Overall, the City of London…

Overall, the City of London is supportive of the Ministry of the Environment, Conservation and Parks (MECP) proposal to pause the implementation of certain provisions of Ontario Regulation (O.Reg.) 406/19 that came into effect on January 1, 2022 by one year, to January 1, 2023.

While the City of London supports the proposal, the City would also request that the Ministry consider the following, while considering this proposal as well as future changes and/or modifications to the Regulation:

• Consider additional future consultation prior to implementing upcoming portions of the Regulation, to solicit comments on the proposed amendments to the Regulation. The City of London has experienced significant financial and scheduling impacts on infrastructure projects while implementing the requirements under O.Reg. 406/19. Project Leaders are now carrying extra contingency funding to properly manage the requirements under the Regulation, which ultimately impedes our ability to manage and close infrastructure gaps. Based on the City’s most recent experience, Staff estimate that managing the requirements under O.Reg. 406/19 will cost the City in the order of millions to implement within a standard Council budget cycle. Further, the addition of completion of excess soil planning requirements, including increased sampling and testing, has led to delays to an already constrained construction season in Ontario.

• The Ministry should consider whether the timing for the proposed delayed implementation (Jan.1, 2023) provides sufficient time for adequate consultation with industry stakeholders to consider refinements to the Regulation, as required. As it stands, the one-year implementation delay will actually result in approximately a seven-to-eight-month delay, given that the proposal posting timeline. Additional time may be required to properly process and implement proposed changes or modifications to the Regulation.

• In the future, ensure that Municipalities are provided with sufficient notice of implementation and are being informed of specific timing for implementation and/or changes, considering the natural tendering cycle of municipal construction projects. As it stands, timing of the posting is largely inconsistent with the primary construction tendering season in the Province.

Finally, The City of London would also request that the Ministry consider broadening the exemption criteria listed under Schedule 2 of the Regulation, to better reflect the reality of Municipal infrastructure projects. Analysis of the analytical results produced from the increased soil sampling requirements through 2021 have not produced any tangible added value for our Projects, as excess soil from the vast majority of infrastructure projects continues to meet the Table 1 (background) generic SCS stipulated under O.Reg. 153/04 (with the potential exceptions of SAR and EC). The increased testing has also not led to any significant changes in the ultimate end destination and re-use for excess soil on the vast majority of City projects. The MECP’s current position of limiting the “fit state of repair” exemption under Schedule 2 to not include any increase in capacity or allowing for re-alignment(s) constrains the use of this exemption on most municipal infrastructure projects, without a clear rationale as to how either of those circumstances would result in an increased risk from the excess soil generated on a project. We would request that the Ministry consider revisiting the “fit state of repair” interpretation, given that it does not require any changes and/or amendments to either the Regulation or the Soil Rules, and would only require a clarification from Ministry Staff.

As noted above, the City of London is supportive of the ERO proposal and appreciates the opportunity to provide comment on the posting. We look forward to continued dialogue and working with the Ministry on this Regulation in the future.