1. INTRODUCTION The…

1. INTRODUCTION
The following stakeholders are submitting their joint comments on the proposal by the Ministry of the Environment and Climate Change (‘MOECC’) to update the Part II Order request process under the Environmental Assessment Act:
Residential and Civil Construction Alliance of Ontario (‘RCCAO’)
Municipal Engineers Association (Ontario)(‘MEA’)
Ontario Good Roads Association (‘OGRA’)

RCCAO, MEA and OGRA are collectively referred to herein as the “Stakeholders”.

2. ABOUT THE STAKEHOLDERS’ EFFORTS TO ADVANCE MCEA REFORM
RCCAO is a not for profit industry association represents both labour and management in the residential and civil sectors of Ontario’s construction industry. RCCAO and its members strive to provide real solutions to difficult issues affecting the industry by commissioning independent research on issues such as the Municipal Class Environmental Assessment (MCEA) process and developing reports that outline recommended courses of action.

OGRA is a not for profit association representing the transportation and public works interests of Ontario municipalities through advocacy, consultation, training and the delivery of identified services. OGRA advocates the collective interests of municipal transportation and public works departments through policy analysis, assessment of legislation and consultation with partners and stakeholders such as RCCAO and MEA.

MEA is a not for profit association representing public sector Professional Engineers in the full time employment of municipalities performing the various functions that comprise the field of municipal engineering. MEA Is the proponent and maintainer of the MCEA process manual for the planning, design, construction and operation of municipal public works.

For a significant period of time each of the stakeholders have been advocating and continue to call for improvements to the MCEA process. On February 3, 2017 RCCAO and MEA submitted an application for review, pursuant to section 61 of the Environmental Bill of Rights for a review of the legislation, regulations and MOECC policies associated with the MCEA process. The MOECC responded to that application by a letter dated April 13, 2017undertaking to complete the requested review by the end of December 2018.

MEA and RCCAO met with Minister Chris Ballard on September 28, 2017 to discuss the urgency of MCEA reform, and sent a follow-up letter to the Minister in October. As there was little visible activity by the Ministry to seek public input the Stakeholders took the initiative, through an open workshop in Richmond Hill on November 29, 2017. Several Ministry representatives were present and participated in that workshop.

The Stakeholders organized a special panel presentation and discussion on February 27, 2018 as part of the OGRA’s annual meeting and conference. The Ministry’s presentation on February 27 indicated that the MOECC would implement a number of initiatives to improve the Part II Order request process. On February 28, 2018 the MOECC announced that it had developed a draft guide for the public in relation to Part II Order requests under the Environmental Assessment Act.

The Stakeholders were initially pleased upon receiving email notice for instrument #013-2099. The Stakeholders had expected that instrument #013-2099 would provide additional details regarding the changes outlined by MOECC representatives at the OGRA conference. Unfortunately, there appears to be little in the way of any proposed changes to Ministry policy and the proposed policy does not acknowledge that there is a problem with the timing or quality of responses to Part II Order requests or that there is much desire to improve upon it.

3. BACKGROUND
With respect to the potential decisions that the Minister can make upon the receipt of a Part II Order Request for MCEA projects, the Stakeholders submit that the fourth alternative be replaced with the phrase: “Require the proponent of the project to prepare a higher level of environmental assessment for the project”. Within the Municipal Class of EA’s a project might be bumped up to Schedule ‘B’ or a Schedule ‘C’ project.

The Background section of EBR instrument #013-2099 does not
identify or acknowledge that the time that the Ministry has taken to respond to Part II Order Requests for MCEA projects was previously benchmarked for a maximum of 60 calendar day turnaround, that the 2016 Auditor General’s Annual Report determined that Ministry has taken as long as two years for a decision on a significant number of Part II Order Requests for MCEA projects and that the average response time for the Ministry exceeded seven months for the 2010-2016 period;

mention that the MEA has been recommending the mandatory use of a standardized Part II Order request form for MCEA projects;

indicate if or when a standardized request form would be implemented, whether or not it would be mandatory for MCEA projects, or if a standardized request form will be posted on the Environmental Bill of Rights registry for public comment;

identify that MCEA projects often have already been the subject of extensive public consultation as required by the Planning Act, and that a number of MCEA projects that are the subject of a Part II Order Request have already been the subject of appeals and decisions by the Ontario Municipal Board (OMB);

acknowledge that, as a result of the broadening of Provincial Policy Statements, issues addressed under the Planning Act, now include environmental impacts and that there is often overlap and duplication between public consultations under the Planning Act and public consultations under the Environmental Assessment Act; nor

identify the difficulties proponents face if the Ministry makes a decision on a Part II Order Request for a MCEA project that differs substantially from decisions rendered for the same MCEA project by the Ontario Municipal Board.

