Ontario’s Excess Soil Management Regulation: Emerging Best Practices

Posted November 19, 2020

With the adjusted start date of the first phase of Ontario’s On-site and Excess Soil Management Regulation (Reg. 406/19) now coming up on January 1, 2021, there are still many questions and quite a bit of uncertainty within the construction and development industry about how the Regulation will fundamentally change conventional business practices.

As written in a previous article, Reg. 406/19 and the accompanying Rules Document were formally released on December 4, 2019, and will be phased in over two main parts, with the first part having been delayed until January 1, 2021, due to the disruption of COVID-19 as well as the temporary reorganization of priorities for municipal governments. The first part of the regulation includes reuse rules, use of risk-based standards, waste designation, and approvals. The second part will be enacted on January 1, 2022, and will include the requirements for testing, tracking, and registration of excess soil. A third part, the one to be phased in on January 1, 2025, includes restrictions on landfilling soils for disposal that generally meet residential quality for potable groundwater use areas (Table 2 RPI quality in Ontario’s Reg. 153/04).

Activities on projects moving towards compliance with the new Regulatory requirements have been increasing as the new start date draws closer. Planning activities for projects that will commence in 2021 and beyond have also already started and are also growing at a rapid rate.

The Ontario Ministry of the Environment, Conservation and Parks (MECP) stated that the goals of Reg. 406/19 are:

Provide clear rules on managing and reusing excess soil
Limit soil being sent to landfill,
Reduces greenhouse gas emissions from soil transportation,
Reduce burden and cost of excess soil management, while continuing to ensure strong environmental protection, and
Remove barriers to brownfield redevelopment.

One of the most effective ways to accomplish these goals is to minimize the soil that will become excess to a development and construction project and eventually moved from the Project Area. This can occur through innovative methods and design considerations, as well as project execution. However, it’s impracticable to assume that no excess soil will ever be generated, as there are common issues around space limitations during the site construction activities and in the final development. Furthermore, it is more often than not, that the geotechnical quality of the soil for constructability is an issue. When ground improvement can’t be considered to improve the constructability or where the space simply doesn’t allow for keeping the soil on-site, finding responsible and reputable management options for the excess soil is a must for project execution.

The Regulation and related Rules provide a framework to guide for responsible management. Reg. 406/19 and the associated Rules are based upon the responsibility for excess soil being retained by the Project Leader, or the decision-maker in the generation of the excess soil. This is a significant difference from the historical practices where soil management was simply downloaded to general contractors, excavation sub-contractors, and sometimes haulers.

So as the responsibility shifts and some roles are redefined, or at least clarified, best practices will emerge as the Regulation and Rules becomes commonplace throughout Ontario. The MECP requested Best Practices be developed for a few aspects of Excess Soil Management that the Regulation and Rules may not cover. The Ontario Society for Professional Engineers (OSPE) has been working through Best Practices for use of excess soil in Aggregate Pits and Quarries rehabilitation. This should help to expand the need for safe and feasible options for the final deposit of excess soil from projects.

The Ontario Environment Industry Association (ONEIA) has been tasked with documenting Best Practices for Haulers, Temporary Storage Sites, and Qualified Persons within Reg. 4106/19. ONEIA assembled steering committees for each of the three Best Practice topics for input and development of the documents. As such, these Best Practices have been developed by members of the excess soil industry for use by the industry in Ontario. It is expected that the Best Practices will evolve as time within the Regulation and Rules regime passes; however, with some uncertainty still evident and more clarity being desired, Best Practices established as the Regulation and Rules become in force should assist in the adjustments.

Haulers

The role of the Hauler in the project is to transport the soil from the project area to the temporary site, beneficial reuse site or the treatment/disposal site. The decision of where the soil is to go, and all the arrangements for the relocation site is up to the Project Leader and not the hauler, or the hauling company. The hauler’s responsibility is to execute the delivery to the deposit location arranged by the Project Leader without deviation and assist in the documentation of excess soil transfer through maintenance of the Hauling Record. The Hauling Record is a required aspect of the new Regulation and Rules.

Examples of best practices for the Hauler include: route pre-planning; confirming rejection procedures; and ensuring the driver is educated and trained on the hauling record procedures. Further, any special procedures established by the deposit site should also be confirmed prior to the arrival of the load. Reduction of greenhouse gas (GHG) emissions is also an important Best Practice while we combat the effects of climate change. GHGs reductions can be accomplished through: limiting idling; choosing the shortest route between sites; avoiding traffic congestion; appropriate load sizing; and proper vehicle maintenance.

Temporary Sites

The use of temporary storage sites can be advantageous for large complex projects where soil movements to a final deposit location or back to the Project Area cannot be achieved consistently or on a timely basis. There are demonstrated examples of how the use of a Temporary Storage Site has allowed for project savings in both time and costs, as well as the overall reduction of GHGs. The Regulation and Rules have provided for the use of temporary sites without an Environmental Compliance Approval and refers to the temporary sites as Class 2 Soil Management Facilities. The temporary site must be owned and operated by the Project Leader or a public body (i.e., municipality).

Examples of Best Practices for operating temporary excess soils sites include: proper site selection; pre-condition assessments; providing secure boundaries and entrances to prevent illegal dumping; soil pile identification; traffic flow on the property and promoting truck queuing on the site rather than on public roadways; and, limiting nuisances such as dust, mud, noise, etc.

Qualified Persons (QPs)

Although the responsibilities for the excess soil remains with the Project Leader, the information that the Project Leader utilizes to make decisions and plan the project execution is generated by the QP. Overall, the QP will be looked upon to assist in educating the project team about the excess soil Regulation and Rules, specifically in the first few years that the Regulation is in force.

Given the heavy reliance on QPs by the Project Leader and other members of the project team, examples of best practices for the QP include: understanding the sampling and analyses requirements outlined in the Regulation and Rules and the documentation procedures; accepting that reliance that will be placed on the advice provided and on the documentation prepared; maintaining ethical behaviours and upholding public trust; avoiding issues of conflict of interest; and, only practicing in appropriate areas of knowledge, education, and training.

In Closing

As the development, construction and soil movement industry in Ontario embraces the new Regulation and Rules there will be additional Best Practices established. The landscape is changing, so it is essential that we keep up with any new and emerging information and that those responsible clearly understand the requirements. Embracing Best Practices will assist you in establishing and maintaining compliance with the intentions of Reg. 406/19 and the associated Rules.

The ONEIA Best Practices Documents and Training Modules will be available for public access at the end of November 2020 at www.ONEIA.ca.

Grant Walsom, B.A.Sc., P.Eng., QP is a Partner of XCG Consulting Limited and is co-chair of the Excess Soil Working Group and a Board member for the Ontario Environment Industry Association (ONEIA). Grant also proudly serves on the Board of Directors of the Canadian Brownfields Network (CBN)
Grant can be reached by email at grant@xcg.com or by telephone at 519-741-5774 ext. 7246.