Waste Designation

Where excess soil is being reused at a reuse site for final placement, the following criteria must be met to avoid the waste designation:

1. The excess soil is directly transported to a reuse site from a project area, a Class 1 or Class 2 soil management site or a local waste transfer facility.

2. The owner or operator of the reuse site has consented in writing to the deposit of the excess soil at the reuse site (not illegally dumped)

   Note: If excess soil is inappropriately deposited for final placement at a reuse site, this means that the soil is waste and may be managed per Part V of the Environmental Protection Act which includes the authority for the Ministry 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.

3. The excess soil is being beneficially reused (such as backfilling) at the reuse site and is not being stock-piled.

4. The quality and quantity of the soil align with that necessary for the beneficial reuse.

5. The excess soil is dry soil and remains dry soil until it is finally placed at the reuse site.

• If the soil is not dry, a “local instrument” must permit the deposit of the excess soil at the reuse site. (Local instrument includes a by-law and/or permit for site alteration or deposit of fill).

  Note: Through this provision, if there is an instrument in place, liquid soil, typically generated through hydro-excavation, tunneling and removal of sediment from storm water management ponds, may be de-watered or solidified which may enable it to be reused as dry soil. The reason liquid soil must be deposited per an instrument is that this activity generally requires greater on-site management and control.

Generally, soil remaining in the project area is not a waste. This means that generally, excavated soil and crushed rock remaining in a project area would not attract the waste designation; it should be noted however that some on-site processing may require a waste ECA.

A key distinction must be made between soil deposited at a reuse site on the basis of a site-specific instrument (ie: a municipal by-law/ permit)  (section 4 of the regulation) or without a site-specific instrument (section 5); see 3.2 of this Guidance document below as this provides additional requirements in these two respective situations. By-laws and permits issued through by-laws are very important in this regime. Section 3 of the Excess Soil Regulation refers to by-laws and permits as permissible instruments, as follows:

• A permit that is issued under a by-law passed under section 142 of the Municipal Act, 2001 or section 105 of the City of Toronto Act, 2006.

• Provisions of a by-law passed under section 142 of the Municipal Act, 2001 or section 105 of the City of Toronto Act, 2006.

Exemption of Low-Risk Activities from Waste Approvals

The following activities may not require an approval (i.e. a waste Environmental Compliance Approval from MECP) if regulatory rules set out in the Excess Soil Regulation and the Rules document are satisfied.

Exempted activities: 

1. Hauling of excess soil (dry or liquid)

   • Rules generally relate to containment and safety during transportation

2. Low-risk on-site processing (at source sites/ Project Areas)

   • Including passive dewatering, some mixing of soils, sorting of soil and debris, mixing additives for solidification for transportation

   • Rules help to prevent adverse effects and retain confidence in processed material

3. Class 2 Soil Management Sites

   • As defined in the Excess Soil Regulation, this means a waste disposal site, other than a Class 1 soil management site, at which excess soil is managed on a temporary basis and that is,

     a) located on a property owned by a public body or by the project leader for the project from which the excess soil was excavated, or

     b) operated by the project leader for the project from which the excess soil was excavated.

   • Can be used to store up to 10,000 m3; some low-risk processing of dry soil is permitted.

4. Local waste transfer facilities

• Can be used to do the same low-risk dry soil processing activities as Class 2 soil management sites, as well as some low-risk liquid soil processing activities (e.g., passive dewatering) by public bodies or project leaders in respect of undertakings related to infrastructure.

• A municipal yard where excess soil (dry or liquid) is dewatered and temporarily stored may be an example of a local waste transfer facility.

5. Residential development soil depots and retail landscaping soil depots.

See section 7 of the Excess Soil Regulation and associated rules and definitions.

Note: when considering the above, general storage rules from the Rules document may apply to all sites, including reuse sites (e.g., set-backs from water bodies, pile size). A municipality may, however, set alternate storage requirements in its by-law/permit (and can do the same for reuse sites). The regulation sets out the ability to set out alternate storage rules. Municipalities are encouraged to ensure that storage and other management requirements are clear, whether relying on the regulation or setting alternate requirements.

