1.5 metres of the surface, it is reused in an undertaking for a specified built use (e.g., fill for buildings, driveways, barns), and is not in an area used for growing crops or pasturing livestock.

1. • Reuse site owners or operators must acknowledge receiving salt-impacted soil in writing.

Hauling Record Amendments:

• • Small quantities of soil (i.e., up to 5 cubic metres) and soil packaged as a landscaping or gardening product are exempt from needing a hauling record.
  • Source sites must verify information in hauling records before moving excess soil off-site.

Reuse Planning Requirements Exemption:

• • Landscaping projects excavating 100 cubic metres or less at enhanced investigation project areas are exempt from reuse planning requirements if the excavation area has been assessed by a qualified person and is not likely to be contaminated.

Temporary Storage Near Waterbodies:

• • When excavating soil near a waterbody, temporary storage of that sediment and soil is allowed within 30 metres of the waterbody.
  • Steps must be taken to prevent adverse effects to the water body.

Sampling Clarifications:

• • If an area of environmental concern is identified solely because of salt application, sampling for all mandatory parameters or meeting the minimum sampling frequencies is not required.
  • For tunneling projects, a modified in-situ sampling approach can be used to combine both in-situ samples and representative samples of excavated material to meet in-situ sampling frequencies.
  • When sampling sediment from a stormwater management pond, requirements are based on the entire pond, not each zone, to avoid over-sampling.

Responsibilities for Using Soil Processing Substances:

• • When using substances such as polymers to solidify liquid soil, the qualified person’s role has been clarified. Instead of providing a guarantee that there will be no adverse effect from the use of these substances, the qualified person must undertake specified steps to obtain information, indicate whether there is any basis to conclude that a substance would result in an adverse impact, and in certain circumstances develop instructions on the storage and placement of soil including to prevent adverse impacts.

Other Amendments:

• • The Excess Soil Regulation and Soil Rules have been clarified for better understanding and consistent implementation of requirements.

Comments and feedback from the ministry

The ministry received a total of 74 submissions commenting on the proposal. Comments were received from industry, municipalities, consultants, professional organizations, agricultural organizations, and individuals.

Overall, comments suggested support for enhanced opportunities for soil management activities exempt from a waste approval and greater opportunities to reuse salt-impacted soil. Comments were also supportive of greater clarifications for sampling requirements, and for the qualified person’s obligations when using substances such as polymers to process liquid soil.

Some comments raised concerns around the lack of ministry oversight for proposed exemptions from waste approvals, and the potential for adverse effects from the reuse of salt-impacted soil at agricultural properties or from storage of soil within 30 metres of a waterbody.

The ministry considered all comments when finalizing the amendments, and in some situations revised what was proposed based on the comments. Below is a summary of key comments and the ministry response:

Exempting depots from waste approvals

The original proposal included exemptions for additional types of soil management sites (aggregate reuse depots and small liquid soil depots) from requiring a waste approval from the ministry and revising requirements for the retail landscaping depots to enable greater topsoil management. We also proposed utilizing the Excess Soil Registry (Registry) to file notices for the proposed depots and other existing sites that currently require a written director’s notice (Class 2 soil management sites and local waste transfer facilities).

The feedback received on these aspects of the proposal suggested that greater discussion was needed on the operational details of the proposed new types of depots to ensure they do not prohibit beneficial reuse while still remaining protective of the environment, as well as consideration for the development and implementation of new notices on the Registry.

Response: Based on the comments received, a decision on these proposed amendments has been delayed, to be made at a later date after further consideration. The ministry continues to refine the proposal based on feedback received and will continue to work with stakeholders and the Resource Productivity and Recovery Authority (RPRA) regarding the Registry.

Class 2 soil management sites and local waste transfer facilities

Some comments received on the proposal flagged concerns around limiting maximum soil quantity at local waste transfer facilities, which are currently used for soil management for some large infrastructure projects.

Response: Based on this feedback, a decision was made to have no limit on maximum quantity for dry excess soil at both Class 2 soil management sites and local waste transfer facilities for public bodies, to ensure infrastructure projects managed by public bodies are not affected by the changes and to have alignment in rules for these sites. Other regulatory requirements such as soil storage rules would continue to apply, to prevent any adverse effects. For Class 2 soil management sites and local waste transfer facilities that are not owned or controlled by a public body, the maximum quantity of excess soil that may be managed at a site is 25,000 cubic metres.

Reuse rules for salt-impacted soil

While some comments were generally supportive of the amendments for salt-impacted soil reuse rules, other comments raised concerns around potential impacts to agricultural lands, with requests to provide more specific restrictions for these areas. Comments from some municipalities also requested whether policies for reuse of salt-impacted soil can be used instead of a new landscape plan prepared by an expert.

Response: Based on the comments, we clarified that for agricultural lands, salt-impacted soil shall either be placed 1.5 metres below the surface (which is currently allowed) or can be placed within 1.5 metres of the surface if the soil only if reused for specified built undertakings. In response to comments from municipalities, an exemption from a landscape plan was provided for public bodies that have a policy related to use of salt-impacted soil at reuse sites they own or control.

Storage within 30 metres of a water body

We heard some concerns that while allowing for storage within 30 metres of a waterbody made sense for practical reasons, there may be potential impacts to the waterbody itself from storage.

Response: Based on the comments, we identified clear storage rules to prevent adverse impacts to waterbodies, including having a time limit for how long soil may be stored and ensuring a sediment and erosion control plan is in place for this activity.

Links to guidance to help in understand these requirements can be found on Ontario’s Handling Excess Soil website. The ministry will also be providing additional educational opportunities to learn about the amendments.

Looking to learn more about excess soils? Join us for the 2024 Excess Soils Symposium:

Featured image credit: Excess Soils Symposium 2023