Excess soil management and reuse requirements for project areas

Introduction

Ontario Regulation 406/19: On-site and Excess Soil Management (the regulation) outlines requirements related to on-site processing of excavated soil or crushed rock, and the reuse and disposal of excess soil from project areas.

In this fact sheet you will learn about:

• responsibilities for determining where excess soil can be beneficially reused in a way that is protective of human health and the environment
• excess soil reuse planning requirements that are to be in place for certain projects before excess soil is to be removed from the project area (such as soil characterization, tracking, and registration)
• low-risk processing activities that may proceed without needing to obtain an environmental compliance approval (ECA) for waste, if certain rules are met

This information will be of interest to:

• an owner of a project area (a site that generates excess soil, sometimes referred to as the source site)
• a project leader
• a soil management contractor
• a qualified person (QP)

Overview of regulatory requirements

As of January 1, 2021:

• excess soil that is directly transported from a project area to a reuse site for a beneficial reuse is not designated as waste under the regulation, provided that the criteria set out in section 3 of the regulation are satisfied. These criteria are intended to ensure that the excess soil will be reused at the reuse site for a beneficial purpose and that the quality and quantity of the excess soil to be deposited at the reuse site for final placement are appropriate for that purpose
• excavated soil or crushed rock processed within the project area at which it was excavated using a method specified in the regulation and in accordance with specified rules is also not designated as waste

As of January 1, 2023:

• planning requirements supporting proper reuse of excess soil apply to the removal and reuse or disposal of excess soil from some project areas come into effect. Various exemptions from these requirements may also apply to some projects. These requirements include: filing of a notice in the Excess Soil Registry for the project; retention of a qualified person (QP) to complete an assessment of past uses, develop a sampling and analysis plan, complete a soil characterization report (if necessary), and complete an excess soil destination assessment report; and implementation of a tracking system

Please refer to the Handling Excess Soil page or the Excess Soil Fact Sheets page for additional information on regulatory requirements under the regulation.

Reusing excess soil from a project area

Criteria for excess soil reuse

Under the regulation, excavated soil or crushed rock becomes excess soil upon leaving a project area. The rules for reuse of excess soil are found in sections 3, 4 and 5 of the regulation, which then refer to other key sections of the regulation and both parts of the Rules for Soil Management and Excess Soil Quality Standards.

The regulation clarifies when excess soil is and is not designated a waste. In order to not be designated as waste, excess soil being reused at another site must met all of these conditions:

1. The excess soil is directly transported to a reuse site from a project area, a Class 1 soil management site or Class 2 soil management site, or local waste transfer facility
2. The owner or operator of the reuse site has agreed in writing to deposit the excess soil at the reuse site
3. There is a beneficial use for that excess soil and the quality and quantity of excess soil being taken to that site are consistent with the beneficial use
4. The excess soil is dry soil and remains dry soil until it is finally placed at the reuse site, or, if it is liquid soil, a site-specific instrument (for example, a permit that is issued under a by-law passed under section 142 of the Municipal Act, 2001) authorizes the excess soil to be deposited at the reuse site

Excess soil taken to a site for disposal is designated waste. Excess soil taken to a site for storage or processing is designated waste while at those sites.

Appropriate excess soil quality and quantity

The quality and quantity of excess soil taken to a reuse site must align with site characteristics, intended property use and the beneficial purpose of the excess soil. The appropriate excess soil quality for a reuse site is determined through either the standards and rules that are a part of the regulation or through requirements in a site-specific instrument.

Under the regulation, generic excess soil quality standards are provided in Part II: Excess Soil Standards along with the rules as to when various tables of standards may be applied. One of the primary factors determining which table of generic standards applies is property use. The regulation also recognizes site-specific standards developed using the Beneficial Reuse Assessment Tool (which can only be used by a qualified person in accordance with the rules), and standards developed through a risk assessment (which must be recognized in a site-specific instrument).

