OSRTF Technical Review of…

OSRTF Technical Review of Draft Excess Soil Regulations:

Please note that we were unable to attach our submission as a pdf and therefore our comment boxes, which outline a significant portion of our concerns and recommendations, do no appear in the submission. We have forwarded our complete submission, including comment boxes, to Laura Blease.

Main Sections:

•Excess soil ceases to become a Waste

•Excess Soil Management Plan

•Reuse of Excess Soil at Receiving Sites

•Rules When Applying Excess Soil Reuse Standards

•SSBRAT

•MOECC BMP

•Soil Processing Sites

•MNR

•TESS

•Definitions Section

Excess soil ceases to become a Waste

“The designation of excess soil as a waste ceases at the moment at which at which one of the following occurs:

A) the excess soil is deposited at a receiving site that is not a waste disposal site and that is governed by a site specific instrument or by-law, B) if the excess soil originates from an infrastructure project, the excess soil is deposited at a project area of an infrastructure project that belongs to the same proponent, C) the excess soil is deposited at a receiving site that is not a waste disposal site and is not governed by a site specific instrument or by-law, and all of the following criteria are met:”

Positives: Have introduced new Table standards that reconcile to volume of fill at the receiving sites

Concerns: -Municipalities can by-pass the work that was done here and use their own standards despite the science that went into the compilation of these new Tables -Unclear when MOECC will get involved and what the consequences will be for not meeting standards for sites with and without site specific instrument

Question: if exceedances of standards in their by-law, is it considered a waste? It appears as if MOECC is downloading responsibility of defining a waste to municipalities and having municipalities take action if “waste” is discovered, whether a permit has been issued or not -the three caveats for when there is ``no site specific instrument`` are problematic:

•“the excess soil is deposited at the receiving site is in accordance with the Ministry’s proposed Reuse of Excess Soil At Receiving Sites, and

•the excess soil has been used at the receiving site as backfill for an excavation, for final grading, to fill a depression to the grade surrounding the depression, or to achieve a grade necessary for planned development or landscaping, and

•The receiving site is not being used solely or primarily for the purpose of depositing excess soil.”

Concern: -who will ensure compliance when someone dumps and how when there is no site-specific instrument or municipality chooses not to create a fill by-law but they have the power to do so-will MOECC order testing especially when no ESMP? -What is a “depression”? -What is considered “planned development?” -there is no practical way to definitively test the last provision re: “not being used solely ….for dumping of excess soil”—a proponent can say they are bringing in fill for another person that is never realized—this last point is not helpful in this definition

Recommendations: -not a waste if following “Re-use of Excess Soil at Receiving Site” Standards and if being used as backfill to fill in an excavation and that is it—delete everything else Inert fill “’inert fill’ means earth or rock fill or waste of a similar nature that contains no putrescible materials or soluble or decomposable chemical substances, and does not include excess soil as defined by the Excess Soil Reuse Regulation.” “Excess soil”, (a) means soil and sediment, which is to be removed from a property or project area as part of a development project , (b) may include a mixture with incidental amounts of other finely divided material that is similar to soil (e.g., rock, debris, and other materials) provided, based on visual inspection, the other material is not subject to ECAs or requirements under Part V of the EPA, and the mixture existed pre-excavation of the soil (i.e. not as a result of purposeful mixing), and (c) does not include soil or rock removed from a pit or quarry regulated under the Aggregate Resources Act or a pit or quarry that would be so regulated if it was operating in an area to which the Aggregate Resources Act applies (d) Ceases to be excess soil when it is liquid waste

On-site soil processing pg. 22 “The following activities related to the on-site management of soil are exempt from waste approval requirements: iPassive aeration iiPassive drainage of excavated soil generated on-site (other than soils that meets the definition of “liquid waste” set out in Regulation 347) iiiMixing of excavated soil generated on-site ivSoil turning vApplied chemical and/or biological treatment of in-situ soil “

Recommendation: On site-soil processing should not be permitted to happened at the receiving site with imported soils. This can lead to receiving sites becoming soil remediation sites. This sections needs to be looked at again with regards to potential negative implications for receiving sites.

Excess Soil Management Plan (pg. 10/11 of draft regs.) No person shall cause or permit the removal of any excess soil from a project area unless, a)an ESMP has been prepared in respect of the excess soil and, b)a notice of the plan’s preparation has been registered in the Environmental Site Registry.

