For decades, many involved in land development and construction struggled with how to interpret Ontario’s regulation of excavated soil. Stakeholders had many common questions. When is excavated soil considered “waste”, as defined in Ontario’s Environmental Protection Act? What if excavated soil contains contaminants? What if excavated soil is destined for re-use, such as for backfilling or grading? What if excavated soil is treated?
Without clear answers, unwanted impacted excavated soil was generally either disposed of lawfully at Ontario’s limited-capacity landfills or unlawfully through unauthorized dumping on private or public property. Without clear authority to regulate “waste”, municipalities were caught in jurisdictional limbo and forced to rely on site alteration by-laws to attempt to prohibit and enforce unauthorized and illegal dumping.
After much anticipation, Ontario has created a legal regime to answer the questions raised above and provide certainty for the construction and waste management industries, consultants, contractors, municipalities, land owners, and developers alike. The first two phases of Ontario’s excess soil laws are in legal force and effect with one further phase to follow.
Ontario’s excess soil laws
On December 4, 2019, Ontario’s Ministry of the Environment, Conservation and Parks (“MECP”) filed the long-awaited O. Reg. 406/19: On-Site and Excess Soil Management Regulation[i] (“Excess Soil Regulation”) and complementary amendments to Ontario’s Records of Site Condition regulation (O. Reg. 153/04[ii]) and two of Ontario’s waste management regulations (Reg. 347[iii] and O. Reg. 351/12[iv]).
In addition, the Excess Soil Regulation incorporates by reference:
- the “Rules for Soil Management and Excess Soil Quality Standards”[v], which include the following:
- Part I - the Rules for Soil Management (known as the “Soil Rules”)
- Part II - the Excess Soil Quality Standards,[vi] and
the Beneficial Reuse Assessment Tool (“BRAT”), which is a model for developing site-specific excess soil standards.[vii]
We refer below to this full suite of laws as “Ontario’s Excess Soil Laws.”