If there is a site-specific instrument, such as a municipal fill permit, that recognizes a need for fill to complete an undertaking, and it includes conditions related to the quality of excess soil that may be deposited, then the conditions in that site-specific instrument apply.

The quantity of excess soil that may be deposited at a reuse site for a beneficial use should be appropriate for the planned undertaking. Any excess soil beyond the quantity needed would be considered waste. For example, if a site plan for an undertaking describes the final conditions to be achieved at a site, the amount of excess soil necessary to achieve that outcome is the quantity that may be deposited without it becoming waste.

A reuse site owner or operator must agree in writing to accept the excess soil from a specific project area. It is necessary for a project leader or QP to confirm with the reuse site owner or operator which excess soil quality standard, site-specific standard or instrument-specific standard applies to that reuse site. A reuse site owner or operator has the discretion to set more stringent standards than the regulation requires and to ask for additional information to demonstrate that the excess soil meets those standards.

When direct reuse is not possible

If direct reuse of the excess soil cannot be achieved in accordance with the above criteria, then the excess soil is designated a waste. The project leader may consider the following approaches to managing the excess soil:

• If soil quality is a factor, remediation either on-site or at a soil remediation facility, after which the excess soil may be able to be beneficially reused and no longer be considered a waste
• If a reuse site is not ready to accept the excess soil, temporary storage on the project area or at another site (such as a Class 2 soil management site owned or operated by the project leader or a public body, or a local waste transfer facility if applicable) until the reuse site becomes available
• If a reuse site has not been identified, transportation of reusable excess soil to a soil bank (typically owned or operated by a different person than the project area owner or operator, and generally subject to an ECA) if one is available. Excess soil deposited at a soil bank becomes the responsibility of the soil bank operator
• Transportation to a landfill for use in landfill operations or disposal. Excess soil that could be reused at a more sensitive site, like a residential undertaking, will be restricted from being sent to landfill for disposal, as of January 1, 2025
• If the excess soil is liquid soil, often generated through hydro-excavation, tunneling and removal of sediment from stormwater management ponds, de-watering or solidifying the excess soil so it could be reused as dry soil

Many of these approaches have some limitations or rules associated with them, and some may require additional approvals from the ministry.

When excess soil is inappropriately managed and deposited for final placement at a reuse site, the excess soil is considered waste and will be governed under Part V of the Environmental Protection Act (EPA). This gives the ministry the authority to require any person who has caused, permitted or arranged for the unlawful deposit of the waste to remove it and properly dispose of it. Any person involved in the management of excess soil, including the project leader for a project where excess soil is generated, any persons retained to manage, temporarily store and/or transport excess soil, and the owners and operators of reuse sites, must comply with these requirements.

Managing excavated soil or crushed rock at the project area

Reuse within the project area

Excavated soil or crushed rock from the project area that is reused within the project area is not excess soil, and is not designated waste. This allows these materials to be readily reused on-site and they are exempt from the excess soil reuse rules in the regulation, including the excess soil quality standards. Maximizing on-site reuse should be considered during the design of a project to avoid requirements that may apply to excess soil leaving a project area.

While the excess soil reuse rules do not apply to excavated soil or crushed rock reused on-site, being familiar with them may prevent adverse effects. If a Record of Site Condition (RSC) will be filed for a project area, then any excavated soil or crushed rock that is to be reused within the RSC property must meet the applicable site condition standards of Ontario Regulation 153/04, including approved standards in a risk assessment under that regulation if developed, so that the RSC can be filed. As well, if soil or crushed rock that is excavated within a project area is determined to be a hazardous waste within the meaning of Regulation 347, the requirements of that regulation must be followed and the regulation does not apply.

Processing within a project area

Excavated soil or crushed rock being processed at the project area is designated a waste except if specific types of processing are used. The regulation lists low-risk types of processing that may be undertaken within a project area without the excavated soil or crushed rock attracting a waste designation and, therefore, without requiring a waste-related ECA. Excavated soil or crushed rock processed at the project area and being reused within the project area is not designated waste after it is processed. These provisions only apply to soil or crushed rock excavated in the project area; such materials cannot be brought to the site and processed without triggering the waste designation.

