Extending grandfathering for infrastructure projects and providing additional flexibility for excess soil reuse

Regulation Number(s):
O. Reg. 406/19
Instrument Type:
Bill or Act:
Environmental Protection Act, R.S.O. 1990
Summary of Proposal:
In December 2019, Ontario made a new On-Site and Excess Soil Management Regulation (O. Reg. 406/19), supported by risk-based standards that will make it safer and easier for industry to reuse more excess soil locally.
In response to the COVID-19 pandemic and to provide further clarity and flexibility to support appropriate beneficial reuse of excess soil, we are now proposing amendments to O. Reg. 406/19 and O. Reg. 153/04 under the Environmental Protection Act. The proposed changes include:
• extending the date applicable to the grandfathering provisions by which construction projects must be entered into by one year, from January 1, 2021 to January 1, 2022, to accommodate projects that are close to starting construction but delayed due to COVID-19
• clarifying the scope of grandfathering provisions to include geotechnical studies completed by January 1, 2022, to ensure these studies do not have to be repeated
• replacing waste-related Environmental Compliance Approvals with standard rules for operations processing excess soil for resale as a garden product, and operations managing clean soils for residential development projects
• providing added flexibility to soil management rules such as those for soil storage and reuse of soil impacted by salt
• enabling Environmental Compliance Approvals to specify alternative soil management requirements to provide project-specific flexibility
• updating O. Reg. 406/19 and the Protocol for Analytical Methods Used in the Assessment of Properties under Part XV.1 of the EPA (Analytical Procedure) with the modified Synthetic Precipitation Leaching Procedure (mSPLP)
• clarifying that the excess soil registry to be used for filing notices will be delivered by the Resource Productivity and Recovery Authority and expand the registry's purposes to also include integration with other third-party systems supporting reuse of excess soil, such as tracking systems, soil matching systems and other non-regulatory programs, considering cost, security and other relevant matters.

Please refer to the Supporting Materials for a more detailed description of the proposed changes and rationale.

The proposed changes would:
• reduce construction costs associated with managing and transporting excess soil
• limit the amount of soil being sent to landfill
• lower greenhouse gas emissions from the sector
• continue to ensure strong protection of human health and the environment

These proposed amendments support delivery of actions in Ontario's "Made-In-Ontario" Environment Plan including:
• recognizing excess soil as a resource
• developing clear rules to support beneficial reuses of excess soil and to help address issues of illegal dumping

We would continue to work collaboratively with stakeholders and Indigenous communities on the proposed amendments and to ensure the regulations are implemented effectively.
Further Information:
Proposal Number:
Posting Date:
October 6, 2020
Comments Due Date:
November 20, 2020