The content above is relevant because such sites as reuse sites and class 2 soil management sites may still require by-law permits, irrespective of the approval flexibility provided by the ministry for waste ECAs as described above. By definition a Class 1 soil management site under the Excess Soil Regulation requires an ECA. Sites requiring an ECA for waste often do not require a municipal permit.

If there are questions about whether a particular soil management site or activity (e.g. hauling, use of a Class 2 management site, etc.) requires ministry approval, please contact the closest district office, at: https://www.ontario.ca/environment-and-energy/ministry-environment-district-locator.

Excess Soil Reuse Standards

As part of determining whether excess soil can be placed at a reuse site, soil quality should be assessed using either the applicable table of the generic excess soil quality standards or by developing site-specific excess soil standards for the reuse site. 

Generic Excess Soil Quality Standards

Developed as part of the Excess Soil Regulation and can be found in Part II of the Rules document, which is entitled “Excess Soil Quality Standards”. Two sets of tables of generic excess soil quality standards are provided based on the volume of excess soil being reused.  The small volume excess soil quality standards can be applied to excess soil volumes up to 350 m3, while the volume independent excess soil quality standards should be applied to excess soil volumes that are greater than 350 m3.

These excess soil quality standards were developed using models similar to those used to develop site condition standards under O. Reg. 153/04 - Records of Site Condition, made under the EPA (Brownfields Regulation). The excess soil quality standards are supported by rules for specific types of soil (e.g. salt impacted soil and soil mixed with compost) and specific types of sites (e.g. environmentally sensitive areas). If for example, the excess soil at the reuse site will be used for growing crops, the following rule would apply.

Excess soil shall only be finally placed for the beneficial purpose of growing crops or pasture if the following criteria are met:

• No excess soil will be placed on top of existing topsoil unless the excess soil is topsoil; and

• The excess soil meets Table 1 of the excess soil quality standards and the results of any required leachate analysis meets Table 1 of the leachate screening levels as outlined in the Appendices in PART II of this document unless the excess soil is finally placed at a depth that is below 1.5 metres from the surface.

A site-specific instrument (e.g. a permit issued under by-law) can deviate from these rules.

Site-Specific Standards

Can be developed that better reflect the local conditions at the reuse site.  Site-specific standards can be developed through the BRAT or risk assessment (which may include risk management measures), and/or through a site-specific instrument. Whether BRAT or RA are used or not, municipality can set alternative soil quality standards which it approves via a site-specific instrument.

Hauling Information

From January 1, 2021 to January 1, 2022, per Section 18 of the Excess Soil Regulation, haulers will be required to verbally provide key information on the loads of excess soil they are carrying.  Then by January 1, 2022, a hauling record (could be electronic or paper) will then be required for all movements of excess soil. Note that “excess soil” includes both dry soil and liquid soil (see the regulation for a definition of liquid soil), and hence these requirements are applicable to both dry soil and liquid soil.

A key implication of this requirement is that all movements of excess (dry and liquid) will need to be in compliance with these requirements (i.e. verbal information and then later a hauling record will be needed if asked). This includes any situation where excess soil is moving on the basis of a municipal by-law or permit. These requirements are intended to support tracking and transparency.

Excess Soil Reuse Planning  - Requirements for Larger Riskier Source Sites

The following is an overview of the key requirements associated with this aspect of the regulation.  It does not cover all requirements for project areas. Also see the MECP Excess Soil webpage (https://www.ontario.ca/page/handling-excess-soil).

