Implementation Pause of Excess Soil Requirements in Effect January 1, 2022

ERO number
019-5203
Notice type
Regulation
Act
Environmental Protection Act, R.S.O. 1990
Posted by
Ministry of the Environment, Conservation and Parks
Notice stage
Decision Updated
Decision posted
Comment period
March 11, 2022 - April 10, 2022 (30 days) Closed
Last updated

Update Announcement

We updated the notice on March 14, 2022 to upload the French version of the notice

April 21, 2022

This consultation was open from:
March 11, 2022
to April 10, 2022

Decision summary

Ontario is implementing a temporary suspension of certain provisions in the Excess Soil Regulation that came into effect January 1, 2022, until January 1, 2023. The pause will provide more time to understand the provisions and refine their implementation.

Decision details

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 give job creators, municipalities and other organizations more time to implement and better understand the most recent phase of provisions of the Excess Soil Regulation (O. Reg. 406/19: On-Site and Excess Soil Management, under the Environmental Protection Act), we are temporarily suspending the implementation of the provisions that came into effect on January 1, 2022, until January 1, 2023.

Specifically, the amendments to the Excess Soil Regulation provide a temporary suspension of the following provisions until December 31, 2022:

  • the requirement for the operator of a residential development soil depot to update a notice filed in the Excess Soil Registry (Registry) under subsections 7 (7) and (8)
  • the requirement for a project leader to file a notice in the Registry before removing soil from the project area that will become excess soil under subsection 8 (1)
  • any requirement for a project leader to update the notice filed in the Registry in respect of a project under section 9
  • any requirement related to the preparation of an assessment of past uses under section 11, a sampling and analysis plan under section 12, a soil characterization report under section 12, and an excess soil destination report under section 13
  • any requirement under section 15 where the project leader or operator of the project area or any other person working in the project area becomes aware of a circumstance described in that section.
  • any requirement related to the development and application of a tracking system under section 16
  • any requirement for the owner or operator of a reuse site described in subsections 19 (1) and (1.1) to take the steps described in subsection 19 (3) including filing a notice in the Registry in respect of the reuse site
  • any requirement for the owner or operator of a reuse site to update a notice in respect of the reuse site in the Registry under subsections 19 (6) and (7)

Additionally, the requirement for a hauling record will be deemed to be met if the information described in subsection 18 (1), such as where soil originated and where it is being taken to, is provided verbally to a provincial officer upon request, similar to the requirement that was in effect between January 1, 2021 to December 31, 2021.

Provisions in subsection 7 (1) and (4) are amended such that the requirement for the operator of a residential development soil depot to file a notice in the Registry would not start until January 1, 2023.

Subsections 11 (3) and 12 (6) that enabled soil assessments completed before the January 1, 2022 implementation date and that did not meet all regulatory requirements to be recognized and not repeated, is updated to January 1, 2023. This enables assessments completed during the pause to be recognized for ongoing projects after January 1, 2023.

The pause does not change the contract exemption date by which a project leader must enter into a contract in order to be exempt from reuse planning provisions that come into effect January 1, 2023. The exemption date remains January 1, 2022.

Purpose of the amendments

The changes:

  • provide additional time to stakeholders for greater understanding and consistent implementation of the Excess Soil Regulation and coordination across organizations
  • provide an opportunity to consult on refinements to these provisions, if necessary, to ensure they are clear, practical, and focused to circumstances for which they are most necessary

We will also continue to work collaboratively with stakeholders and Indigenous communities to ensure the Excess Soil Regulation is implemented effectively.

Provisions remaining in effect during the pause

This pause does not affect provisions in the Excess Soil Regulation that were in effect before January 1, 2022. This includes:

  • the criteria used for determining when excess soil is a resource for reuse, and not designated as waste, if they are met
  • the related excess soil reuse standards and rules
  • exemptions from the need for waste-related approvals in various circumstances (e.g. low risk soil management activities)

Amendments to technical document

Amendments have also been made to the Rules for Soil Management and Excess Soil Quality Standards document (Soil Rules), adopted by reference in the Excess Soil Regulation. These amendments are consequential to the regulatory amendments, reflecting the dates of the proposed pause of certain provisions in the regulation until January 1, 2023.

