Whether used for farming or construction, soil is a valuable and finite resource. Soil provides a foundation for the communities we build, helps to filter water, provides nutrients for forests and crops, and is a habitat for burrowing mammals and other organisms.

According to the Food and Agriculture Organization (FAO), it can take hundreds of years to form a centimeter of soil. But we can lose that single centimeter of soil in just one year due to erosion. To help conserve this essential resource, the Province of Ontario is implementing the On-Site and Excess Soil Management Regulation (O. Reg 406/19) to better manage the estimated 25 million cubic metres of excess soil excavated during construction in Ontario every year. This regulation will also help to ensure that any soil or material generated is handled and disposed of appropriately.

This regulation, which came into effect on January 1, 2021 alongside two other regulatory documents, offers local governments and developers a set of best practices to conserve, reuse and properly dispose of excess soil created during construction.

What is excess soil?

The Province of Ontario defines excess soil as “soil that has been excavated, mainly during construction activities, that cannot or will not be reused at the site where the soil was excavated and must be moved off site. In some cases, excess soil may be temporarily stored at another location before the excess soil is brought back to be used for a beneficial reuse at the site where the soil was originally excavated.”

What do the regulations consist of?

The regulations consist of three main documents:

  1. O.Reg. 406/19: On-Site and Excess Soil Management;
  2. O.Reg. 153/04: Record of Site Condition; and
  3. Rules for Soil Management and Excess Soil Quality Standards

The regulations, which will be phased in between now and 2026, identify the rules for sampling, testing and transporting soil, and set standards for soil reuse and disposal. They also identify protocols and practices for the registration, assessment, documentation and tracking of deposits.

Currently, local governments and developers must abide by regulations surrounding new risk-based soil and leachate quality standards. This also includes following designation of waste and associated approval regulations.

Next year, the province will implement the sections regarding soil characterization, tracking and hauling. At that time, project owners will need to register and manage excess soil records. There will be a two-year rest period before restrictions on landfilling of clean soils are provincially mandated. The grandfathering of all provisions will be applicable from 2021 through to 2026.

What does this mean for owners?

As the more stringent components of the regulation come into force, excess soil characterization, reuse, disposal and legal responsibility for soil management will fall to local governments, developers and project owners.

This means that local governments will need to play a more active role in managing excess soil on municipally-owned projects. Although contractors or consultants can continue to manage supporting tasks, local governments should have a strategy to not only manage logistics and costs, but to mitigate risks and liability.

Preparing a plan

As the province phases in excess soil regulations, municipalities would be well-advised to begin incorporating the management of excess soil into their official plans, such as land use planning or watershed planning. In doing so, the use of excess soils can be mapped to areas of maximum benefit on a broader scale.

However, as project owners, you must also ensure that the delivery of your capital and infrastructure projects is compliant. Below we identify three steps you can take to make sure your projects and programs are ready moving forward.

  1. Have a clear understanding of your legal responsibility
    Take the time to review the excess soil regulations with your internal team. This will help you develop a firm understanding of your city or municipality’s role and responsibilities as a project owner. You might also seek legal advice to support your understanding of the regulations and get clarity on questions about liability.

    Taking these actions will ensure you also understand the roles of the consultants, contractors and/or third-party entities supporting you on capital projects. This can help you build a strategy and management plan that best suits your city or municipality’s unique needs.

  2. Consider integrating excess soil management into your capital programs
    As a city, municipality or local developer taking on several capital projects a year, it can be beneficial to apply these regulations at an asset management or program level, rather than on a project-by-project basis.

    Hire an advisor to develop a business case that helps you identify the options available for managing excess soil on a larger scale. An advisor can also offer suggestions on how to integrate processes and procedures into your existing program management structure. Taking this approach allows you to create a custom solution that incorporates excess soil regulations while also harmonizing the regulations with your long-term development plans.

    In addition, preparing a thorough business case can help you identify opportunities for cost savings. Depending on available land, you may be able to store and reuse clean soil for other capital projects. Alternatively, if your city or municipality doesn’t have land available, an advisor can help you secure a cost-effective third-party arrangement to sort and store excess soil elsewhere.

  3. Incorporate processes and procedures into project planning
    Once you’ve determined how to apply excess soil management practices to your capital program, you’ll want to find ways to incorporate soil management tasks into your project planning. Start by updating your procurement contracts to include expectations surrounding soil management. This will give your consultants and contractors an understanding of their role, responsibilities and tasks. Clearly defining supporting roles and responsibilities in your procurement documents will also help you better manage excess soil risks.

    Another way to incorporate excess soil processes into your project plans is to select a soil management software, that can be adopted by all local consultants and contractors. This will provide more cohesiveness across your projects and simplify sampling, analysis and tracking data. Implementing excess soil processes and procedures also enables you to ensure transparency within your project team. This will be a vital component to project success as regulations roll out.

As we adjust to phase one of the On-Site and Excess Soil Management Regulation, consider your organization’s long-term and future goals. View the regulations as an opportunity to develop a solid business plan that aligns your capital program or projects with provincial objectives. By taking the time to understand Ontario’s excess soil regulations, you and your team can fine tune your processes and procedures to make the most of this valuable resource.

A model for the beneficial re-use of excess soils can be obtained from the Ontario Ministry of Agriculture, Food and Rural Affairs’ Nutrient Management Act, which addresses the benefits of biosolids reuse and diverting a valuable resource away from landfills – in this case to farm fields. Many lessons from the development of this Act, and its subsequent programs, can be used to help comply with the new On-Site and Excess Soil Management Regulation.