June 23, 2017…

June 23, 2017

Sanjay Coelho, Senior Policy Analyst
Ministry of the Environment and Climate Change
Climate Change and Environment Policy Division
Land and Water Policy Branch
40 St. Clair Avenue West, 10th Floor
Toronto, ON
M4V 1M2

EBR REGISTRY NUMBER 013-0299 EXCESS SOIL MANAGEMENT REGULATORY PROPOSAL COMMENTS FROM THE CORPORATION OF THE CITY OF OSHAWA. OUR FILE: A-2312 (001)

In response to the above noted posting of the Ministry of the Environment and Climate Change (M.O.E.C.C.) advising of a proposed new Regulation, posted to the Environmental Registry, Council at its meeting on June 12, 2017 referred the matter to staff for a direct response and passed the following motion:

“Whereas the Ministry of the Environment and Climate Change (M.O.E.C.C.) is now engaging Ontarians on an Excess Soil Regulatory Proposal that proposes a new regulation and key complementary regulatory amendments related to the management of excess soil in order to protect human health and the environment from inappropriate relocation of excess soil; and,

Whereas M.O.E.C.C. is seeking input from the public on the Excess Soil Regulatory proposal through the Environmental Registry by June 23, 2017; and,

Whereas this consultation process allows Ontario residents and/or stakeholders to formally participate in environmentally significant Ontario government decisions; and,

Whereas it is important for the City to participate in this process given the City’s experience in dealing with excess soil relocation issues including large fill sites; and Therefore, be it resolved:

1.That staff be authorized to provide comments directly to Ministry of the Environment and Climate Change on the Excess Soil Management Regulatory Proposal in order to meet the June 23, 2017 deadline for comments; and, 2.That the City staff comments also be forwarded to all Council members, the Central Lake Ontario Conservation Authority, the Region of Durham, all local area municipalities in the Region of Durham and the Association of Municipalities of Ontario.”

Accordingly, staff has prepared the following comments with respect to the proposed new Regulation on behalf of the City of Oshawa for the Ministry’s consideration.

General Comments

The City of Oshawa has considerable experience in dealing with excess fill and site alteration related matters, especially in the northern portion of our jurisdiction since the City’s Site Alteration By-Law has come into effect in 2006.

Generally, the lands that receive excess fill are in rural areas such as agricultural lands.

City Staff would like to see that the new Regulation provides us with more authority not only to help manage the excess soil issues within our municipality, but also deal with the issues such as, quality of life issues for our residents, (hours of operation, length of time a site can be used as a fill site, truck traffic, road impact, noise, dust, etc.), quality of the fill (e.g. contaminated soil), the financial implications to the City, etc.

Proposed New Regulation

Our comments below follow the report structure of the Proposal Excess Soil Regulatory Package.

Designation of Excess Soil as Waste and Determining When Excess Soil Ceases to be Waste

•No reference is made in the proposed new Regulation indicating that the excess soil has to be clean for the scenario where the excess soil originates from an infrastructure project and is deposited at the project area of an infrastructure project that belongs to the same proponent. It is important that this requirement need to be articulated in the proposed Regulation when determining whether the excess soil can be designated as waste or not.

•To avoid disputes in the future, the definition of Excess Soil should be revised to include “topsoil”.

•Further clarification should be given in the proposed Regulation to help someone to determine that a receiving site (which is not governed by a site specific instrument or by-law) is not being used solely or primarily for the purpose of depositing excess soil. One example comes to mind is an existing large abandoned mining pit located in the Conservation Authority Regulated areas. This needs to be clarified.

•The proposed new Regulation calls for the excess soil not to be designated as a waste if it is used within 90 days after transferred to a receiving site, which is not part of an infrastructure project. However, the definition of the infrastructure project provided in this Regulatory package does not clearly define whether the construction of new development (eg. Subdivision, Site Plan, etc.) is included or not. This needs to be clarified in the proposed Regulation as it is quite normal for a stockpile of soil sitting idly untouched on a development site for more than 90 days before being used.   Excess Soil Management Plan (ESMP) Requirement

•While we understand that the Ministry would like to shift more responsibility of the excess soil management to the source site owner, we have concerns that the suggested quantitative trigger volume of 1000 m3 (100 truckloads) in the proposed Regulation is set too large to be effective as this requirement can be easily circumvented by phasing the construction activities in a project area.

•To close the potential loophole, the proposed Regulation should consider using a smaller amount for the quantitative trigger volume or alternatively, clarify that the total amount of excess soil for the entire source site should be considered when one is determining whether an ESMP is required or not.

•Given the fact that the 1000 m3 is an arbitrary benchmark figure, we recommend that the local municipalities must be given the authority to ask for the proof/documents indicating that the excess soil going to a receiving site is not contaminated.

Exemptions

•We have difficulty in understanding why the volume of excess soil, say 100 m3, has anything to do with the decision of having an ESMP or not if the excess soil is sent directly to a waste disposal site. This needs to be clarified.

•If the proposed Regulation is really meant to protect the environment, we do not find that it is justifiable to give special exemption status to Crown land without even finding out whether the excess soil is contaminated or not. This needs to be considered further in the process of finalizing the proposed Regulation.

