Ontario's Proposed Excess Soil Regulatory Regime

The Ministry of the Environment and Climate Change (MOECC) recently released its "Excess Soil Regulatory Proposal," (Proposal) which puts forward the following: (1) enacting a new regulation and amending complementary regulations regarding the management of excess soil; (2) developing new excess soil reuse standards and sampling guidance; and (3) clarifying approval requirements for temporary and processing sites for excess soil. The MOECC has invited public comment on the Proposal until June 23, 2017 through the Environmental Registry website or directly to the MOECC via the contact identified on the Proposal notice. 

What You Need To Know

Under the Proposal, a new regulation, the Excess Soil Reuse Regulation (Regulation), would:

1. define "excess soil" as excavated soil that leaves a project area (a construction or development site);
2. designate "excess soil" as "waste" from the time it leaves the property from which it is excavated to the time it is deposited in accordance with the Regulation (e.g., a final receiving site that meets certain requirements); and
3. impose on many proponents the obligation to prepare an excess soil management plan (ESMP) and to meet certain other conditions prior to moving the excess soil from the project area.

Other Key Takeaways

When Excess Soil Ceases to be Waste

Once excess soil leaves the project area and is designated as waste, the excess soil would be subject to both certain requirements of Part V of the Environmental Protection Act (Waste Management), as well as to new obligations, including related to tracking the transportation of the excess soil. Under the Regulation, excess soil would cease to be considered "waste" when one of the following occurs:

1. the excess soil is from an infrastructure project and is deposited at an infrastructure project belonging to the same proponent;
2. the excess soil is deposited at a final receiving site that is not a waste disposal site and that is governed by a site specific instrument or by-law; or
3. the excess soil is deposited at a final receiving site that is not a waste disposal site and that is not governed by a site specific instrument or by-law, and all of the following criteria are met:

1. the excess soil is deposited at the receiving site in accordance with the MOECC's proposed guidance entitled "Reuse of Excess Soil at Receiving Sites";
2. the excess soil has been used at the receiving site for one of the uses specified in the Regulation, including backfill for an excavation or final grading; and
3. the receiving site is not being used primarily for the purpose of depositing excess soil.

However, excess soil that is hazardous waste would remain designated as waste throughout its lifecycle and be subject to the regulatory requirements associated with hazardous waste.

When an ESMP is Required

In order to ensure the proper management and relocation of excess soil, the Regulation would require a proponent to complete an ESMP if:

1. 1000m3 of excess soil (which is approximately 100 truckloads) will be removed from a "project area," as defined below; or
2. excess soil will be removed from a project area that has or had a potentially contaminating activity that may have affected a planned area of excavation.

According to the Regulation, a "project area" would be defined as "the property owned or controlled by the proponent within which the proponent’s project is undertaken…" If a project is being undertaken on more than one property and the properties are contiguous or would otherwise be considered contiguous except for separation by a road, then the "project area" would also include these properties.

The Regulation also proposes certain exemptions to preparing an ESMP, such as the following circumstances:

1. excess soil leaving a project area in response to an emergency and such response is necessary to reduce specified risks to humans or the environment;
2. excess soil resulting from regular maintenance and repair of infrastructure;
3. projects generating less than 100m3 if the excess soil is going to be sent directly to a waste disposal site;
4. excess soil transfers between infrastructure projects with the same proponent; or
5. excess soil is removed from a project area that is on Crown land.