Amendments to Certain Requirements under the Excess Soil Regulation

ERO number
019-6240
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
November 3, 2022 - December 3, 2022 (30 days) Closed
Last updated

Update Announcement

We updated the notice on November 04, 2022 to upload the French version of the notice.

This consultation was open from:
November 3, 2022
to December 3, 2022

Decision summary

To make the Excess Soil Regulation more practical and focused on higher-risk movements of soil, Ontario has finalized amendments to Ontario Regulation 406/19 and the Soil Rules to remove the excess soil reuse planning requirements for projects on low-risk sites and to provide more flexibility when storing excess soil.

Decision details

Ontario is committed to reducing red-tape and regulatory burden on businesses to support Ontario’s plan to build more housing and highways faster. We are supporting the circular economy by ensuring that excess soils are properly reused and don’t end up in landfills.

To support these efforts, in 2019 we finalized a new Excess Soil Regulation, O. Reg. 406/19, On-Site and Excess Soil Management (Excess Soil Regulation) and associated Rules for Soil Management and Excess Soil Quality Standards (Soil Rules), to enable more reuse of excess soil. Now, to make the Excess Soil Regulation more practical and focused on higher risk movements of soil, Ontario is making amendments to remove overly burdensome reuse planning requirements for low-risk projects and to provide more flexibility when storing excess soil.

In April 2022, we implemented a temporary pause of certain requirements in the Excess Soil Regulation to provide time for municipalities, developers, and other stakeholders to gain a greater understanding of the Excess Soil Regulation and for the ministry to consider the need for improvements to the regulation. The requirements that were paused in April 2022 will come back into effect on January 1, 2023. The regulatory amendments that have now been finalized will also come into effect on January 1, 2023 and are described below.

Excess soil reuse planning removed for low-risk sites and clarified triggers

As of January 1, 2023, excess soil reuse planning will again be required under the Excess Soil Regulation for certain projects, including excess soil registration and tracking requirements.

The Excess Soil Regulation was amended to provide an exemption from the reuse planning requirements for some projects that are within an area of settlement and will remove 2000 cubic metres or more of excess soil. These projects will not be triggered if the whole project area is being 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).

Also, to remedy some confusion about when the reuse planning requirements apply, an amendment to the Excess Soil Regulation has been finalized such that the three triggers for when excess soil reuse planning is required have been moved from section 1 of schedule 2 (where they were listed in the form of exemptions) into the body of the regulation, listed as independent triggers, and clarified.

Section 14 of the Excess Soil Regulation was revoked, s the provision is no longer necessary. Clarification was also made to the definition of “infrastructure” to clarify that it includes drainage works under the Drainage Act.

Soil storage flexibility and clarification of rules

We proposed an amendment to the Rules for Soil Management and Excess Soil Quality Standards (Soil Rules) document to increase the size limit for a soil storage pile. In response to comments received, it was decided that this limit was unnecessary and the amendment that has been finalized removes this limit so that there is no maximum size limit on individual piles. Other requirements around soil storage remain in place, including total storage limits for some sites and requirements to prevent any adverse effects from the storage of soil.

Clarification has also been made to some of the Soil Rules, including that the mandatory sampling frequencies for in situ sampling apply within an area of potential environmental concern, but outside of these areas qualified persons have discretion regarding the sampling to be completed. Some amendments to address potential discrepancies and clerical matters have also been made to the Soil Rules.

Implementation and Guidance

The amendments that have been finalized are found partly in the Excess Soil Regulation and partly in the Soil Rules. These two documents combine to set out the regulatory requirements related to management of excess soil, and both have the force of law. In general, the Excess Soil Regulation sets out core responsibilities or requirements and the Soil Rules set out additional detailed rules related to the requirements in the Excess Soil Regulation. They build on each other and are intended to be read together.

Links to these documents as well as existing internal and external Guidance to help in understand these requirements can be found on MECP’s Handling Excess Soil website. MECP will be developing and posting additional guidance in the near future. For further assistance understanding the Excess Soil Regulation and Soil Rules, you can contact your local MECP district office or e-mail mecp.landpolicy@ontario.ca.

Comments received

Through the registry

59

By email

14

By mail

0
View comments submitted through the registry

Effects of consultation

We received a total of 73 submissions commenting on the proposal. Comments were received from industry, municipalities, consultants, professional organizations, environmental and community groups, and individuals.

On the proposal to exempt low-risk project areas from the excess soil reuse planning requirements, there was general support from many stakeholders including industry groups, developers, and professional organizations, and recognition that these requirements are costly for a low-risk project. Some comments were received that reuse sites may continue to ask for assessments from low-risk project areas before they are willing to accept the soil and that better guidance is needed to help set reasonable expectations. Some people, including environmental organizations, raised concern about more soil being moved that would not be subject to testing and tracking requirements and that fewer sites would be required to register.

On the proposal to increase the volume limit for soil storage piles, there was general support for increased stockpile sizes to avoid unnecessary soil hauling to other locations. Some suggestions were given to remove stockpile size limits outright and that other requirements such as dust, erosion and sedimentation control measures could be required instead of maximum pile size limits.

Response:

Having considered the feedback received, Ontario has finalized amendments to the Excess Soil Regulation to exempt low risk project areas from the excess soil reuse planning requirements and to remove the soil storage pile limit, rather than increasing it as was proposed.

Supporting materials

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Some supporting materials may not be available online. If this is the case, you can request to view the materials in person.

Get in touch with the office listed below to find out if materials are available.

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
019-6240
Notice type
Regulation
Act
Environmental Protection Act, R.S.O. 1990
Posted by
Ministry of the Environment, Conservation and Parks
Proposal posted

Comment period

November 3, 2022 - December 3, 2022 (30 days)

Proposal details

Introduction

To make the Excess Soil Regulation more practical and focused on higher-risk movements of soil, the ministry is proposing amendments to reduce requirements applicable to low-risk projects, and to provide more flexibility when storing excess soil.

In 2019, we finalized a new Excess Soil Regulation (O. Reg. 406/19: On-Site and Excess Soil Management, under the Environmental Protection Act), supported by a Soil Rules document and risk-based soil reuse standards. The Excess Soil Regulation is being phased in over a number of years.

In April 2022, Ontario implemented a temporary pause of certain requirements in the Excess Soil Regulation to provide time for municipalities, developers, and other stakeholders to gain a greater understanding of the Excess Soil Regulation and for the ministry to consider the need for improvements to the regulation. The requirements that were paused in April 2022 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 following amendments respond to these concerns.

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.

The need for transition provisions may be considered as may the need for other regulatory amendments that clarify, but do not substantively change, existing provisions.

We will continue to work collaboratively with stakeholders and Indigenous communities and organizations on the proposed amendments and to ensure the regulations are implemented effectively.

Regulatory Impact Statement

The proposed amendments would not provide additional compliance costs to developers, municipalities, infrastructure companies or others, as they would reduce or provide flexibility in relation to requirements that are already in the Excess Soil Regulation.

Proposed amendments to exempt low risk projects from excess soil reuse planning requirements, including registration, sampling and tracking requirements, would result in cost savings.

The proposed amendment to increase soil storage pile sizes would provide flexibility that may prevent unnecessary movement of soil to other sites for storage if the project area is limited in area for storage.

Supporting materials

View materials in person

Some supporting materials may not be available online. If this is the case, you can request to view the materials in person.

Get in touch with the office listed below to find out if materials are available.

Land Use Policy, Environmental Policy Branch
Address

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

Comment

Commenting is now closed.

This consultation was open from November 3, 2022
to December 3, 2022

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