By Mark Sabourin
Digging into the challenges and execution of new excess soil regulations
It was a bill he hadn’t expected. Richard Tang, WP Development’s project manager for The Wilmot, an eight-storey, 380-suite condo development in uptown Oakville, had just learned that his excavated soil would have to be sampled and characterized before it could be moved. He’d have to lodge his development on a new online registry. The soil’s movement would have to be tracked. On his previous job, a 95-home subdivision in Clarington, excess soil had been split between a willing farmer and a nearby development. This was all new, unscheduled and unbudgeted.
“It’s not a big number, but in terms of cash flow, just out of the blue coming up with $50,000—yes, it was a shock to us,” Tang admits.
Tang can be forgiven. It was November 2022, and builders across the province recognized his uncertainty. Ontario’s new On-Site and Excess Soil Management Regulation (Ontario Regulation 406/19) had been on hold since April. The government promised it would be reviewed and clarified before being enforced once more beginning on January 1, 2023. Builders and contractors who had scrambled to purchase or update software to track soil movement, or who had invested in sampling and soil characterization, were left to wonder if the rules shifted would it even be needed anymore? Speculation was that the regulation was in for some serious changes. This situation raised questions on how to comply with a regulation when its heaviest burdens may soon be entirely different than before.
That’s a fair question, says Sarah Sipak, Team Lead of Environment & Construction at Palmer Environmental Consulting Group and Qualified Person (QP) at The Wilmot. It’s a question that many QPs wrestled with during the regulation’s pause. However Palmer had already completed Phase 1 and 2 site assessments and identified a few areas of potential environmental concern (APEC). The soil would be moved after January 1 and would have to comply with the regulation’s terms, whatever they might be. A more thorough study seemed wise if only to satisfy the needs of potential receiving sites, any of which might insist on rigorous sampling.
Today, every developer in Ontario whose project involves leaning a shovel into the ground must ask and answer an important question: Does O. Reg. 406/19 apply to me?
Does O. Reg. 406/19 apply to me?
The initial answer to that question will be yes if more than 2,000m3 of soil will be exported from the site. There are other triggers—high-risk sites, for instance—and several workarounds and exemptions, the most important of which exempts parkland and residential, institutional or agricultural sites. However, if the answer is yes and none of the exemptions apply, the project must be registered on the Excess Soil Registry, triggering the need for soil sampling, documentation, record-keeping and reporting.
It’s a matter for the developer because the regulation creates a new role within the construction hierarchy, the Project Leader. And the Ministry of Environment, Conservation and Parks’ view is that the Project Leader is typically the owner or the developer, notes Jennifer Fairfax, an environmental lawyer and partner at Osler, Hoskin & Harcourt LLP. That doesn’t mean tasks can’t be delegated. But ultimately, the Project Leader’s neck will be on the line even though the burden of fulfilling the regulation’s requirements will typically be borne on the shoulders of a QP.
“People know what QPs are now,” quips Suvish Melanta, an associate at Grounded Engineering. On residential projects, seldom were QPs involved in the movement of soil prior to 406/19. If it didn’t affect the Record of Site Condition, she rarely got involved. Now, Melanta says, QPs are at the centre of most construction projects.
Sipak had been brought in early as part of the land development approval process. Overseeing the management of excess soil would not typically have been within her scope. A conversation with a client about an unexpected expense can be a challenge, she says, and she sought creative ways to lighten the load on the project’s budget. That included working closely with Tang’s construction team. “We were able to establish a relationship with all the different parties that had been added to the project from a residential perspective, and then identify a plan where we could use those resources to execute the work. Establishing a strong relationship with the contractor is very beneficial to all parties.”
The intent of the regulation is to treat soil as a resource, putting an end to the ‘dig and dump’ practice that has often governed the movement of excess soil in Ontario, filled landfills and sometimes seen soil dumped in environmentally sensitive areas or on the land of unaware recipients. Industry guidelines intended to ensure that only clean soil was reused by willing receiving sites were often ignored.
“Even if you think you know where your soil is going, we would send a technician out and follow a truck every now and then if we were worried about it,” says Melanta’s colleague, Senior Project Engineer Freesia Waxman.
The regulation amplifies the former guideline and gives it teeth. Now, soil from any site not deemed “low-risk” may not be moved until it is characterized, and then only to a willing receiving site.
“That has really changed everything,” says Stacy Meek, Team Lead for Geo-Environmental & Soil Management at EXP Services’ Markham office. “Before, it was almost a buyer beware situation.” But now the receiving site holds all the cards.
That’s why a good relationship and solid communication between the QP and the contractor is vital, says Sipak. Typically, the contractor will identify receiving sites, but the project’s QP can then determine if those receiving sites are suitable based on the source site’s analytical data and discussions with the receiving site’s QP. A misalignment could easily result in trucks being turned back from the receiving site’s gate. Even without misalignment, though, things can go sideways. A receiving site may turn away perfectly suitable soil if, for instance, it finds that its soil needs have already been met. It’s not uncommon. “It’s really important for the consultant to have that backup plan in place,” Sipak urges.
