By Ted McIntyre

New regulations are breaking ground on excess soil management

It’s rather difficult to build a home or condo without having a little dirt left over. OK, a lot of dirt. In fact, an estimated 25 million cubic metres of excess soil is generated in Ontario every year, according to the Province, and must be moved off-site because, by definition, “it can’t or won’t be reused at the development site.”

How you classify, transport, track and dispose of that material has received a significant update with the introduction of Ontario’s On-Site and Excess Soil Management Regulation, O. Reg 406/19. And while Phase 1 of the new legislation, under the umbrella of the province’s Environmental Protection Act, came into effect on Jan. 1, 2021, the details are not exactly common knowledge throughout the residential construction industry. In a poll conducted by WeirFoulds LLP at the beginning of a May 27 webinar entitled “Tools For Success: Excess Soil Regulations,” 25% of attendees had merely “heard of” the new regulations, while 17% admitted they were completely unfamiliar.

While most excess soil (soil, crushed rock or soil mixed with rock) can be safely reused, “some may have limited levels of contaminants, and care must be taken when determining where it may be reused,” the Province cautions, as “improper management of excess soil can negatively affect ground or surface water quality and/or quantity in natural areas and agricultural lands.”

Under the new regulation, all excess soil is deemed to be waste, explains WeirFoulds LLP Partner Janet Bobechko. “To get out of the waste category you have to follow the specific regulatory requirements. Section 3 of the new regulation sets out those requirements, from the fact that the excess soil must be dry (with certain exceptions) to being directly transported to either a reuse site, Class 1 or 2 soil management site or a local waste transfer facility. If any of the various boxes are not checked off, the excess soil will be deemed waste and must therefore be managed in accordance with the Province’s waste management regulatory requirements.”

Apart from clarifying if and how excess soil can be reused, the new regulation also aims to:

  • replace or simplify waste-related approvals with regulatory rules for low-risk soil management activities;
  • enhance reuse through improved planning for larger (2,000+ cubic metres) and riskier sites (e.g., gas stations), including tracking, registration, assessment of past uses and, if necessary, soil sampling and characterization;
  • provide greater assurance that reuse sites are not receiving waste soil, and require larger reuse sites (10,000+ cubic metres) to register and develop procedures to track and inspect soil received;
  • and to restrict landfilling clean soil that would otherwise be suitable for reuse at a sensitive site (e.g., school, agriculture).

The new regulation is being phased in over time: Jan. 1, 2021 saw the introduction of new reuse rules, including risk-based standards and waste designation and approvals. Jan. 1, 2022 will enforce new testing, tracking and registration, while Jan. 1, 2025 will introduce restrictions on landfilling soils.

THE CHALLENGES

There will, of course, be growing pains, says Bobechko. “The new legislation is a very complex and comprehensive tool. Each time I look at it, I come up with different scenarios. Advice that we are giving now may change in a couple months as the evolution of our understanding continues to mature.”

As for industry assistance, “the Ontario Environment Industry Association has been tasked with creating a number of best-practice documents, providing plain-language guidance,” Bobechko notes. “There is one each on excess soil hauling, temporary sites and qualified persons. The Ontario Society of Professional Engineers has also done a guide for pits and quarries—all of these are great resource documents.”

But covering all the bases will require expert assistance. In the May seminar, WeirFoulds’s Jeff Scorgie highlighted key details to consider when updating contracts.

“Owners who are going to be in the role of project leader should make sure that their procurement documents, whether it is a tender or RFP, include the coordinated drawings and specifications,” Scorgie advises. “So if your QP (qualified person) has prepared a soil management plan, you want to make sure that it gets coordinated with the earthworks specifications, and that excess soil-related contractual terms are included in the contract. So make sure your legal team is updating your contracts, your QP is preparing the documents and that your design team is preparing specifications. You don’t want those documents to be created in silos, because it could lead to conflict.

“You should also clearly describe the roles and responsibilities of the parties involved in the procurement documents—for example, the contractor’s obligations with respect to reuse sites, such as identifying them, obtaining consent and complying with whatever requirements they impose. That will be very helpful for the bidders.”

That said, it might be advisable not to completely delegate the responsibility, Scorgie cautions. “If I were an owner or project leader, I’d want some control over that process because of the statutory liability they have.”

Further, “depending on how a project is structured, if you’re going to be requiring the contractor to retain their own QP, that’s something you want to call out in the tender documents, given that it is a unique obligation that may be new to a lot of contractors,” Scorgie notes.

And when it comes to the contract, include Order of Precedence clauses. “They describe what contract documents govern over others in the event of conflict or inconsistency. And flowing the obligations down the contractual pyramid is important,” Scorgie says. “Project leaders or owners may want to include some express language that requires the contractor to convey key terms to key trades who will be performing this work, like their haulers and excavators.”

WORTH THE PRICE

And how are these new obligations going to be priced by contractors bidding on projects?

