Queue item one in the niche industry programme, and the second article this session written by going to the instrument rather than to summaries of it. The instruments here are provincial rather than federal, and Ontario's are the ones we read, which is a limitation stated plainly at the top rather than buried.
Key Takeaway
Ontario Regulation 153/04 s.6.1(1) bars a qualified person from certifying a property in which that person or their employer holds a direct or indirect interest. Ontario Regulation 406/19 makes the project leader responsible for excess soil whether or not soil management is contracted out. The first stops risk moving toward the contractor. The second stops it moving away from the owner. Neither is a drafting problem that better contract language can solve.
The Verdict, Stated First
Five claims, in descending order of confidence.
One. A qualified person cannot certify a property in which they or their employer hold a direct or indirect interest. This is O. Reg. 153/04 s.6.1(1) and it is express. It is the single most important sentence in this article.
Two. Excess soil responsibility sits with the project leader regardless of contracting out. Under O. Reg. 406/19 the person ultimately responsible for decisions about planning and implementing the project carries responsibility for excess soil removed from the project area, whether or not soil management is contracted to a third party. Before that regulation, a project leader could shift it by contract.
Three. Taken together these two rules make the risk immobile. That is our reading, not a proposition either regulation states. Neither instrument mentions the other. We think the combined effect is real and material and we are stating it as inference, not as law.
Four. On our own arithmetic the choice between generic standards and risk-assessed site-specific standards is worth $1,140,000 on an invented $2.4 million contract. That is 47.5 percent of the contract value, decided by a technical judgment, not a commercial one.
Five. The party making that judgment is the one party barred from having an interest in it. This is the least certain claim because it depends on how firms structure the qualified person relationship in practice, which we could not observe from public sources.
Our Grades For These Claims
We grade our own sourcing before anyone else has to.
Claims one and two rest on regulation text, but obtained differently, and the difference matters. We read s.6.1(1) of O. Reg. 153/04 and s.7(1) and s.18(1) in the consolidated text carried on CanLII. We read the excess soil registration trigger in O. Reg. 406/19 from the same source. We did NOT obtain either regulation from Ontario's own e-Laws service, which is the authoritative publisher. CanLII is a reliable consolidator and it is not the official version. That is a real gap, and it sits under our two strongest claims.
The project leader proposition comes to us through a law firm bulletin rather than from the regulation's own definition, which we did not read in full. The bulletin is from a national firm writing for clients and it cites the provisions. It is good secondary material. It is secondary material.
Claim three is ours and is inference. No source we read connects the two regulations. We think the connection is obvious once both are in front of you, which is exactly the kind of thought that deserves a warning label rather than a confident sentence.
Claim four is entirely invented arithmetic. The site does not exist. The volumes, the unit rates, the split between soil that passes and fails, and the cost of a risk assessment are all our assumptions. We set them out individually so each can be disagreed with separately.
The acceptance timeline is a consultancy's stated experience, not a published ministry service standard. We looked for a ministry service standard and did not find one. An engineering firm's account of how long approvals take is worth something and is not a statistic.
A Note On Method
What we obtained: the consolidated text of O. Reg. 153/04, Records of Site Condition, under Part XV.1 of the Environmental Protection Act, via CanLII, including s.6.1 on conflicts, s.7 on insurance and s.18 on record retention; the consolidated text of O. Reg. 406/19, On-Site and Excess Soil Management, via CanLII, for the registration trigger; Ontario's own guide to site assessment and the filing of records of site condition, for the four classes of qualified person; a national law firm's bulletin on the October 2025 amendments to O. Reg. 153/04; a second national firm's bulletin on the excess soil regulation; and consultancy material on the reuse planning documents and on approval timelines.
What we did NOT obtain:
- The official e-Laws text of either regulation. Everything regulatory here is via CanLII or via a firm summarising it.
- The Soil, Ground Water and Sediment Standards document that the generic standards actually live in. We describe the choice between generic and risk-assessed standards without having read the generic standards themselves.
- Any ministry service standard for record of site condition acknowledgement. We searched and found none published.
- Any equivalent regime outside Ontario. Every province has a contaminated sites framework and they differ. This article is about Ontario and should not be read as describing Canada.
