1. INTRODUCTION
In Fall 2024, the Ministry of the Environment, Conservation and Parks (“MECP”) proposed amendments to two Ontario Regulations, for the purpose of accelerating development.
This article follows an earlier OBA article, “Proposed Amendments to Ontario’s Excess Soil Laws”.
2. PROPOSED AND IN-EFFECT AMENDMENTS TO EXCESS SOIL REGULATIONS
2.1 Proposed Amendments to Enable Greater Beneficial Reuse of Excess Soil
On October 18, 2024, the MECP proposed several amendments to Ontario Regulation 406/19 (“Excess Soil Regulation”) and the Rules for Soil Management and Excess Soil Quality Standards. The public comment period through the Environmental Registry of Ontario (ERO #019-9196) ended on November 21, 2024.
The amendments were proposed to make it simpler for the construction industry and municipalities to reuse excess soil locally and build more housing, highways, and other infrastructure, faster. The Excess Soil Regulation has been phased in since 2019 and is mostly in legal force and effect.
The amendments proposed on October 18, 2024 are as follows:
- [now in effect, as of December 18, 2024] changing the in-effect date of the restriction on landfilling cleaner soils, from January 1, 2025, to January 1, 2027, and clarifying exceptions from the restriction, to allow more time to understand and apply the restriction with minimal confusion and disruption
- removing requirements for waste environmental compliance approvals for third-party storage and processing of excess soil at lower-risk aggregate and small liquid soil operations, with regulatory rules to be followed instead
- enabling greater reuse of aggregate and stormwater management pond sediment by providing some flexibility related to meeting applicable excess soil quality standards, in respect of asphalt-related contaminants if the excess soil is reused in an asphalt-related project, and naturally occurring exceedances of the excess soil quality standards
- providing flexibility for soil moved between project areas and reuse sites of infrastructure projects of the same type and project leader to enable more efficient management of excess soil from these projects
- adding exemptions from reuse planning requirements (other than filing a notice on the Excess Soil Registry) for soil moving between infrastructure project areas and reuse sites with different project leaders and operators
- where sampling and analysis is required, allowing in-situ sampling of stormwater management pond sediment to reduce time and cost associated with its characterization
- considering the use of regional mapping of areas that naturally exceed the excess soil quality standards for certain parameters as a basis for enabling greater reuse of excess soil with such exceedances, and
- other clarifications and corrections that would not change policy intent, including clarifying the delineation of a project area that is planned to be contiguous upon completion, the management of soil that is temporarily removed from and will be returned to a project area, and sampling clarifications for substances added to soil to facilitate excavation
Links to the regulation as well as existing guidance to help understand the regulatory requirements can be found on the MECP’s Handling Excess Soil website.
2.2 Amendments Made to the Excess Soil Regulation
On December 18, 2024, some of the above proposed amendments came into effect, with clarified exemptions.
Upon receiving feedback from soil management companies, municipalities, the construction sector and others, the MECP announced that amendments would be made to the Excess Soil Regulation. Since a landfilling restriction was coming into effect January 1, 2025, the MECP proceeded with the decision to change that date, to give the industry more time to prepare and respond.
The amendments that came into effect on December 18, 2024 are as follows:
- changing the in-effect date of the restriction on landfilling excess soil that meets Table 2.1 residential, parkland and institutional (RPI) excess soil quality standards from January 1, 2025, to January 1, 2027
- revising the existing exemptions from the restriction on landfilling excess soil to clarify when excess soil meeting Table 2.1 RPI excess soil quality standards may still be taken to a landfill. This exemption applies if a qualified person determines that the excess soil is inappropriate for reuse because it:
- contains other chemicals for which there are no applicable excess soil quality standards and that may result in an adverse impact if finally placed
- contains invasive species that should not be relocated, or
- is geotechnically unstable and cannot be used at a reuse site for structural purposes and after reasonable efforts were made, another reuse site where the soil could be used for another beneficial purpose was not identified
The MECP will make a final decision on the remaining proposals following further consideration of the feedback received.
2.3 Amendments to Reduce Records of Site Condition That Are Not Supporting Brownfields Redevelopment
On November 20, 2024, the MECP proposed amendments to Ontario Regulation 153/04 to prohibit the submission of a record of site condition (“RSC”) for filing in certain circumstances and to expand an exemption under RSC filing requirements to change the use of a building from commercial or community use to mixed use. The public comment period ended on January 10, 2025, and additional information is available at ERO #019-9310. The purpose of the proposed amendment is to reduce regulatory burdens and accelerate the development of housing, highways, and other infrastructure.
The MECP has proposed the following amendments:
- prohibiting the filing of RSCs on the Record of Site Condition Registry if the filing is not otherwise required by the Environmental Protection Act or O Reg 153/04, and the RSC was prepared solely on the basis of a phase one environmental site assessment (“ESA”), where no potentially contaminating activities or areas of potential environmental concern have been identified for that property. A proposed exception to this prohibition would allow a property owner to submit an RSC for filing based on a Phase One ESA if the Phase One ESA is not as a result of a requirement of another person, and
- expanding an existing exemption from the requirement to file an RSC when converting existing commercial or community use buildings (e.g. office buildings) to mixed use containing residential or institutional uses. A restriction on building height of six storeys for this exemption to apply would be removed, while other criteria remain in place.
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