December 30, 2021
Ontario’s Excess Soils Registry is Now Online:
Resources and Practical Considerations Towards Meeting the Excess Soils Regulation
What follows is brief point-form summary of the who, what, when and where, etc., of Ontario’s New Excess Soils Regulation, O.Reg 406. It is intended to highlight practical issues that should be considered and addressed by anyone involved in the removal or placement of excess soils in Ontario, going forward. Resources, including links to Ontario’s new website registry to be administered by the Resource Productivity and Recovery Authority (RPRA), and to applicable Rules and available Guidelines will also be provided.
Why: to ensure that excess soils are treated as a resource, to be processed and re-used for beneficial purposes wherever possible, keep them out of landfills and protect the environment;
What: an entirely new regime which deems “excess soils” (soils that are to be removed from a “project”) to be waste until they are made suitable for re-use and/or disposal in accordance with very detailed requirements. The Regulation, however, contains numerous exemptions (see below);
Where: a “project” is broadly defined to include “any form of development or site alteration”.
Who: the ultimate responsibility for compliance is placed on “project leaders”, or the “persons or persons ultimately responsible for making decisions relating to the planning and implementation of the project”. Subject to exceptions, the project leader must file a notice setting out prescribed information about the project, about how excess soils will be addressed/disposed of and about who will be responsible for what in that regard. The project leader must also make a number of declarations, including that he/she/it “will develop and apply all necessary procedures to ensure that all necessary steps are taken to ensure that the Regulation is complied with.
The project leader must also retain a “qualified person” to perform required assessments and testing to determine the nature of the excess soils as well as how they can/will be processed or treated for re-use to meet a beneficial purpose. Haulers, processing sites, re-use sites and disposal sites will all have obligations in relation to the soils, including reporting and record keeping obligations;
When: unless exempt, excess soils have been defined as waste since O.Reg. 406, and its associated assessment, processing, treatment, transportation, re-use and placement requirements, came into force on January 1, 2021. The reporting and record-keeping requirements of the Regulation come into force on January 1, 2022. Beyond this, with limited exceptions, excess soils will no longer be disposable at a landfill effective January 1, 2025;
Exemptions apply in relation to certain: topsoils; projects where less than 100m3 of Excess Soil is to be removed; “infrastructure” projects; agricultural uses; “Enhanced Investigation Project Area” projects, projects governed by O.Reg 153/04 (“brownfields”); circumstances where there are health and safety concerns; pits, quarries and other excavations under the Aggregates Resources Act; peat extractions; the final placement of excess soils on the bed of a surface of water; and circumstances where a receiver site is governed by a site-specific provincial instrument or municipal by-law;
In addition, where a project leader has entered into a contract to manage excess soils on a project prior to December 31, 2021, the notice and record keeping requirements of the Regulation will not apply for that project until January 1, 2026;
How: The project leader’s registration of a notice in relation to a project kick-starts the reporting and record keeping requirements applicable to most everyone involved with excess soils in relation to the project. A Beneficial Re-Use Assessment Tool (an excel spreadsheet loaded with formulas in which qualified persons can input data towards determining options for reuse) is available to assist. The Regulation contemplates that interim, off-site, processing sites can be used to dry-out or process the soils (through passive aeration, dewatering, mixing, turning and sorting, for example) to make marginally compacted soils ready for re-use;
Resources: many of the resources you will need to manage your obligations under O.Reg. 406/19 are available at https://www.ontario.ca/page/handling-excess-soil, including links to the recently launched registry administered by Ontario’s Resource Productivity and Recovery Authority (RPRA) (https://rpra.ca/excess-soil-registry/), RPRA training materials (https://rpra.ca/excess-soil-registry/training-materials/), the “Rules for Soil Management and Excess Soil Quality Standards” which are incorporated into and from part of the Regulation (https://www.ontario.ca/page/rules-soil-management-and-excess-soil-quality-standards), a Guide for “Best Management Practices in relation to excess soils” (https://www.ontario.ca/page/management-excess-soil-guide-best-management-practices; and the ‘Brat Tool’ itself (BRAT tool).
