Re: RCCAO and SOiiL Response…

Re: RCCAO and SOiiL Response to MOECC’s Proposed Excess Soil Regulatory Package, EBR Posting 013-0299

The Residential and Civil Construction Alliance of Ontario (RCCAO) and Supporting Ontario Infrastructure Investments and Lands (SOiiL) are pleased to respond to MOECC’s request for input on the ‘Proposed New Excess Soil Reuse Regulation and Amendments to Existing Regulations’, as posted to the EBR on April 24, 2017.

EXECUTIVE SUMMARY of CONCERNS

In a letter to Minister Murray on May 26, 2017 we expressed our concern that the proposed regulatory package “will result in a dramatic shift in direction which will have mixed results.” Upon further examination and consultation with our broader network of contacts, we now have grave reservations with the proposed direction that MOECC is pursuing. This proposal has serious, negative unintended consequences and represents an abandonment of the Best Management Practices (BMP) approach which could have resulted in positive outcomes had there been a concerted and robust implementation effort.

In our opinion, this regulatory package will set back efforts to beneficially reuse excess soils. Unfortunately, once we go down this rabbit hole, it will be difficult to turnaround – not a good adventure for Ontario to take.

We appreciate that the Ministry is proceeding with Action item #1 (out of 21) in the Framework document, but in doing so the current proposal moves away from the original risk-based objectives of the BMP approach which has been supported by the Ministry for several years. What is behind this change in direction? The BMP Guide, released in January 2014, has had minimal municipal or industry uptake as there was no concerted outreach plan supporting the introduction of risk-based approaches.

The proposed regulatory package represents a more complicated approach than the BMP Guide, and even the Record of Site Condition measures implemented more than a decade ago, anticipating a different, positive outcome, would be even more difficult to achieve. The proposed new supporting Environmental Registry structure being developed needs to ensure the original BMP approach and beneficial reuse objectives are fundamental to the new process, which is different to what seems to be unfolding.

Reverting to a “waste” orientation for all excess soils is completely counterproductive to the stated Ministry objective to reuse clean excess construction soils. This suggested reverse onus approach is not in line with other leading, progressive jurisdictions. Rather than streamlining processes to beneficially reuse excess soils, the proposed approach would add unnecessary complexity and run counter to the overriding vision of a circular economy where waste is dramatically minimized.

Both the RCCAO and SOiiL organizations have been long-time supporters over the past seven years, in the development of improved practices for the environmentally responsible management and beneficial reuse of excess soils in Ontario. In conjunction with the MOECC, other Ministries, industry associations and other jurisdictions, both organizations have recommended needed improvements supporting the environmental and economic opportunities to beneficially reuse excess soils. This has included providing stakeholder input to the proposed “Excess Soil Management Policy Framework” (EBR Registry 012-6065), sponsoring stakeholder workshops, and submitting proposals at the request of the Minister’s office to create a market-based Soil Ontario organization to implement an improved excess soils regime in Ontario.

RCCAO recognizes both the magnitude of the issues and the implementation complexities involved based on our engagement in this issue over the years. As a major supporter and proponent of MOECC’s BMP Guide, we are aware that there have been implementation shortcomings, including the adoption of a truly multi-ministry strategy. The lack of uptake of the BMP approach has been primarily due to the lack of a comprehensive implementation plan for outreach and training. Unfortunately, this regulatory package also lacks an implementation plan which is key to achieving the desired outcomes.

BACKGROUND and CONTEXT

In the mid-1990’s a process was initiated to promote Records of Site Condition for encouraging the redevelopment of brownfield sites. This led to a Regulation in 2004 known as O. Reg.153/04. By comparison, the new Excess Soil Regulatory Package is a much more complex regulatory document which cross-references a number of other regulations. Based on past experience, it will be extremely challenging for the MOECC to meet the aggressive regulatory timelines being proposed. When you take into consideration that the affected industry sectors and municipalities involved are far more numerous, diverse and fragmented when compared with the relatively limited number of (more sophisticated) brownfield developers, the challenges ahead are even more daunting.

We are particularly concerned that all the recent industry stakeholder effort to promote the development of best management excess soil practices has been, for the most part, ignored in the proposed regulatory package. This work was to be tied to the creation of a circular economy, the reduction of greenhouse gas emissions in concert with provincial climate change objectives. Although referenced, these objectives are not being explicitly incorporated as drivers in the proposed regulation as tabled.

