New rules apply to soil shared between Ontario construction sites. Anyone involved in the reuse, transport and storage of excavated soil must ensure their practices comply with these rules.
The New Regulation
The new rules aim to promote the beneficial reuse of excavated soil and reduce contamination of high-quality soil.
The rules are implemented primarily by the “On-Site and Excess Soil Management” Regulation, which comes into force on January 1st. Enacted under the Environmental Protection Act, the Regulation and its supporting Rules for Soil Management and Excess Soil Quality Standards apply to “excess soil”, meaning soil or fill excavated as part of a project and removed from the project area.[1] The Regulation does not apply to certain activities, including the excavation of hazardous waste soil or excavation from a quarry.
Some sections of the Regulation will not come into force until 2022 or later. But most come into force at the start of 2021, bringing significant changes with them.[2]
Strict Conditions on Reuse of Excess Soil
All excess soil is now designated unusable “waste” by default. Excess soil can avoid this designation and become usable only by meeting certain criteria. These criteria include:
- The soil must be used for a beneficial purpose on the new site and meet soil quality standards for the new site (see below);
- The soil must be taken directly from the project site to the new site or designated soil management facility; and
- The soil must be used within two years of arriving at the new site.
Excess Soil Must Meet Quality Standards
For excess soil to be used on a new site, a “qualified person” (a licensed professional engineer or geoscientist) must first determine that the excess soil quality is to standard. There is no one-size-fits-all standard for excess soil: the applicable standard in each case depends on various factors, including soil quality at the new site, the new site’s intended use, its proximity to water or drinking water services, and the volume and texture of the excess soil. In some cases, software called the “Beneficial Reuse Assessment Tool” can help determine site-specific standards.
The Rules also set out rules and stipulations with respect to different types of sites, soils and uses, and address sections of the Regulation that will take effect in 2022. They are an important resource for anyone involved in handling excess soil.
New Rules for Transport and Storage
There are also new transportation and storage requirements. Vehicles transporting excess soil must be leakproof, resistant to abrasion and corrosion, and covered “where necessary” to prevent the escape of dust or soil. Drivers must be ready to provide, on request, details about the origin and destination of the soil.
Soil must be stockpiled in a way that prevents noise, dust, mud tracking, leaching, run-off and erosion, and odour issues. Soil stockpiles cannot exceed 2500 cubic metres and, subject to some exceptions, cannot be stored within 30 metres of water or 10 metres of a property boundary. Soil that has not yet been sampled must be stored separately. There are also special rules for liquid soil.
Implications
Practices must be revisited to ensure compliance with the new rules. Developers actively sharing soil between sites should confirm that a Beneficial Reuse Assessment has been conducted for each reuse site and that excess soil meets applicable standards for each. Transporters of excess soil should ensure their vehicles are appropriately outfitted. And even developers not actively engaged in soil-sharing arrangements should ensure they are properly storing excavated soil.
Developers should also prepare for the next wave of changes taking effect in 2022. These changes will include the requirement to conduct an assessment of a site’s past uses and prepare sampling and analysis plans, excess soil characterization reports and excess soil destination assessment reports.
Failure to comply with these rules is an offence under the Environmental Protection Act. Anyone in doubt about their practices or how to achieve compliance should seek professional advice as soon as possible.
If you have any questions about this, please do not hesitate to reach out to our Municipal Law team.
[1] There are also changes to O. Reg. 153/04: Records of Site Condition; O.Reg 347: General Waste Management; and O. Reg. 351/12: Waste Management Systems EASR Regulation.
[2] Sections 1-7, 17-18, 20-21, and 23-28 are in force as of January 1st, 2021.
