Construction and Infrastructure Law in Canada Blog

Ontario proposes amendments to requirements under the Excess Soil Regulation for Ontario’s construction sites

Nov 28, 2022 6 MIN READ
Authors
Andrew Wong

Partner, Commercial, Toronto

Jennifer Fairfax

Partner, Litigation; Regulatory, Indigenous and Environmental, Toronto

Marleigh Dick

Associate, Disputes, Toronto

Sneha Ajai

Associate, Employment and Labour, Toronto

Construction site

On November 3, 2022, the Ministry of the Environment, Conservation and Parks (the Ministry) proposed amendments to the Excess Soil Regulation (O. Reg. 406/19: On-Site and Excess Soil Management) under the Environmental Protection Act (the Regulation), which was initially finalized in 2019 and set to be implemented in phases. As stated by the Ministry, these amendments are aimed at making the Regulation more practical and focused on higher-risk movements of soil while easing requirements for low-risk projects.

In this blog post, we discuss the proposed changes to the Regulation, as well as the ongoing temporary suspension or “pause” of certain requirements of the Regulation.

For more information about Ontario’s phased implementation and details of the Regulation, including filing requirements in the Registry and compliance obligations, see our previous blog post.

Deferred implementation – the “pause”

In our previous blog post, we had discussed the phased transition of the Regulation, with the second phase set to come into effect starting on January 1, 2022.

However, on April 21, 2022, the Ministry implemented a temporary suspension of the provisions that had already come into effect on January 1, 2022. This “pause” – until January 1, 2023 – was implemented to provide municipalities and other stakeholders more time to understand the requirements and improve effective implementation of the Regulation.

The provisions that were temporarily suspended until December 31, 2022, related to:

  • The requirements for project leaders, operators of residential development soil depots and owners and operators of reuse sites to file and update notices in the Excess Soil Registry (the Registry) (implemented and operated by the Resource Productivity and Recovery Authority (the RPRA)); and
  • Other requirements with respect to preparing assessments of past uses of project areas, preparing sampling and analyses plans and soil characterization reports, preparing excess soil destination assessment reports, and developing and applying a tracking system for transportation and deposit of excess soil at a reuse site, all in accordance with the Rules For Soil Management And Excess Soil Quality Standards [PDF] (the Soil Rules).

Despite the implementation of this “pause” on the requirements for filing and updating notices in the Registry, on April 25, 2022, RPRA announced that the Registry will remain open during the temporary suspension for both existing users who have already registered and reported through the Registry, as well as for new users who plan to register this year. RPRA also released training materials to help stakeholders access and use the Registry.

The proposed amendments to the regulation

The proposed amendments were introduced on November 3, 2022 in order to, in the Ministry’s words, ensure a more practical approach for stakeholders. The Ministry “heard specific concerns from some stakeholders on the impact of the Regulation on low-risk projects and that specific storage requirements are impractical.”

If filed, the proposed amendments would, among other things:

  • Remove reuse planning requirements for certain low-risk projects, such as those where the project area is used, or was most recently used, for an agricultural, residential, parkland or institutional (e.g., schools) purpose, as defined in the Records of Site Condition Regulation (O. Reg. 153/04). These reuse planning requirements include filing a notice in the excess soil registry, and retaining a qualified person to prepare an assessment of past uses, a sampling and analysis plan and a soil characterization report, and an excess soil destination assessment report, as well as implementing a tracking system.
  • Amend the Soil Rules document, incorporated by reference in the Regulation, to allow soil storage piles to be a maximum of 10,000 cubic metres, as opposed to the previously determined maximum of 2,500 cubic metres.

Outcome of the proposed amendments

These amendments are proposed to come into effect on January 1, 2023 in accordance with the “pause” implemented on April 22, 2022. The comment period for these proposed amendments concludes December 3, 2022, and it is anticipated that they will be enacted.

Exempting low-risk projects from soil reuse planning would allow stakeholders to save on time and costs relating to, for example, registration, filing and updates and documentation. Increasing the permissible size for soil storage on-site will also reduce logistical costs in moving excess soil off-site when on-site storage is limited.

However, potential exceptions to the exemptions for low-risk projects will need to be sorted through. For instance, if a project area on residential land was previously used as an enhanced investigation area, or if a project area is impacted by historical contamination, the reuse planning requirements will still need to be followed.

Some takeaways

The Regulation has been the subject of multiple rounds of changes over the prior years as a result of stakeholder consultation and feedback on the practicality of the requirements, the confusion regarding implementation, and the very technical details involved in determining when the requirements may be engaged.

The Ministry appears to recognize that the Regulation may benefit from some further clarity, since the proposal mentions that “opportunities may be taken to clarify … the triggers for the reuse planning requirements and to clarify the scope of remediation projects subject to these requirements.”

Stakeholders, including owners, proponents, developers, consultants and contractors, need to be aware of the requirements in the Regulation, and ensure that their contract documents include sufficient language requiring compliance and, in that regard, set out their respective environmental -related obligations with respect to the project.

Ensuring the scope of work relating to excess soil is clearly delineated in the contract documents can help minimize duplication among the players on a project and clarify the role played by each project participant. Duplication of project tasks can lead to confusion and mis-coordination on a project site, which can lead to compliance requirements being “missed”.

Missing compliance requirements could have material consequences for a person who is a “Project Leader” for purposes of the Regulations. The Project Leader is defined in Section 1 of the Regulation as the person or persons who are ultimately responsible for making decisions relating to the planning and implementation of the project. Currently, little guidance exists regarding who would be the Project Leader, although the Ministry’s factsheet on Excess soil management and reuse requirements for project areas has clarified that a Project Leader is “the proponent” for a project and will ultimately decide how the excess soil will be managed. Additionally, the RPRA’s Excess Soil Project Area Training Guide [PDF] (Guide) outlines the description of a Project Leader(s) and its role in relation to the Registry. The Project Leader could be the owner of the property or a tenant that is developing the property.  While the Project Leader may delegate its responsibilities to a contractor, compliance still ultimately rests with the Project Leader.

It is important to have clear contractual arrangements in place if a Project Leader intends to engage others to complete any requirements on its behalf. As a result, take the time now to review your contract documents, ensure there are sufficient checks in place on your projects so that stakeholders are complying with their delegated tasks, and contact experienced legal counsel on these matters before the Ministry presses “play” on the Regulation in January 2023.

On December 9, 2022, O. Reg. 555/22 was filed, which amends O. Reg. 406/19, as discussed above.

As Ontario’s regulatory frameworks for local soil and brownfields continue to be developed, Osler will continue to provide updates and guidance to industry players.

For more information on best practices for staying regulatorily compliant, see our Regulatory, Environmental, Indigenous and Land, as well as our Environmental Disputes, Investigations and Enforcement, practice pages.