Maintain O.Reg.153/04…

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Maintain O.Reg.153/04 QUALITY PROCESS in the Soil Rules:

Thank-you for the opportunity to comment on the draft “RULES FOR ON-SITE AND EXCESS SOIL MANAGEMENT” document (the “Rules”). My comments are limited to the Sampling and Analysis Plan (pages 15-22 of the Rules).

O.Reg.153/04 provided practitioners in Ontario with the specific requirements of a quality process to be developed, documented and followed from initial planning through implementation to final reporting. The Ministry knows the impetus behind setting such detailed requirements in regulation versus guidance. To be brief, practitioners must prepare reports sufficient in detail to demonstrate the work completed was appropriate and to support their opinions, findings and conclusions.

If the Rules are the “recipe”, the quality process is that ingredient which binds the others together. It is my opinion that the current draft Rules have downplayed the role of quality and relegated it mostly to reporting laboratory QA/QC (a tiny fraction of what O.Reg. 153/04 requires). In the “Proposed Excess Soil Management Policy Framework” document there was documentation of goals/principles and multi- jurisdictional reviews, but it appears several quality aspects mentioned in the Framework have not persisted through to the Rules. It is also curious as to why the Rules do not maintain regulatory consistency with O.Reg. 153/04. Hopefully my comments shed insight on the joke: if you want 3 opinions, hire 2 geoscientists (or engineers).

Regarding the role of quality, the Rules outline requirements for the Sampling and Analysis Plan starting on page 15. It was not until page 22, 3 1) x. that I found the singular reference to “report section 6, sub-heading (ix) in Table 1 to Schedule E of O. Reg. 153/04 (quality assurance and quality control results)”. Mandatory technical requirements were specified before quality was first mentioned. Further there is no mention to quality during the planning or implementation phases, just during the reporting of results. One can follow this minor reference to quality from the second last bullet item of the Rules section to the second last bullet item in Table 1 to Schedule E of O.Reg. 153/04 to see the objective was “demonstrating decision-making was not affected”. “Getting it right” is far more important than that and deserves being prominently featured (i.e., more words and up near the front).

The Framework document refers to following scientific processes. I suggest professional work also be defensible as both reasonable and prudent. Any reference should be traceable back to its source. Scientific terms need to be clearly and fully defined and all professional standards of practice mentioned require a cited reference. For example, the Rules reference “professionally accepted soil collection methods”. I am not aware of any published, widely-accepted documents in Ontario. Common practice is not standard practice, and the two should not be confused. It is fair to require a practitioner to fully document all methods used and document the rationale for their use.

As a second example, practitioners do not measure the “maximum concentration”. The Rules contain numerous references to measuring spot maximums and to at least four different averaging techniques, including allowing some soils to exceed the Standards. Clarity of regulatory wording when communicating the soil property to be measured is required to acknowledge words with pre-existing definitions in mathematics: maximum and average. I believe a new term, like “regulatory maximum” or “representative average” is required to remove confusion, and might lead to better practices in the future.

I could not locate appropriate text to describe “sampling location” to more fully comment, but would hope the definition recognizes that contaminated sites and excess soil sites are different, and ideally what constitutes a "sample" would be different. I can visualize a tablespoon of analyzed soil versus the 13-20 dump truck loads it is claimed to represent, and am curious as to the regulatory requirements describing the quality process that must be followed to support this scale of extrapolation. In a low-bid environment for awarding contracts, I suspect minimum sampling frequencies will become maximums and the rationale used will often be that the scope of sampling complied with Ministry requirements. I am not confident at this time that decision-making will not be affected.

Current Ministry Phase 2 ESA guidance (current as of May 23, 2019) requires the “PARRCC” criteria (“comparable” is the other “C” sometimes added for better clarity):

"Data quality objectives outline the overall level of uncertainty that a QP will accept in collecting field data in order to develop a CSM. The data quality objectives for any field data collected during the phase two ESA must ensure that the decision making is not affected and the overall objectives of the investigation are met. Data quality objectives are set to determine precision, accuracy, reproducibility, representativeness, and completeness for field data (i.e., relative percent difference (RPD), matrix spikes, matrix spike duplicates, data qualifiers, etc.)." […]

PARRCC are set during planning, measured/monitored during implementation, and assessed as part of a data validation procedure during analysis and reporting. The approach is more common in the U.S. and much less familiar in Canada. You can check available Ontario guidance for comparable mention but will not find anywhere near the level of specificity (if any) contained in O.Reg. 153/04. PARRCC is a concept that should be applied to all aspects of all environmental projects regardless of scale or risk level; it should never be misconstrued as something just applied by the lab or just to lab data.

I recommend the Rules better adopt the quality process currently required by O.Reg. 153/04. Stakeholders (including tax-payers) may find it opens the door for even better professional practices to further improve cost-savings without compromising human-health or the environment.

Thank-you for the opportunity to comment.