Ms. Laura Blease Senior…

Ms. Laura Blease
Senior Policy Advisor
Ministry of the Environment and Climate Change
Land Use Policy
40 St. Clair Ave. West
Foster Building, 10th Floor
Toronto, ON M4V 1M2

Attn: laura.blease@ontario.ca

Re.: RCCAO and SOiiL Response to MOECC’s Excess Soil Management Regulatory Proposal
EBR Posting# 013-2774

The Residential and Civil Construction Alliance of Ontario (RCCAO) and Supporting Ontario Infrastructure Investments and Lands (SOiiL) are pleased to respond to the MOECC’s request for input on the most recent Excess Soil Management Regulatory Proposal as posted to the Environmental Registry of Ontario on April 16, 2018. As you know, we have been strong supporters and been actively involved over many years in the development of progressive practices and regulations supporting the beneficial reuse of excess soils in Ontario.

EXECUTIVE SUMMARY

RCCAO recognizes and appreciates that the MOECC has engaged with a diverse set of organizations and diligently “listened” to the feedback and concerns of many stakeholders involved in improving excess soil management practices. It has been a somewhat long and frustrating process, however, notwithstanding the Ministry’s best efforts.

While we now have a detailed regulatory package, which has seven distinct components, the complexity involved will make the timely implementation of the final package a major concern. Adhering to the timeline targets in the Ministry’s own “Excess Soil Management Policy Framework” released in December 2016 has already been a daunting task. Many of the 21 Action Items, including Key Action #1 to “develop a new regulation …” within one year, have not been fully met. We also understand that there is a balance between timely implementation targets and ‘getting it right’, but effective implementation of the final regulatory package will be a far more arduous challenge than the one-year timeline originally envisioned in the Framework.

The currently proposed regulatory package is a much more complicated and technically complex set of documents than the Ministry’s Best Management Practices Guide (BMP Guide) released in January 2014. The BMP Guide will need to be updated and better outreach efforts will be required to overcome the limited progress we have made to date. Hopefully there are lessons learned by the Ministry in successfully implementing the final new regulatory proposal.

In addition to these implementation issues we have a fundamental concern that the current regulatory proposal, while appearing strong on technical detail, has shortcomings with respect to actively encouraging the beneficial reuse of excess soils. For instance, the definition and context of the “waste” designation remains confusing.

The environmental objective pertaining to the responsible, beneficial reuse of excess construction soil appears to have been somewhat diminished in the regulatory detail. This is of importance and a major challenge in consideration of the large number of diverse, small industry and municipal stakeholders involved who will have to implement and comply with the new regulatory requirements. RCCAO’s commissioned “Survey of Municipal Soil By-laws” (March 2013), for example, recommended that there be “Ongoing formal education and capacity building to assist municipalities with the development, monitoring and dissemination of experiences with soil management in municipal by-laws and procurement practices” (Recommendation #4, p. 10). To improve the probability of success, the Province will have to advance simultaneously on many fronts with municipal and industry partners.

While there has been consultation with the Excess Soil Engagement Group (ESEG) and others on this regulatory package, there remains a lack of detail on how the Ministry plans to provide effective implementation, leadership and overall governance of the new regulatory package components.

It is vital that the final regulatory framework provide a lower cost alternative to disposing of such material at a licensed landfill without adversely affecting the natural environment. The complexity of the regulation and the costs to comply with it may spur an increase in the illegal dumping of harmful materials on agricultural and other sensitive lands.

The proposed new Registry is critical to successful implementation from day one. There must be upfront engagement and discussion of what model approach the MOECC is looking at to accomplish the important outreach, training and oversight requirements involved, including compliance and enforcement components.

Following is a listing of general comments along with concerns about key aspects of this regulatory proposal. A table has been appended to this letter which references specific items and suggestions to improve the current regulatory package proposals.

GENERAL COMMENTS

RCCAO and SOiiL continue to work cooperatively with the Ministry, both directly and through involvement with the ESEG and the Market Working Group. While we understand that there are many different stakeholders and a wide cross-section of issues involved, there is a need for ongoing and effective engagement (e.g., this includes establishing meeting schedules and providing timely feedback, including action item follow-ups / minutes of meetings). We recognize that it is a challenge to convey all the information and implications being considered, however, it is extremely difficult to properly discuss and debate topics when upwards of 50 people are convened for half day engagement sessions on relatively short notice and with a lack of materials upfront.

This most recent regulatory proposal includes and takes into account previously submitted comments and suggestions in several areas including: rebranding of receiving sites to reuse sites, attempting to clarify waste approvals, increasing quantitative triggers for Excess Soil Management Plans (ESMPs), expanding frequency of Registry updates to 60 days and modifying standards for the new Beneficial Reuse Assessment Tool (BRAT) to reflect more site-specific situations.