Registration 

The Excess Soil Regulation (S. 8) requires that a project leader file a notfice providing a record of soil movements from the project area in an online registry;  if the requirement to register is triggered, this also creates the responsibility to do the other excess soil planning actions discussed below  ( see 2.4.2 Assessments) with some exceptions.  This registry notice is updated as the project proceeds (if necessary as stipulated in the regulation) and upon completion but must be filed initially before any excess soil leaves the project area.  The notice on the registry will include key information identified in Schedule 1 to the Excess Soil Regulation, including:

• A description of the project and the project area;

• Contact information including the name and mailing address for the project leader(s) or operator(s) 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, and Class 1 soil management sites (soil banks and soil processing sites that have ECAs), local waste transfer facilities and temporary sites (Class 2 soil management sites) at which the soil is to be deposited (at minimum the sites being used initially);

• A declaration by the project leader confirming they have conducted reasonable inquiries to obtain the required information and, if a QP was required to prepare or supervise the preparation of documents, confirmation that the project leader has disclosed this information to the QP and that the QP was given access to the project area. The project leader must also confirm that the QP has made the applicable declarations; and

• The project leader must also declare that the information filed in the registry is complete and accurate, and apply all necessary procedures to ensure compliance with the Excess Soil Regulation.

• Prior to a new reuse site, or any other location at which excess soil will be deposited from the project area, is used, information related to that new site must be entered in the notice in the Registry.  Also, if the project leader becomes aware that the registry notice is incomplete or inaccurate, the notice is to be updated within 30 days.  Within 30 days of the completion of the soil movement project, this information must be updated to reflect actual amounts of soil moved to each location. 

The registry is expected to help municipalities (and other various parties involved in excess soil management), by providing a resource of information of excess soil information for larger and riskier source sites. When municipalities are regulating reuse sites, it may help them by providing site information. It will be online and available to the public and municipalities, and hence is expected to support enforcement and compliance efforts.

Note that as of January 1, 2022 reuse sites receiving excess soil in excess of 10,000m3 for a beneficial reuse undertaking may also have to register and fulfill other requirements. This will apply irrespective of whether a by-law permit is required and can support municipalities in enforcement of such sites. See section 19 of the Excess Soil Regulation for more information.  This section does not apply to a reuse site that is part of an undertaking related to an infrastructure project.

Assessments

As of January 1, 2022, the Excess Soil Regulation requires that project leaders (i.e. persons who make key decisions for source sites) for projects that are required to complete the reuse planning requirements before removing excess soil from a project area must utilize a Qualified Person (i.e. a professional engineer or professional geoscientist) to complete applicable assessments and reports. The following must be completed by or under the supervision of a QP:

• Assessment of Past Uses (section 11) : this study involves using such methods 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.  An existing phase one environmental site assessment under O. Reg. 153/04 - Records of Site Condition: Part XV.1 of the Act, made under the EPA (Brownfields Regulation), may be relied upon in the preparation of an Assessment of Past Uses.

• Sampling and Analysis Plan and a Soil Characterization Report (section 12) : this involves the planning, investigation (i.e. sampling and testing) and analysis of area(s) of the soil with known or suspected contaminants to understand the quality of the soil that will be excess soil. These may not be necessary depending on the results of the Assessment of Past Uses.

• Excess Soil Destination Assessment Report (section 13): this report documents information on the reuse sites, or other deposit sites (e.g. 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 reuse site.

  Note that this report requires additional due diligence in the selection of reuse sites, and so is intended to help ensure that appropriate reuse sites are found.

Tracking

Tracking is also required of these sites (section 16). A project leader required to complete reuse planning must also verify where the excess soil was ultimately deposited. To this end, the Excess Soil Regulation specifies that the project leader must develop and apply a tracking system in relation to projects that are required to file a notice on the registry to track excess soil during its transportation and deposit. This 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.

It should be noted that there are several exemptions to these requirements, some of which are particularly relevant to municipal operations, such as responding to emergencies or maintaining infrastructure in a fit state of repair. And, section 14 of the Excess Soil Regulation provides situations where only filing a notice on the registry and tracking are required, and not these other tasks/document.

 Overall, a key reason why the requirements described above are relevant is that they may support better soil management at reuse sites and other sites receiving excess soil (short or long term) by helping ensure the soil being received from source sites/project areas is appropriately managed in the first place. For example, as stated in the Rules document, the Excess Soil Destination Assessment Report would need to indicate if the site is or will be governed by a site-specific instrument. It is important to be in compliance with associated sections of the Rules document while meeting these requirements.

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