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.
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”. Finally, on Jan. 1, 2026, the grandfathering provision for contracts that existed before the Regulation came into force will cease to apply.
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 where excess soil is produced and deposited:
- Schedule 1 of the Regulation sets out the information required in a project area notice, and Subsection 19(4) sets out the information required in a reuse site notice.
- 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, 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. However, the Regulation does apply to excess soil placed at a pit or quarry for reuse, including for rehabilitation.
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.
 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.”
 Ibid., s. 30(3): “Section 22 comes into force on Jan. 1, 2025.”
 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.
 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)).
 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).
 Ibid., s. 19.
 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…”
 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:…”
 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.
 Ibid., s. 2(1).
 Ibid., s. 2(2).
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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.