GENERAL COMMENTS

RCCAO and SOiiL continue to work with the MOECC both directly and through involvement with the Excess Soils Engagement Group (ESEG) and the Market Working Group. Accordingly, we are aware of the many complex issues involved with putting in place a better management system for excess soils in Ontario. We also understand firsthand the challenges facing the development and construction related industries in accomplishing the needed improvements. This is from a business perspective, as well as from a legal and regulatory compliance standpoint.

We do wish, however to convey our support for many of the underpinnings that are in line with previous BMP activities included in this proposed regulation. For example, placing the compliance onus on the proponent source site owner and the use of categories based on volumes involved is a step in the right direction. Permitting unique infrastructure project areas versus contiguous properties and recognizing emergency exemptions is sensible. The use of an Excess Soil Management Plan (ESMP) control tool, the creation of Temporary Excess Soil Storage Sites (TESSS) and attempts to clarify the ambiguities associated with previous references to inert fill definitions are supported in principle.

The package is woefully inadequate with respect to encouraging and facilitating the creation of excess soil storage depots, hubs or campuses. This approach is critical to providing new technology pilot testing models and the needed supply demand balance option for smaller infrastructure type construction projects. Even in progressive jurisdictions, municipalities need both provincial leadership in creating a TESSS or a depot, and an endorsed model for streamlined local approvals. Although this has been described as a “plain language” regulation, it is far from it. The document is very prescriptive in nature. The subject matter is complex and on the surface, may seem straightforward but it is in fact, from a legal standpoint, tied back and cross-referenced to many other pieces of regulation, including the Waste Act (O. Reg. 347), Records of Site Condition (RSCs), Brownfield Act (O. Reg. 153/04), and Building Code (O. Reg. 332/12), among others.

The planned implementation timeline of January 1, 2018 represents a major concern. Given the complexity of the new regulation, as well as the variable depth and breadth of the intended municipal and industry audiences, it will be impossible for all parties to meet the mandatory new regulation within just a few months. The final composition and capability of the proposed new Environmental Registry is not in place to support proper, immediate outreach and uptake of the new regulation. Serious consideration should be given to extend the implementation period and base the roll-out timing on the needs of the different sectors involved should be discussed further in the context of the planned new Environmental Registry.

SPECIFIC AREAS of CONCERN

Waste Designation

A major concern is the proposal to “clarify that excess soil is a waste under Part V of the EPA”. It is understood that the intent of the MOECC is to force excess soil proponents to follow the proposed new excess soils reuse regulation by having the ability to exercise additional, more severe regulatory penalties. Previously, the onus was on the MOECC to legally prove that inappropriate fill disposal situations represented an adverse effect. While we understand the legal enforcement needs of the MOECC, this reverse onus approach is counterproductive to encouraging the beneficial reuse of excess soils. As a result of newly imposed legal and regulatory liability exposure concerns there will be unintended consequences to literally drive more excess soils to landfill facilities. This waste-based approach reflects an extended source site producer responsibility perspective and will result in greater uncertainty in terms of long term liability.

The opportunity to utilize proposed excess soil storage sites and soil banks through creative new, innovative approaches will be discouraged in favour of landfilling. Opportunities to both reduce project costs and environmental impacts will be severely hampered due to these liability concerns. One significant area of concern to the construction industry is the handling and reuse of salt impacted soil (SAR). In consideration of the magnitude of this issue, there should be additional clarity and direction provided to municipalities and receiving sites by MOECC.

What happened to the ‘Smart Regulation’ Approach?

It is our understanding that one of the MOECC’s objectives was to put in place a “Smart Regulation” approach that would be streamlined, market focused and highly electronic to capture needed data and metrics. As the final design of this supporting Environmental Registry structure is unknown, it is somewhat difficult to understand how this proposed new regulation will accomplish this policy goal. The timing sequence is off with two critical variables: the final registry structure and the proposed regulation not being harmonized for it to function effectively.

Promoting the adoption of an ESMP is in line with the BMP Guide of January 2014. We understand that this is a critical component to create the proposed new Environmental Registry and to encourage better tracking/data aggregation of excess soil movements in Ontario. The requirement that a proposed ESMP be certified by the source site QP implies an assessment and understanding of the receiving site’s specific instruments and municipal bylaw compliance. Given the variability and, in many cases, lack of standardized local receiving site bylaws, it means the source site QP must certify receiving site compliance. From a QP liability perspective, this creates confusion and encourages duplicate QP oversight, requiring additional review time and driving up costs. This will have the effect of further encouraging source site owners to opt for the certainty of a licensed landfill site.

