This material is for information purposes and is not intended to provide legal advice in relation to any particular fact situation. Readers who have concerns about any particular circumstance are encouraged to seek independent legal advice in that regard.
January 18, 2021
A New Excess Soils Regulation Comes to Ontario: An Entirely New Regime with an Entirely New Focus
Kennaley Construction Law
The first phase of Ontario’s new regulation for On-Site and Excess Soil Management, Regulation 406/19 (passed under Ontario’s Environmental Protection Act) came into force on January 1, 2021. Intended to ensure that excavated soils are treated as a resource to be beneficially re-used wherever possible, the regulatory requirements are very different from what has come before. Subject to certain exceptions, the regulation applies to all “projects”, which are defined broadly to include (among other things) “any form of development or site alteration”. It places strict responsibilities on both generators, haulers and receivers of surplus, or “excess”, soils in Ontario.
The regulation is detailed and complicated. There are numerous exemptions that will apply to exclude certain excavations and placements from some, or all, of its application. The regulation will not apply to certain soils excavations and placements, for example those involving hazardous or asbestos waste (which continue to be governed by Ont. Reg. 347) and the operation of pits and quarries. The rules will also differ depending on the volume of soils being processed or deposited, while portions of the regulation will not apply to certain “infrastructure” projects, to certain agricultural or other uses governed by Ontario’s “brownfields” regulation 153/04 or to soil removals of less than 100 cubic meters in some circumstances. In addition, site-specific requirements established under provincial legislation or a local by-law or permit will at times override the new regulations. Finally, a new Beneficial Reuse Assessment Tool (or “BRAT”) is available to determine site specific excess soil requirements.
To further complicate matters, the new provisions are being phased in over the next 5 years. There are, however, a number of key points and concepts that should, as a starting point, be generally understood by anyone involved in excavation activities in Ontario, from owners and developers down the construction ladder. We will review these below. In addition, we will be offering a free zoom webinar on the new regulations, on February 2nd, 2021 commencing at 8:00 am. For more information, and to register, please go to here.
“Excess Soil”, “Project Leaders” and “Qualified Persons”
The regulation deems “excess soil” (excavated soil that must be removed from a project site) to be a waste that cannot be reused, stored, transported or disposed of except as specified in the regulation. It further sets out a complete code for the excavation and movement of excess soils between properties, imposing requirements for soil testing, transportation, temporary storage at processing sites or transfer facilities, the interim clean-up of soils, data tracking, re-use (on-site or at other sites) and disposal at a landfill or dump.
Responsibility for the assessment, management and relocation of excess soils is placed squarely on the “project leader”, or “person or persons ultimately responsible for making decisions relating to the planning and implementation of the project.” This is a brand new roll and designation, placing overall responsibility in the same fashion that Ontario’s Occupational Health and Safety Act places overall responsibility for health and safety on the “constructor”. The identity of the project leader(s) will vary in the circumstances. Although it is not clear how the definition will be applied in actual circumstances, it certainly appears that owners will only be able to off-load their project leader responsibilities, if at all, where all of the planning and implementation decisions are clearly assigned to another person under a contract.
Unless otherwise exempt under the legislation, the project leader will be responsible to have a “qualified person” (defined with reference to Ont. Reg. 153/04) prepare an assessment of the past uses of the site and determine if excavated soils are potentially impacted, based on criteria including contaminants, fluidity and odour. This may be a difficult responsibility for many a project leader to independently meet, as they may not have the expertise required to make the determination. If soils are determined to be potentially impacted, a qualified person must be retained to ensure that the soils are properly assessed and managed. The project leaders remain, with some exceptions relating to off-site processing sites, responsible to manage the use, transportation and temporary and/or final placement of the excess soils.
Options for Reuse and Disposal
Subject to the various exceptions, non-hazardous contaminated soils will no longer be considered waste if they are processed to meet specified standards, through a number of specified methods which include aeration, dewatering, mixing, turning and sorting. If the standards are met, and proper record keeping occurs, the soils may be reused on site. They may also be placed at a re-use site, so long as the re-use is no more than what is required by that site for a beneficial purpose tied to the site’s operations (and so long as the purpose is not itself the disposal of soils). To assist participants in the process, site-specific re-use options or standards may be developed using the aforementioned Beneficial Reuse Assessment Tool tool, which is essentially an excel spreadsheet of prepopulated formulae that allows the user to explore the permutations and combinations of options available on a site-specific basis.
