23 June 2017…

23 June 2017

Sanjay Coelho
Senior Policy Analyst
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

VIA – EBR online submission

Re: Excess Soil Management Regulatory Proposal EBR Registry Number: 013-0299

Dear Mr. Coelho:

The City of Ottawa (the “City”) appreciates the opportunity to provide comments on the proposed Excess Soil Management Regulatory Proposal. Please find comments gathered from several City Departments to date below. The City may provide additional comments at a further date.

The City understands the intent of the proposed regulation and supports the beneficial reuse of soils. However, it is the City’s position that if the proposed regulation is implemented as proposed, it will not result in an increase in beneficial reuse of soil. The proposed amendments will have significant implications and substantial cost increases on every municipality and project owner in terms of having to undergo a complex and data-heavy exercise to every project. It will result in additional soils from City projects being disposed of in landfills, reduced capacity of solid waste facilities and increased costs for the delivery of projects.

The implications are that the City will ultimately be required to direct funding to support this proposed regulation and as a result will deliver fewer projects. This will remove funding from the maintenance of City infrastructure and a less overall sustainable City. The City has an expectation that the Ministry of the Environment and Climate Change (MOECC) will be receptive to the following comments and will work with the City to address these concerns.

  SOILS THAT MEET TABLE 1 Designating excess soils that meet the O. Reg. 153/04 Table 1 criteria as waste is overly conservative. Soils with testing results that meet Table 1 should be exempted from being designated waste and as such should not be required to be subject to the registration and tracking requirements. The City suggests a separate category for soils that have demonstrated through the prescribed testing protocols to meet Table 1. A revised tracking system whereby these “clean soils” (meets Table 1) are documented in bulk movements is a more reasonable approach that would reduce the administrative burden for documentation of clean fill.

The bulk movement system is only proposed for soils that meet Table 1 based on testing results. If the Qualified Professional (“QP”) has indicated that testing is not required, then the soils should not be allowed to use the bulk movement system – those soils should be subject to the proposed full registration and tracking requirements as proposed.

PRESENCE OF NATURALLY ELEVATED CONCENTRATIONS OF SUBSTANCES Similarly, the City has many areas that contain soils with naturally elevated concentrations of substances (i.e. background metals in clay soils). If demonstrated through laboratory testing that the receiving site soil is similar in chemical composition to the source site soils, bulk soil movement between the source and receiving sites with naturally elevated concentrations of substances would also be appropriate. These soils with naturally elevated concentrations of substances should also be exempted from being considered as waste when removed from the project area.

INFRASTRUCTURE PROJECTS The regulation as proposed does not adequately address the complex and multi-faceted nature of designing and managing municipal linear construction projects. While the proposal includes an exemption from the ESMP requirement for movement of soil between infrastructure projects with the same owner, the practical application the exemption does not offer significant relief to a municipality.

The proposal also includes an exemption for regular maintenance or repair of infrastructure without defining “maintenance”, which leads to some ambiguity.

Additionally, the tracking, registration, and ESMP requirements will impose a significant administrative and financial burden on the City. This burden may impact the City’s ability to deliver projects in the future.

The City is seeking clarity and guidance on management and tracking of soils which are exempt from the ESMP based on less than the 1000m3 limit and not being transferred between infrastructure projects. Similarly, the City is seeking clarification on requirements in instances where the City is the owner of the receiving site when receiving soils from an ESMP exempt site.

The increased scope of investigation, more stringent soil standards, increased quantities of soil being landfilled will inevitably result in fewer municipal projects being delivered.

The requirement that excess soil cannot leave a project site unless a receiving site is identified poses another administrative and logistical challenge on all City projects. For infrastructure projects, the City would have to either a) identify available receiving sites in advance of tender or b) download the responsibility of identifying receiving sites to the construction Contractor through the tender – which in both instances have substantial cost and time implications on every project.

Coupling of projects for the purposes of transferring soils between infrastructure projects could lead to potential issues with the City becoming the constructor leading to labour and occupational health and safety concerns by putting two contractors together on the same construction site (i.e. directing a contractor from one project to deliver soil to a second construction site with a different contractor).

LOGISTICS OF INFRASTRUCTURE CONSTRUCTION IN BUILT ENVIRONMENTS It is extremely difficult to provide space for storage of excess soils within the defined project area on our construction sites in currently built environments. Many City infrastructure projects involve rehabilitation of underground utilities in built-up areas and there is simply no room for storage on-site, unless the City closes off entire street blocks for the purpose of storing material. Closing city streets for temporary soil storage, is not a feasible option as it impacts traffic mobility during construction, over and above the impact of the streets that are closed for the actual trenching operations.