4. BASIS FOR MINISTER’S ORDER
The Basis for Minister’s Order section fails to state that the Minister should consider the results of any other approval processes, such as an application to the Ministry for a Certificate of Approval under Part V of the Environmental Protection Act.

The section fails to state that where a MCEA project, which is the subject of a Part II Order Request, has already been the subject of an appeal and decision by the OMB, that such decision should be considered by the Minister in rendering a decision on a Part II Order Request. If the Minister’s decision materially differs from that of the OMB, the reasons why the Minister’s decision differs.

5. PROCESS FOR SUBMITTING PART II ORDER REQUESTS
The Stakeholders submit that with respect to the MCEA process, that the provisions of the MCEA manual should govern which types of projects are eligible for Part II Orders and should establish relevant deadlines for when a Part II Order Request can be submitted.

The Process section fails to mandate the use of the form recommended by the MEA for Part II Order Requests regarding MCEA projects, and fails to identify any time frame under which a decision should or must be made by the Ministry.

The Stakeholders submit that the following changes should be implemented by the Ministry to improve the Part II Order request process:

a) mandate that all Part II Order requests for MCEA projects use a standardized form similar to the form advocated by the MEA since 2015;

b) that the authority for responding to a Part II Order request be delegated by the Minister to a Ministry director;

c) that any Part II Order request for a MCEA Schedule ‘B’ or Schedule ‘C’ project, that does not trigger a Part II Order within 90 calendar days, should be automatically authorized to proceed; and

d) that MCEA Schedule ‘A’ and ‘A+’ projects be expressly exempted from any Part II Order requests.

6. CONTENT OF THE PART II ORDER REQUEST
The Content section fails to refer to or mandate the use of the MEA form, or any other form, for Part II Order Requests regarding MCEA projects.

7. IMPORTANCE OF PROVIDING ADEQUATE INFORMATION
The Stakeholders are in agreement that failure by an applicant for a Part II Order request can and should be considered by the Minister (or delegate) in making a decision on whether ton consider the request.

8. ADDITIONAL COMMENTS
The Stakeholders are concerned about the absence in Instrument 013-2099, of any of their recommendations regarding improvements to the Part II Order Request process for MCEA projects.

The lack of timely responses by the Ministry to Part II Order Requests has been a chronic problem that was identified in both the Auditor General of Ontario’s 2016 Annual Report regarding environmental assessments and by the Stakeholders in their section 61 EBR application for review.
With respect to the recommendation by the Stakeholders that the Ministry should respond within 90 calendar days to Part II Order Requests for MCEA projects, there needs to be a more effective mechanism to prevent the types of delays that stakeholders have seen over the past 20 years, notwithstanding the fact that the Ministry had a performance target of 60 days to respond to Part II Order Requests.

The Stakeholders have also argued for wider public disclosure. Specifically, the Ministry should publish a notice through the EBR registry or other public accessible website when a Part II Order Request has been made, the nature and location of the MCEA project that was the subjection of the request, and after a decision on the Part II Order has been rendered, a copy of the Ministry’s decision. The Auditor General of Ontario also cited a need for the Ministry to provide clear communications to the public about when requests are made and why requests were rejected.

Overall, it is the view of the Stakeholders that EBR Instrument #013-2099 has provided very little in the way of new information at a time when significant policy changes are long past due.

Given the timing and title of EBR instrument #013-2099, in light of the Auditor General’s 2016 Annual Report and the Stakeholders section 61 EBR application for review, the Stakeholders are concerned that the Ministry might take the position that a spectrum of other policy documents, such as Part II Order Request forms, and timeframe targets and other material information of concern to the Stakeholders and public at large, may be implemented without additional notice or public scrutiny.

End of Submission