Off-site locations may be used to temporarily store the soils for the purposes of assessment and processing. This should assist to ensure that assessment and processing requirements do not unreasonably impact the scheduling and sequencing of work at the project site. In addition, and so long as certain specified requirements are met, the project leader can transfer responsibility for the soils to the operator of the interim assessment/processing site. It is likely, we suggest, that an entire new sub-industry will develop to provide soil processing options, both on site or at other, interim, locations. In addition, we anticipate that cost/benefit analysis will be undertaken to explore the use of alternative excavation methods, such as directional drilling and hydrovac, to reduce the volume of excavated soils generated on a project and the costs associated with same.
Record Keeping and Reporting
The new requirements are record keeping and reporting intensive. Subject to certain exceptions, initial notices must generally be filed by a project leader and documentation must be kept and/or filed by the project leader, qualified persons, haulers, interim sites, re-use sites. landfills and dump sites. Suffice it to say that anyone involved with excess soils will need to understand and put processes in place to meet their record keeping and reporting obligations. The records, including contracts for the management or transportation of soils, will have to be kept for a period of 7 years.
Transition and Application
Simply put, subject to the various exceptions set out under the Regulation, the rules established for reuse and placement/disposal of materials are effective as at January 1, 2021. As regards notice, record keeping and materials tracking, however, these requirements will generally not be in force until January 1, 2022, giving industry participants a year to become familiar with them. In addition, a grandfathering provision provides that these obligations won’t apply to a project leader until January 1, 2026, under any soil management contract the project leader has entered into prior to January 1, 2021. Finally, the regulation’s restrictions on landfilling soils will not become effective until January 1, 2026, when materials that do not exceed Table 2 requirements will not be accepted at a landfill.
For clarity, the rules relating to reuse and placement came into force as at January 1, 2021, while the notice and documentary tracking requirements will not, generally, come into force until at least January 1, 2022. Haulers, for example, will have to have specific information available on request as at January 1, 2021 (including information on the source, quality and destination of the soils they carry), but will not have to have the carry records containing the requisite information until January 1, 2022. In addition, new requirements governing for haulage vehicles themselves will come into in force in 2022.
The Need for Planning and Practical Strategies
Anyone involved in the excavation, removal or placement of excess soils in Ontario should take steps to understand their obligations and establish processes to meet them, both in general and (given the numerous exceptions that can apply) on a project-by-project basis. They will also need to understand how the obligations will evolve over time, as the provisions roll-out.
Owners, of course, want projects to be delivered on time and on a reasonable budget. To meet these goals on a project involving anything more than a nominal volume of excess soils, a fair bit of pre-planning will be necessary long before a shovel hits the ground. This, because the assessment and processing of soils will take time, because the need for on-site assessment and processing will impact construction schedules and sequencing, because off-site storage and processing may accordingly become an economic necessity and because qualified persons and re-use sites with sufficient capacity to accept the soils for a beneficial purpose will have to be lined up to ensure the regulation’s requirements are met. Addressing these issues prior to procurement will become important in many circumstances. Prequalifying contractors to ensure they have the teams in place to manage the new requirements in a cost-effective way will, we believe, become increasingly attractive.
For large excess soils generators and for contractors, trades or haulers who manage a significant volume of soils, the vertical integration of services might also become attractive. Owners, for example, might set-up their own storage and processing sites to keep costs down, while contractors and haulers might do the same towards placing lower bids in a tendering context. Some owners might also pre-qualify bidders who can provide a single source for the management of excess soils issues, making such vertical integration attractive.
Municipalities will face unique issues under the new legislation. In addition to managing the obligations of any other generator of excess soils, municipalities will have to adjust their policies and practices in operating both landfills and dump sites. They will also need to consider the extent to which local by-laws should provide a less stringent standard which might over-ride the requirements of the new regulations. Finally, from a zoning and by-law enforcement perspective, municipalities will face an emergence of soil storage, processing and re-use sites, along with zoning applications and neighbourhood complaints about odour, and heavy traffic, etc. Strategies to address these issues will best be developed in a timely fashion.
In the end, everyone involved in the excavation, removal or placement of excess soils in Ontario will have to understand their obligations under the new regulations, including how they will be rolled out through the transition provisions and how exceptions might apply in any particular circumstance. In addition, given the time and costs associated with the new requirements, procurement and planning options (including pre-qualification, project teams and the vertical integration of services) will have to be considered. Finally, opportunities for the development of interim storage and processing sites will abound, and municipalities will have to consider how best to manage their emergence from a zoning and by-law perspective. Ultimately, however, the provisions should result (as intended) in excess soils being treated as a resource which should, in the long run, lead to more environmentally and economically efficient processes and to marginally impacted materials being re-used appropriately, so they do not end up in Ontario’s landfills. As above, to attend our free webinar on the topic on February 2, 2021 at 8am (EST), please go here to register.