Re: ERO 019-5203 EPA O.Reg…

Re: ERO 019-5203 EPA O.Reg 406/19

The above proposal is intended to pause the implementation of a number of the provisions of the Excess Soil Regulation, O. Reg 406/19, which was passed in 2019. The rationale provided for the need for this pause is clearly incomplete, and, as such, it is difficult to determine the underlying reason for the proposal, and hence to provide full and accurate comment without some assumptions or speculation.

The rationale provided is as follows:
Pausing the implementation of provisions that came into effect January 1, 2022, including the excess soil reuse planning requirements such as mandatory sampling in some circumstances, would:
• provide time for more understanding and consistent implementation of the Excess Soil Regulation, and coordination across organizations
• provide an opportunity to make some adjustments, if necessary, to improve the effectiveness and overall efficiency of the Excess Soil Regulation, and to focus application of the reuse planning requirements to circumstances where they are most beneficial
Since the pause is to cover Sections 8 – 16, section 18, and section 19 of the Reg. it would result in those involved in moving large volumes of excess soils not having to file these actions in the registry, not having to assess the land for past potentially contaminating uses, not having to develop a sampling and analysis plan, not having to characterize the soil through a report, not having to report on the destination of the excess soil, not having to track the movement of the excess soil and not having to file in the registry regarding the operation of the receiving site.
The above are very significant portions of O.Reg 406/19, and the proposed pause in the implementation of these sections would appear to effectively undermine the regulation. The proposal does not state which of the above are currently posing a problem. A check on the Registry’s website shows that the Registry is up and running, and, since the proposal doesn’t indicate that there have been complaints about the Registry, one should be able to conclude that the registry is not the problem. Since the regulation was passed in 2019, there has been over two years for those involved in moving excess soils to become familiar with the processes required. Two years is normally plenty of time for a regulation such as this to become fully implemented, and, even accounting for Covid delays, it is difficult for an observer to see that there should be any need for further educational outreach.
The current proposal states:
With this proposal being a time-limited pause of the planning and registration requirements, it is expected that parties affected by the Excess Soil Regulation would continue to work towards the implementation of these provisions, including working with qualified persons and reuse sites to determine appropriate levels of soil assessments to inform the appropriate reuse of excess soil.

In situations where changes, or pauses, to a regulation are proposed in such a short time after passing of the regulation, it is normally due to numerous complaints from those affected. In this case, the pause proposal does not give any clear indication of the nature of those complaints., nor the number of complaints. The above statement appears to point a finger at “appropriate levels of soil assessment” and, given the reasoning in the previous paragraph, it would appear that the focus of the problem is likely to lie with the requirements for assessing the site producing the excess soil, the site receiving the excess soil, or the soil itself. These protocols and procedures have been suggested for many years prior to the finalization of the regulation and its implementation, have been consulted on and debated for many years, even decades, and were determined after considering all inputs from stakeholders. In addition, the sampling requirements can not be considered excessive, as exceptions to sampling requirements have been already made where reasonable, and, where sampling is required, the amount of sampling is actually quite minimal. For example one sample in 200 cubic metres is roughly only one sample in about 25 truckloads!
The current proposal also states:
The basic provisions of the Excess Soil Regulation, specifically with respect to determining when excess soil is designated as a waste or not, would remain in effect. This includes the excess soil reuse standards. This aspect of the Excess Soil Regulation would continue to help to provide for compliance and enforcement during the period up to January 1, 2023, when the requirements would once again come into effect.
This paragraph appears to hold some illogical falsehoods, since it would seem to be extremely difficult to enforce compliance of those aspects of the reg if there is no requirement to assess the past uses of the site for potential contamination, no requirement for soil sampling and reporting, no requirement for tracking of soil movement and no requirements for the receiving site. It is difficult to conceive as to how one could determine whether or not soil meets an excess soil reuse standard for a substance if the soil has not been sampled!
I conclusion, there does not appear to be any demonstrated need for this proposal, which would pause the implementation of critical sections of O.Reg. 406/19, and its passing would give grounds for the public to question as to whether the government is proceeding in the public interest or it is acting in the interests of a small group with vested interests who may be seeking to move large amounts of excess soil prior to the reg being fully implemented.