- Any real contract, tender, margin or cost figure. There is no client information in this article and there would not be if we had it.
One further caution. The October 2025 amendments to O. Reg. 153/04 are recent, and our account of them comes from a firm bulletin rather than from the amending regulation. Recent changes are exactly where secondary summaries are most likely to be incomplete.
Revenue That Is Someone Else's Obligation
Start with what makes this industry structurally unlike other contracting.
A roofing contractor sells a roof. The customer wants a roof. The demand is direct. A remediation contractor sells the discharge of a legal obligation that somebody else owes, and the customer would very much prefer not to need it at all.
That has consequences the contractor feels every day. Demand is created by regulation and by transactions, not by preference. It arrives when a property changes to a more sensitive use, when a lender requires it, when a purchaser's condition period demands it, or when an order issues. It is lumpy, it is legally driven, and it is almost entirely insensitive to how good the contractor is at remediation.
It also means the contractor's customer is under pressure that the contractor does not control. A developer who cannot file a record of site condition cannot change the use of the land. The whole project waits. That gives the contractor pricing power and, in the same motion, exposes it to a client whose incentive is to compress scope, because every cubic metre the contractor excavates is a cost the client is trying not to incur.
We have written elsewhere in this silo about who actually bears contaminated property liability in Canada, which is the other half of this picture and is more surprising than the slogan suggests. This article is about the business on the other side of that obligation: the one whose revenue is the obligation.
Two Regulations Pulling Opposite Ways
Two Ontario instruments govern the money in this business and they were not written to be read together.
O. Reg. 153/04, Records of Site Condition, made under Part XV.1 of the Environmental Protection Act, is the province's standard for assessing and cleaning up contaminated land. A record of site condition filed in the Environmental Site Registry is what a landowner obtains, and it is the thing the whole exercise is usually aimed at.
O. Reg. 406/19, On-Site and Excess Soil Management, governs what happens to the dirt once it comes out of the ground. It came into force in phases from 1 January 2021.
The first regulation governs the certificate. The second governs the material. A remediation project is subject to both simultaneously, and the excess soil regulation says so directly: its registration requirements are engaged where a project area is being remediated by excavating and removing excess soil to reduce contaminant concentrations, including where the remediation is for the purpose of filing a record of site condition under Part XV.1.
So there is no reading of a remediation project under which only one applies. Both do, and each contains a rule about where responsibility sits. The rules point in opposite directions.
The Certificate The Contractor Cannot Sign
A record of site condition depends on certifications made by a qualified person. The qualified person is a defined role: broadly, a professional engineer or a professional geoscientist holding the relevant registration and membership, with additional requirements where a risk assessment is involved.
Section 6.1(1) of O. Reg. 153/04 then does something that we think has consequences nobody has priced. Its effect is that no qualified person shall, in respect of a record of site condition property or a risk assessment property in which the qualified person or his or her employer holds a direct or indirect interest, conduct or supervise a phase one or phase two environmental site assessment, complete the certifications that must be completed by a qualified person in a record of site condition, or prepare or supervise a risk assessment.
Read the words carefully, because two of them are doing most of the work.
"Or his or her employer." The disqualification is not personal to the individual. It reaches the firm. A qualified person employed by a company that holds an interest in the property is disqualified even if the individual holds nothing.
"Direct or indirect." The provision does not say ownership. It does not say equity. It says interest, and it says indirect interest, which is language chosen to catch arrangements that are not share ownership.
The regulation adds that nothing in the subsection derogates from obligations under the Professional Engineers Act or the Professional Geoscientists Act, so the professional duty sits on top of the regulatory bar rather than being satisfied by it.
What That Rules Out
Now put the provision beside the deal structures a contractor might otherwise reach for. This section is ours and is reasoning about consequences, not a statement of what the regulation says.
The obvious structures a remediation contractor might want are the ones that align its return with the outcome. Take a share of the uplift in land value. Take an option on part of the redeveloped site. Accept payment partly in units of the completed project. Enter a joint venture with the developer. Buy the contaminated land, clean it and sell it clean.