The above prohibition does not apply if it can be demonstrated that, a) the excess soil to be removed from a project area is less than1000 cubic metres and, b) a PCA is not being engaged in within the project area, or based on reports or other readily available information about the project area including environmental site assessments, it is known or can reasonably be determined that a PCA has not been or has not likely been engaged in within the project area, or the excess soil does not originate from any part of the project area potentially affected by the PCA.

Positives: seem to be comprehensive Concerns: There appears to be no regulatory trigger to complete ESMP that is proactive. What happens if not completed? What is the consequence? Will the consequence be able to rectify any consequence at the receiving end, particularly if the soils have been dumped at a receiving site along with other soils from different source sites making characterization after the fact pretty impossible. -the proposal indicating no building unless you have a completed ESMP is ineffective as many sites, particularly in Toronto, can get an excavation permit before they get building permit-MOECC has also recognized the issue re: excavation before building permit issued -who sign off on whether one should be done in the first place? How does one decide if a PCA was on site if a proper phase 1 site assessment is not done? -clarify when ESMP needs to be done—anything over 1000? -anytime when soil from site with pca despite volume?

Recommendations: Require ESMP for excavation or shoring permit if conditions re: volume and pcas are met -require building official to got to registry and ensure ESMP is there -also need adoption by Ministry of Transport and Infrastructure -need to have a QP sign off that ESMP is necessary or not when suspected pca—we recommend the addition of an accompanying condition in the proposed reg that is a “special area” condition for the Portlands (we understand this area is likely to contain contaminated lands and a lot of it is going to be dug up for redevelopment), where any soil being dug out of the Portlands is required to have a ESMP (so there is no question as to pca or not) and that the ESMP is required to be filed with the MOECC so you can check the quality of the work being done especially for this area -could the MOECC provide a rationale that any soils being dug out of the Portlands is going to have or is likely to have some degree of contamination? -we recommend that very specific attestations need to be made by the QP, as they would for an RSC. Statements should be made that the soils tested and the areas tested are those that contain the COCs and that they were tested appropriately, etc. Registry concerns: -in terms of ESMP posting to registry—we not that the entire ESMP is not posted-we feel the MOECC needs easy access to these documents (the complete phase 1 document, the complete characterization) in order to understand the quality of these reports to assess if they are being done properly

Concerns regarding when to do a Phase 1 for an ESMP (pg. 44 of draft regs.)

”A phase one environmental site assessment in respect of a project area is not required to be carried out as part of the preparation of a soil management plan if less than one thousand cubic metres of excess soil will be removed from the project area.” “Concern”- what if there was a PCA on site? Just because you are excavating less than 1000 cubic metres, there could still have been a pca on site—this seems to contradict the requirements for when an ESMP as to be done in the first place.

Recommendation: add, “and it has been determined that no pca on site and has never been a pca on site.” –or something to that effect

Regarding Soil Characterization

Questions: -what is the rationale for the list COC’s that must be tested at a minimum—why not pah/volatiles/SAR—have turned up at numerous receiving sites-why not pcbs—there has already been evidence of these being deposited at receiving site in exceedance of Table 3 standards

Recommendation: expand the minimum list of parameters to be tested, especially if coming out of the Portlands

ESMP Exemptions

Exemptions requirement for an ESMP does not apply in relation to excess soil which results from any one of the following circumstances: a) Excavation of soil necessary to comply with a duty imposed under Part X of the EPA (spills) or to comply with an order or direction issued under that Part. b) Emergency work requiring the excavation and relocation of excess soil, other than work described in (a) above, necessary to reduce or eliminate any risk of, i) Danger to the health or safety of any person; ii) impairment or serious risk of impairment of the quality of the natural environment for any use that can be made of it; iii) Injury or damage or serious risk of injury or damage to any property or to any plant or animal life; or iv) Damage to infrastructure requiring immediate work.

c) Regular maintenance or repair of infrastructure, including roads, drinking water, sewage and stormwater systems. d) The volume of excess soil does not exceed 100 cubic metres and the excess soil being transported directly to a waste disposal site (including a soil bank or excess soil processing site). e) Excess soil transfers between infrastructure projects where the proponent of those projects is the same. f) If the project area is located on Crown land. g) If the project area is outside of a settlement area and areas to be excavated are not an area of potential environmental concern, and do not include property that is or was used for an industrial property use, a garage, a bulk liquid dispensing facility, or for the operation of dry cleaning equipment.

