The quick and dirty on amendments impacting low-risk and contaminated projects under Ontario’s excess soil regulation

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By Talia Gordner, Annik Forristal and Patrick Pinho

McMillan LLP

Special to Ontario Construction News

On Dec. 9, 2022, the Ministry of Environment, Conservation and Parks filed and published O.Reg. 555/22 which amends the On-Site and Excess Soil Management Regulation under the Environmental Protection Act.

Amendments arise from the original proposal for amendments to certain requirements under the Excess Soil Regulation, which was published on the environmental registry of Ontario on Nov. 4, 2022 and remained open for comments until Dec. 4.

They narrow the application of planning, assessment and soil characterization requirements for the reuse of excess soil from certain types of projects under phase two of the regulation scheduled to come into force Jan. 1, 2023.

The reuse planning requirements originally would apply to any defined project in the regulation, which includes any form of development or site alteration, construction, reconstruction, infrastructure work or removal of liquid soil or sediment from a surface water body. As a result of the amendments, the regulation now specifies which projects have to comply with the reuse planning requirements – namely, where a project:

  • has an enhanced investigation project area.
  • involves the removal of at least 2,000 m3 of excess soil and the project area is within a settlement area (as defined in the Planning Act), and involves the removal of excess soil to reduce the concentration of contaminants in the project area.

Amendments come eight months after Ontario suspended certain requirements in the regulation until Jan. 1, 2023. This suspension was intended to provide time for municipalities, developers, and other stakeholders to gain a greater understanding of the regulation and for the ministry to consider the need for improvements to the regulation.

This article provides an overview of the Amendments coming into effect on Jan. 1, 2023, which create two new exemptions and remove one existing exemption to the reuse planning requirements under the regulation. Notably, the rules for soil management and excess soil quality standards have not been amended as of the date of this article to increase the maximum size of storage stockpiles as originally contemplated in the proposal.

Low-risk use of project area

The reuse planning requirements will apply to any part of the project area involving the removal of 2,000 m3 of excess soil or more, subject to certain regulated exemptions under the regulation.

The amendments provide for an additional exemption to the reuse planning requirements where the entire project area’s current or most recent use meets the definitions of certain “low-risk” uses as defined in O.Reg. 153/04. The low- risk uses are defined as residential use, institutional use (such as a school), use as a childcare centre or religious building, parkland use, or agricultural use.

However, the low-risk exemption will not apply even if the current or most recent use is a designated low-risk use when the project area, or any part of it, was impacted by historical soil contamination or was used as an enhanced investigation project area (meaning, a project area that was used for any industrial use, use as a garage or bulk liquid dispensing facility, or use for the operation of dry cleaning equipment)..

Enhanced investigation project areas

Where the project leader determines that the project area is determined to be an enhanced investigation project area, the reuse planning requirements will apply to the project. However, there is a limited exemption for projects that have been an enhanced investigation project area.

Requirements will not apply where both of the following two criteria are met:

  • a record of site condition has been filed in respect of the project area that does not rely on a risk assessment completed pursuant to the environmental protection act.
  • no part of the project area has been used as an enhanced investigation project area since the Record of Site Condition was originally filed.

Projects involving environmental remediation

Amendments remove the existing exemption from the reuse planning requirements applicable to projects where the project area is not and has never been an enhanced investigation project area, the primary purpose of the project is not remediating contaminated land, and the amount of excess soil to be removed is less than 2,000 m3.

In its place, the Amendments provide that the Reuse Planning Requirements will apply where all or part of a project area is being remediated by excavating and removing excess soil to reduce the concentration of contaminants on, in or under the project area. This includes remediating a project area for the purpose of filing a Record of Site Condition.

© McMillan LLP 2022

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