Every one of those gives the contractor an interest in the property. If the contractor's own qualified person is to certify the site, s.6.1(1) appears to disqualify them, because the qualified person's employer now holds an interest.
There is an obvious answer, and it is the one the industry in fact uses: engage an independent qualified person from a different firm. That works. It also means the contractor has separated the two things a normal business would want joined, namely the person doing the work and the person certifying that the work achieved the standard.
We want to be careful here. We are not saying these structures are unlawful. We are saying that they appear to force the certification function outside the contractor's own firm, and that this has a cost and a governance consequence that we have not seen discussed in financial terms. Whether a particular arrangement creates a direct or indirect interest is a legal question about that arrangement. We are not a law firm and this is not an opinion on any structure.
What we can say with confidence is narrower and still useful: the more a remediation contractor's compensation is tied to the property outcome, the further the certification function has to sit from the contractor, and a contractor that has not thought about that before signing a value-share deal has a problem that surfaces at the worst possible moment, which is when the certificate is needed.
The Liability The Owner Cannot Shed
Now the same question from the other side, and the answer runs the other way.
O. Reg. 406/19 introduced the concept of the project leader, defined broadly as the person or persons ultimately responsible for making decisions relating to the planning and implementation of the project. On the account we read, those falling within the definition are responsible for excess soil removed from project areas whether or not soil management is contracted out to a third party [3].
The same source states what the position was before: project leaders could contractually exclude their liability for soil management by shifting responsibility onto third party contractors [3]. That route closed.
This is a genuine reversal and it is worth stating in plain commercial terms. Before the regulation, an owner or developer could hire a soil contractor, transfer the risk in the contract, and be substantially done with it. After the regulation, the owner who makes the decisions keeps the responsibility no matter what the contract says, because the responsibility attaches to the decision-making role rather than to the contractual allocation.
Note what this does not mean. It does not mean the contract is pointless. An owner can still take an indemnity, and a well-drafted indemnity may recover the cost. What it means is that the regulatory responsibility does not travel, so the owner's exposure now depends on the contractor's solvency rather than on the contract's words. An indemnity from a contractor who has failed is a piece of paper.
Risk Does Not Move
Set the two together. This section is entirely our reading and no source we found puts it this way.
The contractor cannot easily acquire an interest in the property, because doing so appears to disqualify its own qualified person from certifying the site. The owner cannot shed excess soil responsibility, because the regulation attaches it to the decision-making role rather than to the contract.
Risk cannot move toward the contractor by the route that would compensate it, and cannot move away from the owner by the route that would relieve it.
That is an unusual structure. In most construction and infrastructure work the entire commercial exercise is deciding who bears which risk and pricing it accordingly. Design and build, guaranteed maximum price, target cost, alliancing: all of them are machinery for moving risk to whoever prices it best. Here two of the principal risks have been pinned in place by regulation.
The consequence, which we think is the practical point of this article, is that the commercial negotiation cannot do the work people expect it to. The contractor is left pricing a scope it does not control, for a client that cannot transfer its own exposure and therefore has every reason to scrutinise every cubic metre.
And the scope, as the next sections show, is capable of varying by a factor that dwarfs any plausible margin.
The Fork That Decides The Contract
There is more than one lawful way to make a contaminated site fit for a more sensitive use, and the choice between them is the largest single number in a remediation project.
Route one, generic standards. The site is cleaned until contaminant concentrations meet the province's published standards for the intended use. This is conceptually simple. It is measured against a table. The qualified person certifies against that table.
Route two, risk assessment. Instead of meeting the generic table, a risk assessment is prepared and, if accepted by the Director, produces site-specific standards for that property. Contaminants may lawfully remain at concentrations above the generic table where the assessment shows the risk is managed.
Ontario's own guidance reflects this in the way it defines qualified persons. There are four classes, and the distinction between them turns on exactly this fork: a qualified person for a phase one only; a qualified person for a phase two where all standards being met are the prescribed generic standards; and a qualified person for a phase two where some of the standards being met are based on a risk assessment accepted by the Director [5]. The regulation treats risk assessment work as requiring different qualification.
In physical terms the fork decides how much earth moves. Under generic standards, soil above the table comes out. Under accepted site-specific standards, a great deal of it may stay where it is, often with risk management measures in place.
