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Developers Now on the Hook for Illegal Dumping

Developers Now on the Hook for Illegal Dumping

~3min Read

In 2021, O. Reg 406/19 goes live – a new excess soil regulation written by the Ontario MECP.

With it comes a liability shift. Project owners (developers) will no longer be able to indemnify themselves from contractors and haulers who are improperly disposing of excess soil from their sites.

Today, project owners typically off-load the liability of excavation and hauling onto their subs through various contracts put out for tender. They otherwise are not incentivized to know the final destination of their excess soil.

Why is this an issue?

When estimating, costs related to the disposal of excess soil are relatively similar amongst bidders (i.e. truck rental, diesel, tipping fees). The variant that can make or break a bid is the disposal site location. A shorter distance to the source site usually equates to a lower cost per load and an increased chance of winning the project.

The competitive nature of this process can unfortunately result in illegal dumping.

By no means is this common practice. Many developers, contractors, and haulers follow strict guidelines to ensure proper disposal. However, one bad apple can spoil the bunch. Municipalities have experienced this first hand by receiving contaminated soil that was otherwise reported to be clean. These contaminants can then have adverse effects on both vegetation and water systems.

So what does this mean for developers come the new year?

As developers have done and will continue to do… take the steps necessary to mitigate any potential risks – except this time with incentives aligned to a best practice approach.

My recommendation is to be proactive about O. Reg 406/19 in the project design stage. There you can ask civil engineers and consultants to include terminology within building specifications and tender documents for contractors to follow. This ensures contractors bidding on your project will come to the table with the required tracking and testing processes in place with the new regulations.

What is this going to cost me?

Developers (and contractors) will likely see a cost bump associated with (1) a testing component and (2) a tracking component.

But I have good news. And like every article on LinkedIn, it comes in the form of a plug for the company that the writer (me) is working for…


SoilFLO can provide both tracking solutions and cost reductions through its web-based platform. By tracking earthworks digitally, contractors can collect and store the data required by O. Reg 406/19. Furthermore, with remote access to site data, the overhead cost from previously handling paper, time spent driving to sites, and in-person oversight from QP’s can be reduced.

Earthworks, and other areas of construction, have been known to be archaic in its processes. As new regulations continue to be written, my guess is we will continue to see innovations emerge.

In summary…

With the new regulations going live in 2021, developers need to be ready. Exposure to this new liability can be mitigated through proper planning with civil engineers and environmental consultants. Although O. Reg 406/19 may seem cumbersome on the surface, there are technological solutions available and managers need to be willing to adopt them for a smooth and cost-efficient transition.

In the new year, we’ll explore why – even when the soil is clean – contractors will be required to track it.

Thanks for reading.

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