Seven months ago, Ontario’s Ministry of Environment, Conservation and Parks (MECP) surprised the construction and soil management industries by placing a “pause” on Phase Two of the province’s Excess Soil Management regulations first put into effect on Jan. 1.
The industry reacted strongly. Andy Manahan, executive director of the Toronto and Area Road Builders Association wrote a firmly worded letter to the Ministry’s Land Use Policy, Environmental Policy Branch, saying “This proposal was made without any consultation with those who have been at the ministry’s advisory table for six years.”
The ministry explained in an August email the pause was, “to help give municipalities and other organizations more time to implement and better understand the most recent phase of provisions.”
On Nov. 4, a Ministry ERO announced Phase Two will move ahead on Jan. 1, 2023 almost as exactly written in the first place, assuming no further changes come up during stakeholder consultations scheduled to end Dec. 3.
Only minor changes have been noted so far. One tweak would exempt certain “low risk” sites that have been recently used for parkland, residential, institutional or agricultural purposes. Another would to provide flexibility in cases where storage space is limited, by increasing soil stockpiles from 2,500 to 10,000 cubic metres.
Rob Kennaley of Kennaley Construction Law also notes the ministry has decided to maintain soil testing as originally proposed except at these “low risk” sites.
As a result, he suggests the industry should be prepared to move ahead with the provisions as written.
“It may be unwise to assume that a further pause to some or all of the requirements will be forthcoming. The requirements will have a significant impact on the timing and cost of construction projects, such that a failure to accommodate for them will make it difficult to bring projects in on time and on budget. Pre-planning for project development and contract execution will be critical in this regard.”
In terms of allocated risk and responsibility for soil testing and management as expressed in contracts, Kennaley points out the importance of appointing a qualified person(s) as project leader.
“A failure to do so can have significant consequences.”
That position can, in fact, be assigned to other parties as part of a contract or subcontract, he explained, but would nevertheless be required for the filing of notices in the excess soil registry, providing and reporting on assessment and testing, and implementing a tracking system to ensure excess soils are disposed of for a beneficial use as required.
There had been concern expressed by those dealing with soil management that the pause of Phase Two in April might be signalling a reversal of course on the part of the Ontario government.
This was reinforced by what industry sources told the Daily Commercial News were only “limited consultation with stakeholders” during the pause period.
“There was no specific outreach from the ministry in educational initiatives or updating of materials regarding excess soil management on its website during the pause,” they said.
Any such sessions were, in fact, conducted by industry stakeholders themselves, focussing on the scope of the pause and its implications.
Jeff Goldman, director of soil logistics software firm SoilFLO, told the Daily Commercial News he believes there is industry support to move forward.
“There will always be complainers who perceive these initiatives as unwarranted government interference in the private sector.”
However, Goldman suggests an increasing number of stakeholders are discovering that good excess soil management practices help the bottom line.
At the same time, in a Nov. 14 letter to the Environmental Registry of Ontario, Goldman encourages the MECP “to dedicate the human and capital resources to ensure that stakeholders fully understand and comply with these regulations and that it continue to partner with industry on educational opportunities. This is particularly important as the regulatory ‘pause’ resulted in some degree of confusion among stakeholders as to what to expect for future compliance under the regulation.”
John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to email@example.com.