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Ontario’s new excess soils regulation: What do infrastructure owners need to know?

March 03, 2020

By Tiana Robinson and Krista Barfoot

Learn about the special considerations for certain infrastructure projects to manage and reuse the 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.

Highways. Transit lines. Water distribution systems. Pipelines. New infrastructure projects like these can be essential to keep communities functioning. But these projects also have something else in common: they can produce excess soil during construction and/or maintenance. Starting in July, a new regulation will have unique impacts on what must happen to that soil. Whether you’re a developer, municipality, or private infrastructure owner, generators of excess soil in the province of Ontario have always had a responsibility to make sure they manage, handle, and place the soils in an environmentally responsible manner. So, what’s changing?

In our first blog in this series, we looked at the major impacts for municipalities and developers. In this second blog, we’ll specifically explore the impacts on infrastructure projects. To recap: The Ontario Ministry of the Environment, Conservation, and Parks (MECP) has introduced a new regulation that clarifies the rules around managing excess soils and achieves several objectives:

  1. Recognizing excess soil as a valuable resource
  2. Reducing clean excess soil going to landfill as waste
  3. Setting clear rules to govern soil reuse
  4. Preventing inappropriate disposal of contaminated soil

Ideally, the regulation will also promote the use of local soil reuse sites, which will reduce soil relocation costs and lower greenhouse gas emissions associated with excess soil movement. According to the new regulation, infrastructure includes public highways, transit lines and railways, oil & gas pipelines, sewage collection systems, water distribution systems, stormwater management systems, electricity management systems, telecommunications lines and facilities, and associated right of ways.

The intention of the new MECP regulations is to treat excess soil as a valuable resource.

So, what’s changing for infrastructure owners?

Many infrastructure owners need to manage various quantities of excavated soil as part of maintenance or construction activities. Historically, this work has typically included a basic level of due diligence efforts, such as desktop reviews and limited soil sampling, in order to identify appropriate receiving sites for the excavated material.  

To keep these new processes cost effective, infrastructure owners should consider soil and its reuse much earlier in a project’s planning phase.

So, what will change? Under the new provincial regulation, quality and testing requirements for excess soil are 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.

To keep these new processes cost effective, infrastructure owners should consider soil and its reuse much earlier in a project’s planning phase. It will be essential to consider the new sampling and testing requirements—and various exemptions—in the development of the overall project strategy.

It will be essential for infrastructure owners to consider the new sampling and testing requirements—and various exemptions.

Are there any special considerations for infrastructure owners?

Yes! As infrastructure projects often have unique needs (e.g., limited space onsite for managing soil, generation of liquid soil, regular maintenance requirements, etc.), there are special considerations for certain infrastructure projects that allow owners greater flexibility to manage and reuse the soil. These are reviewed in more detail below:

  • Infrastructure owners have an indefinite period of time to place excess soil for final reuse at infrastructure projects
  • The regulation allows more than 10,000 cubic metres of soil to be accepted at a reuse site related to an infrastructure project without triggering the need to register the site on the public registry
  • The regulation also makes allowances for selected processing methods (i.e., passive dewatering, solidification) of excess soil at the generation sites and at waste transfer stations owned by infrastructure project leaders to assist infrastructure owners with soil management and transportation requirements unique to each project
  • Construction managers and infrastructure owners should note that there are special considerations for testing and managing materials generated from the maintenance of stormwater management ponds, including specific sampling and handling requirements
  • Clauses in the regulation provide relief from the planning and sampling/analysis requirements for: work related maintenance/repair of infrastructure (except stormwater management ponds), or movement of soil from one infrastructure project for reuse at another infrastructure project with the same owner. These are to facilitate the regular maintenance/repair of infrastructure and to encourage the beneficial reuse of soil between infrastructure projects
  • While not necessarily specific to infrastructure owners, there are also exemptions from the planning requirements related to small volume soil movements, the generation and reuse of topsoil, and movement of soil from low-risk sites that may be applicable to infrastructure works.

New infrastructure projects can produce excess soil during construction and/or maintenance.

What’s next?

While these new regulations may generate confusion in the short-term, they will provide the affected industries 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.

Infrastructure owners 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 us.

  • Tiana Robinson

    A principal and senior contaminant hydrogeologist, Tiana conducts and manages environmental site assessments and works on remediation and spill response projects.

    Contact Tiana
  • Krista Barfoot

    Focused on strategic site planning, vapor intrusion assessment, and risk assessment and management, Krista has worked on chemistry, toxicology, geology, and ecology projects on several large, high-profile brownfield sites in Ontario.

    Contact Krista
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