Reuse of Excess Soil at Receiving Sites

-Regs. in no way protect sensitive areas like ORM etc., from large scale fill in general-MOECC is still not saying where these industrial operations should and should not take place—only providing standards, unless of course municipality has a by-law and does their own thing Recommendation: wording to include at a minimum that large scale fill—pick a reasonable volume -should be directed away from sensitive areas like the ORM, NEP and Greenbelt and should be directed away from HAV areas and WHPA and Class 1-3 farmland(unless, for the latter, proven to be topsoil of similar quality and will not degrade the quality of the farmland) and should be directed away from ESAs as defined in these draft regs. As per page 58 of proposed Regs. “The document is also intended to assist those public bodies responsible for administering a site-specific instrument or by-law in developing appropriate soil reuse standards for receiving sites and to determine whether any further restrictions should be imposed on the deposition of soil at the receiving site.”

Rules When Applying Excess Soil Reuse Standards (pg. 60-62 of draft regs.)

Special Rules When Applying Excess Soil Reuse Standards

The following apply in relation to the application of the standards above.

Environmentally Sensitive Areas a) Excess soil may only be used within an environmentally sensitive area if the following criteria are met: I.The excess soil meets Table 1 under the Ministry’s Soil, Ground Water and Sediment Standards, and II.If the area from which the excess soil originated was an APEC the requirements outlined below regarding Soil Originating from an APEC are met

Salt Impacted Excess Soils a)Excess soil that is or may be elevated in parameters (e.g. Sodium Absorption Radio/Electrical Conductivity) that are typically associated with their application for road and sidewalk safety under conditions of snow or ice, may be reused in the following locations, c)A location where it is reasonable to expect that the soils at that location are or will be affected by the same parameters as a result of application for road and sidewalk safety under conditions of snow or ice, ii)In industrial and commercial areas, iii)Despite the above, not in a location: 1.Within 120m of a waterbody, 2.Within 100m from a water well , or 3.On agricultural lands being used for or planned to be used for growing crops and pasturing livestock.

Agricultural Lands

a)The portion of agricultural land being used for, or planned to be used for, growing crops or pasturing livestock, will only be used as a receiving site for excess soil if the following criteria are met:

i) No excess soil will be placed on top of existing topsoil, unless the soil is topsoil, and ii)One of the following apply: 1. The excess soil meets Table 1 under the Ministry’s Soil, Ground Water and Sediment Standards and, if the area from which the excess soil originated was an APEC, the requirements outlined below regarding Soil Originating from an APEC are met, or 1.The excess or the excess soil is form a project area that is an agricultural property with no pcas.

Local Background Concentrations

a) An excess soil quality standard is deemed not to have been exceeded if a QP demonstrates, with evidence, that the standard is exceeded in the excess soil due to naturally occurring conditions found within the municipality/unorganized territory or an adjacent municipality/unorganized territory. b)The demonstration is documented, a copy of that documentation is provided to the receiving site owner, and a copy of the document is retained by the receiving site owner and the QP; a copy will be provided to the Ministry upon request. Soil Originating from an APEC

a) Excess soil which originates from an APEC that is associated with a contaminant of potential concern as determined by the QP and which are listed in the leachate Tables E and F below, will also be required to meet the leachate standards associated with the contaminant(s) of potential concern, with the exception that excess soil meeting Table 1 under the Ministry’s Soil, Ground Water and Sediment Standards does not require leachate testing for metals. b) As an alternative to (a) above, leachate testing is not required if both of the following apply:

i)a QP has determined that any of the COPCs will not reach either a water body or drinking water well, including a planned well, at concentrations above the applicable leachate standard as a result of applying proximity setbacks from any water body or drinking water well, ii) if the receiving site is in a potable groundwater condition, the COPCs will not reach the property boundary above the applicable leachate standard as a result of applying a setback, and iii) The determination by a QP is documented and a copy of the documentation is provided to the receiving site owner.

Table 1 Attainment Requirements (Re: Pg. 63 of draft regs).

A)When a determination is being made on whether excess soil satisfies Table 1 under the Ministry’s Soil, Ground Water and Sediment Standards, the following attainment requirements are that,

.The 90th percentile of the data set (90% of the samples) is less than the Table 1 standard, .No single sample within the data set exceeds the applicable ceiling value as documented below, and .The Upper 95th% upper confidence limit of the mean (UCLM) concentration of the samples must be less than the Table 1 standard.

