The Ministry of the Environment, Conservation and Parks (MECP) is proposing to amend O. Reg. 406/19: On-Site and Excess Soil Regulation (“Excess Soil Regulation”). To make the rules more practical and focused on higher-risk movements of soil, the ministry is proposing changes to reduce requirements applicable to low-risk projects, and to provide more flexibility when storing excess soil.

In 2019, MECP 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 regulations are being phased in over several years.

In April 2022, to help give developers and municipalities more time to better understand their responsibilities under the regulation, MECP paused the implementation of the provisions that came into effect on January 1, 2022, until 2023, including provisions related to registration, sampling, analysis and tracking of excess soil. The requirements that were paused will come back into effect on January 1, 2023.

“While there has been general support for the Excess Soil Regulation, we heard specific concerns from some stakeholders on the impact of the regulation on low-risk projects and that specific storage requirements are impractical,” the MECP states on its website.

To help ensure the regulation is effective and practical, MECP is now proposing the following amendments and changes:

Removing reuse planning requirements from low-risk projects

Under the Excess Soil Regulation, as of January 1, 2023, reuse planning requirements would be required for some projects, including filing a notice in the excess soil registry, retaining a qualified person to prepare an assessment of past uses, if necessary, a sampling and analysis plan and a soil characterization report, and an excess soil destination assessment report, as well as implement a tracking system.

Projects on low-risk sites, such as land that has been used for agricultural or residential purposes, may be triggered to complete these requirements if they are within an area of settlement and intend to remove 2000 cubic metres or more of excess soil. In response to concerns that these requirements are too onerous for low-risk projects, the following is proposed.

• To amend the Excess Soil Regulation such that the reuse planning requirements would not apply to a project area if it is used or was most recently used for an agricultural or other use, a residential use, a parkland use, or an institutional (e.g., schools) use, as defined in the Records of Site Condition Regulation (O. Reg. 153/04).
• As a consequence of this amendment, Section 14 of the Excess Soil Regulation would be revoked because it would no longer be necessary.
• This exemption would not apply, however, to a project area if the project leader determines that the project area was used as an enhanced investigation project area or that it is impacted by historical contamination.
• As part of this proposal, opportunities may be taken to clarify in the regulation the triggers for the reuse planning requirements and to clarify the scope of remediation projects subject to these requirements.

Soil storage amendment

In Section C of the Soil Rules document, incorporated by reference in the regulation, the general soil storage rules state that, for the purposes of Section 24 of the regulation, soil must be stored in stockpiles and the maximum size of each stockpile shall not exceed 2,500 cubic metres. This has been found to be limiting by some stakeholders depending on the size of their site. In response, the following amendment is proposed:

• Amend the Soil Rules document to allow soil storage piles to be a maximum of 10,000 cubic metres. Other soil storage rules would continue to apply, including the requirement to prevent any adverse effects from the storage of soil.

These amendments are proposed to come into effect on January 1, 2023. Learn more at the MECP website: ero.ontario.ca.