A filled dump truck departs a condominium construction site in downtown Toronto on Nov. 2, 2022. Under the lengthy and complex On-Site and Excess Soil Management Regulation, large-volume transfers must be recorded in a provincial registry, and owners of property where soil is excavated must test it, keep accurate records and assume legal responsibility for its handling.Matthew McClearn/The Globe and Mail
New rules in Ontario governing the use and disposal of excavated dirt from construction sites are inadequately enforced, critics warn, jeopardizing what many had held up as a world-leading initiative.
Over the last few years, Ontario’s Ministry of the Environment, Conservation and Parks gradually introduced more stringent rules governing how this dirt, known as excess soil, is moved and deposited.
Large amounts of soil are excavated during the construction of roads, subways, condo buildings, watermain projects and many other infrastructure projects. Historically, the soil has been regarded as waste, loaded into a dump truck and disposed of in landfills, with little or no regulatory oversight.
The goal of the new rules was to compel developers and other stakeholders to begin treating soil as a resource. Under the lengthy and complex On-Site and Excess Soil Management Regulation, large-volume transfers must be recorded in a provincial registry, and owners of property where soil is excavated must test it, keep accurate records and assume legal responsibility for its handling.
The registry was intended to help them find other parties who needed soil for their own projects, thus ensuring reuse.
How Ontario’s rules for dealing with excavated dirt aim to clean up the industry
The regulations were the product of many years of discussion between ministry officials and concerned parties within the construction, legal and environmental sectors. Many of those experts broadly supported the new rules, but warned that if not properly enforced, they might have little impact.
Jeff Goldman, a developer who has been involved in excess-soil issues for many years and sat on the province’s advisory panel, said anecdotes abound about “large-scale non-compliance” that ministry officials have been informed about, in conversations and in writing.
“I’ve started to refer to the regulation, as good as it is on paper, as ‘hollow hardware,’ ” he said.
“There’s not been a robust effort across the board to make sure that its provisions are carried out.”
Gary Wheeler, a spokesperson for the province’s Environment Ministry, said in a statement that since April, 2021, the ministry has issued 18 provincial officer orders and two director’s orders relating to excess-soil matters. It had also issued more than 1,000 non-compliance directions where the ministry identified necessary corrective measures.
“Since 2022 the ministry has conducted 31 investigations into businesses resulting in 36 charges being laid in the excess soil sector,” he added.
Janet Bobechko, an environmental lawyer with WeirFoulds LLP, said she was pleased with that amount of enforcement. “When I see over 1,000 non-compliances, that’s a great number, because it tells me that they are on it,” she said.
“And it’s not always right to bring charges when it’s this early in a program, unless they’re egregious.”
Patrick McManus, executive director of the Ontario Sewer and Watermain Construction Association, said the ministry does little pro-active enforcement but reacts to complaints.
“And I do understand that if you are to call into their hotline, they do go and inspect every time.”
Ms. Bobechko said successful prosecutions announced by the ministry have tended to target trucking companies that dumped soils laden with bricks, concrete, wood and other contaminants, or parties who made false and misleading statements to ministry officials.
Andrew Dowie, parliamentary assistant to Ontario’s Environment Minister Andrea Khanjin, said during remarks at an excess-soils conference held in Toronto in September that ministry investigators were conducting inspections based on the client’s history, incidences of pollution and notifications of spills.
“We know that you have concerns about the enforcement of our regulations on excess soils,” he said, adding that ministry officials were “ensuring that responsible parties take appropriate measures to bring their operations into compliance.”
However, Talia Gordner, a partner in McMillan LLP who specializes in environmental commercial litigation matters, pointed to what she regarded as a small number of registrations on the provincial registry, relative to the massive number of soil transfers happening every year in southern Ontario. She said the new excess-soil regulations were simply added to the already-sizable legislation that ministry personnel must enforce.
“The general rule with government is they’re always under-resourced,” Ms. Gordner said. “That’s my understanding of why every single case and every single complaint doesn’t result in enforcement actions.”
Grant Walsom, an engineer with XCG, an environmental engineering consultancy in Kitchener, Ont., who specializes in excess-soil management, said the ministry’s small enforcement staff’s caseload is largely dictated by public complaints.
“There’s not a lot of pro-active enforcement going on,” he said.
Chad Morden, a construction estimator at Charles Morden Construction Inc. in Midland, Ont., has operated a soil-receiving site for a decade. He said that of 10 receiving sites in his area, his company’s is the only one listed on the province’s registry.
Many developers don’t register major soil-generating projects, he said. Some municipalities make no effort to enforce the regulations, he added, nor do they follow them on their own projects. Soils routinely move with no testing whatsoever, he said, and are often dumped in environmentally sensitive areas.
“If you knew what was going on in the Georgian Bay area with soils, your head would spin,” he said.
Mr. Morden said the local ministry office, in Barrie, Ont., intervened in one case of large-scale non-compliance. But it lacks the resources to police so much activity in such a large area. Moreover, many small, family-run disposal sites and other businesses in the area lack the resources to follow the new regulations, he said, so local municipalities and ministry officials turn a blind eye.
“There’s no way these little local municipalities are going to go to these businesses, established for more than 50 years, and tell them they can’t do business anymore.”
Even before the new rules came into effect, estimates suggested excavating and disposing of excess soil represented an average of 14 per cent of a construction project’s total cost. But the new rules raise costs higher still. For example, construction sites where soil will be excavated, as well as sites such as old quarries and gravel pits that receive soil, must register on a provincial registry operated by the Resource Productivity & Recovery Authority.
RPRA charges fees based on soil volumes: In April, projects generating more than 500,000 cubic metres of soil began paying a flat fee of $150,000 to register, up from $30,000 previously. Its rates are poised to increase up to 30 per cent again in January.
Following the rules can also mean spending thousands of dollars more on soil testing. Most importantly, registered receiving sites may be considerably farther away than unregistered or illegal ones, extending driving distances. And customers can expect higher tipping costs once they arrive at a legitimate site.
“You can pay Joe $5,000 and he can go dump it in the bush, literally,” Mr. Morden said. “Or you can go test it, you might find contaminated soils – it could be $40,000 or $50,000 to follow the regulations.”
Penalties for non-compliance can seem cheap by comparison.
Earlier this year, the ministry announced it had secured a conviction against a truck driver employed by Jutt Transport for one violation under the Environmental Protection Act. On Dec. 22, 2021, the driver received a load of soil from a construction site in downtown Toronto and was expected to deliver it to a disposal facility. But he didn’t.
Later the same day, the ministry reported, an eyewitness observed a Jutt dump truck that had backed into a wetland and become stuck. The truck had dumped soil that smelled strongly of fuel. The driver was fined $1,500, along with a victim fine surcharge of $375.
On Jan. 1, new restrictions will come into effect prohibiting the disposal of many types of soil at landfill sites. These are intended to prevent the simultaneous squandering of two valuable commodities: reusable soil and landfill space. Experts told The Globe and Mail that illegal dumping of soils, already a significant problem, could spike once this prohibition comes into effect.
“We don’t have enough legal places for it to go,” Ms. Bobechko said. “I think we are going to see significant illegal and midnight dumping.”
Mr. Walsom said the ministry needs to pursue cases against higher-profile offenders than it has to date. “You probably need to make an example of somebody,” he said.
“Because when people start to realize their reputation is at stake, and fees and costs and fines are in play, they start to listen. Enforcement is the next step, and it needs to step up.”