Introduction

Ontario is committed to setting clear rules supporting appropriate reuse of excess soils, and to working with municipalities and other law enforcement agencies to help put a stop to the illegal dumping of excess soil.

To support these efforts, in 2019 we finalized a new excess soil regulation, supported by risk-based soil reuse standards, to make it easier and safer for industry to reuse more excess soil locally. The regulation is being phased in over a number of years.  The majority of changes are already in place and the latest changes came into effect on January 1, 2022.

To help municipalities, organizations building civic, community and green infrastructure, and job creators more time to properly implement the most recent phase of provisions and better understand the recent requirements, we are proposing to pause the implementation of these provisions that came into effect on January 1, 2022 by one year, to January 1, 2023. 

In the meantime, our regulatory framework under the Excess Soil Regulation (O. Reg 406/19: Onsite and Excess Soil Management) as it was in effect before January 1, 2022 continues to apply, and the Ministry of the Environment, Conservation and Parks (ministry) will continue to act on non-compliance to ensure our environment is protected.

About the Excess Soil Regulation

Finalized in 2019, the Excess Soil Regulation:

• recognizes excess soil as a resource
• provides clear rules to support beneficial reuse of excess soil and to help address issues of illegal dumping

This regulation also supports greater local reuse of excess soil which reduces soil sent to landfill, greenhouse gas emissions from transportation and can reduce overall soil management costs. 

The Excess Soil Regulation began to be phased in on January 1, 2021. At that time criteria were established to determine whether excess soil is waste or a resource for reuse. This also included risk-based excess soil reuse standards and rules related to soil reuse and management. These standards and rules introduced clarity and flexibility for excess soil reuse and management that did not exist before this time, including clear exemptions from the need for approvals for some management activities.

On January 1, 2022, provisions came into effect that require some project areas to complete actions to help plan and demonstrate appropriate excess soil reuse, including registration in a public registry of reuse sites used. Where projects are required to register, an assessment of past uses must be completed and, if necessary, a sampling and analysis plan and soil characterization report, as well as a destination assessment report and the development and implementation of a soil tracking system.

As of January 1, 2022, registration was also required for reuse sites and residential development soil depots, and a hauling record was required to accompany excess soil in transport.

Proposed implementation pause

We know that organizations have worked hard to implement the Excess Soil Regulation. However, this process is an ongoing effort and additional time will help organizations to:

• better understand the requirements
• implement appropriate soil management processes, and
• further coordinate with other parties involved in these processes to ensure a common understanding of responsibilities and related best practices

We are proposing amendments to the Excess Soil Regulation that would pause the implementation of provisions that came into effect on January 1, 2022 until January 1, 2023. January 1, 2023 would become the new date that these provisions would once again come into effect. More specifically, this pause would apply to:

• Sections 8 to 16 of the Excess Soil Regulation which are related to excess soil reuse planning and includes provisions associated with:
  • the excess soil registry and filing a notice in the registry
  • completion of an assessment of past uses
  • completion of a sampling and analysis plan and soil characterization report (if it was necessary)
  • completion of an excess soil destination assessment report
  • implementation of a tracking system related to the movement of excess soil
• Section 18, related to hauling records (this section would revert to requirements in place before 2022 to make hauling information available verbally on request)
• Section 19, related to large reuse site registration and requirements for procedures to assess the quality of the soil being received and ensure proper placement of soil
• Paragraph 6 of subsection 7(1), related to the registration requirements for residential development soil depots

This implementation pause would not affect provisions in the Excess Soil Regulation that were in effect as of January 1, 2021. This includes:

• the criteria defining excess soil as a resource for reuse, and not designated waste, if they are met
• the related excess soil reuse standards and rules, and exemptions from the need for waste-related approvals in various circumstances

During the pause period that is proposed, the ministry would have an opportunity to consult on refinements to the provisions of the Excess Soil Regulation that are proposed to be paused, if necessary, to ensure they are clear, effective, practical, and focussed to circumstances most necessary to support sustainable soil management across the province.

Regulatory impact statement

Pausing the implementation of provisions that came into effect January 1, 2022, including the excess soil reuse planning requirements such as mandatory sampling in some circumstances, would:

• provide time for more understanding and consistent implementation of the Excess Soil Regulation, and coordination across organizations
• provide an opportunity to make some adjustments, if necessary, to improve the effectiveness and overall efficiency of the Excess Soil Regulation, and to focus application of the reuse planning requirements to circumstances where they are most beneficial

The basic provisions of the Excess Soil Regulation, specifically with respect to determining when excess soil is designated as a waste or not, would remain in effect. This includes the excess soil reuse standards. This aspect of the Excess Soil Regulation would continue to help to provide for compliance and enforcement during the period up to January 1, 2023, when the requirements would once again come into effect.

With this proposal being a time-limited pause of the planning and registration requirements, it is expected that parties affected by the Excess Soil Regulation would continue to work towards the implementation of these provisions, including working with qualified persons and reuse sites to determine appropriate levels of soil assessments to inform the appropriate reuse of excess soil.