•We have concerns to waive the requirement of preparing for an ESMP if excess soil transfers between infrastructure projects where the proponent of those projects is the same. We would like to advise that this may cause contaminated soil to be transferred inadvertently from one site to another and could have serious impact to our environment if the definition of the infrastructure does in fact include the construction of new development.

Building Restriction and Applicable Law under the Building Code

•The proposed quantitative trigger volume of 1000 m3 should be revisited as suggested above.

•In addition to the above, the proposed Regulation should also be revised to allow for the issuance of building permit if it is certified by a qualified person (QP) that the excess soil is clean or does not originate from any part of the project area potentially affected by any potentially contaminating activity (PCA) and the quantity of the excess soil involved also meet the quantitative trigger volume.

Project Area

•Clarification should be made in the definition of Project Area to identify whether two properties owned or controlled by the same proponent but separated by a road can be considered as a Project Area or not. If not, clarification in this regard is requested.   Definition of Qualified Person (QP)

•To ensure transparency and avoid perceived in objectivity, we recommend that the definition of QP for this proposed new Regulation should be revised to clearly define that the QP responsible for the preparation of ESMP, the QP responsible for the project at the source site, and the QP responsible for the receiving site cannot be the same person.

Excess Soil Characterization

•To avoid complications resulting from the use of available excess soil information in the future by the owner of the receiving site and the local approval authority to determine the suitability of the soil for the receiving site, the proposed Regulation should be revised to allow for such a use. It is the obligation of the proponent to provide the information upon request.

•We recommend that there should be a provision in this section to clearly specify that the soil would have to be properly sampled and analyzed to ensure that it will be properly handled by the source site owner. This will help ensure any contaminated soil would go to licensed waste disposal sites instead of going to, for example, agricultural and/or rural residential areas including the Oak Ridges Moraine and Greenbelt areas.

•Schedule B – It is unclear as to why a phase one environmental site assessment is not required if the volume of the excess soil involved is less than 1000 m3. Clarification in this regard is requested.

Receiving Sites Identification and Rules

•We find that this area of the proposed Regulation is not sufficient as M.O.E.C.C. totally relies on a site-specific instrument or by-law to determine the appropriateness of a site to receive the excess soil. This being the case, we can foresee that there will be tremendous pressure on the local municipalities to approve the receiving sites without having the time to properly assess the whole matter.

•This area of the proposed Regulation should be strengthened by providing provisions, which would allow local municipalities to ask for the relevant studies, such as, a Hydrogeological Study (including impact on wells), a Soil Assessment Study, Environmental Impact Study (including assessment on natural heritage areas, floodplain, wildlife and environmentally sensitive areas), a Noise/Dust Mitigation Study, a Fill Control Plan, Archeological Study, and a Road/Traffic Impact Study (including the hauling routes) to help staff determine the suitability of a site to receive the excess soil and not causing any significant impact to the environment and the surrounding lands at no cost to the local municipalities.

•This area of the proposed Regulation should also be expanded to include provisions to give authority to the local municipalities to manage the quality of life issues in the areas of the hours of operation, the duration of the excess soil transfer activities, truck traffic, road impact, noise, dust, etc.

•The proposed Regulation should recognize that some of the studies required may take a considerable amount of time to prepare, and there should be provisions in the new Regulation to speak to giving sufficient time required to find a suitable receiving site for a proponent of a project.

•The proposed Regulation should ensure that the planned function of the Oak Ridges Moraine Area Greenbelt areas and Prime Agricultural areas are protected from the adverse impacts of land filling. For example, Prime Agricultural areas should not be taken out of the agricultural inventory due to land filling. Large commercial land filling should be prohibited in all these areas.

Hauling Records

•For completeness, the excess soil hauling record should not only contain information in respect of the hauling routes taken by the contractor, but also the required approvals obtained from municipalities, if any.

Registration of Information on the Environmental Site Registry

•We do not find that it is reasonable to ask a municipality to register to the Environmental Site Registry when dealing with the excess soil resulted from maintenance of stormwater management facilities regardless of the volume of the soil. The reason being is that if the soil sediment is contaminated, it would be subject to an ECA process for the disposal of the soil; whereas if the soil is clean, it would normally be reused by the municipality within its own jurisdiction.

Temporary Excess Soil Storage Sites (TESSS)

•The proposed new Regulation should be revised to speak to the need of satisfying all the requirements of the applicable local municipal by-laws for the storage of the excess soil on a TESSS and ensuring that the deposited soil does not cause any adverse impact to the surrounding lands and the environment in general.

•The proposed new Regulation should also be revised to allow the local municipality in which the TESSS are located to request for any relevant studies and/or information from the property owner at its discretion and at no cost to the municipality allowing staff to carry out a comprehensive assessment on the site to determine its suitability for use as TESSS.

•The proposed new Regulation should contain directions for dealing with TESSS should the receiving sites for the excess soil being stored at the TESSS are no longer available and also granting authority to the local municipality to stop the operation.

•The item b)iii in the proposed new Regulation stipulating the requirements for record keeping of the excess soil does not seem to be correct. This needs to be revised.

