Trucking Right Along: Ontario’s excess soil laws and considerations for the construction industry

For decades, many involved in land development and construction struggled with how to interpret Ontario’s regulation of excavated soil. Stakeholders had many common questions. When is excavated soil considered “waste”, as defined in Ontario’s Environmental Protection Act? What if excavated soil contains contaminants? What if excavated soil is destined for re-use, such as for backfilling or grading? What if excavated soil is treated?

Without clear answers, unwanted impacted excavated soil was generally either disposed of lawfully at Ontario’s limited-capacity landfills or unlawfully through unauthorized dumping on private or public property. Without clear authority to regulate “waste”, municipalities were caught in jurisdictional limbo and forced to rely on site alteration by-laws to attempt to prohibit and enforce unauthorized and illegal dumping.

After much anticipation, the Ontario has created a legal regime to answer the questions raised above and provide certainty for the construction and waste management industries, consultants, contractors, municipalities, land owners, and developers alike. The first phase of Ontario’s excess soil laws is in legal force and effect with further phasing in to follow.

Ontario’s excess soil laws

On December 4, 2019, Ontario’s Ministry of the Environment, Conservation and Parks (MECP) filed the long-awaited O. Reg. 406/19: On-Site and Excess Soil Management Regulation[i] (Excess Soil Regulation) and complementary amendments to Ontario’s Records of Site Condition regulations (O. Reg. 153/04[ii]) and two of Ontario’s waste management regulations (Reg. 347[iii] and O. Reg. 351/12[iv]).

In addition, the Excess Soil Regulation incorporates by reference:

• the “Rules for Soil Management and Excess Soil Quality Standards”[v], which include the following:
  1. Part I – the Rules for Soil Management (known as the “Soil Rules”)
  2. Part II – the Excess Soil Quality Standards,[vi] and
• the Beneficial Reuse Assessment Tool (“BRAT”), which is a model for developing site-specific excess soil standards.[vii]

We refer below to this full suite of laws as “Ontario’s Excess Soil Laws.”

Three phases of Ontario’s excess soil Laws

The “first phase” of Ontario’s Excess Soil Laws came into force on January 1, 2021. This first phase contains several components, including:

• excess soil reuse requirements
• soil excavation and processing requirements
• clarification about when excess soil is designated as waste
• clarification about how excess soil must be collected and transported lawfully, and
• record-retention requirements.

The “second phase” of Ontario’s Excess Soil Laws initially came into force on January 1, 2022. However, on April 21, 2022, the MECP released its decision to suspend the coming-into-force date of certain provisions of the “second phase” under the Excess Soil Regulation until January 1, 2023.[viii]

The second phase included prescribed circumstances in which project leaders were required to file a notice on the excess soil registry, which is operated by the Resource Productivity and Recovery Authority, before excess soil can be removed from the project area (source site).[ix] The second phase also included planning, record-keeping, documentation and soil tracking requirements, as well as additional requirements pertaining to reuse sites.[x]

Where a project leader was required to file notice on the excess soil registry, detailed documentation and tracking requirements also applied. The requirement for a project leader to file notice did not apply where:

• the project leader entered into a contract with another person with respect to management of the excess soil subject to that contract before January 1, 2022[xi], or
• one (or more) of the six exceptions set out in Schedule 2 to the Excess Soil Regulation applies.[xii]

The notice-filing, planning, record-keeping, documentation and soil tracking requirements, and reuse site requirements under the Excess Soil Regulation are all currently suspended until January 1, 2023.

Notably, the suspension has no effect on the contract exemption date (January 1, 2022) by which a project leader must have entered into a contract to be exempt from the notice-filing, reuse planning and documentation provisions now applicable as of January 1, 2023.

The MECP’s stated purpose for the suspension is that it will:[xiii]

• provide additional time to stakeholders for greater understanding and consistent implementation of the Excess Soil Regulation and coordination across organizations, and
• provide an opportunity to consult on refinements to these provisions, if necessary, to ensure they are clear, practical, and focused to circumstances for which they are most necessary.

The “third phase” of Ontario’s Excess Soil Laws will come into force on January 1, 2025. The third and final phase prohibits landfilling excess soil unless certain prescribed circumstances apply.