The types of processing that may be done on a project area, without excavated soil or crushed rock being designated a waste and without needing an ECA, are listed in subsection 6(3) of the regulation. These include:

• passive aeration and passive dewatering
• mechanical dewatering
• mixing of soil of similar quality
• soil turning
• size-based sorting and sorting for the purpose of removing debris
• mixing with another substance that is intended to dewater or solidify the soil or crushed rock

Note that soil mixing that is exempt from an approval is intended to allow the homogenization of excavated soil or crushed rock to increase potential for reuse, but not for the purpose of lowering contaminant concentrations. Passive aeration is not meant to include a process to reduce contaminants, such as using forced air or other similar methods.

Processing that involves mixing with natural additives and natural or synthetic polymers to dewater liquid soil on-site may be undertaken, provided that key rules are met that are outlined in section C of Part I: Rules for Soil Management. The use of polymers also requires the involvement of a qualified person. Some of these types of processing may also be undertaken at sites other than the project area.

Note that some of the types of processing that would not require a waste-related ECA may require other approvals, such as those under subsection 9(1) of the EPA or subsection 53(1) of the Ontario Water Resources Act.

If there are questions about whether a particular type of processing requires ministry approval, please contact the closest MECP district office.

Excess soil reuse planning requirements

To help ensure reuse of excess soil from a project area is being planned and undertaken appropriately, the regulation includes requirements as of January 1, 2023 for some projects generating excess soil, which must be met before excess soil may be removed from a project area.

The excess soil reuse planning requirements include:

1. Registration of a notice in the Excess Soil Registry for the project
2. Completion, of an assessment of past uses and, if necessary, a sampling and analysis plan and a soil characterization report
3. Completion of an excess soil destination report
4. Application of a tracking system

These requirements apply in relation to a project that is excavating excess soil which will be removed from the project area and, generally, the regulation places the responsibility to ensure these requirements are met on the project leader. This does not prevent contractual arrangements resulting in other people completing these requirements on behalf of a project leader. The assessment of past uses, sampling and analysis plan, soil characterization report, and excess soil destination report must be undertaken by or under the supervision of a QP.

The excess soil reuse planning requirements apply to the following types of projects which are, generally, larger in scale or more likely to generate excess soil with some contaminants:

• Projects generating 2000 m³ or more of excess soil and that are in a settlement area (such as cities and towns); This trigger does not apply to projects in rural areas, or where all of the project area is currently, or was most currently, used for agricultural or other, parkland, institutional or residential use (as described in Ontario Regulation 153/04).
• Projects for which part of the project area has a past or present use that is a n “enhanced investigation project area” as defined in the regulation (for example, gas station, garage, used for the operation of dry-cleaning equipment, or industrial use). This trigger does not apply to a situation where an RSC has been filed and where there was no risk assessment completed in respect of the project area, and where no part of the project area has been used as an enhanced investigation project area since the filing of the RSC.
• Project areas that are being remediated by excavating and removing excess soil in order to reduce the concentration of contaminants, including for the purposes of filing an RSC.

Some exemptions from the planning requirements exist which are described below.

Filing a notice

For projects that must complete the excess soil reuse planning requirements, section 8 of the regulation requires that the project leader file a notice in the Excess Soil Registry (Registry), developed and implemented by the Resource Productivity and Recovery Authority (RPRA), before any excess soil leaves the project area.