If there is room on site to store the excavated material, some of it could be used as trench backfill. If these soils are transported for temporary storage, then the City would have to treat them as waste, and manifest accordingly during tracking and hauling. Trucking these soils to temporary sites, stockpiling and moving back to the source sites for backfill will introduce multiple handling of these soils and greenhouse gas generation associated with handling soils in this manner. In cases such as this, it may be more beneficial to transport the soils to suitable receiving sites instead.

HAULING & TRACKING RECORDS Tracking individual truckloads is a significant administrative burden on the City. The City encourages the Ministry to consider allowing bulk movements and tracking of similar materials (e.g. – the same truck moving multiple loads of the same material, from the same source site, to the same receiving site, on the same date, etc.) in order to ease the impact of this burden.

Regardless of whether an ESMP is required, the proposal requires the registration and tracking of every truckload of excess soil leaving a source site. It is understood that every truckload requires documentation in triplicate – one copy left at the source site, one copy kept by the truck, and one copy kept by the receiving site. It is likely that this will result in a dedicated resource on each and every project at the source site, who will represent the QP, and also potentially a dedicated resource at the destination site. This will not only be an administrative and resource burden to the City to implement, but it will be difficult to monitor for compliance.

The City recommends that the regulation include a requirement for receiving sites to produce a closure report.

TRANSITION PERIOD The City asks that multi-year contracts that are awarded prior to the coming into effect date of the proposed regulation be exempt from compliance. Requiring previously tendered contracts to comply with the new regulation will expose the City to significant financial risk. The City suggests a minimum four (4) year transition period for the implementation of the proposed regulation.

However, there may be specific projects that a transition period of longer than four years is required. The City requests that a process similar to the 2011 Brownfield update for notification of longer term transition projects be included to address this issue.

NEW SOIL STANDARDS The proposed regulation has also created a new set of excess soil standards for safe disposal of these excess soils. These proposed excess soil standards are more stringent than the existing soil standards contained in O. Reg. 153/04 that are used in Ontario. This will result in increased costs for additional quantities of excess soil that must be landfilled for disposal.

The proposed excess soil standards indicate that the O. Reg 153/04 standards will only be applicable up to a soil volume of 350m3. Does this volume trigger level indicate that a new set of O. Reg 153/04 standards may also be developed for situations where there is greater than 350m3 of contaminated soil on brownfields site?

Does the proposed implementation of new soil standards based on volume trigger levels indicate that changes to the O. Reg. 153/04 standards will be modified to be based on volume of contaminated soil?

As the new excess soils standards are geared towards the suitability of the receiving site and the site investigations are completed on the source sites, the quantity of various scenarios based on assessing different receiving site options will lead to a multiplicity of options regarding the potential soil movement from each source site. This will result in overly complicated presentation of options with regards to interpretation of data and comparison tables.

The City suggests that the Ministry consider efforts to simplify the number of Standards tables for comparison by allowing the use of the brownfield standards for sites up to 5,000m3. Similarly, one set of standards for disposal, such as the volume independent standards, would simplify the presentation of soil disposal options.

IMPACT ON CITY LANDFILLS City owned and operated landfills require excess soil for waste operational requirements. Under the proposed regulation, these landfills will be required to post a notice on the website registry indicating that they have capacity to accept excess soils. The excess soil required by the landfill is not currently considered waste and as a result it does not affect the amount of waste received. Designating excess soil as waste will reduce the quantity of other waste that can be disposed at the landfill, which will reduce the lifespan and capacity of the City’s solid waste facilities.

BUILDING PERMITS AND MUNICIPAL BY-LAWS The proposed regulation includes additional requirements for building permits and potential changes to municipal by-laws. These changes will necessitate additional staff and resources, which may not be feasible to implement.

It is not clear to the City how the MOECC remains the regulator but the municipality issues the building permits. Issuing permits would imply that the City would be responsible for review of soil management plans and responses to improper soil management.

PHASE ONE ENVIRONMENTAL SITE ASSESSMENTS FOR INFRASTRUCTURE PROJECTS Even though the proposed regulation allows for modifications to the Phase One ESA scope, it is likely limited in application for City projects based on the transfer of liability from City investigations to contracted parties acting on behalf of the City for implementation of soil movements. Modifications to the Phase One ESA scope will result in increased risk to the City.

For infrastructure corridor type projects – conducting Phase One ESA investigations to the full scope of O.Reg. 153/04 will be onerous with regards to the following sections:

•Conducting a chain of titles search for all parcels (especially areas with multiple parcels) will be difficult. This could be especially difficult for linear projects, where the City is acquiring portions of hundreds of parcels associated with road widening.

