Bringing excess soil to a reuse site

Introduction

Importing excess soil (also known as fill) to a reuse site is essential for the completion of many undertakings, including for use as backfill, raising the grade of land for a planned development or an infrastructure project, or rehabilitation of an aggregate extraction site.

In this fact sheet, you will learn how O. Reg. 406/19: On-site and Excess Soil Management (the regulation) relates to sites beneficially reusing excess soil in an undertaking, and understand:

• the rules for the appropriate reuse of excess soil, including appropriate soil quality, and ensuring excess soil deposited and reused at a site is not designated waste
• the responsibilities of a reuse site owner or operator and the responsibilities of the parties relocating excess soil to a reuse site, such as the project leader of a project area (source site) and a hauler of excess soil

This information will be of interest to:

• an owner or operator of a reuse site (a site with an undertaking that requires excess soil)
• a qualified person (QP) representing the owner or operator of a reuse site
• owners or operators of project areas (sites where excess soil is generated, often referred to as source sites), soil processing sites, soil banks or any other site where excess soil is stored before it is sent to a reuse site for final placement

Overview of regulatory requirements

As of January 1, 2021:

• conditions for the reuse of excess soil came into effect, including the requirement that excess soil will be reused for a beneficial purpose in an undertaking and that the quality and quantity of the excess soil are appropriate for that purpose
• new excess soil quality standards came into effect, clarifying the quality of excess soil that can be safely reused at various types of reuse sites

As of January 1, 2023:

• requirements for some larger reuse sites, being those that are receiving 10,000 m³ or more of excess soil for an undertaking, come into effect, including filing of a notice on the Excess Soil Registry and implementing procedures for excess soil received
• other requirements come into effect for project leaders generating excess soil (from project areas) and haulers of excess soil, such as site assessments, soil characterization reports, and hauling records, that will be relevant for reuse site operators

Please refer to the Handling Excess Soil page or the Excess Soil Fact Sheets page for additional information on regulatory requirements under the regulation.

Reusing excess soil at a reuse site

Criteria for excess soil reuse

The rules for the reuse of excess soil are found in sections 3, 4 and 5 of the regulation, which also refer to other key sections of the regulation and both parts of the Rules for Soil Management and Excess Soil Quality Standards.

Under the regulation, excess soil that is not a "waste" may be reused. The regulation clarifies when excess soil is and is not designated as waste. Excess soil being reused at a reuse site is not designated as waste if all the following conditions are met:

1. The excess soil is directly transported to a reuse site from a project area, a Class 1 soil management site (including a residential development soil depot or a retail landscaping soil depot), a Class 2 soil management site, or local waste transfer facility
2. The owner or operator of the reuse site has consented in writing to the deposit of excess soil at the reuse site. This agreement is with the project leader, to accept excess soil from a specific project area
3. There is a beneficial use for that excess soil and the quality and quantity of excess soil being taken to that site are consistent with the beneficial use
4. The excess soil is dry soil and remains dry soil until it is finally placed at the reuse site, or, if it is liquid soil, a site-specific instrument authorizes the excess soil to be deposited at the reuse site

Appropriate excess soil quality and quantity

The reuse site owner or operator confirms the quality and quantity of excess soil necessary for the intended beneficial use as part of an undertaking at the reuse site. The applicable excess soil quality for a reuse site may be a generic excess soil quality standard, site-specific standard, or instrument-specified standard. A reuse site owner or operator also has the discretion to set more stringent standards than the regulation requires. As part of consenting to receive excess soil from a project area, the reuse site owner or operator should confirm the quality and any other relevant soil characteristics (such as geotechnical) of the soil they are agreeing to receive.

Under the regulation, the quality and quantity of excess soil that may be received and finally placed at the reuse site for a specific beneficial purpose is determined by a site-specific instrument containing rules related to soil management, or by the rules in the regulation.

1. Reuse sites governed by a site-specific instrument – the quality and/or quantity of excess soil appropriate for the beneficial purpose in an undertaking at that reuse site, and other performance and operational requirements, may be set by a site-specific instrument (such as a permit) and, if so, the rules specified by the site-specific instrument apply. Typically, for excess soil (or fill) quality, this would be a specific table of standards referenced in the instrument. If the instrument is not specific, such as generically referring to ministry requirements or “inert fill”, then going forward these relate to the applicable generic tables for the reuse site under the regulation. In relation to excess soil quantity, the site-specific instrument may include a volume of excess soil that may be deposited for a particular undertaking, or it may include other information that informs the applicable quantity, such as the area for placement of fill and the fill elevation to be achieved. If the site-specific instrument is silent on excess soil quality or quantity matters, then the rules in the regulation apply, including the applicable standards and rules in the Rules for Soil Management and Excess Soil Quality Standards.
2. Reuse sites not governed by a site-specific instrument – if an applicable instrument does not exist or address excess soil quality or quantity, then the rules set out in section 5 of the regulation must be met. This includes ensuring the excess soil meets the applicable excess soil quality standards for that reuse site as set out in Part II the Excess Soil Quality Standards. These standards, in part, depend on the type of property use at the reuse site (such as agricultural, residential, etc.). Section 5 of the regulation also requires ensuring that no more excess soil is brought to the reuse site than is necessary for the beneficial purpose. Depending on site characteristics, there may also be specific rules that apply to the final placement of the excess soil at that reuse site, as set out in Section D of Part I: Rules for Soil Management.