Most importantly, the Ministry has modified and extended the phase in timelines and ESMP and Registry requirements. In consideration of the concerns being identified, and the likely disruption with a transition to a new government, a longer phase in period is warranted. Specifically, the January 1, 2020 date for new standards to come into effect should be extended to January 1, 2021. This will help to accommodate proper transitioning by putting the required Registry, electronic tracking tools, outreach and training programs and pilot testing in place.

As the Registry will be the key interface for users, it is vital to get these elements right, such as establishing the data information requirements for registering and accessing ESMP information. This platform needs to be more fully described in terms of how it will work, input information needs and reporting including level of public access. The governance mechanism to be used to oversee and steward the Registry is critical to how the overall excess soil management process will function and be managed going forward. Will the Registry be operated by a third party and will it be used as a data management tool to promote excess soil management or just a depository? How will soil matching, a key part of promoting and facilitating the effective beneficial reuse of excess soil be encouraged through the proposed Registry? We would encourage the Ministry to model Ontario’s registry system on the proven CL:AIRE system from the UK.

The relatively new and rapidly growing hydro vac industry requires further understanding and development of industry specific rules and a code of practice approach that is compatible with excess soils regulatory proposal objectives. Hydro vac spoils are more than just liquid versus dry soil type. Material produced from straightforward day lighting activities is generally “clean” and acceptable for beneficial reuse. However, hydro vac materials can include street sweepings, catch basin material, car wash sands and directional drilling mud that could contain clays, bentonite and bore gel that could be passed off as clean fill. Additional specifications and work practices should be developed to encourage beneficial reuse wherever possible and practical.

Successful implementation of the excess soil regulatory package will require significant multi-Ministry coordination in consideration of the jurisdictional responsibilities for reuse sites. Despite our advice in 2015, that there be a focused BMP implementation plan and schedule, there was insufficient outreach to the municipal sector. While we recognize that a municipal soil by-law tool was developed by the Canadian Urban Institute (via MMA support), there were no updates built into this on-line tool. RCCAO did coordinate a “Soils Room” at the Ontario Good Roads Association conference in 2015 and arranged a panel at the Association of Municipalities of Ontario 2015 conference, but this type of ongoing outreach would have been better facilitated through a different governance structure. It became clear from the limited uptake of the 2014 BMP Guide that many Ontario municipalities have neither the in-house resources nor the funding to develop and carry out local excess soil management programs.

Significant coordination of supporting training programs and outreach is required on the part of the MOECC and MMA. Municipal pilot projects should be conducted and, when successful, the outcomes should be replicated elsewhere through awareness-raising case studies. Creation of a dedicated public / private entity organization to oversee these activities would be most helpful to reach our desired objective of reusing a good portion of the 25+ million cubic metres of clean surplus soil which is generated every year across Ontario. Such a governance structure would be focused on implementing an effective excess soil beneficial reuse program on a municipal or region-wide basis.

We have concerns that the Market Based Tools for Excess Soil Management, July 2017 report produced by management consulting firm Ernst & Young LLP (EY) for the MOECC includes survey findings that are incorrect. For instance, despite feedback during the draft report stage, the jurisdictional assessment did not accurately reflect the reality of the CL:AIRE model in the final report. While certain elements of the EY report were helpful, the recommended structure was going to be too costly compared with the successful model established in the U.K. Beyond the exaggerated estimated organizational costs, the revenue model put forward was both unrealistic and unfair. Again, if the recommended structure is too costly, there will be a greater incentive for some operators to bypass the framework and proceed with illegal dumping.
RCCAO and SOiiL continue to strongly support the very successful approach used in the U.K. by the not-for-profit CL:AIRE organization. This approach is based on a Smart Regulation model where regulators, industry and academia administer an ongoing overall excess soil management approach emphasizing training, professional certification of those involved and administration of collected data to encourage excess soil reuse. Will the MOECC be issuing an RFP for development of the new Registry and will the electronic capability to track trucks, volumes involved, and final destinations be incorporated in such a way as to encourage soil matching? What will the minimum data standards be and how will captured information be used to provide necessary big data benefits to manage and audit the overall process? What will be the planned fee structure? This type of information is required to set annual objectives, budget and funding levels, steward success and identify both opportunities and problems requiring attention in a robust well managed manner. Launching a regulatory framework for excess soils without the foregoing tools is like trying to enforce speed limits without radar.