COST-BENEFIT WILL TAKE YEARS
It’s expected that as the industry adapts, precious landfill space will be preserved and ancillary environmental and social benefits will accrue. By trucking soil to nearby receiving sites instead of distant landfills, emissions will be reduced, roads will suffer less wear and tear, traffic congestion will ease and construction costs will potentially fall if additional sampling costs are more than offset by lower disposal costs. But it will be years before that cost-benefit equation can be resolved. For now, the principal consequences are higher costs for developers—and more work for QPs. Melanta says she’s much more involved now in the construction process, and even in project design. For example, the regulation provides an exemption for soil that is reused onsite. She’s working on two projects where the design of the community is being influenced by the developer’s desire to reduce the amount of soil leaving the site.
But the cost of environmental approvals has nearly doubled, Melanta concedes. “For a midrise project, you can expect upwards of $50,000 of excess-soil-related consulting costs.” That sum may be a blip when weighed against total project cost, but for the first two quarters of 2023, it has been an unbudgeted blip.
With the QP doing the work, and the Project Leader bearing ultimate responsibility for compliance, the relationship between the two is critical, explains Waxman. “We’re their experts. They’re relying on us to provide information on what they actually have to do. It’s not straightforward, even if you think it is.”
For builders, this is concerning because there is uneven expertise among Ontario QPs when it comes to Regulation 406/19. “I’d say right now, 10% to 20% of my projects are takeovers,” says Waxman, where she has been called in at the 11th hour to rescue a project when the QP has not complied with the regulation.
The penalty can be costly. Based on a handful of residential projects, Grounded Engineering has recently been informed that each day of delay can cost developers between $25,000 and $30,000, versus having a $100,000 characterization program that’s up to snuff.
A developer’s risk tolerance also plays a big role. Generally, the bigger the developer, the lower the risk tolerance, says Melanta. It’s a gamble Tang was unwilling to take at The Wilmot. He asked how much sampling was needed and if it could be reduced. But he also knew that if he cut corners, his soil might not be accepted at the receiving site, leading to delays and possibly more sampling. “Looking at the proposed budget, it wasn’t big enough for me to take the risk.”
Fairfax and colleague Andrew Wong, a construction lawyer and also a partner at Osler, urge developers to insulate themselves from liability as much as possible through contracts. The regulation leaves open a defence of due diligence in the event of non-compliance. That defence will be supported by clear contractual terms that spell out who does what. For instance, pre-406/19, a contract might have required an excavation contractor to comply with all environmental laws. That’s probably not good enough anymore, says Fairfax.
Wong says developers also need to document the steps they’re taking to ensure everyone is fulfilling their responsibilities. That may include withholding payment until all terms have been met.
Given the newness of the regulation, developers would also be wise to verify the qualifications and experience of the QPs they retain. Wong recommends that this be done as part of the procurement process.
“Have that QP on board from the start,” advises Sipak. Some of the excess soil work can be done alongside early drilling or ‘test pitting,’ she says. “I think it’s really important to have the QP involved during the tendering phase,” she continues, to ensure that construction tenders include all the additional work related to excess soil management.
EXCESS SOIL VS. BROWNFIELDS
Typically, Ontario’s Ministry of the Environment, Conservation and Parks will cut the industry some slack as it adapts to a new regulation, stressing education over enforcement. But Ontario’s grace period may be drawing to a close. A year ago, there was a blitz on haulers, says Waxman. This spring, she noticed a few random inspections. But as of late July, the ministry had issued no tickets or penalties, according to spokesperson Gary Wheeler.
Companies like SoilFLO may serve as a barometer of the industry’s response. SoilFLO sells soil tracking software, and its principal, Jeff Goldman, says business is booming. Hauling is a tradition-bound industry that resists change, he says. “We have to be shown that there’s an advantage to doing things in a different way.” He believes the message is getting through. “People are starting to get their heads around the fact that soil is a resource.”
Nobody wants to see soil landfilled that can be beneficially used elsewhere, says Meek. But to ensure that as much soil as possible is beneficially reused, she echoes many of her peers: The government must address the misalignment between the Excess Soil Regulation and the Brownfields Regulation (O. Reg. 153/04). Each has its own table of soil standards, and they don’t always agree. As a result, says Meek, more soil may be going to landfills than before. She cites a recent example of a condo development on a site not considered contaminated under the Brownfields Regulation. However because it contains low levels of volatile organic compounds, every shovelful of dirt excavated from the site is considered unsuitable for reuse under the Excess Soil Regulation. With the former system, there were reuse options. The options now? Export the soil to a Class 1 site for treatment, or truck it to a landfill.
The impact of this discrepancy will grow as January 1, 2025 nears, when the landfilling of all soil will be banned except for use as cover or for ancillary work.
The regulation is detailed and complex, and a developer can get tangled in the weeds. QPs are happiest working with developers who know the importance of the new regulation, hire them early, check in on them regularly, and let them do their work. During excavation for The Wilmot, Tang knew when soil was being moved, where it was being moved and how much it was costing him. “I know the excavation team. I know how they operate,” he says, and he had documentation of work being done by the book. His advice to his peers? Talk to your consultants and establish a relationship of trust so that they are comfortable coming to you with issues ahead of time. That’s because, as Melanta warns, “You can’t solve the excess soil problem a month before construction starts. It’s much cheaper to do it right than to fix it later.”
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