New regulations will impact construction sector
In early December 2019, the provincial government released a regulatory package that is bound have significant impacts on the construction sector and in particular the environmental side of land development.
The regulatory package had two key elements. The first was a new regulation for addressing excess soil. The second were amendments to the province’s brownfield regulation.
Excess soil
The long anticipated excess soil regulations are finally here. There will be a phased implementation of various obligations.
Date Obligation
2020 (July 1) Designation of waste and reuse standards
2022 Registry and tracking
2025 Prohibition on landfilling
With the exception of a few provisions, most of the regulation comes into force in 2020. The thrust of those, in-force provisions centre on the designation of waste and reuse of excess soil off-site. The regulation clarifies standards for characterizing excess soil as waste by setting out five criteria. In order to not be designated as waste the soil must meet all five of those criteria.
Excess soil is designated as waste unless it meets the following criteria:
- direct transport to reuse site,
- consent of reuse site,
- dry soil or if not dry, have required authorization, and
- meets quantity and quality requirements.
In 2022, the regulation’s notice, tracking and reporting provisions come into force. These provisions include requirements for the retention of a qualified person, the assessment of past uses, a soil sampling and analysis plan, a soil destination assessment report, and a soil tracking system. The 2022 provisions also include requirements for the operation of a reuse site that apply to sites accepting at least 10,000 cubic metres of soil.
In 2025, the prohibition on landfilling excess soil comes into force. Excess will not be allowed at a landfill or waste facility except where a qualified person believes the depositing the excess soil at a reuse site would be “unsafe”.
Brownfields
Also part of the province’s regulatory package included significant amendments to the record of site condition regulation that prescribes requirements for the redevelopment of brownfields. Note that unlike the excess soil requirements, these amended requirements came into force on registration which occurred on December 4, 2019.
These amendments bring in simplified and streamlined requirements for obtaining a record of site condition (RSC). First, for ‘risk assessment’ properties, the process for filing an RSC has been simplified. Second, there are substantive revisions to the ‘change of use’ exemptions. Third, the requirements related to bringing excess soil to a ‘phase two property’ have been clarified. Lastly, the regulation has removed the requirement for an RSC for certain types of redevelopment projects.
The combination of these excess soil and brownfields regulatory actions signals the government’s desire to spur development and construction in Ontario.
Roxie Graystone practices environmental law and construction law at Merovitz Potechin LLP in Ottawa. He can be reached at 613-563-6695 or roxie@mpottawa.com.