The notice filed on the Registry must include key information identified in Schedule 1 of the regulation including:

• a description of the project and the project area
• the name and contact information for the project leader(s) and operator of the project area, and QP(s)
• the quantity of soil being removed from the project area and its quality, by general category
• the name and contact information for the person responsible for the transportation of excess soil from the project area
• the intended location and description of the reuse sites, landfills, dumps, Class 1 soil management sites (soil banks and soil processing sites), local waste transfer facilities and temporary sites (Class 2 soil management sites) at which the soil is to be deposited (initially, this list should include sites known at that time, and others must be added to the notice prior to their use); this includes applicable excess soil quality standards and quantity of soil deposited at the site
• declarations by the project leader confirming that: they have conducted reasonable inquiries to obtain required information and that it was disclosed to the QP; that the QP was given access to the project area; that the QP has made the applicable declarations; that the information filed in the registry is complete and accurate; and that they will develop and apply all necessary procedures to ensure that the regulation is complied with

Once a notice is filed to the Registry it must be updated:

• to identify new planned deposit sites prior to their use
• within 30 days of completion of the project to reflect actual soil movements
• within 30 days of finding inaccurate or incomplete information in the notice

Assessments and reports

Project leaders that are required to file a notice for their project must also complete specified assessments and reports. These requirements must be completed before filing the notice on the Registry. A QP must be used to complete these assessments and reports:

1. Assessment of past uses: this study involves using such methods such as records reviews, interviews, and site reconnaissance (field visits) to determine the likelihood that one or more contaminants have affected the soil, and to identify areas of potential environmental concern and the contaminants of potential concern. If a phase one environmental site assessment (ESA) under O. Reg. 153/04 of the EPA has been prepared for the same project, an assessment of past uses is not required
2. Sampling and analysis plan: this involves the planning, investigation (for example sampling and testing) and analysis of area(s) from which excess soil will be excavated with known or suspected contaminants to understand the quality of the excess soil. This sampling and analysis plan and the soil characterization report (below) may not be necessary depending on the results of the assessment of past uses and the type of site
3. Soil characterization report: this report documents the results of sampling and analysis, if required, and provides a description of excavated soil or crushed rock which may be reused, with or without processing, at the project area, and which excess soil may be deposited at a Class 1 site or landfill. This report will also identify the type of potential reuse sites to which excess soil from the project area may be transported
4. Excess soil destination assessment report: this report documents information on the reuse sites or other sites (such as landfills, dumps, Class 1 soil management sites, and Class 2 soil management sites) at which excess soil will be deposited. The information helps to verify that intended reuse sites are willing to accept excess soil from the project area and that the excess soil is of appropriate quality and quantity for the intended beneficial reuse. Contingency measures must be identified in the report in the event that excess soil cannot be deposited at an intended site, including the location of an alternate deposit site (which may include returning the excess soil to the source site)

The declarations related to these reports must be completed by a QP, not a supervisee.

To learn more about the key requirements associated with these reuse planning requirements, read sections 8-15 of the regulation and section B of Part I: Rules for Soil Management.

Tracking system

In addition to the reports prepared or supervised by a QP that document and help to understand the intended deposit sites for which a project’s excess soil may be appropriate, a project leader must also verify where the excess soil was finally placed. The regulation specifies that the project leader must develop and apply a tracking system for projects required to file a notice on the Registry to track excess soil during its transportation and deposit.

The tracking system will include procedures to account for each load of excess soil moved from a project area, including its general quality, quantity and verification of the final site at which it was deposited. The hauling record, required to be available from a hauler of excess soil, can be an integral part of the tracking system. The tracking system would also inform the hauling record by ensuring that the appropriate quality of soil for a deposit site is loaded and reflected in the hauling record.

To learn more about the key requirements associated with the tracking system, read section 16 of the regulation and section B of Part I: Rules for Soil Management.

Exemptions from excess soil reuse planning requirements

The regulation includes several exemptions from all or some of the planning requirements related to soil reuse planning.

