Ontario Delays the Commencement of the new Excess Soil Regulation

In response to impacts from COVID-19, the Ontario Ministry of Environment, Conservation and Parks (MECP) recently announced it was  delaying implementation of requirements under the new Excess Soil Regulation from July 1, 2020 to January 1, 2021. MECP also stated that they are exempting municipalities and health care providers from filing a Record of Site Condition to develop a temporary health or residential facility for emergency situations.

Delayed implementation of the excess soil regulation

In December 2019, the Lieutenant General in Council made the new On-Site and Excess Soil Management Regulation, O.Reg. 406/19 (excess soil regulation) under the Environmental Protection Act (EPA). The excess soil regulation clarifies rules related to the reuse and management of excess soil, including:

  • standards for appropriate reuse of excess soil
  • when excess soil is designated as a waste
  • when waste-related approvals are required for soil management under Part V of the EPA

The excess soil regulation is being phased in. Some provisions would have come into effect on July 1, 2020. However, in light of the COVID-19 outbreak, the MECP is temporarily delaying the implementation of the new regulation for managing excess soil by six months.

As a result, these provisions are temporarily delayed and will now come into effect on January 1, 2021.

In the meantime, the MECP’s current waste regulatory framework will continue to apply, and the ministry will take action with any non-compliance or to address any concerns as it applies to the management and disposal of excess soil.

The MECP will also continue to work with municipalities and other stakeholders to:

  • understand and implement the regulatory changes
  • encourage early adoption of changes as appropriate

Consequential amendments that were made at the same time as the excess soil regulation to O. Reg. 153/04 (Records of Site Condition), Regulation 347 (General Waste Management) and O. Reg. 351/12 (Waste Management Systems EASR Regulation) are also delayed and will come into effect on January 1, 2021.

Other implementation dates in the excess soil regulation have not changed, including implementation of provisions dealing with the excess soil management planning requirements and the Registry which remain coming into effect on January 1, 2022, as well as other provisions on January 1, 2025. Similarly, the excess soil regulation will continue to grandfather contracts related to excess soil management entered into before January 1, 2021.

Amendment to the Records of Site Condition Regulation

The MECP have also amended O. Reg. 153/04 (Records of Site Condition Regulation), to exempt temporary health facilities or residential facilities that are built on land previously used for community or commercial purposes in response to emergencies declared under the Emergency Management and Civil Protection Act.

Because a temporary health or residential facility is considered a more sensitive use under the EPA, an RSC is required to be filed in the Environmental Site Registry before the facility can be established on property or in a building that is used for a less sensitive use, such as an industrial, commercial or community use.

The work to file an RSC requires:

  • retaining a qualified person
  • conducting one or more environmental site assessments
  • possibly soil remediation

This work can take several months or longer. This would create a significant delay where these temporary facilities are required urgently to respond to a declared emergency.

This exemption would apply to:

  • a temporary facility established in response to the current emergency, such as COVID-19 testing tents or isolated medical structures
  • the establishment of a temporary facility responding to any future declared emergencies, including any future phases of the pandemic

All other requirements that are part of the MECP’s legislative framework, including the regulation of waste management and discharges to the natural environment, would continue to apply to the operation of these temporary facilities, and the ministry will take action in response to environmental concerns, if they emerge.