•The proposed new Regulation should be revised to expand on the list of the quality of life issues to include such matters as the hours of operation, truck traffic and site access (driveway), noise, dust, etc.

Operational Requirements for Excess Soil Processing Sites Including Soil Banks

•Given that the Excess Soil Processing Sites could stay for a long period of time, we recommend that the proposed new Regulation should grant the local municipalities the approval authority for establishing such facilities in their respective jurisdictions and asking for any relevant studies and/or information from the property owner at no cost to the municipalities so that staff can carry out a comprehensive assessment on the sites to ensure that the Excess Soil Processing Sites will have no adverse impact to the surrounding lands and property owners, including the environment in general.

•Similar to TESSS, the list of the quality of life issues should be expanded to cover the hour of operation, truck traffic and site access (driveway) etc. Circumstances When Hauling Excess Soil is Exempt from ECA Requirements

•We can appreciate why the proposed Regulation does not require the waste haulers to obtain ECAs when they transport excess soil to TESSS or receiving sites. However, given that there is a quantitative trigger volume suggested in the proposed Regulation that a proponent of a project can circumvent the requirement of preparing for an ESMP, we do not think that it would be a good idea for M.O.E.C.C. to remove the ECA requirement for hauling the excess soil fallen in that category unless we are absolutely clear that the soil is clean.

Transition

•It does not seem to be fair for the Ministry to impose any extra activities/requirements for the proponent of the project to do and/or address if the project is already well underway. There may have huge financial implications to the proponent of a project if the new requirements of the proposed Regulation are needed to be met. This section of the proposed Regulation should be reconsidered.

•Based on the rationale provided above, it is recommended that the proponent of an existing project should be exempt from any of the requirements of the proposed Regulation and should obtain a Grandfathering status.

•If M.O.E.C.C. does in fact insist of imposing the additional new requirements for an existing project after the passing of the proposed Regulation, we do not support that the Ministry downloading the responsibilities to the local municipalities for implementation.

Environmental Site Registry and Excess Soil

•The proposed Excess Soil Regulatory Package has suggested that the Province may choose to delegate the Operation of Excess Soil-related aspect of Environmental Site Registry to the Third Party. However, we would like to advise that the City of Oshawa is not in support of the idea as it may have financial and/or staff resource related implications to the lower tier of municipalities if it is adopted and the responsibility of operating such a registry is downloaded to the local municipalities.

•If for whatever reason that the Ministry chooses to download any responsibilities relating to the new Regulation to the local municipalities, we feel that it would be fair for the new Regulation to recognize the burden that the new Regulation has put on the local municipalities and provide adequate funding to the same for all the additional duties.

Additional Comments

•It is our observation that this Regulatory proposal tends to be more focused on the source sites and light on the receiving sites. To ensure that the new Regulation would be effective to help manage the excess soil in the future, it is strongly recommended that M.O.E.C.C. should put more emphasis on the receiving sites in the Regulation by providing tools and authority to the local municipalities to regulate the receiving sites.

•To provide for more sustainable excess soil management, amendments to the existing Municipal Act and/or Conservation Authorities Act must also be considered to help strengthen the authority of the local municipalities for managing the receiving sites within their respective jurisdictions.

•Given that the purpose of the new Regulation is to 1) Protect human health and the environment from inappropriate relocation of excess soil, and 2) Enhance opportunities for the beneficial reuse of excess soil and reduce the greenhouse gas emissions associated with the movement of excess soil, we recommend that some forms of monetary compensation to the local municipalities of the respective receiving sites must be considered. The money is to compensate the damages (such as road damages and creek erosion, just to name a few) that a local municipality will have to face in the future as it is likely that the municipality of a receiving site will experience some degree of negative impact to its community at the end of the day no matter whether the preventative measures are in place or not. To encourage the excess soil to stay in the municipality where the soil is originated, it is recommended that the proposed Regulation should have provisions to allow the municipality to provide credit to such fee.

•In addition to the above, the Regulation should allow municipalities to charge fees related to any work the City must do to administer the new Regulation and to charge fees related to the impact on the City, such as on City roads which are used as haulage routes.

•This new Regulation must have provisions to speak to Remedies and Penalties in the event of contravention of the Regulation by the proponent of a project. The size of the fine must driveway be commensurate to the magnitude of the project.

Your time and consideration of these comments is greatly appreciated. Should you have any questions or require clarification with respect to the items mentioned above, please do not hesitate to contact either myself at 905 436-3311 extension 2372 (PLee@oshawa.ca) or Harshad Patel, Water Resources Engineer at 905-436-3311 extension 2206 (HPatel@oshawa.ca).

Patrick Lee, M. Sc., P. Eng., Acting Director, Engineering Services

Copy:Paul D. Ralph All Council Members Chris Jones, CLOCA Regional Clerk, Regional Municipality of Durham Clerk, Township of Uxbridge Clerk, Town of Ajax Clerk, Municipality of Clarington Clerk, City of Pickering Clerk, Township of Scugog Clerk, Township of Brock Clerk, Town of Whitby Association of Municipalities of Ontario

PL

[Original Comment ID: 209832]