These exemptions reflect some low risk scenarios, some scenarios where responsibility for the soil is not changing, and some scenarios to help encourage reuse in similar projects. General exemptions are set out in Schedule 2 to the regulation. Examples of exemptions include:

1. If less than 100 m³ of excess soil is being removed from the project area and being directly transported to a waste disposal site that is not a Class 2 soil management site, such as a landfill
2. The reason for the removal of excess soil is in response to an emergency, such as an existing danger to the health or safety of any person, a serious risk of injury or damage to any property or to any plant or animal life, or to respond to a spill
3. Projects that are related to maintaining infrastructure in a “fit state of repair” other than excavation of excess soil from a stormwater management pond
4. The excavation of topsoil which is transported directly for reuse as topsoil at a reuse site, and there is a low risk of contamination (the project area has never been an enhanced project investigation area, and the primary purpose of the project where the excess soil was removed from was not the remediation of contaminated land)
5. 5. The excess soil is excavated as a part of an infrastructure project and after removal from the project area, the excess soil is being reused (finally placed) at a reuse site owned by the same project leader or a public body as part of an undertaking related to another infrastructure project
6. The excess soil is being deposited at a local waste transfer facility and the amount of excess soil to be deposited is 100 m³ or less

Record keeping at project areas

Project leaders for sites generating excess soil are required to keep copies of most documents they create or receive per the requirements of the regulation for seven years. This would include the written consent obtained from reuse sites to move excess soil to those locations, and any reports to fulfill excess soil reuse planning requirements (if applicable). Excess soil hauling records are only required to be kept for two years after the day the excess soil was loaded for transportation.

Procedure for excavation at a project area

The project leader or the operator of any project area is required to develop and (if necessary) implement a procedure to be followed, should an observation during excavation within the project area be made that suggests the excavated soil or crushed rock may be affected by contamination.

Observations include visual or olfactory observations, which suggest that the soil or crushed rock being excavated may be affected by contamination or discharging of a contaminant.

At minimum, the procedure needs to include the following:

1. All excavations in the project area must cease immediately, until such time as the project leader directs that they can resume
2. The project leader or the operator of the project area must be notified immediately
3. Before directing that excavations may be resumed, the project leader or operator of the project area must ensure that all necessary steps are taken to confirm that,
   1. all excavated soil or crushed rock that is affected by the discharge of a contaminant is identified and is segregated from other excavated soil or crushed rock in the project area
   2. the portion of the project area that is affected by the discharge of a contaminant is determined
   3. any excess soil from that portion of the project area is disposed of in accordance with the regulation
4. If the project leader was already required to retain a QP to prepare any documents under the regulation (such as assessment of past uses, sampling and analysis plan, soil characterization report, and excess soil destination assessment report), the project leader shall, before authorizing any excess soil to be removed from the project area where the observation was made,
   1. obtain the advice of a QP regarding what steps are necessary in order to ensure the outcomes mentioned in 3 i, ii and iii above are achieved
   2. request that the QP advise on whether any of the documents need to be revised as a result of the observation

Best management practices

Maximize on-site and local reuse

All parties should look for opportunities to minimize the amount of soil or crushed rock to be excavated. When soil does need to be excavated, the ministry encourages the reuse of the excavated soil or crushed rock on-site within the project area. Excavated soil and crushed rock reused within the project area will not be considered excess soil and would also not be designated as waste, therefore not triggering the regulatory rules for excess soil moved from the project area. Reusing excavated soil or crushed rock within the project area limits the need to import excess soil from other project areas and reduces the costs and vehicle emissions associated with transportation and disposal of excess soil.

Opportunities to reduce excavation of soil or crushed rock and reuse of it on-site or across a series or properties being developed must be considered starting at the design stage of a project. Requirements could be placed in various permissions, such as sub-division or site planning approvals, or site alteration permits, to maximize reuse of soil and crushed rock. Large scale planning initiatives, like district or secondary plans, should be able to achieve a balance of cut and fill and soil reuse across the planning area.

The ministry also promotes the reuse of excavated soil or crushed rock from infrastructure projects at other similar local infrastructure projects. Project leaders undertaking multiple infrastructure or development projects should look for opportunities to plan reuse of excess soil across projects. Similarly, proponents of projects that require soil for specific uses, such as the construction of berms or new roads, are encouraged to consider importing excess soil from appropriate nearby projects.