B)a minimum of twenty (20) soil samples is required. If the sample set contains less than 20 samples, single point compliance continues to be an option (i.e., no single sample result numerically higher than Table 1 standard).

c)Ceiling values remain the same as Table 1 standards when: ……

SSBRAT

Reccomendations;

We note that the brat tool is similar to the MGRA tool. We note that there are circumstances where the MGRA cannot be used and that is when the site is in “area of natural significance” or is adjacent to such an area, essentially when the site is an ESA site. We note that repeatedly, the MOECC protects these sites. We expect the same type of protection with regards to ESA receiving sites and use of the brat tool. We recommend it not be used for ESA receiving sites particularly when the MOECC will not be reviewing them as they would an MGRA. We would also like to see a QPra do this assessment. We would like to see some sort of CPU for these types of sites if the circumstances that are choosen, for example, no building on site, are included as part of the conditions of the site—to address future use of the site

MOECC BMP

Concerns: -No mention of MOECC BMP and therefore no mention of recommended actions for receiving sites outside Table usage-this will not help municipalities defend imposed conditions for receiving sites in their by-laws. The by-law tool will not have the same weight in court and isn’t this tool going to be taken down in a couple of years anyway? Is there even a link to it from any Ministry website? Is it endorsed by any Ministry? -at one point you discuss no need for groundwater sampling—the proposed regs. have to be careful in what is stated as statements such as this may be problematic for municipalities who want to include this in their by-law especially in terms of defending this condition if challenged

Question: Is MOECC BMP still active or Moot? This is an important question especially with regards to how to manage receiving sites, how much testing to be done at the receiving site, and what should be done if exceedances found, recommendation to charge fees to recoup costs for peer reviews of documents and to do quality assurance audits of soil quality etc. —this particular aspect was lacking in MOECC BMP and we were hoping it would be addressed in the proposed Regs. It is not.

Soil Processing Sites: (pg. 24/25 of draft regs.)

Positives: provision to require posting receiving sites on environmental registry

Questions: Is the policy team aware of the current end-use conditions put in place by the approvals branch? Is it the intent of this policy team to nullify the end-use standards that were put in place by the approvals branch? Is it the intent of the policy team to include all the necessary requirements of soil processing sites in this Reg.? If not, this must be clearly stated in the Regs. in order to prevent appeals where this Reg. is used in defense of proponent appeals re: conditions imposed in ECAs

Concerns: Provisions listed will not address the issues of concern with these sites. This section needs much more work in order to effect change and address the reality of what is happening now. Inappropriate materials and unacceptable contaminant levels are still leaving these types of sites and being deposited at receiving sites that are not landfills and which are designated sensitive lands as per Reg. 153/04

Recommendations: (cursory list) -continue to impose re-use standards-no soil to leave these sites for deposition at environmentally sensitive sites, as per current standards- amend ESA definition to include HAV, well head protection areas and prime farmland areas, and requirement to obtain documentation from municipality that receiving site isn’t any of these things -mandatory phase 1 and phase 2 for source sites signed by QP of source site and as per Reg. 153/04 (with stipulation for making necessary adjustments if no RSC is required) -mandatory minimum incoming and outgoing testing frequencies, the latter not based solely on receiving site requirements -manner and frequency of outgoing testing to match that of this Reg. for stockpiled materials -mandatory minimum COC testing—rationale for anything less than pahs, heavy metals, volatiles, phcs and SAR/EC and pcbs-all have been found in exceedance in soils from these facilities -Mandatory QP at the facility to make attestations re: treatment procedures and appropriate testing of outgoing fill -employees of facility cannot be same employees of receiving site managing the fill, conflict of interest -mandatory screening of all incoming soil via a mechanical screener to separate other types of waste, wood rebar, pvc pipe etc. -mandatory reporting to MOECC if soil tested at receiving site and found to have exceedances and re-evaluation by QP of testing and remediation procedures and increase outgoing testing -use of outside lab for all outgoing testing - If it is not the intent of the policy team to include all the necessary requirements of soil processing sites in this Reg., then this must be clearly stated in the Regs. in order to prevent appeals by the proponent whereby the proponent uses these Regs. in their defense re: conditions imposed Question: Has MOECC ever gone in and tested soils that the facilities deemed to be treated and ready for shipment? Our review of “inspection reports” of these facilities indicates this does not happen. It is also our observation that “inspections” of these facilities are very infrequent. MNR—it is not enough that “discussions” are the only thing that seems to be happening with MNR re: the application of these regulations to aggregate pits

TESSS (pg23 of draft regs.)