In financial terms it decides almost everything, because excavation, haulage, disposal and backfill are the cost of this business.
What The Fork Is Worth
Everything here is ours and invented. There is no site and no contract.
Assume a former industrial parcel being converted to residential use, a $2,400,000 fixed-price remediation contract, and the following assumptions, each of which a reader may reject independently:
- Soil requiring removal to meet generic standards: 18,000 cubic metres
- Soil requiring removal under accepted site-specific standards: 6,000 cubic metres
- All-in cost to excavate, characterise, haul, dispose and backfill: $110 per cubic metre
- Cost of preparing a risk assessment and taking it through Director acceptance: $180,000
The arithmetic:
- Generic route soil cost: 18,000 multiplied by $110 is $1,980,000
- Risk assessment route soil cost: 6,000 multiplied by $110 is $660,000
- Gross saving: $1,320,000
- Less the cost of the risk assessment: $180,000
- Net difference: $1,140,000
On a $2,400,000 contract that is 47.5 percent of the contract value, turning on a technical route selection.
Look at what it does to the contractor's position rather than the client's. On the generic route the contractor's soil cost of $1,980,000 leaves $420,000 against overhead, risk and profit, which is 17.5 percent and not comfortable on a fixed price. On the risk assessment route the same contract price leaves $1,740,000 against a $660,000 soil cost.
Which is to say the two routes are not merely different for the client. They are the difference between a thin job and a very good one, on identical contract value and identical ground.
And Who Gets To Choose
Here is where the two halves of the article meet.
The route selection is a technical judgment. Whether a risk assessment can support site-specific standards for this contaminant, at this depth, under this proposed building, with these receptors, is a question for a qualified person, and the acceptance decision is the Director's.
It is not a question the contractor may answer in its own favour. The qualified person who prepares or supervises the risk assessment is caught by s.6.1(1) if their employer holds an interest in the property. And even setting the conflict rule aside, the qualified person is a professional carrying personal registration and, under s.7(1), a regulatory obligation to maintain insurance coverage satisfying prescribed requirements.
So the largest number in the contract is set by someone who is required to be disinterested, and whose own exposure runs the other way. A qualified person who certifies aggressively carries the professional consequence personally. The incentive is toward conservatism, and conservatism in this context means the generic route, which means more excavation.
Ours, and offered as a hypothesis rather than a finding. If that incentive gradient is real, the system has a mild structural bias toward digging more than strictly necessary, because the person best placed to justify digging less bears personal risk for saying so and captures none of the saving. We could not test this. We would want data on how often risk assessments are used versus generic standards before believing it, and we did not obtain that data.
What we can say without the data is the narrower point, which is enough: a fixed-price remediation contract signed before the route is settled is a contract on an unknown scope, and the range is not a contingency-sized range.
The Acceptance Lag
Physical completion and regulatory completion are different events and the gap between them is not short.
Once assessment and remediation are done, the record of site condition is submitted to the ministry, and after ministry acknowledgement it is filed in the registry. An engineering consultancy writing about its own experience of the process puts acknowledgement at between four months and more than two years, depending on the complexity of the findings, and specifically notes that the longer end applies where remediation or risk assessment has been performed [6].
That qualifier matters. The lag is longest precisely on the projects where a contractor did the most work. A simple phase one with no findings clears quickly. A remediated site with an accepted risk assessment is the slow case, and it is also the expensive one.
We looked for a published ministry service standard against which to test that range and did not find one. So the number in this section is one firm's account of its own experience, which we report because it is the best available and flag because it is not a statistic.
The commercial consequence is straightforward. A contractor finishing physical work in month nine of a project may be waiting until somewhere between month thirteen and month thirty-three for the event that says the work achieved its purpose. Nothing in that interval is within the contractor's control, or the client's.
Recognising Revenue You Cannot Complete
This creates a revenue recognition question we can frame but should not pretend to settle.
The contractor's obligation is usually to remediate to a standard. The client's purpose is a filed record of site condition. Whether those are the same performance obligation depends entirely on what the contract says, and contracts differ.