The regulation also permits the development of site-specific standards through the use of the ministry’s Beneficial Reuse Assessment Tool (BRAT) or through the preparation of a risk assessment (RA). These are an alternative to relying on the generic Excess Soil Quality Standards and must be developed by a qualified person (QP).

When developing a site-specific standard using a risk assessment it is required that that site-specific standards and any associated risk management measures or site use characteristics be specified in an applicable site-specific instrument. When developing a site-specific standard using the BRAT, the requirement for a site-specific instrument only applies if site use characteristics are being used (and this does not apply to an infrastructure project using the BRAT).

It is also important to remember that if excess soil is to be placed close to certain features on the reuse site, such as a drinking water well or a surface water body, or if the excess soil will be used for growing crops, the application of more conservative soil quality standards may apply at the reuse site.

If excess soil of inappropriate quality or quantity is deposited for final placement at a reuse site, this means that the soil is waste and will be governed under Part V of the Environmental Protection Act. This provides the ministry with the authority to require any person who has caused, permitted or arranged for the unlawful deposit of the waste to remove it and properly dispose of it.

Storing excess soil on the reuse site

Excess soil can be stored or stockpiled at a reuse site for up to two years after it is received for final placement at the reuse site. This period can be extended for an additional five years with written permission from a Director of the ministry. This restriction helps ensure reuse sites can store excess soil in anticipation of it being needed in an undertaking, but not indefinitely.

Where the excess soil is to be used at a reuse site for an undertaking related to infrastructure, the time limit for storing excess soil at the site is not limited to two years, but equals the time required to complete the undertaking. The two-year restriction also does not apply to undertakings at sites governed by a site-specific instrument. To contact a Director with regard to extensions, contact the ministry’s district office closest to the reuse site.

Excess soil at reuse sites must be stored in accordance with the storage rules provided in Section C of Part I: Rules for Soil Management and Excess Soil Quality Standards (for example, soil must not be stored within 30 metres of waterbody). A site-specific instrument regulating the management of excess soil at a site may set alternate soil storage rules.

Requirements for larger reuse sites

Section 19 of the regulation requires that, if a reuse site will be receiving more than 10,000m³ of excess soil for final placement in an undertaking, before any excess soil is received at a reuse site, the owner or operator of the reuse site will be required to undertake the following steps:

1. File a notice in the Registry.
2. Establish procedures to account for every load of excess soil being deposited at the reuse site.

Filing a notice

For undertakings that receive more than 10,000m³ of excess soil, the owner or operator of the reuse site must file a notice in the online, public registry developed and implemented by the Resource Productivity and Recovery Authority (RPRA). RPRA’s website will contain information on how to file a notice in the Registry.

This notice provides public transparency and assists with the ministry’s compliance activities. It also enables others such as project leaders that generate excess soil, to be aware of larger, longer-term reuse sites to enable matching and reuse of excess soil from project areas. The notice must include prescribed information such as:

• a description of the reuse site
• the undertaking at that site
• the amount and quality of excess soil needed
• other key information on the site’s operation

Within 30 days of the final load of excess soil being received, the notice on the Registry must be updated with information such as the total amount of excess soil received and the date the final load was received.

This requirement to file a notice does not apply to reuse sites that are part of an undertaking related to an infrastructure project.

Procedures for depositing excess soil

Larger reuse sites must put in place procedures to account for every load of excess soil being deposited at the reuse site for final placement and to ensure that the storage of excess soil does not cause any adverse effects.

The procedures are intended to help ensure that excess soil received is appropriate for the beneficial use and will not become waste. The procedures should include:

• identification of the site where the excess soil is coming from
• collection of relevant reports related to the excess soil (for example soil characterization reports, hauling records)
• inspection procedures to assess the excess soil as it is received (such as, visual signs of contamination, litter, etc.)

