The Quick and Dirty on Phase Two of Ontario’s Excess Soil Regulation

  • February 16, 2022
  • Talia Gordner, Annik Forristal & Kamal Azmy (student), McMillan LLP

Phase Two of Ontario’s On-Site and Excess Soil Management Regulation (the “Regulation”)[1] under the Environmental Protection Act[2] took effect on January 1, 2022. Since coming into force on January 1, 2021, the Regulation has introduced a new framework for the excavation, removal and transport of “excess soil” between two or more sites. These regulatory changes have affected property owners, developers, consultants, and the construction industry as a whole, exposing its participants to new risks and legal requirements.

Phase Two introduced new filing, documentation and tracking requirements for those responsible for leading projects that involve the removal of soil from a site (“Project Leaders”) and owners and operators of reuse sites at which excess soil will be deposited. Notices now need to be filed prior to the removal or deposit of excess soil with the Excess Soil Registry (the “Registry”), a new online repository operated by the Resource Productivity and Recovery Authority (a provincial regulator with responsibility for overseeing and enforcing compliance with resource recovery and waste reduction activities in Ontario).

Project Leaders will also be responsible for implementing new excess soil tracking systems and ensuring a qualified person (“QP”)[3] prepares certain assessments and reports with respect to the quality of the excess soil as well as the applicable environmental standards for the project and deposit sites. Additionally, Phase Two introduces amendments to the current record keeping rules for transporters of soil.[4]

This bulletin provides an overview of these new obligations. For information on Phase One of the Regulation and how to prepare and plan your project in compliance with the Regulation, please see our previous bulletin, The Quick and Dirty on Ontario’s New Excess Soil Regulations.

The Regulation also imposes detailed obligations for the handling of excess soils which should be distinctly addressed in all contracts entered into for a project relating to excess soils. The importance of clearly allocating responsibility and liability for these obligations is only augmented by the new obligations introduced on January 1, 2022 as described below. For more information regarding how to ensure your construction contracts align with the new excess soil regime, please see our previous bulletin, Ontario’s New Excess Soil Regulations – Construction Contract Implications.