Association of Professional…

Association of Professional Geoscientists of Ontario (APGO)
25 Adelaide Street East, Suite 1100, Toronto, ON
M5C 3A1
23 June 2016

Ministry of the Environment and Climate Change
Climate Change and Environmental Policy Division
Land and Water Policy Branch
40 St. Clair Avenue West
Floor 10
Toronto Ontario
M4V 1M2

Attention:Sanjay Coelho - Senior Policy Analyst
sanjay.coelho@ontario.ca

Subject: Excess Soil - New Proposed Regulation - EBR Registry # 013-0299

The Association of Professional Geoscientists of Ontario (APGO) was established to protect the public and the natural environment by regulating geoscience practice in Ontario. This mandate is our foremost concern and we appreciate the opportunity to comment on the above-referenced EBR posting. The APGO has worked with the MOECC on this matter for several years and was pleased to have been involved with the 2014 Excess Soil BMP and the draft work on professional practice guidelines. Overall, we are encouraged with the progress that has been made on the recent action actions identified in the Excess Soil Management Framework (i.e. previous EBR Posting #012-6065). We remain committed to this issue and are supportive of the MOECC’s efforts to seek improvements with the proposed excess fill regulation and associated legislative amendments. To assist the MOECC, we attach a preliminary list of comments about the current plain-language regulatory proposal (Attachment ‘A’). We understand that additional stakeholder consultation will occur using the various engagement groups that the MOECC has convened. The APGO kindly requests the opportunity to provide further input as the draft regulatory amendments evolve. Sincerely,

Christine Vaillancourt, P.Geo.Ron Ormson, P.Geo. PresidentChair, Environment Subcommittee

cc. Louis Kan – CEO /attch. Attachment ‘A’

Comments from the APGO Proposed Excess Soil Regulation & Amendments- EBR Registry #013-0299 ________________________________________________________________________________

Overall Comment

In general, as drafted, the proposed regulatory amendments are extremely prescriptive and detail various requirements down to truckload quantities. To that end, and considering the weight placed on the role of qualified professionals (QPs), we fully support the text of the regulations that have been drafted to allow QP’s to exercise discretion and professional judgment. In our view, even the best-crafted legislation cannot foresee all potential scenarios and variables that affect management of excess soils. Professional judgment must be involved to keep the spirit of the legislation intact and to prevent unapprised decision making that could have unintended consequences. We would encourage the Ministry to identify further opportunities for QPs to use their experience and judgment when developing excess soil management plans and other deliverables identified in the proposal.

Specific Comments

1. Designation as waste. As proposed, excess soil excavated from a construction or development site (regardless of quality or quantity) would automatically be designated as a waste until deposited in accordance with the regulation. The APGO has always understood that an overarching goal of the initiative has been to prevent excess fill from being viewed as waste. To prevent the potential diversion of clean soil to waste disposal sites, the MOECC should reconsider this aspect.

2. Soil Characterization. Given that the process requires extensive characterization of the excess soil before it leaves a project area, the soil characterization results should be used to determine whether or not the material should be managed as waste or as excess fill.

3. Excess Soil Management Plans (ESMP). It should be made abundantly clear in any final version of the proposed regulation that it is the legal responsibility of a proponent (not a QP) to ensure that an ESMP is prepared for his or her site. In addition, similar to Records of Site Condition (RSC), the project proponent should co-sign an ESMP developed by a QP. The plain-language version of the regulation is not entirely clear with respect to the division of responsibilities between these two parties; however, the APGO assumes that the intent of the regulation is to have a QP oversee the development of an ESMP and for the proponent ensure that it is properly implemented using the advice of a QP; the use of experienced contractors; and, with the necessary involvement of other parties normally involved in construction and land development. We therefore suggest clarification of item vii. under the heading “Plan Components” (page 13).

4. ESMP Exemptions. The proposed exemptions for small sites, emergencies, maintenance, repair of infrastructure and other circumstances is an important aspect of this proposed legislation and should provide flexibility. It is not clear; however, what must occur for projects generating between 100m3-1000m3 of excess soil. Is an ESMP still required? Why does excess fill from projects that generate less that 100m3 need to be sent to a landfill to become exempt from an ESMP? The cumulative effect of that threshold could be significant and will not assist with the overall goal of waste diversion.