New technology platforms have the potential to better link haulers with contractors and to improve tracking of excess soil movements. Even though there is early testing of these types of apps, our system remains reliant on old-fashioned ticketing records. In the transition to a new system, the Province should recognize the added complexity when different systems are being employed and should encourage the adoption of new software/platforms with positive incentives to test (including pilot tests). Let’s reward the good actors who strive to be in compliance. During the transition to a new system, it would be advisable to proceed with “soft enforcement” (such as the model used by MTO to implement new regulations for Vacuum Trucks).

COMMENTS AND RECOMMENDATIONS

RCCAO and SOiiL submitted thirteen recommendations as a response to the MOECC’s Proposed Excess Soil Regulatory Package posted to the EBR on April 24, 2017. Listed below is a summary of these initial recommended points from our June 22, 2017 submission and the status of the MOECC’s responses, in italics, compared to the current Excess Soil Management Regulatory Package.
(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.
MOECC has recognized the need to extend implementation dates but the reuse standards effective date should be extended a further year to January 1, 2021.

(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.
While the most recent package has attempted to address this, more clarification is required.

(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.
MOECC package provides little working detail for the proposed Registry structure and components emphasizing the need for proper communication plans. This will be a critical component for successful implementation.

(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.
The Ministry has not addressed this concern. The inclusion of a new role, the Project Leader, has further complicated the process, responsibilities, roles and liability exposures.

(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.
The area of QP training remains a concern given that excess soil management will now entail regulatory compliance, with accompanying liability exposure.

(6) Provide technical guidance, especially with respect to the management of salt impacted soil.
While the MOECC has referenced this area in the current proposal, further clear, workable guidance documentation is required.

(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.
The MOECC has relaxed Registry reporting to 60 days and amendments to ESMP within 30 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.
The MOECC needs to create and communicate “fast track” pilot testing mechanisms that are not referenced in this current proposal. The lack of supporting soil depot creation details or incentives is a very weak link in the overall intent to encourage excess soil beneficial reuse.

(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, critically, a simple and inexpensive registration or licensing process utilizing standardized electronic template data capture and reporting.
Within the hauler community there is minimal awareness about the current proposal, the impacts or the operational details that might be involved in soil tracking compliance. As stated previously, significant outreach awareness and actual training is required in the trucking sector starting immediately.

(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.
The relatively new and expanding hydro vac sector needs significant further direction, clarifications and details regarding when hydro vac material is considered an industrial liquid waste and must be manifested. Significant clarification is required regarding permitting of facilities accepting their material. Do these facilities require an ECA?

(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?
The MOECC has produced a companion document in current proposal package – Rules for On-Site and Excess Soil Management. While this is a good start for filling this need, significantly more detail and practical examples, by industry sector, would be helpful to illustrate how to comply with the new requirements.

(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.
While the MOECC has released as part of this proposal a supporting draft (April 3, 2018) Beneficial Reuse Assessment Tool, it remains primarily a technical assistance tool, includes no cost impacts and does not sufficiently assist local municipalities with understanding how a risk-based approach involving the beneficial reuse of excess soils, would work.

(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.
As stated previously in this response, the governance structure that is to be put in place in a timely fashion to oversee excess soil management activities and encourage reuse requires an appropriate governance model to be put in place. The complexity and far reaching impacts of this proposal requires a multi-ministry, public/private oversight body to be created to manage the effective implementation of all the elements involved.

TABLE OF SPECIFIC LINE COMMENTS

Attached is a table listing and summarizing specific line items and comments on various sections of the MOECC’s Excess Soil Management Regulatory Proposal. RCCAO and SOiiL continue to work directly with other construction organizations and industry-focused associations, including the Canadian Brownfields Network (CBN) and the Ontario Environment Industry Association (ONEIA). These groups provide more detailed, direct technical comments which are intended to further elaborate on this submission.

The key areas requiring more discussion and clarification remain as follows:

Excess Soil Waste Designation and Terminology Confusion
Soil Bank Storage Site Creation and Capacity
Defined Roles, Training, Certification of Qualified Persons and New ‘Project Leader’ Role
The Registry: both Final Content and Governance Model
Definition of Top Soil
Vacuum Truck Soils – Hydro vac Details Required
ESMP Requirements and Level of Detail Required (Streamlining)
Beneficial Reuse Assessment Tool (BRAT)
Excess Soil Management Plans – ESA Characterization

CLOSING COMMENTS

RCCAO and SOiiL continue to put significant time, effort and support into improving soil management practices. In fact, we are in the process of creating a soils video series to promote the fact that clean excess soils must be considered a resource rather than a waste. The preceding comments and recommendations are intended to create a high-functioning, effective excess soil regulatory framework. We look forward to your consideration and timely response to our comments which are intended to put in place a responsible Excess Soil Regulatory Package and managing system in Ontario.

Sincerely,

Andy Manahan Al Durand
Executive Director Project Manager
RCCAO SOiiL

Attachment: Table with detailed comments