Excess Soil Regulation…

Excess Soil Regulation Feedback

1. Ontario is a large and diverse province from a soil management perspective. The factors that impact excess soil management vary widely from region to region. What works in one area may not be as beneficial in another. Despite this, the new Excess Soil Regulation appears to primarily contemplate the Greater Toronto Area, not the rest of Ontario. For example, the Ottawa area has high levels of naturally occurring metals in the native clay that are considered contaminants. This class existed prior to the new Excess Soil Regulation, however, with the implementation of the new regulations, the difficulties with addressing the issues pertaining to naturally occurring metals has increased tremendously.

2. The definition of “project leader” needs to be clarified. The language in the legislation is very vague, yet a Policy Analyst from the Ministry of the Environment, Conservation and Parks, insisted that the owner of the project becomes the “project leader”. It is the Ministry’s position that a contractor cannot be a “project leader” at all. In any case, the definition should be articulated in clear language. Further, it should be noted that, if the definition of a “project leader” is limited to the project owner, it becomes problematic for excavation subcontractors in particular, as they are integral in managing the movement of soil throughout the course of a project. This is especially true for design build projects, where the excavation subcontractor collaborates with the project owner in the planning and implementation of the project. This is equally true when the subcontractor is working exclusively with one general contractor on a tender to an owner.

3. What is the reasoning behind the Class 2 site limitations of 10,000 cubic meters, with piles of no more than 2,500 cubic meters? The number of stockpiles on Class 2 sites should be relative to the size of the property. Further, it is inconceivable that 10,000 cubic meters of material is the limit for a 200-acre property, and correspondingly, the same limit for a 2-acre property.

4. The new regulation does not encourage the reuse of material. The regulations with respect to reuse of excess soil, as they were prior to the introduction of the new regulations, were sufficient. The level to which the regulation micro-manages excess soil will ultimately wreak havoc, and cause material to unnecessarily be directed to waste disposal facilities. The new regulation further limits competition in that, those subcontractors that haul excess soil and, have quarries that require backfill material have an unfair competitive advantage. This is common in the industry.

5. The documentation with respect to truckers having to track material is much too onerous. Most truckers own their trucks independently, and are drivers of their own trucks. The organizational skills and documentation requirements that the government is demanding from those individuals driving a truck, who are simply trying to earn a basic living, demonstrates a lack of understanding of the industry as a whole. Truckers should be accountable for the loads that they carry, however, “the reach” in this new regulation is unconscionable.

6. With respect to soil sampling, it would make more sense to create a sampling frequency that takes into consideration the depth of excavation. Once the initial sampling on the project site has been completed, and the contamination levels are confirmed, the testing frequency should be reduced significantly (~1/1500 m3).

7. Under the new regulations the project Qualified Person (“QP”) is responsible for conducting the soil testing, as well as determining the approved soil destination sites. It is perfectly appropriate that the QP is responsible for conducting soil testing, however, the QP should not determine the approved excess soil destination sites. If the QP is responsible for determining the excess soil destination site prior to the tendering stage, it causes a conflict of interest, as the QP is likely to only recommend destination sites that they are familiar with. If the QP is responsible for determining the excess soil destination site after the tender award, it is likely to cause delays to the start of the project, and is likely to cause the project owner to incur significant costs. Furthermore, QPs are reluctant to classify materials as “clean”, due to the associated liability if they are wrong. Therefore, they are incentivized to send more material to Ministry approved waste disposal facilities. Instead, it should be the responsibility of the project owner and excavation subcontractor to determine the excess soil destination based on QP’s soil analysis results and, the destination sites’ ability to receive the said material.