Ontario’s new regulation for excess soil—what does it mean for you?
January 28, 2020
January 28, 2020
If you’re a municipality or a developer, this regulation will change how you must approach excess soil
UPDATE: On June 12, 2020, the Ministry of Environment, Conservation and Parks announced that the implementation of requirements under the new Excess Soil Regulation (O.Reg. 406/19) will be delayed from July 1, 2020 to January 1, 2021. For full details on the changes, please read the MECP’s Bulletin here.
When you walk past a construction site, you probably think about the new building going up. What will it be? How long will construction take? What will the building look like? Chances are, you don’t think about the soil that was dug out of that site to make way for the development. But, if you’re a developer or a municipality in the Province of Ontario, you’ll need to start thinking about that soil—and what will happen to it—in a very different way. That’s because Ontario’s Ministry of the Environment, Conservation and Parks (MECP) is implementing regulatory changes that will “…make it safer and easier for industry to reuse more excess soil locally.”
According to the MECP, these regulatory changes have been put in place to achieve a few things, including:
Ideally, the regulation will also promote the establishment of local soil reuse sites, which will reduce soil relocation costs and lower greenhouse gas emissions associated with excess soil movement.
Essentially, the new regulation has two main objectives: First, to promote the beneficial reuse of excavated soil (for example, from development sites or infrastructure projects). And second, to ensure contaminated soil doesn’t end up on clean sites. No one wants to see headlines about soil contaminated with hydrocarbons or metals being dumped on rural properties.
So, what will these regulatory changes mean for you? If you’re a municipality managing a development or infrastructure project, or you’re a developer undertaking a project, this regulation will change how you must approach excess soil.
Prior to these new provincial regulations, it was largely up to municipalities to develop their own bylaws related to excess soil, and to set minimum quality standards for soil reuse. A municipality’s main motivation in establishing a fill bylaw was to prevent the illegal dumping of contaminated soil. Beneficial reuse of clean soil wasn’t necessarily on the radar.
Now, with the phasing in of the new provincial regulation, the need for fill bylaws is reduced. The provincial regulation outlines specific requirements for soil quality, as well as the process by which to confirm and document soil quality, and identify appropriate receiving sites. This means there will be uniformity in how excess soil is handled across the province. This new regulation is also designed to encourage project owners to manage soil in a beneficial way. For example, instead of landfilling clean soil because it’s quick and easy, owners could send their soil to sites that require soil for lifting grades and landscaping.
For many developers, removing soil from a site often comes down to doing it as quickly and as cost-effectively as possible. The problem with that approach, however, is that it can lead to contaminated soil ending up where it doesn’t belong.
Prior to these new provincial regulations, unless a developer was working on a known contaminated site, very limited soil testing was required to support soil reuse or disposal. Typically, the default position was to assume all soil coming from development sites was clean. Often, developers would undertake “like-to-like” transfers of soil from one site to another. For example, if one developer needed to dig out soil to make room for basements in a residential development, they might send the excavated soil to another developer who needed soil to increase the grade at another building site. This way—unless you were a developer working on contaminated or brownfield sites—testing was limited and transfers were easy.
In order to keep these new processes cost effective, developers should consider soil and its reuse much earlier in a project’s planning phase.
So, what will change? Under the new provincial guidelines, quality and testing requirements for excess soil will become much more stringent. As the regulation phases in, disposal options will also become more restricted. So, if you have a project that will create excess soil, you will need to understand the sampling requirements, reuse standards, and disposal options.
In order to keep these new processes cost effective, developers should consider soil and its reuse much earlier in a project’s planning phase. As such, it will be essential to incorporate the newly required sampling and testing into your overall plan.
While these new regulations may generate confusion in the short-term, they will provide the construction industry with much needed clarity on appropriate soil management practices and generate additional opportunities for beneficial soil reuse by providing all parties with a clear process to support it. Again, the intention of the new MECP regulations is to treat excess soil as a valuable resource, facilitating the beneficial reuse of clean fill and proper disposal of contaminated soil.
These new regulations will be phased in over the coming years, with the new standards coming into force July 1, 2020 and the planning requirements following on January 1, 2022. Municipalities and developers shouldn’t wait to build consideration of these regulations into their approach. Factoring these new regulations into the design process at the planning stage can save time and costs.
To learn how to get started, contact Krista Barfoot or Tiana Robinson.