We are thus concerned with the high level of administrative reporting that QP’s will be responsible for, and which may not add value to the overall process. The reporting requirements as stated – 14 days after leaving site and updated 28 days thereafter are onerous, particularly for large, extended duration projects.

Temporary Excess Soil Storage Sites – TESSS

As stated, for the construction sector, the ability to beneficially reuse excess construction soils is dependent on the availability of interim storage sites to facilitate reuse and soil matching between projects and contractors. The ability to create a functional TESSS without formal approvals is a promising step however the maximum two-year period will hinder efforts to do longer term planning.

Industry Outreach and Uptake

The soil haulage industry in Ontario is comprised of small, independent owner/operators. This will pose a significant capability challenge if Environmental Compliance Approvals (ECA’s) are required by haulers to transport excess soils (as a waste) to registered landfill sites due to source site legal and regulatory liability concerns. The introduction of ESMP’s will require outreach and training to literally thousands of haulers. It would make most sense to establish and introduce on the Environmental Activity and Sector Registry (EASR) a separate, simple registration and permit-by-rule approval process. Having a standardized MOECC electronic information template format would facilitate information input and data tracking.

Vacuum Truck Soils

The inclusion of the relatively new hydro vac industry in the new regulation makes sense, but similar to the excess soil haulers referenced above, this is an emerging and specialized sector that until now has been unregulated. Mandatory classification of soils as a waste requiring waste system approvals is a major change. Significant outreach will be required to bring this industry and activity into compliance with heretofore unknown requirements. This will require a major sector outreach training program to be developed and rolled out in advance of the stated January 1, 2018 implementation target. Schedule A – ESMP Mandatory Components

RCCAO fully supports the need for and the use of an appropriate soil management plan prepared by a qualified QP as intended in the BMP Guide of 2014. This is necessary to track and provide the required oversight for the proper management of excess soils encouraging beneficial reuse. Given the lack of uptake of the BMP Guide, we are very concerned that the currently proposed Schedule A, is too detailed, complicated and onerous. This would be particularly true for smaller construction projects where less sophisticated contractors and haulers would typically be involved. The unintended consequences of this complexity would be smaller projects having difficulty meeting and following the new requirements. An initial, streamlined ESMP for smaller, low risk projects should be considered and over time enhanced commensurate with industry capabilities.

Schedule B – Phase 1 ESA Characterization

In practice, clean soil handling characterization currently reverts to O. Reg. 153/04 Tables. Ultimately, excess soils that are not characterized as Table 1 due to liability concerns, go to landfill. The proposed new Schedule B, Phase 1 Environmental Site Assessment and Excess Soil Characterization approach, attempts to provide clarification and exemption from previous “fall-back” O. Reg. 153/04 Table 1 “clean soil” criteria.

The proposed new Tables and sampling methodologies, however, are geared toward larger projects and large receiving sites which will have the effect of missing out on the more numerous, less sophisticated smaller project sector. This section includes many “musts” such as removing a QP’s best professional judgement capability based on experience and actual project realities. There should be balance in terms of risks, project size and the volumes of excess soils involved.

In general, there is a lack of appropriate clarity in many sampling/technical areas requiring further detailed confirmation work. This includes the use of Conceptual Site Modelling for determining excavation areas, actual sampling procedures, in situ versus stockpiling, composite sampling, soil mixing by soil type and leachate testing applications. The technical sampling proposals will require further detailed comparisons, evaluations and confirmation by (other) field environmental technical and laboratory analytical experts to determine if in fact they offer real relief from Table 1 default levels and the requisite flexibility to reuse excess soils on other projects.

Schedule C – Reuse of Excess Soils at Receiving Sites

The proposed Schedule C, Reuse of Excess Soil at Receiving Sites, is of course not yet finalized and will be a document to be adopted by reference. As a Site Specific Beneficial Reuse Assessment Tool (SSBRAT), it is recognized that the MOECC is attempting to use QP best professional judgement to apply risk-based principles and approaches to encourage beneficial reuse of excess soils. Given the previous MOECC efforts to develop a workable SSRA process in Ontario under O. Reg. 153/04, it is critical that the final SSBRAT risk assessment product be straight forward and conducive to facilitating excess soil reuse. It is incumbent hat the MOECC move quickly through fast-track, pilot testing approaches to get this tool developed, tested and into the field.