Practical Strategies and Considerations:
We suggest that three practical strategies should be engaged by anyone faced with potential responsibilities under the Regulation:
(1) understand your obligations in relation to any particular project. Understand if an exemption applies and, if not, what Rules apply to your circumstance;
(2) ensure your understanding of who-is-responsible-for-what is set out in your contract or subcontract documents. Know who the Project Leader is (responsible to file the requisite notice and meet the project leader responsibilities) and know the extent to which others believe those responsibilities are being off-loaded onto you; and
(3) pre-plan to avoid delays and confusion. Re-use options may be limited and resources may be short in a world driven by supply and demand: don’t be left short of time for testing or looking for qualified persons, processing sites, re-use sites or transportation options.
At the Design stage (for Owners, Developers and their Consultants):
1. determine if O.Reg 406/19 exemptions might apply to the project. If not, plan for additional time at this stage;
2. consider design and on-site re-use options, as well as specified construction methods (such as directional drilling or hydrovac) to limit excess soils;
3. determine the extent to which the project leader’s responsibilities should be off-loaded to consultants and/or contractor(s). In particular, determine who is going to undertake the requisite pre-excavation assessments. (Take care, as while a project leader might assign obligations to others in contract, it is doubtful that liability can be entirely avoided through such contractual assignments);
4. consider enhanced pre-tender/pre-contract geotechnical and hydrological assessments to better understand the excess soils risk before allocating them in contract. Understand that asking a contractor to assume the obligation to dispose of such soils absent such information may lead to higher (contingency filled) prices as well as potential disputes and delay;
5. if possible, know if excess soils will be generated and if they will need to be processed. If so, plan for where and by whom the processing will be undertaken and where, and for what beneficial use(s), those soils will be deposited;
a. pre-qualifying contractors, subcontractors and haulers to ensure that those who bid will be set up to deal with excess soils; and
b. designating and contractually locking-in qualified persons, haulers and processing/re-use sites, or requiring bidding contractors to do so prior to bid submission (as appropriate); and
7. ensure that the various O.Reg. 406/19 responsibilities are or will be clearly set out in the contract documents, to avoid gaps, confusions, claims and delay.
8. everyone who touches excess soils should know if exemptions apply. If exemptions do apply, consider having documentation which supports the exemption available at the project site, in haulage trucks and at the destination site(s) to avoid confusion and delays if the MECP attends, or pull over haulers, to make inquiries;
9. where there is no exemption, everyone who touches excess soils should know who the project leader is, as well as has been retained to meet the project leaders’ responsibilities. Preferably, this is specified in applicable contracts and subcontracts. The project leader has the responsibility to:
a. file a s.8 notice initial notice before excess soil is removed from the project area, after the requisite reports (including an excess soils destination assessment report) are prepared by a “qualified person” under s.11-13;
b. have a procedure developed to apply if, during excavation, a contaminant is discharged (s.23);
c. amend and update any changes to the s.11-13 reports within 30 days (s.15);
d. develop and apply a tracking system for the excess soil (s.16);
e. generally, ensure that the Regulation is followed. In this regard, recognize that the repurposing of excess soil must be for an actual beneficial purpose. Accordingly, re-use sites may not receive more than what is actually required to meet the beneficial purpose (and the purpose of the site itself cannot be to dispose of soils). Multiple repurposing sites might accordingly need to be secured for a project; and
f. file a s.9(2) notice 30 days after the excess soil has been removed from the project area, local waste transfer facility, or project processing site if applicable.
10. everyone with excess soils responsibilities should understand the Rules and Guidelines that apply to them, and consider developing policies, procedures and training for their staff at all levels. Auditing the policies, procedures and training, and keeping records in that regard, is recommended. In addition, the records required by the Regulation, including contracts, must be kept for 7 years.
Rob Kennaley & Krista McKenzie
Kennaley Construction Law
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.