Record keeping at reuse sites

Reuse site owners and operators are required to keep copies of most documents created or acquired under this regulation for seven years after the date that the document or record was created or acquired. This would include:

• the written consent provided to receive excess soil from project areas
• any contracts related to the management and transportation of excess soil
• copies of site-specific instruments (if used) applicable to excess soil management or reuse at the reuse site

An exception is the record retention requirements for hauling records, which are to be kept for two years.

Best management practices

Involvement of qualified persons at reuse sites

The owner/operator of a reuse site should consider retaining the services of a QP or another fill management expert to help ensure fill management planning meets requirements and best practices. The experts can assess the current site conditions of the soil and ground water at the reuse site and also confirm the appropriate quality of excess soil to be received, giving thought to the reuse site conditions and future use of the property. They can also develop required procedures for receiving excess soil at a reuse site and can develop complete fill management plans. This is particularly advisable for reuse sites receiving larger amounts of excess soil or sites receiving excess soil from many different project areas (source sites).

Reuse sites are only required to hire a QP under certain circumstances. If the Beneficial Reuse Assessment Tool or a risk assessment is to be used to create site-specific standards for the reuse site, a QP is required that has expertise in risk assessment. If a record of site condition (RSC) may be filed for the reuse site, a qualified person must be a professional geoscientist or professional engineer with appropriate knowledge and experience.

Site specific instruments (permits or approvals)

Reuse site owners and operators should proactively undertake the due diligence necessary to determine what site-specific instruments, such as a municipal fill permit, may be required for an undertaking and before excess soil may be placed on their lands. These instruments may include requirements related to the location, depth, quality and/or quantity of excess soil appropriate for the proposed beneficial purpose and undertaking on the reuse site.

Fill management plans

The owner or operator of a large reuse site should consider preparing a fill management plan. This recommendation is consistent with guidance in the 2014 document Management of Excess Soil - A Guide for Best Management Practices. A fill management plan assesses site conditions, determines appropriate fill quality for the site, and details fill management procedures for the planned undertaking. A QP or another similar expert could be hired to complete and implement such a plan. Such plans may be required through municipal by-laws.

The fill management plan may be a useful tool to integrate all regulatory requirements, including those from the regulation. It may also include:

• copies of any documentation regarding municipal or conservation authority licenses/permits, or any other site-specific instruments that may be relevant
• identification of appropriate quality and types of excess soil to be received at the reuse site
• site plans and grading plans showing site information, including:
  • existing and proposed grades
  • portions of the site containing natural heritage, natural hazard and landform conservation areas, and vegetation protection zones to be left undisturbed
  • approved placement locations
  • depths and cross-sectional information for the excess soil to be received at the reuse site
• dust, odour, noise and invasive species (plant and animal) control measures
• site security measures, such as clear signage at the site
• specification of routes that the municipality indicates should be used for hauling
• protocol for incoming excess soil specifying:
  • that incoming loads of excess soil have documentation that includes appropriate and representative soil assessments and analysis confirming the soil quality is acceptable for the reuse site
  • that visual and olfactory inspections will be conducted on all incoming loads to screen for odour, visible staining or debris
  • contingency measures for load rejections
  • a record keeping system to create and store written documentation to track each incoming load of excess soil
• stormwater management plans
• ground water monitoring plans
• erosion and run-off controls
• audit sampling protocols (designed by a QP) sufficient to produce results that would be representative of the volume of excess soil that is being received
• soil placement/segregation protocol sufficient to identify where excess soil from each project area has been placed at the reuse site, such that it can be assessed if required

Requesting sampling analysis and confirmatory sampling of soil received

The regulation requires certain larger and riskier project areas generating excess soil to retain a QP to assess the excess soil and in some cases to prepare a sampling and analysis plan and soil characterization report. Although this requirement will not apply to all project areas, sampling may also have been completed for due diligence purposes. Reuse sites may want to request sampling results before receiving soil or before giving written consent to receive excess soil.

Reuse sites, especially larger reuse sites, should also consider undertaking auditing/confirmatory sampling of excess soil being received. Auditing may be reduced if excess soil is confirmed to have been received from locations with little or no likelihood of contamination. In addition to any sampling results that may be available from a project area, an assessment of past uses or a phase one environmental site assessment from the project area can also help to confirm this.

Interacting with project area owners, their QPs and soil haulers

For the regulation to be efficiently implemented such that various parties can meet requirements and realize benefits, information exchange between some parties is necessary. This applies to reuse site owners and operators in several ways.