Our view is that such a massive, government regulatory action as proposed can result in large-scale unintended consequences. We have significant concerns that the proposed new regulatory package has moved away from the previously endorsed best management practices and guidelines approach. In consideration of the move to a more formal regulatory approach and given the complexity of the mandatory regulatory details involved we wish to stress our grave concerns. The uptake capacity by the broader construction industry on the source site side and the municipal sector on the receiving approvals side is not in place to implement the regulatory proposal in its current form. All of this is exacerbated by the short time lines and the lack of an implementation structure or organization being in place.

RECOMMENDATIONS

Based on the previously summarized comments and concerns we recommend the following be considered:

(1)Delay the January 1, 2018 planned new regulation implementation date and instead have a phased schedule recognizing different sector needs and overall capacity. Based on sector complexities there should be grandfathering of certain low risk, excess soil reuse activities. An implementation schedule over five years, based on sector risk and complexity, should be put in place with an appropriate implementation timetable, including the tracking of milestones. (2)Revisit the full legal and liability implications of identifying all excess soils as waste by default. If the ultimate objective is to encourage beneficial excess soil reuse, the current liability framework will be counterproductive. (3)Prior to the implementation of the proposed new online Registry structure, prepare a communications plan with outreach and training materials targeted to identified sectors. (4)Minimize confusion in the roll out: the ultimate success of the proposed excess soil reuse regulation hinges on the adoption of ESMPs prepared by Qualified Professionals. The formal training and certification of QP’s is fundamental through a transparent process that Environmental Registry users can understand. It is important for municipalities, with no in house expertise as receiving entities, to understand the QP roles and avoid duplication of information requests. (5)Prepare QPs for this new role by providing guidance documents: it is critical that the MOECC work with QP’s to better define and encourage where QP judgement should apply for typical situations that will be encountered, e.g., vertical delineation, permissible exceedances, naturally elevated concentrations. These examples should be readily available to other QP’s and the public to better understand what is permissible. (6)Provide technical guidance, especially with respect to the management of salt impacted soil. (7)Streamline reporting requirements: the significant soil tracking activities should be streamlined on a risk-based, and sectoral basis particularly concerning soil batch registration. ESMP project reporting should be modified from every 28 days to 60 days after initial report filing within 14 days. (8)Encourage and financially support “fast track” pilot tests and approvals by various industry sectors. This includes the facilitation of supporting interim soil depots and processing capability through streamlined models and approvals processes. The notion of permit by rule should be applied to typical, standard soil reuse opportunities. (9)Identify a realistic program and mechanisms to administratively engage the thousands of independent excess soil haulers who will be impacted by the new rules. This would include appropriate education, training and a simple registration or licensing process utilizing standardized electronic template data capture and reporting. (10)Directly engage the hydro vac sector in developing appropriate guidelines and procedures supporting the beneficial reuse of excess materials within the framework requirements of the new regulation. (11)Circulate supporting documents which refer to the final regulation: the use of examples to assist users with plain language would assist with understanding the requirements. For example, what would a typical ESMP look like? (12)Prepare guidance documents for the municipal sector: MOECC should provide some indication of estimated cost and work effort involved in the proposed SSBRAT approach. This will be helpful to municipalities in updating local fill permit and bylaw requirements. (13)Consistent with recommendation #1, the MOECC should provide as soon as possible some indication of the final organizational structure for the planned new Environmental Registry organization. This would include mandate, roles and planned implementation program aligned with the final development of the proposed new regulation with full consideration of the diverse construction industries ability to comply in a timely manner.

It is our hope that the MOECC will take the preceding comments and recommendations with full consideration of the impacts on the broader industry and municipal sectors. There are clear environmental and economic advantages to a strategic soils management system. As well, if we are collectively spending less on transporting and disposing of soil, there will be more funding available for infrastructure and other worthy initiatives.

RCCAO and SOiiL have put significant time and effort into this activity and want to get it right in terms of policy objectives and an effective process to encourage the beneficial reuse of excess soils in Ontario. We look forward to your response regarding our recommendations or any other comments concerning the effective implementation of the final Proposed Excess Soil Regulatory Package.

[Original Comment ID: 209808]