Excess Soil and Commercial Redevelopment in Ontario: The Three Questions That Decide How It Is Regulated

When you model a teardown or a deep excavation, the dirt leaving your site is not just a haul-away cost. Under O. Reg. 406/19 it is legally waste — until three questions about your site say otherwise.

I’m Arthur Zhao, a Toronto real estate broker. Somewhere in the feasibility model for almost every commercial redevelopment there is a single, easily-underestimated line: soil haul-away. On a teardown or a deep-basement build a great deal of earth has to leave the site, and it is tempting to pencil that line in as a plain trucking-and-tipping number.

In Ontario it is more than that. The moment soil is dug up as part of your project and moved off the site, it steps into a regulatory category with its own rules on testing, paperwork, destination and a public filing — and by default that category is “waste.” This article works through the three questions about your specific site that decide how heavy those rules are, so the figure in your pro forma reflects the obligations, not just the trucking.

Start With the Site, Not the Soil

Whether O. Reg. 406/19 applies to your project — and how much it asks of you — is not a single yes-or-no switch. It is the sum of a few facts about your site, most of which you can begin gathering at the feasibility stage from a title and planning review, long before anything is dug.

First, a scoping point that saves a lot of confusion. The regulation is built around soil that leaves the project area. Its defined term, excess soil, is soil dug up as part of a project and moved off the project area — so material you excavate and reuse within the same project area is not excess soil, and the removal-driven machinery does not attach to it. Once you know some soil will leave, three questions decide the rest: what the site was used for before, how much soil leaves and where the site sits, and where that soil finally goes.

Question 1 — What Was This Site Used For Before?

The first question is about history, and for a redevelopment buyer it is often the decisive one. O. Reg. 406/19 defines an “enhanced investigation project area” as a project area that was ever used for an industrial use, for a garage, for a bulk liquid dispensing facility (which includes a gas station), or for the operation of dry-cleaning equipment.

If your redevelopment site’s past hits any of those uses, that history can pull the project into the filing rule under s.8 on its own — separately from how much soil you move. There is a carve-out where the site already has a record of site condition, has no outstanding risk-assessment issue and has not resumed that use since. If you are acquiring an older commercial or industrial parcel — the classic teardown target — assume this question is live and answer it early.

Question 2 — How Much Soil Leaves, and Where Does the Site Sit?

The second question pairs volume with location. Under s.8(1.1), a project is “applicable” — meaning the filing rule engages — when any part of the project area is within an “area of settlement” in the Planning Act sense (broadly, land inside an urban settlement boundary) and the excess soil removed is 2,000 m³ or more.

There is an important exception built into that same paragraph: it does not catch a project area used wholly for residential, institutional, parkland or agricultural purposes as those are defined in O. Reg. 153/04. Read the two together and the practical result is direct — a commercial or industrial redevelopment inside an urban area that hauls out 2,000 cubic metres of soil or more generally lands inside the rule. A separate branch also applies where you are excavating to remediate contamination. At the small end, Schedule 2 lists situations where s.8 simply does not apply, including removing 100 cubic metres or less directly to a site that is not a Class 2 waste-disposal site, and excavation forced by an emergency, a legal duty, an order or infrastructure repair.

Question 3 — Where Does the Soil End Up?

The third question is about destination, and it is where the “waste” label is won or lost. s.3(1) is the default rule: subject to s.3.1 and s.5.1 to s.5.7, excess soil is designated as waste. Showing the soil is clean is not, on its own, the way out — you meet the conditions in s.3.1, which bundle the destination, the receiving site’s written consent, the paperwork and, through s.4 or s.5, the soil-quality requirements that apply at the receiving site.

Broadly, those conditions require the soil to go directly to a reuse site whose owner or operator has given written consent to receive it — including express acceptance where the soil is salt-impacted or asphalt-impacted — and require the soil to be dry or otherwise covered by an authorizing document, with any non-specified-use storage governed by a site-specific document. The through-line is that the destination and its paperwork, not the soil’s appearance, are what determine its legal category.

When the Answers Add Up, Here Is What Gets Triggered

If your three answers point to an applicable project, the obligations attach to the project leader — the decision-maker identified in the definition, which is why settling who that is matters on a joint venture or a numbered-company deal. Before the material that will become excess soil is removed from the project area, the project leader must file a notice in the Excess Soil Registry under s.8(1); the notice content is set out in Schedule 1. Timing is the part people miss: the notice comes before the trucks roll, not after.

Two pieces of work generally precede that filing. Under s.11(1) a qualified person prepares an assessment of past uses (with exceptions, such as where an O. Reg. 153/04 Phase One environmental site assessment already exists), and where s.12(2) applies, a qualified person prepares a sampling and analysis plan under s.12(1). The regulation then continues into an excess soil destination assessment report (s.13), a tracking system (s.16) and hauling records (s.18) — worth knowing they exist and sit downstream of the filing, so your budget and schedule account for professional work, not just trucking.