Anger and frustration are being expressed over the Ontario government’s announcement made March 11, suggesting a “temporary delay” of Phase Two of the province’s newly-enacted Excess Soil Management regulations, a phase put into effect on Jan. 1.
A final decision is expected within days.
In his April 5 letter to the Land Use Policy, Environmental Policy Branch of the Ministry of the Environment Conservation and Parks, Andy Manahan, executive director of the Toronto and Area Road Builders Association, wrote, “This proposal was made without any consultation with those who have been at the ministry’s advisory table for six years.”
The government said in its ERO the pause would give “municipalities, organizations building civic, community and green infrastructure, and job creators more time to properly implement the most recent phase of provisions and better understand the recent requirement.”
Manahan argued an arbitrary “delay” of regulations already in effect would fly in the face of widespread industry acceptance of the new regulations. It would, “result in confusion” and cause “the unintended consequence of penalizing those who are in compliance or have taken steps to be in compliance.”
Ontario’s soil regulations predate the province’s current Conservative government. The provisions were proposed by the previous Liberal administration but put on hold due to the 2018 provincial election that the Liberals subsequently lost.
Excess soil as defined under the Ontario regulations refers to crushed rock or soil mixed with rock or crushed rock, excavated as part of a construction project and that must be moved off-site because it cannot or will not be reused at the original site. The first regulatory phase took effect Jan. 1, 2021 and created criteria to determine whether excess soil is a resource for reuse. The second phase began Jan. 1, 2022, creating obligations for projects including registration, tracking and notice filing.
Jeff Goldman, director of SoilFLO Inc., told the Daily Commercial News that for decades, the removal, transport and storage had been largely a one-line item in construction contracts that was given little thought. Goldman’s company develops software that tracks and manages earthworks without paper load sheets that require manual reconciliation.
He described how excess soil across the province was managed by one individual alone.
“He was known colloquially as the ‘guy,’” said Goldman. “Everyone would say, ‘I’ve got a ‘guy’ who will look after the excavated materials.”
If there was any paperwork at all, it would be an antiquated three-copy ticket process, with one part each for the driver, the receiving facility and the contractor. It was an inefficient business practice difficult to reconcile and ripe for corruption that often caused environmental harm through the unacceptable placement of contaminated soils.
In his own letter to the province, Goldman explained, “The consequence of improperly disposed soil is of great concern to those living in the hinterlands where such soils are mostly deposited.”
Goldman wrote case studies confirm not only improved environmental consequences when companies embrace the modernized soil management process but also streamlined administration, reduced costs and improved scheduling maintenance.
Goldman further explained the 2019 Ontario regulations had been heralded by jurisdictions around the world as a leader in its class.
“It shines as a rare example of industry, government and environmental stewards agreeing upon a regulatory framework that is the envy of many jurisdictions around the world.”
Abandoning the regulations midstream would undermine the time and effort already invested in the adoption process to date, wrote Goldman.
This includes educational sessions that have informed thousands of stakeholders of the benefits of improved excess soil management practices and the new regulatory requirements.
Manahan estimated some 4,000 individuals have participated in such sessions. Meanwhile, fees have been collected since Jan. 1 from those complying with the regulations.
Both Manahan and Goldman suggested instead of delaying regulations already in effect or turning to enforcement, the government should consider a “compliance grace period” and increase education and communication initiatives aimed at those slow to comply.
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