If the contractor's obligation is to achieve the standard, performance is complete when the standard is achieved, and the ministry's subsequent acknowledgement is somebody else's administrative process. If the contractor's obligation is expressed as delivering a filed record of site condition, performance is not complete until an event the contractor cannot cause has occurred.
We are not going to tell you which is correct, because it is a question about a contract we have not seen, answered under accounting guidance we did not obtain. Reasoning from a regulation to a revenue recognition conclusion is precisely the move that produces confident wrong answers, and we made a version of that error in the distillery article this session and published the correction.
What we will say is that the drafting choice has a large and often unnoticed consequence, and that it is frequently made by whoever wrote the tender rather than by anyone thinking about revenue.
Ours, on the invented contract. Take the $2,400,000 contract with a ten percent holdback of $240,000 released on record of site condition acknowledgement. At a nine percent cost of capital, a four-month wait costs the contractor $7,200 in carrying cost. A twenty-four month wait costs $43,200. The difference of $36,000 is determined by a queue.
That is manageable on one contract. It is not manageable as a portfolio position if a contractor runs a dozen projects with holdbacks tied to an event whose timing has a twenty-month range, because the working capital requirement is then a function of ministry throughput rather than of anything the business does.
The Paperwork That Gates The Excavation
The excess soil regulation does something that catches project schedules more often than it catches project budgets: it puts documents in front of the dig.
Before excess soil may be removed from a project area, the reuse planning requirements must be met. On the account we read [7] those comprise an assessment of past uses, a sampling and analysis plan, a soil characterisation report and an excess soil destination assessment report. A notice must then be registered in the Excess Soil Registry developed and implemented by the Resource Productivity and Recovery Authority, and a tracking system must be applied.
Four documents, one registration and a tracking system, before a truck moves.
The registration trigger is set out in the regulation itself. Among the circumstances engaging it is where part of the project area is in a settlement area within the meaning of the Planning Act and 2,000 cubic metres or more of soil is to be removed, and separately where all or part of the project area is being remediated by excavating and removing excess soil to reduce contaminant concentrations, including remediating for the purpose of filing a record of site condition [2].
Read that second limb again. A remediation project undertaken to obtain a record of site condition is named. There is no volume threshold to argue about on that limb. The activity itself is the trigger.
For a contractor pricing a job, the practical consequence is that mobilisation is not the start of earning. There is a documentation phase with its own cost, its own professional input and its own duration, and it sits on the critical path in front of the activity that generates progress claims.
What Changed In October 2025
On 23 October 2025 Ontario amended O. Reg. 153/04, in support of a stated objective of building homes faster by removing obstacles to development. The amendments reduce the circumstances in which a record of site condition is required where brownfield development is not at issue, and the ministry published companion guidance [4].
We report this because it is recent and material and because a contractor's demand comes from the requirement. Anything that narrows when a record of site condition is required narrows the market for the work that produces one.
We also report the commentary's own scepticism, because it is more useful than the announcement. The firm writing on the amendments observes that it is not difficult for a developer to obtain a record of site condition based solely on a phase one assessment where that assessment finds a phase two is not required, since in that case no further investigation or remediation is needed at all, and questions how much the amendment actually eases regulatory burden in any meaningful way.
That is a well-made point and it cuts against a naive reading in both directions. If the cases removed from the requirement were mostly cases that were already cheap and quick, the amendment removes little cost from developers and little revenue from contractors. The projects that generate real remediation work are the ones with real findings, and those are not the ones being exempted.
Our position is that we do not know the size of the effect and neither, on the public record we read, does anyone else yet. A contractor building a forecast on this should treat it as a risk to monitor rather than a quantified change.
Seven Years After Filing
One provision deserves separating out because it creates an obligation that outlives everything else in the project.
Section 18(1) of O. Reg. 153/04 prescribes, for the purposes of s.168.4(5) of the Act, that a report listed in a record of site condition must be retained for seven years after the date the record of site condition is filed in the registry [1].
Note the start date. It is not seven years from the work, or from the report, or from final payment. It runs from filing, which as the previous sections established may itself be two years after the physical work finished. So the retention obligation on a project can comfortably run nine years from the day the contractor demobilised.