•Based on the lead time between investigations (typically 2-3 years) and when the projects are conducted, most investigations will be over 18 months old, which would put them out of compliance with the investigation date requirements in O.Reg. 153/04

•Soil management plans cannot be finalized until the contracts are tendered (indicating the trucking contractors, trucking routes, etc.). Testing & preparation of the front end portions of the soil management plans will be conducted by the City & will be in draft format. Potential issues with conflict between works conducted by QP on behalf of the site owner and finalization of soil management plans by QP working on behalf of the site contractor (i.e. reliance on data collected by other QP’s, testing locations selected, exclusions to sampling by QPs, sample results over 18 months, etc.).

•The City of Ottawa suggests a similar approach to what is currently done with Permits to Take Water, where the City has obtained a draft version of the PTTW and then passed the permit on to the contractor. A draft version of the excess soil management plan can be based on work completed by the City and handed off to the contractor to be finalized upon award of the successful tender.

PROJECT AREAS WITH MULTIPLE PROPERTY OWNERS The City is seeking clarification on how large project areas being constructed by the same proponent would work with multiple property owners. This would include projects where the City is using lands where it does not have permanent ownership. Included within the project area are staging areas where the City has a license of occupation for use as temporary soil storage sites. The soils at these temporary soil storage areas are ultimately re-used within the same project area. The City is unclear as to how the MOECC proposes to address these sites with multiple owners in terms of the requirement for soils to be manifested and tracked even if they are within the same project area.

PROJECT AREA AND TRANSFERRING SOILS VIA PUBLIC ROADS The definition of project area is not clear in the proposed regulation. For larger projects, the movement of soil typically involves transportation of soils on public roads. The lack of definition raises some ambiguity.

EXCESS SOIL TRANSPORTED OUT OF PROVINCIAL JURISDICTION The proposed regulation does not address the scenario where the receiving site for excess soil is located outside of the Provincial Jurisdiction in terms of the extent to which the proposed requirements would apply.

EASEMENTS AND WORKS IN THE RIGHT OF WAY If the City acquires an easement across a property for purposes such as underground utilities installation, the City may then generate excess soil during work on the easement lands. According to the proposed regulation, the property owner (not the City) would be required to comply with all of the excess soil requirements. Similarly, the City provides easements to various parties (gas companies, telecoms etc.) on City property and they may generate excess soil, even though they are not the property owner. In this scenario, where does the responsibility lie for compliance with proposed regulations?

TEMPORARY RECEIVING SITES There may be circumstances where soils brought temporarily to a site for a period longer than the two years should be allowed under the proposed regulation. This would include sites where material is imported to the site for pre-loading of the native soil to consolidate the soils. There should be an allowance to have the material on site for more than two years in these circumstances, by including provisions to update the registry on a regular basis with current information on the soil.

LIKE TO LIKE ESMP EXEMPTIONS The City understands that parks and building of libraries and community centres are not considered as infrastructure exempt projects. The City is proposing that transfer of soils from the same proponent, in like to like (i.e. park to park) sites would be exempt from the requirements of an ESMP. Similarly, transfer from more sensitive to less sensitive (i.e. park to road project), that these would also be exempt from the requirements of an ESMP.

REGISTRY AS SOIL MATCHING RESOURCE The majority of City construction projects result in an excess of soils. Finding suitable receiving sites for these excess soils is logistically challenging. It would be useful if the soil registry could be utilized as a resource for receiving sites that are seeking soils.

  ACCEPTABLE AMOUNTS OF INERT MATERIALS IN SOILS The City is seeking clarification of the amount of inert materials such as brick and glass that would be considered as acceptable in soils.

QUALIFIED PERSONS AS MUNICIPAL EMPLOYEES The City is seeking clarification on what is considered an “indirect interest” in a project for a Qualified Person (QP). It is not clear, as currently drafted, that an employee of a municipality may act as a QP for their employer in cases where the employer is undertaking a project.

SOIL PROCESSING The City is seeking clarification on what is considered processing of soils and whether screening of soils would be exempt from being considered processing.

ELEVATED BACKGROUND CONCENTRATIONS CHANGES TO BROWNFIELDS REGULATION There is a proposed amendment to O. Reg. 153/04 to allow for an exemption from investigation of fill that has already been placed on a site (bullet 6, page 34) containing naturally elevated concentrations of substances. The City recommends that this exemption be extended to allow for the importation of soil that has naturally elevated concentrations of substances and not just previously placed soils.

Please don’t hesitate to contact me if you have any questions.

Sincerely,

Marian Simulik
General Manager, Corporate Services and City Treasurer

cc:Gordon MacNair, Director, Corporate Real Estate Office Alain Gonthier, Director, Infrastructure Services

[Original Comment ID: 209835]