As of January 1, 2025, excess soil may not be landfilled unless:

• the excess soil will be used for a beneficial purpose at a landfill, such as for daily cover, final cover, road or berm construction, or for any other type of use that supports the operation of the landfill[xiv]
• a qualified person is of the opinion and completes a declaration that it would be “unsafe” to finally place the excess soil at a reuse site,[xv] or
• the excess soil does not meet Table 2.1 of the generic Excess Soil Quality Standards for residential, parkland or institutional uses.[xvi]

Don’t miss these key definitions

Key definitions in the excess soil regulation[xvii] with regard to Ontario’s Excess Soil Laws apply largely (but not exclusively) to “excess soil”.

“Excess soil” is defined in the Excess Soil Regulation as:

… soil, crushed rock or soil mixed with rock or crushed rock, that has been excavated as part of a project and removed from the project area for the project

A “project” is broadly defined in the Excess Soil Regulation to include any project that involves the excavation of soil.

Where there is a “project”, there will be one or more “project leaders”, defined as:

… the person or persons who are ultimately responsible for making decisions relating to the planning and implementation of the project

The intent of Ontario’s Excess Soil Laws is to divert “excess soil”, where possible, to “reuse sites”, defined as:

…a site at which excess soil is used for a beneficial purpose and does not include a waste disposal site.

Considerations for project leaders

Property owners, developers, consultants, contractors, and municipalities are all affected by Ontario’s Excess Soil Laws. We set out below some key considerations when managing excess soil.

The property from which excess soil is generated is considered the “project area” and the owner/operator will very likely be considered a “project leader”.

The project leader will be subject to several requirements under Ontario’s Excess Soil Laws. Examples, to name a few, may include the following:

• Where the project leader is required to file notice on the excess soil registry, the project leader must ensure that a “qualified person” (as defined in O. Reg. 153/04) conducts sufficient sampling to characterize and determine the quality of excess soil generated at the project area to ensure that the excess soil can be lawfully transported to and received by an appropriate receiving site.
• As of January 1, 2023, the project leader must file a notice on the excess soil registry for the project, unless the municipality has entered into a contract for management of the excess soil before January 1, 2022, or one (or more) of the exemptions under Schedule 2 to the Excess Soil Regulation applies.
• If the project leader must file a notice, the project leader must develop and implement a tracking system pursuant to the requirements set out in section 16 of the Excess Soil Regulation and Section B of the Soil Rules.[xviii]
• The project leader (as well as others as prescribed in the Excess Soil Regulation) must retain all documents and records that were created or acquired under the Excess Soil Regulation for a minimum of seven years from the date the document or record was created or acquired.[xix]
• The project leader (or the operator of a project area on behalf of the project leader) must ensure that a written procedure is in place prior to excavation of soil at the project area that will apply in the event that soil being excavated may be affected by the discharge of a contaminant. The procedure must include immediately stopping work on discovery of soil that may be affected by the discharge of a contaminant.[xx]

Updates to municipal site-alteration by-laws

Many municipalities in Ontario are in the process of amending or have already amended their site alteration by-laws as they pertain to managing excess soil, to complement and harmonize with Ontario’s Excess Soil Laws.

On April 29, 2022, the Ministry of Northern Development and Mines (MNDMNRF) posted its decision on the Environmental Registry of Ontario to proceed with proposed regulatory changes and a policy direction for importing soil to facilitate rehabilitation at authorized pits and quarries under Ontario’s Aggregate Resources Act.[xxi]

Following the completion of excavation, Aggregate Resources Act approval holders must rehabilitate a site. Under the Aggregate Resources Act, “rehabilitate” means to treat land where aggregate has been excavated so the use or condition is restored to the former use or condition or is changed to another use or condition that will be compatible with the use of adjacent land.[xxii]

The MNDMNRF’s changes were made to Ontario Regulation 244/97, enacted under the Aggregate Resources Act. The MNDMNRF’s stated purpose for its changes is to ensure consistency with Ontario’s Environmental Protection Act requirements for excess soil transported to another site for beneficial reuse.[xxiii]

Key regulatory amendments to Ontario Regulation 244/97 include the following:

