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The Province of Ontario recently passed two new regulations on December 4, 2019. These include Ontario Regulation 406/19 (and Ontario Regulation 407/19 (amending O. Reg. 153/04 of the Environmental Protection Act (R.S.O 1990).

Excess Soil is soil that has been dug up, typically during construction and development that cannot or will not be reused on-site.

The intent of the regulations are to:

  • Introduce changes that will make it safer and easier for more excess soil to be reused locally (referred to as the “Excess Soil Regulation”);
  • Limit soil being sent to landfill;
  • Reduces greenhouse gas emissions from the transportation of soil;
  • Reduce barriers to revitalize brownfield lands by streamlining some of the requirements in O. Reg. 153/04
  • A summary of the some of the key changes introduced by is presented below:

    O. Reg. 406/19 - Excess Soils

    • Reuse of Soil - Effective July 1, 2020 the On-Site and Excess Soil Management Regulation clarifies requirements for the reuse and management of excess soil, including risk-based standards for safe reuse. O. Reg. 406/19 also clarifies when the waste designation applies to the movement and disposal of excess soil, and replaces or simplifies waste-related approvals with regulatory rules for low-risk soil management activities.
    • Excess Soil Planning Actions - With some exceptions, managers of projects generating or receiving excess soil will be required, starting January 1, 2022, to conduct Excess Soil Management Actions before any soil leaves the project area, which may include characterizing the soil with laboratory analysis for potential contaminants. It would also include identifying appropriate soil re-use sites and tracking excess soil movements, with information submitted to a public registry.
    • Landfilling of Excess Soil - Starting January 1, 2025, O. Reg. 406/19 will restrict the deposit of clean soil at landfill sites, (unless needed for cover or other functions of the landfill).

    The Government of Ontario anticipates these changes to the regulatory framework will reduce construction costs by making it easier and safer to reuse excess soils locally, and reduce the need for transportation on roads and highways. An online registry for moving larger soil quantities and/or contaminated soils, will provide transparency and accountability for generators, haulers and receivers, helping addressing concerns about illegal soil dumping. A reduction in use of landfilling space is anticipated by redirecting the deposit of soils to none-waste uses.

    O. Reg. 407/19 Amending Ontario Regulation 153/04

    Under O. Reg. 153/04, a Record of Site Condition (RSC) must be filed on the Ministry's public registry if there is a change in property use from an industrial, commercial or community use to a more sensitive use, such as residential, institutional, agricultural, or parkland. The amendments to O. Reg. 153/04 include reduced requirements associated with filing an RSC, such as a reduced need to fully delineate contaminants for properties going through the Risk Assessment process, flexibility on meeting standards in specific circumstances, and removing the requirement for a RSC for specific lower-risk redevelopments. These changes came into effect in January, 2020, and included the following:

    • The extension to private property of the current exemption for salt-related impacts from de-icing activities for public road safety purposes. This means, for example, that soil or groundwater with exceedances of sodium parameters, from application of rock salt to parking lots and driveways, would not need to be delineated and remediated before filing an RSC.
    • The definition of “institutional use” in the Regulation has been changed to include “a building on the property for an indoor gathering of people for religious purposes”. This indicates that the filing of an RSC is no longer required for redevelopment of church properties for residential purposes, or the additional of child-care facilities to existing churches.
    • Allowing the use of the upper floors of some commercial buildings to be converted to residential use, without requiring an RSC filing, provided the property has not been used for vehicle repair, fuel dispensing, drycleaning or other designated uses.
    • Allowing soil in certain areas of Ontario that contains naturally elevated concentrations of substances exceeding the applicable standards, (such as specific metals), to meet the standards for RSC filing purposes without the need for delineation and remediation activities.

    These amendments are aimed to address practical challenges and unnecessary barriers to the redevelopment and revitalization of brownfield sites.

    The above is a brief introduction to the new regulations. Trinity Consultants Ontario Inc. has assisted clients across Ontario with brownfield redevelopment projects, including Phase One and Phase Two Environmental Site Assessments, site remediations, RSC filings, and direct liaison with the MECP on RSC follow-up and audits.