How to Manage Soil from Brownfields Under Ontario Regulation 406/19

In the Canadian province of Ontario, new regulations apply to excess soil of all kinds, including that from brownfield sites. At its core, Ontario Regulation 406/19: On-Site and Excess Soil Management (the “Regulation”) is intended to help keep “contaminated” soil away from otherwise “clean” sites, allowing receivers of Excess Soil to be fully informed, and reducing the strain on landfill capacity.

Brownfield developers already know that there are a variety of reasons why their property became a brownfield in the first place. Among those reasons, it can be complicated and expensive to manage the impacts to soil left behind from historical operations. The Regulation’s prescriptive planning and reporting requirements present additional challenges for many brownfield projects. However, with those challenges come new opportunities to reduce soil disposal costs and reduce the environmental footprint of your project by facilitating the beneficial reuse of your Excess Soil and keeping it out of Ontario’s landfills.

Learn the History of Your Excess Soil

Every brownfield site has its own unique history, and understanding this history is the first step to effectively managing the impacted soil that may be present at the site. A review of current and historical records (i.e., an Assessment of Past Uses) will help your Qualified Person (QP) determine where impacted soil is most likely to be on your source site (i.e., the Project Area).

Action Initiate the historical review as soon as possible in the planning process.   Benefit This information will help reduce the potential for surprises later and may help the Project Leader identify potential Reuse Sites much sooner.   Checkpoint Do you have a clear idea of where the soil with the greatest impacts is likely to be found on your property? Do you need to study groundwater flows to see where those impacts might be migrating to / from?

Pursue Comprehensive Characterization

A QP’s well-executed soil sampling program (i.e., Sampling and Analysis Plan) and appropriate documentation (i.e., Soil Characterization Report) will not only help characterize the quantity and quality of your Excess Soil, supporting your compliance with the Regulation, it will also give you the information you need to start finding suitable homes for the soil. Some material may be suitable for direct transfer to the designated Reuse Site. Other soils may require sorting or treatment prior to reuse or may be designated as waste and ultimately require landfill disposal.

Action Consider completing the sampling program in stages, and make sure to assess both the environmental and geotechnical characteristics of the soil.   Benefit A preliminary site investigation can help identify potential problem areas and also facilitate the Project Leader’s early engagement with potential Reuse Sites. Understanding the soil’s geotechnical characteristics (and limitations) will also help identify beneficial reuses for the material. The characteristics of the Reuse Site(s) will help determine what quality standards will apply.   Checkpoint Does the quality of the excess soil meet the specific criteria for each of the proposed Reuse Site(s) and/or disposal site(s)? Were any impacts identified that could be effectively segregated and managed separately (i.e., from “clean” soils with greater reuse potential)? Can treatment or soil banking be undertaken using one of the newly permitted Class 1 Soil Management Sites, or can soils be stored temporarily at a Class 2 Soil Management Site to open up additional reuse options and lower total project costs?

Understand the Life-Cycle of Your Excess Soil

Large and complex brownfield sites often generate Excess Soil that is highly variable in environmental and geotechnical quality. Some may be suitable for reuse as clean, engineered fill. Some may require sorting and treatment prior to reuse, and some contaminated soils may require landfill disposal. Certain projects may also require the use of a temporary storage site unless the material reaches its final destination.

However, before any Excess Soil leaves the Project Area, and before any Reuse Site(s) can agree to accept your Excess Soil, you will need to document that the material meets the specific requirements of the Reuse Site(s) and/or disposal sites (e.g., through an Excess Soil Destination Report).

Action Engage with potential Reuse Site(s) and/or disposal sites early in the planning process.   Benefit Developing an early understanding of what the technical and regulatory requirements are for each Reuse Site(s) and/or disposal site(s) will help so that all your Excess Soil is accounted for.   Checkpoint Does the owner/operator of the Reuse Site understand their own regulatory obligations? It is not the Project Leader’s responsibility to educate all parties; however, a collaborative approach will help reduce the potential for untimely project upsets.

Plan and Document the Transport and Delivery of Your Excess Soil

Implementation of a tracking system is the final component required to demonstrate compliance with O.Reg. 406/19. Not only a regulatory requirement, an effective tracking system will provide assurances to both the Project Leader, and the owner(s) of the Reuse Sites, that only approved soils are being received at their property.

Action Develop a robust system for tracking and documenting each load of soil that can manage the complexity inherent in brownfield sites that generate large quantities of Excess Soil, of widely varying quality, and can be routed to multiple destinations (including temporary storage and/or disposal sites).   Benefit By investing in a robust tracking system designed to match your Project’s needs, you will benefit by experiencing fewer challenges from regulators and having more satisfied recipients of your soil.   Checkpoint Is the tracking system suitable for the complexity of your Project? Do staff or contractors need training?

Management of Excess Soil from brownfield developments requires special planning and care. Project Leaders (brownfield owners and developers) who learn how to effectively navigate the new regulatory environment will have a strategic advantage in controlling their costs and timelines. Following the steps required by O.Reg. 406/19 will also provide reassurance for yourself (and your legal team) that the soil does not carry liabilities with it when it leaves your site.

Learn more about Ontario’s Regulation 406/19 on the Government of Ontario website.