“We’ve already seen some projects where all of the contractor’s obligations related to excess soil—finding reuse sites, complying with requirements, performing additional testing if needed—is part of the scope, and they are supposed to price it as one lump sum,” Scorgie shares. “But some of these new obligations are going to be very difficult for contractors’ estimating teams, especially in a fixed-price context. For example, if you’re asking your general contractor to find all of the reuse sites and to comply with those sites’ requirements, they, when bidding on this job, may not know what reuse sites are available or what those sites’ requirements may be. That can result in uncompetitive bids, or bids with inflated contingencies.

“And what if the contractor identifies a reuse site, but that site shuts down or rejects the soil for whatever reason?” Scorgie adds. “Or a contractor identifies a reuse site but the project leader/owner doesn’t like it? Do these types of events and impacts to the schedule entitle the contractor to additional costs and schedule relief?”

Soil tracking, the obligations of which are about to be enhanced on January 1, must also be factored in. “Owners can mandate a tracking system or purchase a licence to one, and include that in the tender documents.”

Although more time and work before a project breaks ground means more upfront costs for developers, “as a percentage of overall construction costs, those new costs are pretty low,” says Monisha Nandi, Environmental Director with Kilmer Brownfield Management Limited. “When you speak with many developers, earthworks is seen as a part of the project that often comes with a lot of uncertainty and a lot of change orders. So what I hope is that this increased upfront characterization and understanding between parties will actually provide a little more certainty to developers, because we’ll know the quality of the soils, our disposal options and the costs of those disposal options.”

McMillan LLP partner Talia Gordner, a specialist in environmental and corporate commercial litigation, also foresees positive outcomes to the changes. “The regulation makes it easier for builders and developers to remove excess soil from their project sites and deposit it at a beneficial reuse site—particularly when the soil is contaminated—due to the introduction of the Beneficial Reuse Assessment Tool (BART),” Gordner notes. “While there are significant environmental sampling and record-keeping requirements under the regulation, there is also more flexibility with potential reuse sites and more transparency about where excess soil from projects is being reused. This should hopefully create some additional accountability in the industry and make it easier for the regulator to take enforcement actions against the bad actors.”

Long-time residential developer/builder Jeff Goldman, who has served as the OHBA’s representative on government stakeholder groups pertaining to the new regulatory package, is particularly enthused. Goldman, who is also principal at soil management software company Soilflo, describes improved practices in this area of construction as “the gift that keeps on giving, with benefits such as lower costs, less drama and last-minute scrambling on construction sites to find a home for soil generators, reduced risks and liabilities and improved environmental outcomes. And the more adherence to good soil management practices, the less resistance from potential receiving sites and those providing jurisdictional oversight to receiving soils. That, in turn, increases possible locations, which then increases competition, which reduces costs even further. And it has the ancillary impact of lowering greenhouse gas emissions, thanks to shorter travel times from dump trucks between generating and receiving sites.”

Goldman says the new legislation is long overdue. “Excess soil management is the Rodney Dangerfield of the construction and environmental paradigm—it simply gets no respect. It has hardly been studied (by business schools and institutes of higher learning). This is big stuff with big consequences, but many of our attitudes and practices are antiquated and inefficient. It’s an approach that can best be summed up by expressions like, ‘What the heck, it’s only dirt.’ Or the idea that there is a lot of ‘fill to get rid of’ in order to achieve a built form. Soil gets considered an inconvenient obstacle to a construction project rather than an integral component, which, combined with an industry that is tradition-bound and often resistant to change, leaves us stuck in a tableau where Fred Flintstone would feel right at home!

“And administration and management? Don’t get me started,” Goldman continues. “What other billion-dollar industry do you know of that still uses a tri-copy paper ticket system for tracking product and financial reconciliation?”

TRANSPARENCY

Whatever further questions arise, Nandi expects a quick and clear response from the government.

“The Ministry of the Environment has been consulting with the industry on this particular set of regulations for nearly a decade, and they have always made themselves available and been very transparent in answering questions on this file,” she says. “There does seem to be an air of collaboration with the industry to make sure things work.”

Any advice for project leaders? “The most important thing we’ve learned so far during our consultations is building a team—making sure you have clear communication and that you have the right people on your team, from your QPs down to your contractors, lawyers and insurers,” Bobechko suggests. “And plan early. Even though all the regulatory requirements are not yet in force, we are recommending to people that they do the soil characterization testing now, because you are going to be asked for it by reuse sites who must consent in writing to the excess soil being brought to their sites.

“Don’t forget that there may also be municipal requirements, bylaws and local instruments that may have different or additional requirements that have to be met. The movement of excess soil may also attract civil liability as well as contractual liability—which is why we as lawyers like to document, document, document, so that you have evidence showing that you have complied with the various requirements.”

And what if you don’t play by the rules? “One of the big sticks that the Ministry has is an administrative order, which can include a waste removal order,” Bobechko says. “So if, in the process of moving excess soil from your project area to a reuse site or somewhere else in between, you have not followed the regulatory requirements properly or can’t document them, your material may actually be ruled as waste. And that means that the Ministry can issue an order against both the generator of the excess soil and any of the parties that are receiving it. That’s a big stick!”

 

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