Develop excess soil management plans

The project leader of a project generating excess soil should consider retaining a QP to develop an excess soil management plan. This is consistent with guidance in the 2014 document Management of Excess Soil - A Guide for Best Management Practices. An excess soil management plan may be a useful tool to integrate all regulatory requirements, including those from the regulation, and to ensure soil is properly managed and tracked.

For projects required to undertake excess soil reuse planning requirements, the related assessments and reports would be a significant component of the excess soil management plan.

Depending on the size and complexity of a project, these items should be included in the excess soil management plan:

• all reports completed related to the excess soil management activities: assessment of past uses report (or phase one ESA), sampling and analysis plan, excess soil characterization report
• a site plan that identifies all areas to be excavated, with the estimated volume and soil type and quality of each area, as well as areas for reuse, storage and processing
• procedures for on-site excavated soil or crushed rock management, including any intended on-site processing and segregation of excavated soil or crushed rock of various qualities
• the estimated volume of excess soil to be taken off-site from the project area
• a list of potential receiving sites for various soil qualities, including an excess soil destination assessment report, if completed
• procedures for tracking of excess soil to reuse sites or other destinations
• record keeping procedures
• identification of relevant site-specific instruments or regulatory requirements that may apply to the project area and soil-related activities, such as the intent to file a record of site condition
• requirements and procedures respecting cultural heritage and natural heritage assessments and associated soil management considerations

Interacting with reuse site operators and soil haulers

For the regulation to be efficiently implemented, information sharing between some parties is necessary. Some examples include:

• with reuse sites, sharing excess soil assessment information to help confirm that they are willing to accept excess soil from a particular project, written confirmation from reuse sites confirming that they agree to take excess soil from that project area, and coordination of tracking procedures to confirm receipt of excess soil
• information provided to haulers transporting excess soil by the project leaders, that confirms where the excess soil is to be deposited, contact information, and contingency sites if that deposit site is not available

Additional information

Project leader responsibility

A project leader is the person or persons who is the proponent for a project and ultimately decides how a site’s excess soil will be managed. The project leader will vary based on the nature of the person(s) or organization(s) that own the site where soil is generated; it may be a property owner, a firm, corporation or partnership, a municipality or another body. Individuals (for example, an employee) may be authorized to complete project leader actions on behalf of a firm, corporation or partnership, municipality or other public body.

While various responsibilities of soil management may be delegated to contractors to undertake on behalf of a project leader and a QP is required to undertake or oversee various activities, under the regulation, contractors and/or QPs would not become the project leader and responsibility for key decisions and compliance ultimately rests with the project leader.

Qualified persons

A qualified person, or a QP, is a professional engineer or professional geoscientist for the purposes of completing or supervising excess soil planning requirements under the regulation, consistent with section 5 of the Record of Site Condition Regulation. If the Beneficial Reuse Assessment Tool (BRAT) is used to develop site-specific excess soil quality standards a section 5 or 6 QP is required, a QP must also be retained for a risk assessment (RA), this would require a QP as described in section 6 of the Record of Site Condition Regulation. A project leader should further assess any additional expertise necessary, specific to their soil management activities.

Beneficial purpose

In order to avoid the "waste" designation when excess soil is being reused, there must be a beneficial purpose for the excess soil at the reuse site. Generally, a beneficial purpose for the reuse of excess soil is use of excess soil in an undertaking that requires additional soil in order to complete that undertaking. Simple disposal or stockpiling of excess soil is not a beneficial reuse. The regulation gives a list of potential beneficial purposes, including backfill or raising the grade for a planned development, but it is not exhaustive and other beneficial purposes can be identified. Often a site-specific instrument would relate to the beneficial purpose, giving permission for soil management for a specified undertaking or including plans that would require excess soil for the plans to be achieved.

Defining a project area

The project area is a single property or adjoining properties on which the project is carried out. Properties are considered to be adjoining if “the boundary of one property touches or, were it not for an intervening highway, road allowance, railway line, railway allowance or utility corridor, would touch the boundary of the other property.”

