June 15, 2018 Laura Blease…

June 15, 2018

Laura Blease
Land Use Policy (Environment and Climate Change)
40 St Clair Ave W.
Foster Building 10th Floor
Toronto ON M4V 1M2

Re: TRCA Comments on Excess Soil Management Regulatory Proposal (ERO # 013-2774)

Dear Ms. Blease:

Thank you for the opportunity to comment on the Ministry of Environment and Climate Change’s (MOECC) updated Excess Soil Management Regulatory Proposal. Toronto and Region Conservation Authority (TRCA) has had an ongoing interest in this process given our experience and roles as a regulator of fill under Section 28 of the Conservation Authorities Act, a public commenting body under the Planning Act and the Environmental Assessment Act, a resource management agency operating on a local watershed basis, a body with delegated authority in plan review to represent the provincial interest for natural hazards, and one of the largest landowners (18,000 hectares) in the Toronto Region. Accordingly, TRCA has experience in fill management from the perspective of a regulator as well as a coordinator and recipient of clean fill for beneficial reuse projects that contribute to enhancing the public realm (e.g. Tommy Thompson Park, Toronto, and Lakeview Waterfront Connection Project, Mississauga). This experience is informed by TRCA’s technical expertise in engineering (water resources and geotechnical), ecology (terrestrial and aquatic), groundwater, environmental planning, and our ongoing scientific watershed monitoring, research and ecological restoration.

TRCA provided comments to MOECC on the initial Excess Soil Management Regulatory Proposal in June 2017 and, before that, on the proposed Excess Soil Management Policy Framework in 2016. The comments, and those in this letter, are informed by TRCA’s collective experience related to the management of “large scale fill” or “excess soil” in our nine urban and urbanizing watersheds and Lake Ontario shoreline. In addition, TRCA staff have participated in the Excess Soil Engagement Group and Excess Soil Market Support Team along with neighbouring conservation authorities (CAs) and Conservation Ontario.

In general, TRCA is supportive of the Province’s proposal for the management of excess soils, but we continue to stress the need for review, enforcement, and compliance provisions to promote accountability and enable truly effective regulation of excess soil production, reuse, and disposal. TRCA offers the following comments, some of which reiterate those provided in our June 2017 letter, for your consideration in finalizing the regulations and associated documents.

Reduce volume threshold for the Excess Soil Management Plan requirement
The proposed On-site and Excess Soil Management Regulation (Regulation) has increased the volume trigger for the Excess Soil Management Plan requirement from 1000m3 to 2000m3. We previously commented that 1000m3 may already be too high, as much lesser volumes than this can have a significant impact on the natural systems of our watersheds. Without increased oversight and the addition of measures described below, TRCA does not support the increase to 2000m3 as it further increases risk.

Establish an Excess Soil Management Plan review process
The proposed Regulation requires some information from the Excess Soil Management Plan (ESMP) to be filed in the Registry, but does not provide for third-party and/or MOECC review of the completed plans. There is no provision for the contents of the ESMP to be made available to approval authorities, leaving it up to project leaders and QPs to ensure the completeness and veracity of information provided. This essentially means that the preparation and implementation of the ESMP will be self-governed. A sporadic review process by MOECC or a third-party consultant should be established to promote accountability and instill confidence in the Regulation.

Clarify who can be considered a project leader
Further clarification is required with regard to the term “project leader”. Specifically, can contractors be considered project leaders? TRCA often undertakes earthworks for its municipal partners and operates as a “contractor”. In such a scenario, the property owner (the municipality) could delegate soil management responsibilities to its contractor (TRCA). Specific real-world examples using large-scale excavation projects would also be useful. For example, TRCA receives soil on a regular basis from excavation projects that involve an owner, construction management firm, general contractor, and multiple excavation contractors on a single site. It would be helpful if MOECC could indicate who, in cases such as this, can be designated project leader.

