Ontario Regulation 406/19 Pause

On April 20, 2022, the Ontario Ministry of the Environment, Conservation and Parks officially paused phase 2 of the implementation of Ontario Regulation 406/19: On-Site and Excess Soil Management (see the Environmental Registry of Ontario Decision here).

The “Pause” suspends implementation of certain aspects of the regulation until December 31, 2022:

  • The requirement for residential soil depot operators to update a notice filed in the Excess Soil Registry under subsections 7(7) and (8)
  • The requirement for Project Leaders to file or update a notice in the Excess Soil Registry before removing soil from the project area that will become excess soil under subsection 8(1)
  • Any requirement related to preparation of an Assessment of Past Uses (APU), Sampling and Analysis Plan (SAP), Soil Characterization Report (SCR) and Excess Soil Destination Report (ESDR) collectively known as “Planning Documents”
  • Any requirement under section 15 where the Project Leader or Operator becomes aware of unexpected conditions
  • Any requirement related to use of a soil tracking system
  • Any requirement for the owner or operator of a reuse site to take the steps prescribed by the regulation, including filing or update a notice in the Excess Soil Registry

The Ministry would consider the requirement for a hauling record to be met if the information described in subsection 18(1), like where the excess soil in a truck came from and where it is going to, can be provided verbally to a provincial officer upon request.

The “Pause” does not change the contract exemption date by which a Project Leader has to enter into a contract to be exempt from reuse planning provisions that come into effect January 1, 2023.  The exemption date remains January 1, 2022.

So, what remains in effect?

The criteria used for determining when excess soil is a resource for reuse, and not designated as waste (the Excess Soil Quality Standard Tables) and associated sampling and analytical testing

The related excess soil reuse standards and rules

Exemptions from the need for waste-related approvals in various circumstances.

Implications and effects?

The “Pause” effectively rolls the clock back to April 2021 and gives project owners another chance to undertake the planning documents before they need to file notice on the Excess Soil Registry. For the contracting community, the “Pause” means contractual and payment issues.

Soil Tracking

While projects don’t need Soil Tracking to satisfy the regulation, for those projects that have already started, sub-contracts have been entered into that are no longer required by contract.

Receiving Sites

There is no need for the Project Leader to complete the Planning Documents for compliance with the regulations.  However, receiving sites are still insisting on them, to manage their risk and to remain in compliance with their operating permits and approvals.

According to the Environmental Registry of Ontario, the “Pause” was needed to provide additional time for organizations working on the regulation implementation to get a grasp of the requirements, set up a proper soil management process and coordinate with parties involved for better understanding of their responsibilities and application of best practices. While the purpose of the “Pause” was to provide more time for stakeholders to develop a greater understanding of the Regulation and associated Rules, it is definitely going to trigger contact disputes and claim situations on every construction project with excavation activity awarded since January 1, 2022.

What does the “Pause” mean and how can it affect ongoing and prospective projects? It depends on the project scale in terms of volume of the expected excess soil, and project timeline:

  • Projects tendered before Jan 1, 2022 are exempt from Planning Documents, Soil Tracking and Registry requirements
  • For projects tendered in 2022 that are expected to be finished in 2022, it is up to the project owner(s) and their receiving site if they comply with the Regulation or not
  • For projects tendered in 2022 that will not be completed before January 2023, for any material exported to a new receiving site in 2023 the owner(s) will have to review requirements for Planning documents in order for the new receiving site to file their notice on the Public Registry
  • Projects tendered in 2023 will require Planning Documents (APU, SAP, SCR, ESDAR), extended soil sampling (frequency and parameters depend on site, and soil volume), tracking, and Public Registry/Notice

For more information on how your project timeline and scale can affect compliance with the Regulation and whether exemptions apply (e.g. small scale, infrastructural, emergency projects, etc.), consult with GEMS.

If you have a contract to be completed in 2022 that requires compliance with O. Reg 406/19, we encourage you to get in touch with a dedicated team of GEMS professionals to see if you can get relief from some of the requirements. GEMS specialists are closely monitoring the dynamic situation with the regulations and will provide you with the most recent updates on the requirements related to your specific project.