• the site plan, licence or permit for a pit or quarry must authorize the importation of soil (e.g., fill, inert fill, clean fill)
• excess soil stored at a pit or quarry must be in accordance with section C of the Soil Rules
• excess soil finally placed at a pit or quarry must be in accordance with section D of the Soil Rules
• the quality of excess soil finally placed at an aggregate site must meet the applicable Excess Soil Quality Standards and the end use identified in the approved rehabilitation plan for the site, and
• licensees and permittees that import more 10,000 m³ of excess soil or place excess soil below the water table must retain a qualified person to assist with the import, including the development of a plan for the storage and placement of excess soil, and determination of the applicable Excess Soil Quality Standard.[xxiv]

Get ready for 2023

The currently suspended notice-filing and related requirements under the Excess Soil Regulation will come into legal force and effect starting on January 1, 2023.

Many stakeholders have taken the time this year to get ready for this “second phase”. 2023 will undoubtedly be an eventful year for excess soil in Ontario.

Matthew Gardner is a Partner with Willms & Shier Environmental Lawyers LLP in Toronto and is certified as a Specialist in Environmental Law by the Law Society of Ontario. Matthew may be reached at mgardner@willmsshier.com. He is participating in Environment Journal’s Excess Soils Symposium on December 6: Excess Soils Symposium – The Environment Journal.

Anand Srivastava is an Associate at Willms & Shier Environmental Lawyers LLP and may be reached at asrivastava@willmsshier.com.

Madiha Vallani is an Associate at Willms & Shier Environmental Lawyers LLP and may be reached at mvallani@willmsshier.com.

Note: The information and comments herein are for the general information of the reader only and do not constitute legal advice or opinion. The reader should seek specific legal advice for particular applications of the law to specific situations.

[i] O Reg 406/19.

[ii] O Reg 153/04.

[iii] Reg 347.

[iv] O Reg 351/12.

[v] Rules for Soil Management and Excess Soil Quality Standards (2020).

[vi] The Excess Soil Quality Standards are presented in a similar manner as the Soil, Sediment and Ground Water Site Condition Standards under O. Reg. 153/04. For the most part, the Excess Soil Quality Standards are more stringent than the O. Reg. 153/04 Site Condition Standards.

[vii] Ontario has also released a “Guide for Developing Site Specific Excess Soil Quality Standards Using the Beneficial Reuse Assessment Tool (BRAT)”, version: 1.0 (November 19, 2019).

[viii] “Implementation Pause of Excess Soil Requirements in Effect January 1, 2022” (April 21, 2022), online: <https://ero.ontario.ca/notice/019-5203>.

[ix] SO 2016, c 12, Sched 1.

[x] These requirements for reuse site owners/operators include prescribed circumstances under which reuse site owners/operators must file notices on the excess soil registry.

[xi] This exception extends to January 1, 2026, after which any projects for which contracts were executed before January 1, 2022, if such projects continue after January 1, 2026, will require filing of notice on the excess soil registry.

[xii] O Reg 406/19, s 8(2).

[xiii] “Implementation Pause of Excess Soil Requirements in Effect January 1, 2022” (April 21, 2022), online: <https://ero.ontario.ca/notice/019-5203>.

[xiv] O Reg 406/19, s 22(2).

[xv] O Reg 406/19, s 22(3).

[xvi] Rules for Soil Management and Excess Soil Quality Standards (2020), p 51.

[xvii] O Reg 406/19, s 1(1).

[xviii] O Reg 406/19, s 16; see also Rules for Soil Management and Excess Soil Quality Standards (2020), page 28.

[xix] O Reg 406/19, s 28.

[xx] O Reg 406/19, s 23.

[xxi] “Proposed regulatory changes for the beneficial reuse of excess soil at pits and quarries in Ontario” (April 29, 2022), online: <https://ero.ontario.ca/notice/019-4801>.

[xxii] RSO 1990, c A8.

[xxiii] “Proposed regulatory changes for the beneficial reuse of excess soil at pits and quarries in Ontario” (April 29, 2022), online: <https://ero.ontario.ca/notice/019-4801>.

[xxiv] “Proposed regulatory changes for the beneficial reuse of excess soil at pits and quarries in Ontario” (April 29, 2022), online: <https://ero.ontario.ca/notice/019-4801>.

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