The Ontario Ministry of the Environment and Climate Change has taken the next step towards a brand new regulatory regime that will dramatically affect the construction and real estate sectors. The Ministry has posted for comment a draft On-site and Excess Soil Management Regulation (Draft Regulation), which would come into effect on January 1, 2020 and January 1, 2021.
While the movement and disposal of contaminated soil has been regulated for many years, Ontario will become the first jurisdiction in Canada to regulate clean excess soil that cannot be reused at a construction site. Excess soil will be designated as a “waste” if it leaves a construction site unless it is reused in accordance with rules in the new Regulation, including the reuse of the soil for a beneficial purpose.
Primary regulatory control will now be placed on the “project leader” of a project that generates excess soil. A project leader will be required to retain a Qualified Person (QP) to prepare an Excess Soil Management Plan (ESMP) if more than 2,000 cubic metres of soil is to leave the project area. The Draft Regulation prescribes the contents of an ESMP, including characterization of soil for contaminant concentrations if the site was previously used for industrial or specified commercial uses, or an assessment of past uses identifies a potentially contaminating activity. Each load of excess soil will be required to be tracked to its final destination. ESMPs and information on soil movement will need to be filed in a new on-line Registry to be established by January 1, 2021.
Control over fill sites will remain with municipalities, conservation authorities and the Ministry of Natural Resources and Forestry (for licensed aggregate sites). The Draft Regulation and associated guidance will prescribe specific rules for receiving sites not otherwise regulated by a municipal permit or another legal instrument. A whole new set of excess soil standards are proposed, paralleling the site condition standards used in connection with the filing of a Record of Site Condition.
The proposal is open for comment until June 15, 2018. Contact any Miller Thomson environmental lawyer for assistance with the new excess soil regime.