This is unglamorous and it has three consequences that are easy to miss.
Records outlive projects and often outlive systems. A nine-year horizon crosses at least one and probably two changes of document management platform for most mid-sized firms.
Records outlive staff. The qualified person who signed may have moved firms twice.
Records outlive the entity in some structures. Contractors that use project-specific companies, which is common in construction generally, need to think about where a retention obligation sits when the project company is wound up.
None of this is expensive to solve prospectively and all of it is expensive to solve retrospectively, which is the usual shape of record-keeping obligations and the usual reason they are neglected.
The Insurance The Regulation Requires
Section 7(1) of O. Reg. 153/04 requires every qualified person mentioned in the relevant sections to maintain insurance coverage under a policy satisfying prescribed requirements [1].
This is worth noticing for a commercial reason rather than a compliance one. The regulation puts a mandatory insurance obligation on the certifying professional specifically. It does not put one on the excavation contractor by that route.
So the risk architecture the province has built has insurance sitting on the certifier, liability for excess soil sitting on the project leader, and the physical contractor occupying a position defined mostly by contract. That is a coherent design if the certifier is genuinely independent, which is what s.6.1(1) is there to secure.
It is less coherent from the contractor's side. A contractor who has agreed a fixed price against a scope determined by a certifier it may not influence, on a site whose soil liability stays with the client, holds a position that ordinary construction risk allocation did not design and that ordinary construction contract language does not describe.
We did not obtain the prescribed insurance requirements themselves. We know from the regulation that the obligation exists and that its content is prescribed. What the policy must actually cover, in what amount, we did not establish, and a contractor relying on a certifier's coverage as a backstop should establish it rather than assume it.
When Finished Is Not Finished
One further feature makes remediation different from most construction: the site can carry an ongoing obligation after the work is signed off.
Where a record of site condition has been submitted, the ministry may place a certificate of property use on the property. A site remediated on the risk assessment route is precisely the case where ongoing risk management measures are contemplated, and modified generic risk assessment exists as a route for redevelopment on a contaminated property with ongoing risk management measures in place.
The commercial point is that the risk assessment route, which our arithmetic showed can be worth $1,140,000, is also the route most likely to leave the property carrying continuing obligations. Contaminants that remain in the ground because a risk assessment showed the risk is managed are contaminants that require the management to continue.
So the cheaper route is not simply cheaper. It converts a one-time excavation cost into a smaller one-time cost plus an indefinite management obligation, and somebody owns that obligation. Ordinarily it is the landowner, not the contractor. But a contractor pitching the risk assessment route as a saving to a client is proposing a transaction that trades capital cost for an ongoing duty, and should say so.
We did not obtain the provisions governing certificates of property use and our account of them here rests on secondary description. The direction of the point is sound. The detail should be checked before anyone relies on it.
What This Does To The Balance Sheet
Pull the timing features together and the shape of the contractor's balance sheet follows from the regulations rather than from its own choices.
Work begins after a documentation phase that must complete before soil can move. Progress claims run through the physical work. Physical completion is followed by a submission, and the acknowledgement that closes the project arrives somewhere in a twenty-month window. Holdbacks tied to that acknowledgement sit unreceived throughout. Records must be kept for seven years after it.
Three observations, ours.
Receivables age for reasons unrelated to credit quality. A remediation contractor's aged receivable listing will show balances that look alarming and may reflect nothing more than a ministry queue. Any credit analysis of this sector that treats ageing as a proxy for collectability will misread it, in both directions, because some genuinely bad debts will hide in a population of slow-but-good ones.
Work in progress carries scope risk that is not schedule risk. On a fixed price signed before the route is settled, the uncertainty is not how long the work takes. It is how much work there is, and our arithmetic put the range at 47.5 percent of contract value.
The obligation to retain records is a cost with no revenue attached, running years past the last cash movement, and it is one of the few costs in the business that scales with the number of past projects rather than current ones.
We are deliberately not stating how any of this should be presented in financial statements. That depends on the framework and on contract terms and we did not obtain the guidance. The point is that the drivers are regulatory, not commercial, and a model built from ordinary construction assumptions will get the working capital profile wrong.
