Ontario excess soil registry requirements take effect Jan. 1, 2022

Written by Alex Sadvari, Gowling WLG (Canada) LLP

The next phase in Ontario’s new excess soil regime is fast approaching. The Excess Soil Registry website goes live on Dec. 1, 2021 and the requirement to submit notices to document and track excess soil takes effect on Jan. 1, 2022.[1]

Many of the requirements for the handling and reuse of excess soil under the On-Site and Excess Soil Management Regulation, O. Reg. 406/19 (the “Excess Soil Regulation” or the “Regulation“) are already in force. The implementation of the tracking system is the next step and is intended to ensure that each regulated project’s soil reaches its preapproved soil reuse destination(s).

Background on the Excess Soil Regulation

In December 2019, the Ministry of the Environment, Conservation and Parks (“MECP“) released the Excess Soil Regulation under the Environmental Protection Act. The Ministry was concerned that clean soil from construction sites was being wasted and that contaminated soil was not being tracked. As a result, the Regulation requires both soil sampling and tracking, so that clean soil excavated from one site in Ontario is reused beneficially at another site in Ontario, and contaminated soil does not end up at a soil reuse site.

The Regulation adopts by reference a document setting out risk-based rules and standards for excess soil: Rules for Soil Management and Excess Soil Quality Standards, which is divided into two parts: “Part 1: Rules for Soil Management” and “Part II: Excess Soil Quality Standards” (referred to in the Regulation as the “Soil Rules” and the “Excess Soil Standards“, respectively).

Under the Regulation, a Qualified Person (“QP“), is required to assess the quality of excess soil, through sampling and analysis, as well as soil characterization, and determine potential reuse. In order to promote increased reuse of excess soil, the Regulation also allows a QP to develop site-specific standards for a reuse site and incorporates by reference a Beneficial Reuse Assessment Tool.

In drafting the Regulation, the Ministry took a phased approach so that different requirements come into effect at different times. The first phase, which includes the majority of the requirements, came into effect on Jan. 1, 2021. As noted above, we are now about to enter the second phase which requires soil tracking in the Excess Soil Registry as of Jan. 1, 2022.

The third phase is intended to take effect on Jan. 1, 2025 with additional restrictions on depositing soils at a “landfilling site or dump”.[2] Finally, on Jan. 1, 2026, the grandfathering provision for contracts that existed before the Regulation came into force will cease to apply.[3]

The Excess Soil Registry: What you need to know

  • Excess soil tracking using the Excess Soil Registry is required as of Jan. 1, 2022.
  • You can access the Excess Soil Registry online as of Dec. 1, 2021 and begin filing your notices ahead of the Jan. 1, 2022, effective date.
  • The filing fees are not yet finalized, but the fee proposal is posted here.
  • Project leaders, and owners and site operators of reuse sites must use the Excess Soil Registry to file (or assign an authorized person to file) notices for sites[4] where excess soil is produced and deposited:
    • a project leader must file a project area notice when a project generates 100 m3 or more of excess soil;[5] and
    • an owner or operator of a soil reuse site receiving 10,000 m3 or more must file a reuse site notice.[6]
  • Schedule 1 of the Regulation sets out the information required in a project area notice,[7] and Subsection 19(4) sets out the information required in a reuse site notice.[8]
  • The Resource Productivity & Recovery Authority (the “RPPA“) developed and will operate the Excess Soil Registry, but the Ministry will continue to be responsible for compliance with and enforcement of the Excess Soil Regulation.
  • The RPPA has a helpful FAQs page to assist with the Excess Soil Registry and has been offering training sessions.
  • As noted above, the threshold for project registration is generally 100 m3,[9] i.e., proponents of projects that generate 100 m3 or more of excess soil that cannot be reused onsite, are required to submit the required notices, unless the project fits under one of the exemptions under the Excess Soil Regulation.
  • Non-application provisions are set out in Section 2 of the Regulation and exemptions from registration are set out in Schedule 2. For example, the Regulation does not apply to the operation of a pit or quarry, including the excavation of topsoil, under the Aggregate Resources Act.[10] However, the Regulation does apply to excess soil placed at a pit or quarry for reuse, including for rehabilitation.[11]

Next steps

If your soil excavation activities are already caught by the Regulation and you are ultimately responsible for making the project decisions (i.e., the “project leader”), then you should become familiar with the Excess Soil Registry now and start submitting notices as soon as possible before the notice and tracking requirements come into effect on Jan. 1, 2022.

If you are not sure if your activities are caught, and you think that they may fall under one of the non-application provisions or exemptions, we invite you to contact Gowling WLG to determine your obligations under the Regulation and whether you need to register. We would also be happy to assist with reviewing and amending construction contracts to incorporate the Regulation requirements, where applicable.


[1] On-Site and Excess Soil Management Regulation, O. Reg 406/19, s. 30(2) (the “Excess Soil Regulation” or the “Regulation“): “Sections 8 to 16 and 19 and subsections 29 (2) and (3) come into force on Jan. 1, 2022.”

[2] Ibid., s. 30(3): “Section 22 comes into force on Jan. 1, 2025.”

[3] Ibid., s. 30(4): “Subsection 29 (1) comes into force on Jan. 1, 2026” and will replace subsection 8(2) which exempts project leaders from registration “in respect of a project and its project area” if the project leader entered into a soil management contract before Jan. 1, 2021.