Project areas are determined on a case-by-case basis as they relate to the regulation. Some key factors include:

• The project area relates to the complete project, not only the area or excavation; it includes areas of soil storage, processing or loading, and other areas of construction, material storage or operations related to the project
• For a project being undertaken on one or more distinct properties, the project area includes that entire property
• The project area may span more than one property provided they are being used as part of the project and are contiguous; they would also have either common ownership or control by the project leaders; separated properties are considered to be distinct project areas
• For projects being undertaken in locations without distinct property boundaries on all sides, such as a road corridor, the area of continuous operations defines a project area; as such, multiple separated work locations throughout a corridor or in different corridors would be distinct project areas
• Multiple projects under one contract do not become a single project or project area, unless they are contiguous
• One project or project area could relate to multiple types of infrastructure or other works; for example, one project could be installing water sewer and storm water infrastructure in a contiguous area
• Off-site, temporary storage areas such as Class 2 soil management sites and local waste transfer facilities would not be part of the project area

As stated above, the regulation does not set project areas based on contracts. One contract may apply to a portion of a project, a complete project, or multiple projects. Areas that are not contiguous, even under one contract, are their own project areas. These areas should also not get combined for determining the total amount of excess soil leaving a project area as it applies to this regulation.

Existing contract exemption from the planning requirements

The regulation exempts soil management contracts entered into before January 1, 2022 from certain requirements under the regulation. If this exemption applies, notice is not required to be filed in the registry and the associated reuse planning requirements (for example, assessment of past uses, sampling and analysis, tracking, etc.) are not triggered until January 1, 2026. Other regulatory rules would apply, including provisions specifying excess soil reuse rules to avoid the waste designation (for example, consent from the reuse site owner and excess soil quality standards).

If a contract is entered into before January 1, 2022 but has not been completed by January 1, 2026, it would be required to complete the excess soil reuse planning requirements in relation to excess soil movements from January 1, 2026 forward if no other exemptions apply.

The regulation also recognizes past use assessments, sampling and analysis plans and soil characterization reports completed for a specific project before January 1, 2023 as assessments, plans and reports under the regulation. This ensures these studies do not have to be repeated for a project continuing based on those studies. Note that if a different project is being commenced after that date, these assessments, plans and reports must meet all of the regulatory requirements.

Stormwater management pond sediment

Sediment cleaned out from stormwater management ponds is subject to the regulation. Stormwater management ponds are considered an industrial use under this regulation, regardless of the underlying land use of the property they are established on, and therefore any excavation of sediment that will be removed from the project area, unless otherwise exempt, will be subject to the reuse planning requirements.

Non-application of the regulation

There are certain circumstances and materials for which the regulation does not apply, and which must be managed under other regulatory regimes, including:

• reuse of rock unless mixed with excavated soil or crushed rock
• excavated soil or crushed rock that meets the definition of hazardous waste
• asbestos waste
• the operation of a pit or quarry from which aggregate as defined in the Aggregate Resources Act is excavated (including the use of material from these operations and use or production of recycled aggregate at these sites), except the deposit and final placement of excess soil at a pit or quarry for reuse at the pit or quarry, including for the purpose of rehabilitation
• the excavation of topsoil based on a permit under the Aggregate Resources Act
• peat production from a peat excavation operation
• the final placement of excess soil on the bed of surface water body

Sampling considerations at project areas

Sampling requirements related to excess soil planning come into effect on January 1, 2023 and may be mandatory for larger and riskier project areas that are not otherwise exempt. However, all sites are recommended to consider hiring a QP and sampling their soil, particularly before sending it to a reuse site. Sampling provides greater confidence that soil quality is appropriate for the intended reuse site(s) than not sampling. Sampling methodologies and frequencies outlined in Part I, Section B of the Rules for Soil Management and Excess Soil Quality Standards may be considered as guidance when not triggered by the regulation.

However, sampling may not be needed in locations with little or no likelihood of contamination. If analysis of the past uses is done and indicates no potentially contaminating activities and little or no chance of contamination, then sampling may not be needed. Some risk is being assumed if contamination remains undetected and becomes an issue later. The reuse site has the discretion whether they accept excess soil for which assessments or sampling and analysis have not been completed and it may be subject to an instrument or regulations requiring sampling.