If You Run A Remediation Contractor
Five things, in the order we would look at them.
Settle the route before you fix the price, or price the fork explicitly. A fixed price agreed before it is known whether the site goes the generic or the risk assessment route is a price on an unknown quantity. If the client wants a number that early, the number needs two scenarios in it.
Know where your qualified person sits relative to your interests. If your firm holds, or is contemplating holding, any interest in a property, the conflict provision is a live question before it is a compliance question. Ask it before the deal is structured, not when the certificate is needed.
Do not sell a value-share deal without checking the certification path. Payment in units, options over the redeveloped site and joint ventures all give your firm an interest. Each may be perfectly workable with an independent certifier. None of them works if the plan was to certify in house.
Separate physical completion from regulatory completion in the contract. If your obligation is drafted as delivering a filed record of site condition, you have accepted an obligation you cannot discharge on your own. If that is the commercial deal, at least price the twenty-month tail.
Build the retention obligation into project closeout. Seven years after filing, on a filing that may be two years after demobilisation, is not something to rediscover when a request arrives.
If You Advise One
Four checks we would run on any remediation contractor engagement.
What triggers the final payment in the standard contract. Physical completion, certification, or ministry acknowledgement. These are three different dates with a spread measured in years and the answer determines the working capital model.
Whether the qualified person is in house or independent, and whether the firm holds any property interests. If both answers are the awkward one, that is a conversation to have early.
Whether the aged receivable listing has been explained to the lender. A covenant written on days sales outstanding, on a business whose collection date is set by a regulator, is a covenant that can be breached by a queue. This is the kind of thing that is easy to renegotiate before it happens and hard afterwards.
Whether excess soil documentation costs are being captured as project cost or absorbed as overhead. The reuse planning documents precede excavation, so on a project that does not proceed they are cost with no contract, and a firm that treats them as overhead will not see the pattern.
And one thing to resist. Do not assume that because a contract allocates environmental risk to the contractor, the risk has moved. For excess soil under O. Reg. 406/19 it appears not to, and a client comforted by an indemnity may be relying on the contractor's solvency without realising it.
What To Do
If you take one thing from this article, take the immobility. Two regulations, written for different purposes and never cross-referenced, between them stop the contractor acquiring an interest and stop the owner shedding responsibility. Contract drafting cannot undo either.
If you take two, take the fork. Generic standards or accepted site-specific standards is the largest number in a remediation project, on our arithmetic 47.5 percent of contract value, and it is chosen by a professional who is required to be disinterested and who bears personal consequence for choosing wrongly.
If you are advising a remediation contractor this quarter, the highest-value single question is what event releases final payment in the standard form contract, because the answer distinguishes a business collecting in ninety days from one collecting in two years on identical work.
The Limits Of This Analysis
Long and specific, because a limits section that is short is decoration.
This is Ontario only. Every province has a contaminated sites regime and they differ substantially in who certifies, against what standards, and with what liability protection. Nothing here should be read across a provincial boundary without checking.
We did not use the official text of either regulation. Both come to us through CanLII, which consolidates reliably and is not the authoritative publisher. For the project leader proposition we relied on a law firm bulletin rather than the definition itself.
The contract is invented and so is every number in it. $2.4 million, 18,000 cubic metres, 6,000 cubic metres, $110 per cubic metre and $180,000 for a risk assessment are all our assumptions. Move the unit rate from $110 to $80 and the net difference falls from $1,140,000 to $780,000. Move the risk-assessed volume from 6,000 to 12,000 cubic metres and it falls to $480,000. The mechanism survives all of these. The number does not.
The 47.5 percent figure is arithmetic on our own assumptions, not a market observation. We have no data on the actual distribution of remediation volumes under the two routes and did not find any.
The four-month to two-year acceptance range is one consultancy's account of its own experience. We found no published ministry service standard. It may be unrepresentative, it may be dated, and it is the weakest load-bearing fact in the article after the project leader point.
The structural bias hypothesis is untested. We suggested that a qualified person bearing personal risk and capturing none of the saving may lean toward the generic route. We have no evidence for that. It is a hypothesis about incentives and should be read as one.