[4] In the Regulation, a “project” is defined very broadly as “any project that involves the excavation of soil and includes, (a) any form of development or site alteration, (b) the construction, reconstruction, erecting or placing of a building or structure of any kind, (c) the establishment, replacement, alteration or extension of infrastructure, or (d) any removal of liquid soil or sediment from a surface water body” and “project area” is defined as “a single property or adjoining properties on which the project is carried out” (Ibid., s. 1(1)).

[5] A “project leader” is defined as “…the person or persons who are ultimately responsible for making decisions relating to the planning and implementation of the project” (Ibid., s. 1(1)). Subsection 8(1) of the Regulation sets out the requirement for a project leader to file a notice with the information set out in Schedule 1. Exemptions from the requirement to register and file notices are set out in Schedule 2 (Ibid., s. 8(2)). As long as you excavate and remove less than 100 m3 of soil then you do not need to register as long as: “[t]he excess soil is directly transported to a waste disposal site that is not a Class 2 soil management site” or “[t]he soil is being deposited at a local waste transfer facility” (Ibid., Schedule 2, ss. 2 and 7).

[6] Ibid., s. 19.

[7] Ibid., Schedule 1: “INFORMATION TO BE SET OUT IN NOTICE (SECTION 8 OF THE REGULATION)”, which includes “1. A description of the project. 2. A description of the project area… 3. The name, mailing address, postal code, telephone number and email address of each project leader for the project… 8. An estimate of how much excess soil will be removed from the project area, broken down by any applicable Table in the Excess Soil Standards that the excess soil meets, if it is to be finally placed at a reuse site… 10. The location of each Class 2 soil management site and local waste transfer facility at which excess soil is intended to be deposited and temporarily managed… 14. The location of each Class 1 soil management site, landfilling site or dump at which excess soil is intended to be deposited… 16. A declaration by the project leader…”

[8] As of Jan. 1, 2022, “hauling records” are also required under s. 18 of the Regulation: “18. (1) A person who is operating a vehicle for the purpose of transporting excess soil shall ensure that a record including the following information is available at all times during the transportation:…”

[9] Ibid., Schedule 2, ss. 2 and 7, as long as the other conditions under these subsections of Schedule 2 are met as set out in the footnote above.

[10] Ibid., s. 2(1).

[11] Ibid., s. 2(2).


NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.

 This article was published with the permission of Gowling WLG LLP.  It was first published here on the Gowling WLG (Canada) website.

About the Author

Alex Sadvari is a lawyer in Gowling WLG‘s Toronto office, practising in the areas of environmental, land use planning, and development law. She advises corporate, municipal, and Indigenous clients, providing strategic regulatory advice and representation. Gowling WLG has more than 1,500 legal professionals and a presence in Canada, the UK, Europe, the Middle East, Asia and South America. The firm provides clients with in-depth knowledge in key global sectors and a suite of legal services at home and abroad.

$1-Million Grand Prize Winner of “Women in Cleantech Challenge”

The Honourable Jonathan Wilkinson, Canada’s Minister of Natural Resources, in concert with MaRS, recently announced the $1-million grand prize winner of the Impact Canada Women in Cleantech Challenge: Amanda Hall, Chief Executive Officer and founder of Summit Nanotech, based in Calgary, Alberta.

Founded in 2018, Summit Nanotech is developing a sustainable and cost-effective green lithium extraction process to generate battery-grade lithium to help meet the energy storage needs of the future.

Today’s announcement follows a three-year intensive program that was launched in 2018. Through a national call and expert selection process, six women were chosen from nearly 150 applicants to receive a range of supports as they advanced their technologies and built their companies. In addition to business supports and advisory services provided by MaRS, each finalist received up to $250,000 in federal laboratory support and an annual stipend to help offset living and travel costs so they could focus on building their businesses. The grand prize winner of the Women in Cleantech Challenge was selected through a competitive and rigorous process designed and delivered by MaRs.

In her remarks accepting the award, Ms. Hall said, “The Women in Cleantech Challenge positioned my company for growth. The support provided to develop our technology and scale our business needs was critical to gain credibility and attract investors.”

The Women in Cleantech Challenge is one of six cleantech challenges that are part of the Impact Canada Cleantech initiative. The challenges were designed to help address some of the most pressing environmental problems. Since 2017, Natural Resources Canada has invested $75 million in six initiatives, including Women in Cleantech, The Sky’s the Limit, Power ForwardCrush It!Indigenous Off-diesel Initiative and Charging the Future.

Women are a powerful force in Canada’s innovation economy but are significantly underrepresented. Empowering women to succeed in Canada’s cleantech sector will help bring the needed diversity of thought to yield real technological answers for some of the biggest global problems.

Yung Wu, Chief Executive Officers of MaRs, said, “The Women in Cleantech Challenge was designed to help mitigate the gender imbalance in cleantech and to scale six new high-potential cleantech companies, led by women. It is my pleasure to congratulate the grand prize winner, Amanda Hall.”

 

 

ONEIA Board Nominations deadline for applications is December 2nd

ONEIA is now accepting applications from those who occupy senior positions at member companies and are interested in serving on our board for the 2022-2025 term.  Our current board of 15 members is made up of industry leaders who also serve on ONEIA committees, attend our events and support a strong voice for our industry and its concerns.

If you would like to make a contribution to your industry and to ONEIA, we would be pleased to add your name to the roster being considered by the nominations committee.

Please forward your CV, and a letter expressing interest which outlines how you could support the work of ONEIA, to Janelle Yanishewski, Operations Manager, at info@oneia.ca, prior to December 2, 2021. For a sample of what this letter may look like, please contact [email protected] and we can send you a template.

For more information, please contact Denise Lacchin, Chair of the Nominations Committee at [email protected]