Laura Blease Land Use Policy…

Laura Blease
Land Use Policy, Environmental Policy Branch
40 St. Clair Ave West, 10th Floor
Toronto, ON
M4V 1M2

Re.: TARBA comments on Environmental Registry of Ontario Posting 019-5203

In February, the Toronto and Area Road Builders Association submitted a response regarding ERO 019-4801. Our members were pleased that solutions were being sought to properly deal with clean excess soils such as in end-of-life pits and quarries. To our surprise, the latest ERO posting proposes to pause implementation of the On-Site and Excess Soil Management Regulation (O. Reg. 406/19) by one year despite widespread support amongst responsible industry and other stakeholders to stay the course.

TARBA supports the general thrust of the submission by Jeff Goldman, SoilFLO director, on March 30, 2022, expressing his dismay that this proposal was made without any consultation with those who have been at the Ministry’s advisory table for six years. As a founding member of the Excess Soil Engagement Group (ESEG), I was at the table when the previous government paused implementation of the regulations in part due to the upcoming provincial election. While this too was disappointing, there was advance notice of the “pause” in consultation with ESEG members.

Full marks are accorded to this government for placing a high priority on moving ahead with adoption of the excess soil regulations in 2019 and for taking a phased approach to implementation so that the market could adapt to the objectives in a reasonable time frame. It should be noted that in late 2020 grandfathering was already done through clause 8 (2) (b) to extend the date by which construction projects would be entered into by one year from January 1, 2021 to January 1, 2022. Even with challenges that the pandemic has created, this was sufficient lead time to prepare for O. Reg. 406/19.

All the relevant players engaged in excess soil movement have had ample opportunity to prepare for O. Reg. 406/19. MECP has hosted 11 webinars in the past few months and other organizations have had their own seminars. In addition, the Resource Productivity and Recovery Authority (RPRA) has had training sessions to inform participants about how to register.

A conservative estimate is that close to 4,000 individuals have participated in these recent sessions to learn about the benefits of improved excess soil management practices and the new regulatory requirements. Based on RPRA’s experience with other circular economy initiatives, the organization was given a mandate to establish an online registry and did so in relatively short order. This intensive effort should not go to waste. Further, there are fairness issues to consider as RPRA has already accepted fees for over 70 projects.

There have also been numerous sessions in advance of the adoption of the new regulations. For example, immediately following a speech by then transportation minister Jeff Yurek at the Ontario Road Builders Association annual convention on February 5, 2019, I moderated a panel on Excess Soils. There were close to 1,000 delegates at this session alone.

The proposed pause to January 1, 2023 will have the unintended consequence of penalizing those who are in compliance or have taken steps to be in compliance. A March 23rd Slido poll of ESEG members indicated that the pause would result in confusion and that additional efforts should be made on the education side rather than enforcement, with a sub-idea of providing a compliance grace period (rather than a regulatory pause). Further, the poll revealed that those who are dragging their feet now will continue to do so, meaning that we will be at the exact same point next year with these actors.

TARBA thus has the following recommendations and points to make:

• That the Province not put its foot on the brake pedal. At this critical stage, it would be preferrable to proceed with the phased implementation approach that has already been agreed to.
• That the Province, in conjunction with stakeholders, continue with outreach efforts:
o In addition to formal webinars or in-person events, ramp up efforts to inform stakeholders through social media. This could include the distribution of educational materials such as fact sheets.
o Certain target groups might have difficulty with the English language. While translating materials to other languages is one option, these types of communication obstacles can be more effectively overcome through the creation of videos to clarify the regulations. Many people would benefit from videos because complex messages can be delivered faster with images. For example, haulers and on-site construction personnel could absorb key messages in short one- or two-minute videos. Videos would be welcome as well by project owners in both the public and private sectors.
• Ensure that a multi-Ministry, multi-agency approach is being taken. A continuation of collaborative discussions between various Ministries is essential for the diversion of clean soil from landfill sites. Here are three examples:
o MMAH initiated development of an excess soil by-law tool a few years ago. MECP then called for an update of the information. This initiative should be continued so that when municipalities update soil by-laws or bid documents, the information is contained in one online location, with links to the relevant documents.
o MNDMNRF can take a lead role in determining the criteria as to how end-of-life pits and quarries can be responsibly used to accept clean fill, thus allowing these sites to be used as conservation areas, for example.
o Infrastructure Ontario and Metrolinx have established multi-year plans for real estate and transit projects. As certain subway projects are already underway or will be started soon, the Province must demonstrate leadership in ensuring that soil generated from tunnelling and stations is responsibly or beneficially reused.
• Promote testing of different approaches by using pilot projects. Best practices from these projects can then be adopted by other project owners (e.g., municipalities) to improve performance.
• Qualified persons (or professionals) and legal specialists have already committed resources to assist clients in understanding how to proceed with implementation of O. Reg. 406/19 for dozens of projects. For instance, a new organization has been established, Qualified Persons Community of Ontario (QPCO), to engage with regulators and to explore training programs for those engaged in both excess soil and brownfield projects. A regulatory pause would diminish the momentum of the QPCO initiative and create a confusing environment for those in the legal community. It would also diminish the commercial opportunities that have already been generated for contractors, geoscientists, consultants, legal advisors and others.
• The proposal to temporarily pause implementation of O. Reg. 406/19 would create disarray within the construction industry and an uneven playing field for many projects. It might also result in more illegal dumping amongst some operators.
• Numerous benefits have been attributed to O. Reg. 406/19. To take one example, reducing overall truck movements will: (1) save on wear and tear on Ontario’s roads and highways, (2) make our roads safer, and (3) help Ontario be a leader in achieving our targets to lower truck GHG emissions.

In conclusion, it is projected that Ontario will run out of landfill space by the year 2032. A postponement of O. Reg. 406/19 will result in landfill capacity being used up faster through more ‘dig and dump’ soil movements. It is imperative that we all maintain our focus on the ultimate objective of beneficial reuse either on-site or at other projects where clean soil is required for construction and infrastructure projects. Soil is a valuable natural resource. Ontario has developed a positive market-based system by which economic drivers will result in improved environmental outcomes. It would be a shame to postpone an initiative that has widespread support amongst municipal, citizen, and industry organizations.

Please do not hesitate to contact me should you require further information.

Yours truly,

Original signed

Andy Manahan
Executive Director