5. Building Restriction. The proposed integration of the municipal building permit process into the legislative framework is very logical and would promote excess soil management planning at the proper point in the land development and construction process. This would be most successful if modelled after the O.Reg. 153/04 provisions concerning RSCs and the issuance of building permits using a registry system.

6. Definition of a Qualified Person. We support the definition as proposed and feel that it will add consistency between the proposed excess fill regulation and O.Reg. 153/04.

7. Receiving Sites. We note that Ontario Conservation Authorities (CAs) are not mentioned in this section of the plain language document. In addition to municipal and site-specific instruments, independent fill permits may be required by CAs and should be listed.

8. Excess Soil Tracking. As we understand the proposal, every truckload of excess soil transported from a project to a storage, reuse, or disposal site will require tracking. Such tracking will include routes taken by trucking companies, detailed hauling records, etc. As drafted, a QP shall “ensure” procedures to “ensure” that a tracking system is being implemented. Since the physical handing and transportation of excess soils is undertaken by contractors we feel that the proposed wording needs revision to place such responsibility on proponents and their contractors. Although QPs can develop ESMPs and recommendations for excess soil management, it would the responsibility of contractors to supply and verify the detailed information requirements listed on pages 16-18 of the regulation.

9. Environmental Site Registry. This registry would be modelled after the system currently in use for RSCs and would serve as a useful means for municipal building officials to verify that an ESMP is in place prior to the commencement of construction. As envisioned, the registry would be updated in real time (i.e. 2 week intervals) as a project proceeds. As an alternative we would suggest that the registry be updated at the close-out of a municipal building permit or on a monthly or quarterly basis.

10. Hazardous/Liquid Waste. This section of the regulation has the potential to cause confusion in industry about the real meaning of excess soil. It is currently understood that excess soil is not hazardous waste; however, this section of the proposed regulation suggests that excess soil could also be hazardous waste. The existing definitions of hazardous waste in O.Reg. 347 are clear. Comingling definitions of hazardous waste in the excess fill regulation is not advisable.

11. Transition Provisions. We support the concept of transition provisions. They will be necessary to allow time for QPs and proponents to adjust to the proposed legislative changes.

12. Amendments to O.Reg. 347. The proposed amended definition of inert fill clarifies the difference between excess soil and other materials. We note that other materials commonly encountered on construction and development sites are not included in that amended definition. To ensure that the proposed excess soil framework is comprehensive and does not contain critical gaps, we see a need to address additional types of materials. Currently there are no chemical parameters to define other forms of inert fill (e.g. excess or off-spec aggregates, concrete, brick, certain slag). The framework needs to address how these substances should be managed for re-use.

13. Amendments to O.Reg. 153/04. These three amendments should enable alignment between the excess soil regulation and the RSC regulation. The additional eight amendments to O.Reg. 153/04 identified as part of the overall regulatory package are good improvements and should assist QPs and those involved in the RSC process.

14. Schedule B – Phase 1 ESAs. We anticipate that for many excess fill sites, particularly those related to greenfield development, a full Phase 1 ESA may not be warranted. As a result, we appreciate the provision that would allow a QP flexibility in applying the ESA requirements set out in O. Reg. 153/04.

15. Excess Soil Characterization Reports. The required contents of these reports are extremely detailed and cover a range of evaluation requirements. We suggest that QPs be given more authority to independently determine whether or not in-situ or ex-situ methods of sampling and analysis represent the best way to assess excess soil.

16. Excess Soil Reuse Standards. There has been significant progress in the first phase of the development of these standards. We are supportive of the proposed generic reuse standards and believe they will provide a better opportunity to manage excess soil as a resource. To that end we would suggest that the generic standards be used with sampling and analysis work early in the process to avoid having to automatically deem excess soil as waste. The regulation could be re-worked to further align the excess fill testing requirements with protocols already established in O.Reg. 347.

17. Implementation. With adjustments such as those identified above, we believe that this new legislation has the potential to significantly improve soil management in Ontario. Given the overall benefits we believe that it is in the public interest to move forward without delays.

[Original Comment ID: 209817]