• project leaders from project areas need written confirmation from reuse sites confirming that they agree to take excess soil from that project area. This helps to ensure that a reuse site operator only receives the amount and type of excess soil they intended to receive. This is also a clear way for a reuse site operator to communicate or confirm the quality of excess soil that is applicable to the reuse site
• reuse sites may want to receive excess soil assessment information from the project leader for the project area to help confirm the soil quality they may receive and that they are willing to accept excess soil from a particular project area
• as of January 1, 2023, all haulers of excess soil will be required to carry an excess soil hauling record for all movements of excess soil, including liquid soil, and a copy must be given to the owner or operator of the reuse site. These hauling records must include the information as prescribed in the regulation, such as confirmation of where the soil came from and where it is to be deposited, the quantity of excess soil, and contact information for inquiries regarding soil quality. A reuse site operator will have to acknowledge in this document that the excess soil was deposited at the reuse site. This record may be of value to a reuse site operator to help confirm where the excess soil came from

Engaging communities

Local landowners, community groups, Indigenous communities and others may have concerns regarding excess soil management. It is recommended that the owners/operators of reuse sites for larger sites, sites handling riskier excess soil and sites where the activities will be occurring over a longer period of time, assess early in the planning process potential anticipated concerns by affected parties and to determine what engagement might be helpful. Where applicable, this could be done in conjunction with communication activities required for a site-specific instrument or other approvals that the reuse sites may need, such as those required for the purpose of zoning or permitting under municipal by-laws.

Additional information

Determining beneficial reuse of excess soil

Generally, a beneficial reuse of excess soil is the use of excess soil in an undertaking that requires additional soil in order to complete that undertaking. Disposal or stockpiling of excess soil is not a beneficial reuse. The regulation gives a list of beneficial purposes, but it is not exhaustive and other beneficial reuses can be identified either through a site-specific instrument or by a reuse site owner. Examples include:

• backfilling an excavation or to assist in the rehabilitation of the reuse site
• achieving a certain grade at the reuse site necessary for development, an infrastructure project, or landscaping
• providing final cover at a landfill
• creating berms on roadways, stormwater management ponds, and for other purposes such as visual screening or providing a sound barrier

Difference between reuse sites and landfills or Class 1 soil management sites

Landfill sites and Class 1 soil management sites are waste disposal sites. Disposal of excess soil at a landfill is not considered beneficial reuse under this regulation, and excess soil deposited at a Class 1 soil management site is not intended to stay there permanently. These sites generally require waste-related Environmental Compliance Approvals (ECAs). Reuse sites are not a waste disposal site, have a beneficial reuse for excess soil as part of an undertaking, and generally do not require waste ECAs.

Regulatory requirements for owners and operators of small reuse site

Small reuse sites are those receiving less than 10,000m³ of excess soil, and do not need to adhere to certain requirements that apply to larger reuse sites, such as registering the reuse site and implementing procedures accounting for loads of excess soil received.

General soil reuse rules, however, apply to all reuse sites, including the criteria used to determine whether soil is designated as a waste. Small reuse sites need to:

• only receive excess soil for a beneficial purpose
• consent in writing to receive excess soil from a project area
• be satisfied that the excess soil received is of appropriate quality for the beneficial purpose and that the amount of excess soil received aligns with the beneficial purpose
• only receive dry soil unless a site-specific instrument authorizes receipt of liquid soil
• follow soil storage rules before excess soil is finally placed
• retain copies of all records generated in the excess soil movement and management activities undertaken for a period of seven years, with the exception of the hauling records which should be retained for two years

The regulation does not affect the need for other approvals or permits that may be required by a municipality, conservation authority or other public body.

Knowing what standards apply to a site

A variety of standards tables and rules may apply to a reuse site. It is recommended that larger or more complicated reuse site operators retain the services of a QP to confirm the excess soil reuse standards that apply. A simplified approach may be to use the more conservative standards tables in the Part II: Excess Soil Quality Standards document. Table 2.1 is the default generic risk-based standards table for an infinite volume of excess soil which can be used for most sites by using the tables that relate to the appropriate land use.

Some types of sites have special rules and may require use of Table 1 standards from Part II: Excess Soil Quality Standards. Table 1 is the most stringent table of standards representing typical background levels and applies to environmentally sensitive sites, such as:

• in or near wetlands and significant woodlands
• areas with significant habitat of a threatened or endangered species
• locations where the soil will be used for growing crops or pasture

Consultation with local municipalities and the applicable conservation authority, if any, will also support a determination of what local requirements may apply to a reuse site including matters such as natural heritage protection, natural hazards, landform conservation, stormwater management, sediment and erosion control and other operational requirements that may be set out in municipal by-laws, site-specific instruments, or policies.

Excess soil designated as waste at a reuse site

Excess soil sent to a reuse site that does not meet the regulatory criteria would be designated as waste until such time as the criteria are met. If the regulation is not followed, excess soil will be designated as a waste and appropriate actions can be taken, such as the ministry issuing an order to require removal of waste soil from a reuse site.

Definitions

Please review the Definitions page for relevant definitions and terminology.