Comments received

Through the registry

148

By email

18

By mail

0
View comments submitted through the registry

Effects of consultation

We received a total of 166 submissions commenting on the proposal. Comments were received from industry, municipalities, consultants, professional organizations, environmental and community groups, Indigenous communities and individuals.

Summary of comments:

  • overall, commentors recognized that greater education and outreach is required to various sectors to help support implementation of the Excess Soil Regulation
  • most municipalities supported the pause to provide additional time for understanding and implementing the provisions that came into effect on January 1, 2022, and for establishing internal processes and procurement procedures for excess soil management
  • developers generally supported pausing the provisions to provide time for understanding and implementation materials to be developed, such as standardized contract language, and to provide an opportunity to consider some amendments to requirements
  • some industry groups raised concerns about pausing an already in-effect regulation, and the resulting confusing and loss of momentum it may cause
  • other industry groups suggested that a pause would allow for additional time for organizations to understand their requirements, but they also stated that many existing contracts already require compliance with these provisions, regardless of a pause
  • some organizations raised concern with a pause as they have invested a significant amount of money into software systems and operational processes in order to be compliant with the January 1, 2022, provisions
  • environmental non-governmental organizations expressed concerns about the potential for illegal dumping, and resulting confusion and implementation issues from the regulated community
  • there were some concerns from Indigenous communities on the potential for illegal dumping in their communities from nearby developments, due to reduced tracking and sampling requirements during the pause
  • some individuals expressed confusion on various aspects of the regulation and requested clarifications

Response:

We considered these comments and decided to proceed with the proposed pause. The temporary nature of the pause will limit some of the concerns raised while providing for the benefits of the pause.

To address concerns about illegal dumping, the ministry will continue using its compliance and enforcement tools regarding any non-compliance with the provisions of the Excess Soil Regulation that continue to remain in effect, and in particular, the provisions for enforcing against illegal dumping (e.g., excess soil designation criteria, consent from reuse site owners, and ensuring appropriate quality of soil at reuse sites).

During the pause, we will continue to:

  • provide education and outreach to stakeholders
  • develop and support further guidance

Additional consultation would be required on any further regulatory changes, if necessary.

Supporting materials

View materials in person

Important notice: Due to the ongoing COVID-19 pandemic, viewing supporting materials in person is not available at this time.

Please reach out to the Contact listed in this notice to see if alternate arrangements can be made.

Land Use Policy, Environmental Policy Branch
Address

40 St. Clair Ave West
10th floor
Toronto, ON
M4V 1M2
Canada

Connect with us

Contact

Laura Blease

Phone number
Office
Land Use Policy, Environmental Policy Branch
Address

40 St. Clair Ave West
10th floor
Toronto, ON
M4V 1M2
Canada

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Original proposal

ERO number
019-5203
Notice type
Regulation
Act
Environmental Protection Act, R.S.O. 1990
Posted by
Ministry of the Environment, Conservation and Parks
Proposal posted

Comment period

March 11, 2022 - April 10, 2022 (30 days)

Proposal details

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.

Supporting materials

View materials in person

Important notice: Due to the ongoing COVID-19 pandemic, viewing supporting materials in person is not available at this time.

Please reach out to the Contact listed in this notice to see if alternate arrangements can be made.

Comment

Commenting is now closed.

This consultation was open from March 11, 2022
to April 10, 2022

Connect with us

Contact

Laura Blease

Phone number
Office
Land Use Policy, Environmental Policy Branch
Address

40 St. Clair Ave West
10th floor
Toronto, ON
M4V 1M2
Canada