Ontario began phasing in its new approach to excess soil management under Regulation 406/19 on Jan. 1 with the first of several provisions stretching out over the next several years. Understanding the details will keep legal specialists and their construction industry clients busy for some time.
What the province is attempting to address is the perceived vagueness within existing Regulation 347 by providing clear, enforceable rules regarding soil reuse, say Krista Barfoot and Dylan Hemmings of Stantec.
In their 2020 webinar, Barfoot and Hemmings explained the province’s goal is to, “reduce (the) amount of excess soil disposed of in landfills, recognize soil as a valuable resource and prevent improper placement/reuse of soil to inhibit (the) contamination of clean sites.”
Spin-off benefits include the encouragement and facilitation of local reuse to decrease greenhouse gas emissions.
The complexity of Regulation 406/19 begins with the numerous exceptions allowed, says Robert Kennaley of Kennaley Construction Law.
“The regulation will not apply to certain soils excavations and placements, for example, those involving hazardous or asbestos waste (which continue to be governed by Ont. Reg. 347) and the operation of pits and quarries.”
Other exceptions Kennaley lists include certain infrastructure projects, agricultural uses and brownfields, and site-specific requirements established under provincial jurisdiction or controlled by local bylaws and permits.
Key to understanding the Regulation 406/19 are the new definitions introduced.
One is the term “excess soil,” summarized by Kennaley as, “excavated soil that must be removed from a project site to be a waste that cannot be reused, stored, transported or disposed.”
Testing, transportation, storage, clean-up, data tracking and disposal requirements are all codified.
Two new roles within the project management team are also set out.
The “project leader” is defined by the regulation as the, “person or persons ultimately responsible for making decisions relating to the planning and implementation of the project.”
Kennaley says the challenge will be how that defined position is applied in each project.
“It certainly appears that owners will only be able to off-load their project leader responsibilities, if at all, where all of the planning and implementation decisions are clearly assigned to another person under a contract.”
The regulation also calls for a “Qualified Person” (QP), someone Kennaley describes as a person required to, “prepare an assessment of the past uses of the site and determine if excavated soils are potentially impacted, based on criteria including contaminants, fluidity and odour.”
Barfoot and Hemmings point out the QP, “must be independent and have no direct or indirect interest in the project.”
In other words, an outside hire.
Determining any potential for reuse of the excavated soil or its hazardous nature, and how it can be stored or transported, is extremely complex and subject to various considerations outlined in the regulation. Suffice it to say that documentation and planning requirements, even before the excavation process begins, will become extensive in the future.
In the near term, Jeff Scorgie, an associate with WeirFoulds LLP, advises contractors to watch for wording in new contracts.
“Some owners may try to include very broad indemnities in the contract, asking for indemnity from statutory fines and penalties as a result of broaches to the regulations.”
Kennaley believes as Regulation 406/19 is phased in over the next five years, it will change the way projects are planned, contracted and managed.
He even suggests that, “an entire new sub-industry will develop to provide soil processing options, both on site or at other interim locations.
“Cost/benefit analysis will be undertaken to explore the use of alternative excavation methods, such as directional drilling and hydrovac, to reduce the volume of excavated soils generated on a project and the costs associated with same.”
Kennaley also believes larger construction firms and haulers, even owners, might consider vertical integration of the excess soil management process to better manage costs. At the very least, excess soil management considerations will find their way into the procurement and prequalification stages of future contracts.
John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com.
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