Resources and Practical Considerations for Complying with the Surplus Soil By-law

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The following is a short, abbreviated summary of the who, what, when and where, etc., of the new Ontario Surplus Soil Regulation, O. Reg. removal or placement of excess soil in Ontario in the future. Resources, including links to the new Ontario website registry to be administered by the Resource Productivity and Recovery Authority (RPRA), as well as to applicable rules and available guidelines will also be provided.

Why: ensure that surplus soil is treated as a resource, treated and reused for beneficial purposes wherever possible, keep it out of landfills and protect the environment;

What: an entirely new regime which considers “excess soil” (soil which must be removed from a “project”) as waste until it is made suitable for reuse and / or disposed of in accordance with requirements very detailed. However, the regulation contains many derogations (see below);

Or: a “project” is defined in the broad sense to include “any form of development or modification of the site”.

Which: Ultimate responsibility for compliance rests with “project managers” or “persons or persons ultimately responsible for making decisions about the planning and implementation of the project”. Subject to exceptions, the project manager must file a notice setting out prescribed information about the project, how excess soil will be treated / disposed of and who will be responsible for what in this regard. The promoter must also make a certain number of declarations, in particular that he “will develop and apply all the procedures necessary to ensure that all the necessary measures are taken to ensure compliance with the Regulations.

The project manager must also retain the services of a “qualified person” to carry out the assessments and tests required to determine the nature of the excess soils as well as the way in which they can / will be treated or treated to be reused for a purpose. beneficial. Carriers, treatment sites, reuse sites and disposal sites will all have obligations regarding soils, including reporting and record keeping obligations;

When: Unless exempted, surplus soil is defined as waste under O. Reg. 406, and related requirements for assessment, treatment, treatment, transportation, reuse and placement, came into effect on January 1, 2021. The reporting and record-keeping requirements of the Regulations come into effect January 1, 2022. Beyond this date, with a few exceptions, excess soil will no longer be disposable in a landfill as of January 1, 2025;

Exemptions apply to certain: arable land; projects where less than 100 m3 of excess soil must be removed; “infrastructure projects; agricultural uses; Enhanced Investigation Project Area” projects, projects governed by Ontario Regulation 153/04 (“brownfields”); circumstances where there are health and safety concerns; pits, quarries and other excavations under the Aggregate Resources Act; peat extractions; the final placement of excess soil on the bed of a water surface; and the circumstances in which a receiving site is governed by a provincial instrument or a site-specific municipal by-law;

In addition, where a project manager has entered into a surplus soil management contract on a project before December 31, 2021, the notice and record-keeping requirements of the Regulations will only apply to that project as of December 31, 2021. January 1, 2026;

How? ‘Or’ What: The project manager’s recording of a project notice triggers the reporting and record keeping requirements applicable to most of those involved in surplus soil in relation to the project. A Beneficial Reuse Assessment Tool (an Excel spreadsheet loaded with formulas in which skilled people can enter data to determine reuse options) is available to help you. The regulation provides that temporary off-site treatment sites can be used to dewater or treat soils (by passive aeration, dewatering, mixing, turning and sorting, for example) to prepare lightly compacted soils for reuse;

Resources: many of the resources you will need to manage your obligations under O. Reg. 406/19 are available on https://www.ontario.ca/page/handling-excess-soil, including links to the recently launched registry administered by the Ontario Resource Productivity and Recovery Authority (RPRA) (https://rpra.ca/excess-soil-registry/), RPRA training materials (https://rpra.ca/excess-soil-registry/training-materials/), the “Rules for soil management and excess soil quality standards” which are incorporated into and from part of the regulation (https://www.ontario.ca/page/rules-soil-management-and-excess-soil-quality-standards), a guide to “Best management practices for excess soil” (https://www.ontario.ca/page/management-excess-soil-guide-best-management-practices; and the “Brat Tool” itself (BRAT Tool).

Strategies and practical considerations:

We suggest that three practical strategies should be undertaken by anyone facing potential liabilities under the Regulation:

(1) understand your obligations with respect to a particular project. Understand if an exemption applies and, if not, which rules apply to your situation;

(2) Make sure you understand who is responsible for what is defined in your contract or subcontract documents. Know who the project manager is (responsible for submitting the required notice and assuming the responsibilities of the project manager) and knowing to what extent others think these responsibilities are being relieved from you; and

(3) plan ahead to avoid delays and confusion. Reuse options may be limited and resources may be limited in a world ruled by supply and demand: don’t miss time to test or research qualified people, treatment sites, reuse sites or options transport.

At the Design stage (for Owners, Promoters and their Consultants):

1. Determine if the exemptions in Ontario Regulation 406/19 could apply to the project. If not, allow extra time at this point;

2. consider on-site design and reuse options, as well as specified construction methods (such as directional drilling or hydrovac) to limit excess soil;

3. Determine to what extent the responsibilities of the project manager should be delegated to consultants and / or contractors. In particular, determine who will undertake the required pre-excavation assessments. (Be careful, because although a project manager can assign obligations to others by contract, it is doubtful that liability can be entirely avoided by such contractual assignments);

4. Consider improved geotechnical and hydrological assessments before tendering / pre-contract to better understand the risk of excess soils before awarding them in the contract. Understand that asking a contractor to assume the obligation to dispose of these soils in the absence of such information can lead to higher prices (contingency cover) as well as potential litigation and delays;

5. If possible, find out whether excess soil will be generated and whether it will need to be treated. If so, plan where and by whom treatment will be undertaken and where, and for what beneficial use (s), these soils will be deposited;

6.consider:

a. pre-qualify contractors, sub-contractors and carriers to ensure those who bid will be put in place to deal with excess soil; and

b. designate and contractually immobilize qualified persons, transporters and treatment / reuse sites, or require bidding contractors to do so prior to the submission of bids (if applicable); and

7. ensure that the various Reg. The 406/19 responsibilities are or will be clearly stated in the contract documents, in order to avoid gaps, confusion, complaints and delays.

During construction

8. Anyone touching excess soil should know if any exemptions apply. If exemptions apply, consider having documentation supporting the exemption available at the project site, on transport trucks and at the destination site (s) to avoid confusion and delays if the MECP shows up, or stops carriers, to investigate;

9. Where there are no exemptions, anyone touching excess soil should know who the project manager is, and has been retained to take on the responsibilities of the project managers. Preferably, this is specified in the applicable contracts and subcontracts. The project manager is responsible for:

a. file a section 8 notice before excess land is removed from the project area, after the required reports (including an assessment report of the destination of the excess land) have been prepared by a “Qualified person” under article 11-13;

b. have a procedure developed to apply if, during the excavation, a contaminant is released (section 23);

vs. modify and update any changes to reports s.11-13 within 30 days (s.15);

D. develop and apply a system for monitoring excess soil (art.16);

e. in general, ensure that the regulations are respected. In this regard, recognize that reuse of excess soil must be for genuinely beneficial purposes. As a result, reuse sites cannot receive more than is actually needed to achieve the beneficial objective (and the purpose of the site itself cannot be to remove soils). Several reassignment sites may therefore need to be secured for a project; and

F. file a notice under subsection 9 (2) 30 days after excess soil has been removed from the project area, local waste transfer facility or project treatment site, if applicable.

10.Anyone with responsibilities for excess soil should understand the Rules and Guidelines that apply to them and plan to develop policies, procedures and training for their staff at all levels. It is recommended that policies, procedures, and training be checked and records kept in this regard. In addition, the files required by the Regulation, including contracts, must be kept for 7 years.


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