Whether any particular arrangement creates a direct or indirect interest is a legal question we cannot answer. We describe what the provision says and reason about the kinds of structures it appears to reach. That is not advice on any structure and we are not lawyers.
We did not obtain the prescribed insurance requirements, the generic standards document, or the provisions governing certificates of property use. Each is described here from secondary material.
The October 2025 amendments are recent and our account of them is second hand. Recent amendments are where secondary summaries are least reliable.
Frequently Asked Questions
Can a remediation contractor certify its own work?
Can an owner transfer excess soil liability to the contractor by contract?
What is the difference between generic standards and risk assessment?
How much does the route choice matter financially?
How long does record of site condition acknowledgement take?
How long must project records be kept?
Does the risk assessment route leave obligations behind?
References
- Ontario Regulation 153/04, Records of Site Condition, Part XV.1 of the Environmental Protection Act, R.S.O. 1990, c. E.19, consolidated text via CanLII. Sections relied on: s.6.1(1), barring a qualified person from conducting or supervising assessments, completing record of site condition certifications, or preparing or supervising a risk assessment in respect of a property in which the qualified person or his or her employer holds a direct or indirect interest, with s.6.1(2) preserving obligations under the Professional Engineers Act and the Professional Geoscientists Act; s.7(1), requiring a qualified person to maintain insurance under a policy meeting prescribed requirements; and s.18(1), prescribing seven years after filing as the retention period for a listed report. Note: a consolidator, not the official publisher. We did NOT obtain the e-Laws text. This is the load-bearing source for the article's central claim and it should be verified against e-Laws before anyone relies on it. CanLII
- Ontario Regulation 406/19, On-Site and Excess Soil Management, consolidated text via CanLII, for the circumstances engaging registration, including the settlement-area limb at 2,000 cubic metres or more and the separate limb where all or part of a project area is being remediated by excavating and removing excess soil to reduce contaminant concentrations, expressly including remediation for the purpose of filing a record of site condition under Part XV.1. Note: again CanLII rather than e-Laws. CanLII
- McMillan LLP, bulletin on Ontario's excess soil regulation, for the project leader concept: that a project leader is broadly defined as the person or persons ultimately responsible for decisions relating to planning and implementation, that such persons are responsible for excess soil removed from project areas whether or not soil management is contracted out, and that before the regulation project leaders could contractually exclude that liability by shifting it onto third party contractors. Note: a law firm bulletin written for clients. It cites the provisions and we did NOT read the definition itself. Our second most important claim rests on this. McMillan
- McMillan LLP, bulletin on the amendments to O. Reg. 153/04 made on 23 October 2025, which reduce the circumstances requiring a record of site condition where brownfield development is not at issue, with companion ministry guidance. Includes the authors' observation that a developer can already obtain a record of site condition on a phase one alone where that assessment finds no phase two is required, and their question as to how much burden the amendment actually removes. Note: secondary, recent, and describing amendments whose practical effect nobody has yet measured. McMillan
- Government of Ontario, guide to site assessment, the cleanup of brownfield sites and the filing of records of site condition, for the four defined classes of qualified person, including the distinction between a qualified person for a phase two where all standards met are the prescribed generic standards and one for a phase two where some standards met are based on a risk assessment accepted by the Director. Note: the province's own guidance, which is good evidence of the framework and is not the regulation. Ontario
- Vertex, commentary on Ontario's provincial standard for records of site condition, for the qualified person registration requirements and for the statement, based on the firm's own experience, that ministry approval of a record of site condition can take between four months and more than two years depending on the complexity of the findings, especially where remediation or risk assessment has been performed. Note: a consultancy describing its own experience. Not a service standard, not a survey, and the weakest load-bearing fact in this article after the project leader point.
- Intrinsik, commentary on O. Reg. 406/19 and excess soil risk assessment, for the reuse planning requirements that must be met before excess soil may be removed from a project area, being an assessment of past uses, a sampling and analysis plan, a soil characterisation report and an excess soil destination assessment report, followed by registration of a notice in the Excess Soil Registry operated by the Resource Productivity and Recovery Authority and application of a tracking system. Note: a consultancy's summary of a regulation we did not read on this specific point.