As previously reported in Practice Advisory Issue 15, Regulations 406/19 On-site and Excess Soil Management came into effect on January 1, 2021. Members working on construction projects that involve excavated soil should be familiar with the requirements as well as understand the project team’s roles and responsibilities under the Environmental Protection Act.

Resources

Many of the resources you will need to manage the obligations under O.Reg. 406/19 are available here. This link includes access to:

• recently launched registry administered by Ontario’s Resource Productivity and Recovery Authority (RPRA);
• RPRA training materials;
• Rules for Soil Management and Excess Soil Quality Standards;
• Guide for “Best Management Practices in relation to excess soils; and
• Beneficial Reuse Assessment Tool (BRAT).

Practical Strategies and Things to Discuss with the Project Team

Clients, members, and others on the project team may want to consider some of the following strategies as it pertains to excess soils regulation during design and construction phases. This list is not exhaustive and is meant to assist in discussion with the team:

• At the design stage (or sooner), determine the obligations in relation to the project and review if an exemption applies. If not, what rules apply to the specific circumstances? Will this affect timelines or costs?
• Discuss design and onsite reuse options, as well as the specified construction methods to limit excess soil, etc. Clients may also want to consider pre-tender/pre-contract geotechnical and hydrological assessments to better understand the excess soils risk before moving too much ahead with the design
• Take the time to understand roles and responsibilities of each party and how they will be articulated in the contracts or subcontract documents. The project team should work on clearly setting out, in the contract documents, the roles/responsibilities as they pertain to O. Reg 406/19. This will help manage expectations and confirm who is, for example, responsible to file the requisite notice and other related obligations such as reporting, tracking system, record keeping, etc. This may help mitigate potential disputes and delays.
• During construction, all parties that touch on excess soil should know if exemptions apply. The project team should establish a clear procedure and tracking system for the excess soil (if it applies).