Soil Management in Ontario: The Good, the Bad and … maybe the Ugly?
Since before the release of Ontario Regulation 406/19 (Reg. 406/19), On-site and Excess Soil Management, in December 2019, the Ministry of the Environment, Conservation, and Parks (MECP) has been carefully planning the implementation of the regulations and rules for the safe relocation of excess soils in Ontario. The MECP has clearly stated in their documentation that the purpose of the Regulation and Associated Soil Rules is to:
- Reduce construction costs associated with managing and transporting excess soil;
- Limit the amount of soil being sent to landfills;
- Lower greenhouse gas emissions from the construction and development sector; and
- Continue to ensure strong protection of human health and the environment.
Although these changes have been welcomed across Ontario’s construction and development industry, it remains to be seen whether the purpose will be achieved in practice once the Regulation is fully enacted.
In 2021 we have seen Phase I of the Regulation come into force that included:
- Excess soil being designated as a “waste” if not following the Regulation and Soil Rules to the full extent.
- Low-risk processing activities at project areas do not require environmental compliance approvals.
- Sampling requirements and storage rules.
- Certain infrastructure project exemptions.
- All responsibilities are with the Project Leader generating the excess soil.
2022 will bring in Phase II of the Regulation and requirements for:
- Registry (administered by RPRA) for projects generating more than 2,000 m3 of excess soil and receiving/reuse sites that will accept more than 10,000 m3 of excess soil.
- Tracking systems and documented hauling records for every load of excess soil being transported.
Aside from the grandfathering clause for projects contracted before the end of 2021 (can be completed until January 1, 2026) and the landfill restrictions that come into effect on January 1, 2025, the Regulation will be in full force on January 1, 2022. So, unless there is a last-minute delay in the Regulation, it will be “Game On” in 2022 for the Ontario construction and development industry. So, at the end of 2021, roughly one year into Phase I of the Regulation, here are some considerations for the good, the bad, and maybe the ugly coming down the pipe.
Minimizing the generation of excess soil through early characterization, redesigning of the projects where possible, and promoting the beneficial reuse of good quality soils will be a good thing. This will only get better as we all adjust to the new world of soil management in Ontario. Opportunities for low-risk processing activities on-site (screening, sorting, sizing, turning, dewatering, and passive aeration) without previously required Environmental Compliance Approvals should assist in reusing soils on-site or improving the excess soil for reuse. Identifying local beneficial reuse opportunities and relaxing the requirements for good beneficial purposes should also assist in reducing the need for trucking soils across the province and reducing greenhouse gas emissions.
Minimizing the generation of excess soil and the costs associated with the regulatory management can also be accomplished through better designs at the front end of the project. In short, finding cut/fill balances within the project area, or adjusting the design elevations to minimize the generation of excess soil will minimize the volumes of soil excavated and relocated in many cases (except for full property developments with many levels of below-grade parking). Furthermore, innovations in ground improvement for geotechnical purposes are consistently evolving and can help minimize the volume of soils required compared to excavation and replacement. Finding beneficial reuse opportunities for soil should also assist in the reduction of requirements for engineered backfill and aggregates, in the right situations, of course. Again, early planning and migrating away from the “old way” of doing things should assist in finding positive opportunities. Soil variability in Ontario may result in the emergence of commercially-run soil banks to fill the needs of differing soil types and assurances of the soil quality, both geotechnically and chemically.
New opportunities are being realized for specialty businesses such as tracking software and soil matching services to assist the industry find sound and cost-effective solutions with as much convenience as possible. The Excess Soil Registry to be operated by the Resource Productivity and Recovery Authority (RPRA) will be ready as of December 1, 2021, well ahead of the Regulatory requirement date of January 1, 2022. Further, the understood registry fees presented thus far do not appear overly onerous and will likely be considered a “cost of doing business.” Where projects have been completed in 2021 with excess soil requirements and considerations, there have been many learning opportunities for the Project Leader, the Qualified Persons, and the Contractors. There will be benefits and future advantages to those early adopters for projects in 2022 and beyond.
Almost two years since the release of the Regulation, there still appears to be a significant level of unawareness around the requirements and how to implement the Soil Rules on projects. Unfortunately, it also seems that there has been hesitation by some to roll up their sleeves and properly learn the Regulation and Soil Rules and apply them in practice.
Until the recent series of webinars delivered by the MECP, education and outreach has been somewhat lacking. Opportunities to present to industry associations and conference events have been impacted by the pandemic restrictions and, let’s face it, “Zoom burnout.” Further, with the nuances around the Regulation and Soil Rules, many of the questions being posed are very project-specific. Answers to many of the questions do require MECP input. Finding avenues to get these questions answered to the masses is still sorely needed. Website postings of frequently asked questions and nuance clarifications should be established so that the limited resources of the Land Policy Division of the MECP can be most effectively employed. Even further, clarity on the proposed monetary penalties for non-compliance with the Regulation and Soil Rules has yet to be provided.
Additionally is the rushed approach to get projects started and soil moved before the end of 2021. Proper soil sampling and characterization with clear and concise documentation seems to be lagging behind the regulatory requirements already in place for 2021. This goes back to the lack of understanding or refusal to take the time and the upfront cost to do what is required to ensure that the soil is properly characterized and relocated to acceptable locations. This may continue until the reuse and disposal sites insist on the proper characterization to receive the soil and/or until some enforcement activities are publicized. It is also becoming apparent that there is also a lack of suitable options for relocating marginally impacted soils. Table 1 quality soils that are generally considered as “clean” are easily relocated if geotechnically suitable. Impacted soils that are at Table 3 quality or above can be sent for treatment or landfill disposal. Where the problem lies is the lack of good options for Table 2 quality soils. Table 2 is protective of groundwater resources and quality for potable use; however, options for reuse or fill sites able to accept Table 2 quality are limited. The industry will adjust and create opportunities, but it will take time and resources to take advantage of these opportunities.
And maybe the Ugly …?
The “ugly” list should be short, as we are all still learning and will likely be afforded some lea-way as an already extremely busy construction and development industry adjusts to the new world of soil movement in Ontario. However, the ugly may be the impact on the business reputation and financial implications for being the first public “example” from enforcement activities against Reg. 406/19. My suggestion is: “Don’t be the first example. Get on board fully and early.”
Grant Walsom, P.Eng., a Partner at XCG Consulting Ltd., is a Qualified Person and Professional and Consulting Engineer in Ontario. He has been navigating the new world of excess soils since 2014. If you have any questions for him, he can be reached at email@example.com