With the key phase of the excess soil regulation in Ontario now in place (as of January 1, 2023), preparing for and managing excess soil has become of vital importance for construction-related projects in 2023.
For an overview of the Excess Soil Regulations, see our December 22, 2022, blog “Ontario Excess Soil Requirements for 2023.”
Below are some common questions we have seen regarding Excess Soil. This is not comprehensive. We encourage you to read the regulations for a comprehensive understanding of Excess Soil management.
What is Excess Soil?
Excess Soil is surplus soil or soil mixed with rocks at a project site that cannot be reused on site and will need to be transported to another property to be used for a beneficial purpose.
What are the Basics of Managing Excess Soils?
Excess Soil must be managed in accordance with the O.Reg. 406/19. The basics involve the movement of Excess Soils from a source site to a reuse site, which must be tracked and recorded. Depending on the project volume, location, past use, and purpose of soil excavation, managing the Excess Soil may involve testing, reporting, and registration.
Managing Excess Soil in Ontario (O.Reg. 406/19) can play a significant role in construction projects (Image by Siggy Nowak from Pixabay).
Can I reuse the Excess Soil on My Site or Another Site I Own?
Yes, you can reuse the Excess Soil on your site or, in certain cases, on other properties you own. Finding a beneficial reuse for the Excess Soil on site is a desirable outcome. However, reuse of Excess Soil on the project site will involve planning during the project development stage.
Are there Exemptions to the Excess Soils Regulation?
As specified in the regulation, the following are exempted from the Excess Soil Regulation:
- Excavation of soil that is hazardous waste or asbestos waste, both within the meaning of Regulation 347.
- The operation of a pit or quarry from which consolidated or unconsolidated aggregate within the meaning of the Aggregate Resources Act is excavated, including the use and production of recycled aggregate in the pit or quarry.
- The excavation of topsoil in accordance with a permit issued under the Aggregate Resources Act.
- The production of peat from a peat extraction operation.
- The final placement of excess soil on the bed of a surface water body.
What is the Definition of a “Project Leader”?
Project Leader, as defined, means, “in respect of a project, the person or persons who are ultimately responsible for making decisions relating to the planning and implementation of the project…” Note: there can be more than one project leader; but caution should be used in naming more than one project leader to avoid confusion.
The project leader is ultimately responsible for the project and may include filing a notice with the Excess Soil Registry and meeting all regulatory/planning requirements. During the early planning stages, the Project Leader should use diligence in retaining a Qualified Person (QP) with whom they can rely to meet the appropriate obligations in a timely manner.
What “Triggers” the Planning Requirements of the Excess Soil regulation?
Excess soil planning requirements are triggered by a project involving the generation of 2,000 cubic metres or more of Excess Soil within a settlement/developed area (city and towns). It is also required if there is a current or past use involving high environmental risks (for example: gas bar, service garage, dry cleaner, industrial use) or a project involving soil remediation. A QP must be retained to conduct an assessment of past uses of the project area (unless a Phase One ESA under O.Reg. 153/04 has been conducted).
After the assessment of past uses, if concerns regarding possible contamination of the Excess Soil within the excavation areas at the project are identified, there would be additional requirements. These include developing a sampling and analysis plan, conducting soil sampling and analyses, preparing an Excess Soil characterization report, and preparing an Excess Soil destination report. These documents are prepared for the Project Leader.
What are the Other Considerations?
You should also make sure you are complying with any local municipal ordinances that may govern site alteration.
Preparing for Your Excess Soil Project
If not managed properly, projects involving Excess Soils can quickly get out of hand, leading to unnecessary costs, delays, and liability. We strongly encourage you to work closely with a Qualified Professional (QP) that is well versed in the regulations and is a good communicator. If you have questions, please contact Christopher Paré, P.Geo., Q.P. at 519-948-7300, Ext. 114.
This blog was drafted by Alan Hahn. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for 45 years. He has written hundreds of blogs and articles. His published work includes HazMat Magazine, BizX Magazine, Michigan Lawyers Weekly, GreenStone Partners, Manure Manager Magazine, and Progressive Dairy.
This blog was reviewed by Christopher Paré, P.Geo. Chris is a senior geoscientist and manager of Dragun’s Windsor, Ontario, office. Chris has more than 30 years of experience on projects ranging from environmental site assessments (Phase One/Two ESA), excess soils, remedial investigations, soil and groundwater remediation, Permits to Take Water, Records of Site Conditions, vapour intrusion, and site decommissioning. Chris is a frequent speaker, author, and expert witness. See Chris’ bio.
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