Maintenance in a fit state of repair

Maintaining infrastructure in a fit state of repair is an exemption from the excess soil planning requirements under Schedule 2 to the regulation. This exemption does not, however, apply to excess soil excavated from a stormwater management pond for the purpose of maintaining the facility.

In general, maintaining in a fit state of repair would include repairing infrastructure or replacing existing infrastructure with similar infrastructure. Generally, it would not result in increased capacity or a different alignment. Examples of infrastructure maintenance may include culvert replacement, roadbed repair or pipe replacement. Temporary infrastructure that is part of the maintenance or replacement process, such as a by-pass pipe or a minor road diversion, may be considered part of maintenance. Replacing a pipe, for example, by laying a new parallel pipe to allow the old one to stay in service until the new one is finished would also come under this.

New construction, such as building a road, or a transit right of way, digging a tunnel for a new subway or digging a new sewage/watermain tunnel, would not be considered maintenance. Re-aligning (vertically or horizontally), twinning, adding capacity or widening of a pipe or road would also not fall under this exemption, although some minor increase in capacity or realignment may be acceptable depending on the situation (for example, to meet updated standards).

Requirements for smaller source sites

The criteria specified in section 3 of the regulation for reuse of excess soil that is not designated a waste, applies to all excess soil from a project, regardless of the amount of excess soil leaving a project area. The excess soil reuse quality standards apply to that excess soil, and if there is any concern that the excess soil may contain contaminants, then some sampling and analysis may be appropriate.

Excess soil reuse planning requirements (such as filing a notice and sampling and analysis), would often not apply to sites removing less than 2000 m³ of excess soil from the project area. However, these planning requirements may apply to smaller projects if the excess soil is from an enhanced investigation site, like an industrial location or gas station, or another site that is a soil remediation project.

Excess soil restrictions for landfills

Excess soil that is suitable for reuse should be viewed as a resource and not disposed of as a waste. The regulation restricts cleaner quality excess soil from filling up valuable landfill space, as of January 1, 2025. More specifically, excess soil may not be deposited at a landfill or dump if that excess soil meets Table 2.1 (full depth potable) of the generic excess soil quality standards for residential, parkland or institutional uses. However, it is recognized that excess soil that meets this level of quality may be required by a landfill for daily or final cover, or for other beneficial uses to support their operational needs, which will continue to be permitted.

Transportation and temporary off-site storage for reuse at the project area

If soil or crushed rock is excavated at the project area and temporarily stored at an interim site or in a vehicle off-site, then returned to the project area for reuse, it would not be subject to the requirements for reusing excess soil that are set out in sections 3, 4 and 5 of the regulation. The purpose of those sections is to ensure the owner of the reuse site consents to the deposit of the excess soil, the excess soil meets the applicable soil quality standards, and the excess soil is used for a beneficial purpose. It is not intended to regulate a situation where a project leader temporarily stores excess soil off-site, and then returns it to the project area for reuse. Excavated soil or crushed rock can also temporarily leave a project area to travel directly to another part of the project area, if that is the most efficient means of relocating soil within a project area for reuse.

However, this interpretation must be applied appropriately. The onus is on the project leader to ensure the excavated soil or crushed rock from the project area is stored appropriately when offsite, and to demonstrate that it will be returned and reused within the project area. If the excavated soil or crushed rock is mixed with excess soil originating from other project areas or if the opportunity to reuse soil at the project area no longer exists, the project leader can no longer take advantage of this interpretation, and sections 3, 4 and 5 would apply.

It should also be noted that when the excavated soil or crushed rock leaves the project area to be stored temporarily, it is considered excess soil, and is therefore subject to other requirements in the regulation, including those that apply to the transportation of the soil (such as vehicle standards, hauling record), soil storage rules etc..

Definitions

Please review the Definitions page for relevant definitions and terminology.