April 22, 2022
Ontario Formally Suspends the Reporting and Record Keeping Requirements of its On-Site and Excess Soil Regulation until January 1, 2023
On April 21, 2022, the Ministry of the Environment, Conservation and Parks (MECP) announced its decision to suspend the compliance requirements of the On-Site and Excess Soil Regulation, O. Reg. 406/19 that came into effect on January 1, 2022, until January 1, 2023. The suspension had been in the works for some time, and is not a surprise. To recall, the first phase of the Regulation 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 detailed, complicated and very different from what has come before. Subject to certain exceptions, the Regulation applies to all “projects” (broadly defined) and places strict responsibilities on “project leaders”, generators, haulers and receivers of surplus, or “excess”, soils in Ontario.
The possible exemptions to the Regulation are numerous and often technically complicated. Significantly, the new regime also requires a substantial amount of materials testing, and enhances the role of “qualified persons” in the assessment, processing and placement of excess soils. These requirements impose an unavoidable premium on pre-planning if projects involving soils removal are to come in on time and on budget. For a detailed review/ practical guide in relation to the Regulation, see our prior articles published here and here.
The rules relating to reuse and placement came into force as at January 1, 2021, while the notice and documentary tracking requirements originally came into force on January 1, 2022. Overly simply put, the regime established by the Regulation remains in force, but the reporting and record keeping requirements will now be suspended until January 1, 2023.
A good summary of the Ministry’s rationale for the suspension is available here. One stated purpose of the suspension is to provide additional time for stakeholders to understand and implement the Regulation, and coordinate the implementation across organizations. In this regard, there is no question that many municipalities, institutional owners and developers were not ready for the new reporting and record keeping requirements. The suspension will give such entities some breathing room to better prepare for the new regime. Significantly, however, the Ministry has also stated that the suspension is intended to “provide an opportunity to consult on refinements” to the new requirements, “to ensure they are clear, practical, and focused to circumstances for which they are most necessary”. In this regard, we understand that many stakeholders have raised concerns about the amount of soils testing required for the purposes of the Regulation, and we anticipate that these requirements may be altered somewhat.
In the meantime, owners, contractors and trades who are or will be involved in projects where soils might need to be removed from site should take advantage of the breathing room provided by the suspension to better understand the Regulation. On the one hand, this will help participants manage the risks of the delays, increased costs and potential penalties associated with being unprepared. On the other, of course, the new regime provides opportunities that are ripe to be taken advantage of, be it in providing support services for the processing and placement of excess soils or the ability to develop efficient processes to meet the Regulation’s requirements, to save project costs and increase profit.
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.