On March 11, Ontario’s Ministry of the Environment, Conservation and Parks announced a proposed one year pause to the implementation of certain provisions under its excess soil regulations that came into effect on Jan. 1, 2022. The majority of the excess soil regulations have been in effect since 2019.
Specifically, this second of three implementation phases requires, “some project areas to complete actions to help plan and demonstrate appropriate excess soil reuse, including registration in a public registry of reuse sites used.”
The required information could include, “an assessment of past uses must be completed and, if necessary, a sampling and analysis plan and soil characterization report, as well as a destination assessment report and the development and implementation of a soil tracking system.”
An approved pause would mean phase two begins Jan. 1, 2023, giving those affected municipalities and contractors more time to prepare for the registry portion of the province’s soil regulations. Phase three will begin as scheduled in 2025.
The overall purpose of Ontario’s excess soil regulations is, “to protect Ontario’s land by taking steps to properly manage local soil and brownfields, ensure valuable resources are not wasted, reduce the risk of contaminants and redevelop brownfields,” write Jennifer Fairfax, Andrew Wong and Jagriti Singh of Osler, Hoskin & Harcourt. It is also intended to help law enforcement and municipalities prevent illegal soil dumping.
It is not immediately clear why a delay in the implementation of phase two is needed.
Sahil Shoor, partner with Gowling WLG, told the Daily Commercial News he was not aware of any calls for postponement coming from the construction or development industries. However, there may have been a desire for a postponement expressed by municipalities feeling somewhat rushed to update their processes.
In fact, the ministry announcement made reference to providing more time for all parties including municipalities to better understand their respective responsibilities and to improve co-ordination with regard to the registry.
The added time would also, “provide an opportunity to make some adjustments, if necessary, to improve the effectiveness and overall efficiency of the excess soil regulation, and to focus application of the reuse planning requirements to circumstances where they are most beneficial.”
The ministry reiterated it wishes to ensure the provisions “are clear, effective, practical and focussed to circumstances most necessary to support sustainable soil management across the province.”
One key element within Ontario’s excess soil legislation was the creation in 2019 of two important positions.
First is the Project Leader (PL). Rob Kennaley and Christa McKenzie of Kennaley Construction Law say the PL could be more than a single person, but would in any case be, “ultimately responsible for making decisions relating to the planning and implementation of the project.”
“That individual or individuals would be solely responsible for regulatory compliance regarding prescribed project information, and all details concerning how any excess soils will be handled,” adds Shoor, noting this role cannot be contracted out.
The project must also retain a Qualified Person (QP). The QP is normally an independent third party under contract to provide their specific expertise. They are responsible for soil sampling, testing, and tracking, and the records concerning the condition of the soil at the project site and its handling.
Both appointments should be made during the project’s planning stage, Shoor explained, a critical time when project partners are consulting with municipalities on matters regarding the reuse or removal of excess soil.
It should be noted that phase two is still in effect as of Jan. 1, 2022 until the pause is approved. There also has change regarding the appointment or responsibilities of either the PL or QP. They need to be in place, as before.
“The extra time, if allowed, can be put to good use,” said Shoor. “Project contractors could use the time to understand the legislation, to better understand the various responsible roles and what those roles actually mean, and the impact the legislation will have on their business.”
John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com.
*This article has been updated to correct information, noting the pause is currently in the proposal stage.
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