Memorandum…

Memorandum

To: Sanjay Coelho Senior Policy Analyst, MOECC From:Michael M. Peterson Date:June 23, 2017 Re:Excess Soil Regulatory Package

In April of this year, the Province of Ontario announced a Fair Housing Plan which addresses a bubble in provincial real estate markets, notably in the City of Toronto. This bubble features a scarcity of properties on offer and rapidly rising prices for residential real estate. The Ontario Plan includes measures to encourage construction of new rental buildings and the creation of a Housing Advisory Group to provide the government with on-going advice about the state of the housing market. In broad terms, the proposed Excess Soil Regulation raises two important issues:

•Additional costs that will be imposed on builders; and

•Additional delay that will be caused by the regulatory process.

The MOECC Regulation Package could result in greater delays in completing proposed building projects, meaning less finished product available on a timely basis, and higher costs of construction which will be passed along to potential buyers. Both results would appear to be going in a direction opposite to the direction of the Fair Housing Plan. The regulatory proposal should be encouraged if the goal really is to promote greater reuse of soil and to treat it as a valuable resource. There are still a number of related moving parts, however, that need to be coordinated, such as pilot projects and a Site Specific Assessment tool that will provide appropriate flexibility in applying standards. The Regulation Package should not be implemented until all the parts are in place and “fine tuned” so as to avoid extra cost and delay to the greatest extent possible.

Comments on specific provisions of the Regulatory Package are set out below:

Excess Soil Designation, Page 8 , Page 11

In certain circumstances, excess soil from an infrastructure project can be deposited at another project belonging to the same proponent. In the private sector, such projects are frequently carried out by a special purpose entity (SPE). The SPE will be controlled by the parent entity but it will be a separate legal person. Assume the parent corporation is “XYZ Corp.”, and that it has a hypothetical SPE, “XYX Leslieville Corp.” For the purposes of the proposed regulations, will that Leslieville SPE be considered as the same proponent as a second affiliated SPE, “XYZ Etobicoke Corp.” which would also be engaged in infrastructure work but not necessarily the same project? If both SPE’s are controlled by the same entity, there does not appear to be a reason why the two SPEs should not be considered as one.

ESMP Requirement, Page 10, Page 11

Assume that there is a 10-acre project area and that a PCA was carried on in a discreet 2-acre corner of the project area. Is a ESMP required where the excess soil clearly comes from a portion of the project area other than the discreet 2-acre corner where the PCA was located?

ESMP Exemptions, Page 10, Page 11

What is a “settlement area”? If this is not a term defined in the EPA, a definition should be added or the term changed.

ESMP Components, Page 13

It would not be unusual for a contractor to not be able to identify a specific location where excess soil is going to be deposited under present circumstances several months before the work is to be done. A location receiving excess soil today might very well not be receiving it two weeks or months from now. If the regulation requires that such soil be deposited at a location that meets the qualifications under the proposed Regulation Package, why should it matter if the specific location is or is not identified?

Phase one Environmental Site Assessment, Page15

How does the QP complete the preparation of an ESMP, where FOI records that might be relevant are, for whatever reason, unavailable from the relevant public authority? (See Conclusion on Page 3)

Excess Soil Tracking System & Hauling Records, Pages 16 – 18

The requirement for a tracking system requires very significant amounts of new data but one would expect that new GPS tracking systems could be deployed to make this happen. Has the MOECC considered what $ investment would be required to install and operate such a system?

In terms of the amount of waste per truck load, is it expected that every excavation site will have a weigh scale?

The requirement that records to be provided by the driver of the truck should not be necessary if all of the data is at the dispatch center of the contractor or the office of owner. As long as the data for each truckload is available electronically to be provided to the regulator in a reasonable timeframe, what does it matter if the driver has it in the truck? Deploying a GPS tracking system is expensive enough without having to provide training programs for the drivers. The requirement should not apply to the specific truck driver.

Record Keeping, Page 27

If records are generated in electronic form, it would follow that the records will be kept in electronic form? Is there any implication in this provision that hardcopies must be maintained?

Ownership of Excess Soil & Source Site Liability

Is there any reason why the provisions of section 42 of the Environmental Protection Act concerning the ownership of waste should not apply to excess soil that is delivered to any bona fide receiving site?

Conclusion

While we appreciate the some of the municipal sector may have been asking for more clarity in dealing with the excess soil issue, it does not appear that there is great urgency in this matter. The commenter is currently waiting for several reports which have been promised by the MOECC Toronto District office in response to a FOI request made in September 2016. I am informed by the FOI Coordinator in the District Office that there is a backlog caused by a lack of resources where files whose disclosure has been promised have not yet been scanned and cannot be shared until scanning is completed. All similar requests to the District Office appear to be in the same position– the person requesting the FOI will be unable to review copies of the reports since the MOE does not have the resources necessary to make them available. It is not clear if this is an equipment problem or a lack of personnel.

As a minimum, the MOECC should explain exactly where they will find the resources necessary to review and approve the new excess soil banks and excess soil processing sites which are contemplated by the Regulation Package. If there is a budget issue or a structural problem that makes it impossible to allocate the manpower or equipment necessary to complete the work required under existing legislation and regulations such as FOI, it would seem to the commenter that the introduction of a substantial new regulatory program should be suspended until such issues or problems can be resolved. If that is not done, one would be concerned that the Fair Housing Plan would suffer the consequences.

[Original Comment ID: 209852]