Require information about the quality of soil placed at each reuse site to be made available
Section 12 (3) in the proposed Regulation requires, among other items, a listing of excess soil broken down by soil quality categories and information about each reuse site to be filed in the Registry and made available for public examination. However, the Regulation does not require the filing of information about the quality of soil intended to be deposited at each reuse site. The Regulation should provide for additional information in the ESMP, including the quality of soil to be placed at each reuse site, to be made available to approval authorities, operators of reuse sites, and/or the public, either via the Registry or upon request. This would help improve accountability and help facilitate the review by municipalities and CAs of development or site alteration applications.

Allow more flexibility for the assessment of salt-impacted excess soil destinations
In the proposed Rules for On-Site and Excess Soil Management, the rules for Salt Impacted Excess Soil (Part IV, 7D) are overly prescriptive and do not sufficiently account for potential variations in source and reuse site conditions. De-icing compounds, primarily sodium chloride, are ubiquitous in the urban environment as a result of ongoing winter safety applications across Ontario. Given this, we recommend that the Soil Rules give QPs the latitude to consider the source site concentrations and the hydrogeologic setting of the reuse site in determining the appropriateness of application of excess soil to a reuse site. The hydrogeologic analysis would account for background concentrations of Sodium Absorption Ratio/Electrical Conductivity in the on-site soils, whether natural or anthropogenic, groundwater flow velocities and directions, and the locations of nearby receptors. Doing this would enable more effective matching of excess soil to reuse sites than through the proposed rules.

Improve consideration of excess soil impacts on ecology, hydrology, and hazards
The proposed Rules for On-Site and Excess Soil Management need to better address the impacts of excess soil quality and quantity on the ecology and hydrology of nearby features. One way to do this is by aligning the features and areas in the definition of “environmentally sensitive areas” (which are afforded higher protections) with existing provincial legislation, plans, and policies. We observe that:
• In the current proposal, the definition no longer includes groundwater discharge and recharge areas identified under the Provincial Policy Statement (PPS), significant ground water recharge areas under the Clean Water Act, and streams and adjacent riparian areas. Even though these areas are captured under source protection plans and CA regulations, CAs still do not have the same compliance powers and tools under our regulations (e.g., stop work orders) that municipalities have, and Source Protection Plan policies are implemented through Planning Act applications. To ensure a multi-barrier approach to protection, these areas should remain in the definition;
• The definition includes certain designations within the Niagara Escarpment Plan (NEP) and Oak Ridges Moraine Conservation Plan (ORMCP) areas, yet has excluded municipally and provincially identified natural heritage systems and some key natural heritage features and key hydrologic features as defined in the ORMCP. These features and areas should be better aligned with those identified for protection in the PPS, Growth Plan, Greenbelt Plan, ORMCP, and NEP; and
• Areas affected by natural hazards (identified under the PPS and section 28 regulations under the Conservation Authorities Act) continue to be excluded from consideration, even though excess soil placement can have significant impacts on these areas and associated risks.
Please consider including the above features and areas in the definition of “environmentally sensitive area”, as they would benefit from the same level of protections as those in the proposed definition.

Establish enforcement provisions and partnerships
Enforcement and oversight during the implementation phase of the ESMP are critical. Without enforcement or compliance protocols, the proposed Regulation amounts to guidance, only having to be complied with on a voluntary basis. On-the-ground, field-level enforcement by MOECC is needed to ensure proper implementation of the plan. Furthermore, we suggest a multi-agency enforcement and compliance partnership between MOECC, MNRF, municipalities, and CAs to collaborate on prosecution efforts associated with violations. Without a strategic partnership, municipalities or CAs are left to handle non-compliance issues on their own with inadequate resources and legislation. As a last resort, municipalities are increasingly turning to severe restrictions or outright prohibitions on fill placement in their jurisdictions, which has only led to more illegal dumping and excess soil being transported greater distances.

Thank you once again for the opportunity to provide comments on this important initiative. Should you have any questions, require clarification, or would like to meet to discuss any of the comments, please contact Laurie Nelson at ext. 5281 or at lnelson@trca.on.ca.

Yours truly,

Carolyn Woodland, OALA, FCSLA, MCIP, RPP
Senior Director, Planning and Development
Toronto and Region Conservation Authority