Sections 27, 40 and 41 of the EPA do not apply to a TESSS provided the following apply: a)A public body or the proponent of the project from which the excess soil originates owns or has charge, management or control of the property on which the TESSS is located b)The excess soil is not stored at the TESSS site for a period of more than two years from the date that excess soil is brought to the site, or another period specified by the Director c)The receiving site(s) for the excess soil being stored at the TESSS are known and are appropriate for the quality and quantity of excess soil being stored d)No processing of excess soil to reduce the concentration of contaminants is undertaken at the TESSS e)No liquid waste is deposited at the site

The person who owns or has charge, management or control of the TESSS shall ensure that the following requirements are met: a)excess soil from different project areas remains segregated unless it is of the same quality standard and is destined for the same receiving site b)records are maintained of the following information: ……

Definitions Section

Excess Soil-“Excess soil”, (a) means soil and sediment, which is to be removed from a property or project area as part of a development project, (b) may include a mixture with incidental amounts of other finely divided material that is similar to soil (e.g., rock, debris, and other materials) provided, based on visual inspection, the other material is not subject to ECAs or requirements under Part V of the EPA, and the mixture existed pre-excavation of the soil (i.e. not as a result of purposeful mixing), and (c) does not include soil or rock removed from a pit or quarry regulated under the Aggregate Resources Act or a pit or quarry that would be so regulated if it was operating in an area to which the Aggregate Resources Act applies (d) Ceases to be excess soil when it is liquid waste

Concern: what is considered “incidental”, what is “debris”, what is finely divided material? what is not subject to ECA requirements under part 5-would waste asphalt be subject to part 5, rebar, pvc pipe, metal drums, glass, electrical wire, construction debris, painted wood, etc—what have we seen—can they give list?

“Infrastructure project” means an undertaking related to development of highways, streets, roads, and bridges; mass transit; airports; water supply and water resources; wastewater management; solid-waste treatment and disposal; electric power generation and transmission; telecommunications; and hazardous waste management

Concern: airports (public? Private? under construction? what is the definition of an airport and why put it in here at all?) are included in this definition along with solid waste treatment and disposal—can provide a loophole in these regs.

Recommendation: Remove “airport” from this definition. Is MOECC aware of all the issues around private aerodromes?? Earthworx, Greenbank, Burlington, New Tecumseth. “site specific instrument” means any instrument under a provincial Act or any instrument under a federal Act that can regulate the quality or quantity of excess soil deposited at a receiving site, and includes the following: ia by-law under section 142 of the Municipal Act or a permit issued pursuant to a by-law passed under that section, iia licence or permit issued under the Aggregate Resources Act or, iiian approval under the Planning Act that can regulate the quality or quantity of excess soil deposited at a receiving site

Concern: what are repercussion if a municipality has power to enact fill by-law but does not, or a municipality has a by-law but does not issue a permit for the activity—when will MOECC get involved and to what extent?

ESA—not the same as for Reg 153 in terms of including areas adjacent to ….. rationale? -why would Ministry include recharge areas in this reg. and not discuss the importance of marinating the same geotechnical properties of fill in these areas? –this would be in line with Clean Water Act -why are recharge areas included and HAV and WHPA are not-rationale for including recharge areas in with ESA areas and not the other areas mentioned, especially when soil quality is the only condition you have listed for ESA?

Reccomendation: Include language that large scale fill receiving sites—over 1000 cubic metres, should be directed away from EA sites. The province has directed land use on ORM, for example, no snow dumps in HAV or WHPAs. We assume the reason for this is there is a concern that contaminants from snow removal off roads, when dumped in quantity, has the potential to go into the ground and adversely impact ground water resources. We feel the same consideration should be given to large soil dumps in these types of areas as no one can guarantee that all soils will be contaminant free. The province requires municipalities to prohibit snow dumps in these areas. We would like to see the province, through these regs., prohibit large scale filling in ESA areas.

Project—see its use in TESS “Project”, means an undertaking that involves the excavation of soil and the removal of the soil from the property and includes, (a)The development or redevelopment of land including any undertaking that includes the construction or reconstruction of a building or structure on property (b)An infrastructure project

Receiving Site-“Receiving site” means a site where excess soil is deposited for final reuse, or at a soil processing site or soil bank, and does not include a TESSS. --------------------------------------------------------------------------------------------------- ------------------------

General Concerns We are still trying to work through what the implications would be for a greenfield site that has been contaminated by a large scale fill operation but is lying dormant for the moment. We are looking through the regs. to determine if there is anything that would allow up contamination of the previously uncontaminated greenfield to levels that currently exist because of imported fill. This could perhaps allow importation of more fill up to those contaminant concentrations? This is probably not the case, however we are looking for this type of loophole as there exist partially filled sites at the moment who want to continue filling but cannot because they were stopped due to exceedances found.

Another concern is the lack of conditions that speak to ensuring fill is appropriate in a geotechnical sense.

[Original Comment ID: 209809]