Our comments on the…

Our comments on the regulatory package are spread over three additional documents also submitted.
OSRTF Comment Letter -June 2019 ERO 013-5000
OSRTF Comments on Soil Rules - June 2019 ERO 013-5000.PDF
OSRTF Comments Excess Soil Reg-June 2019 ERO 013-5000.PDF

Soil Definition
The regulation’s definition is too limited and is problematic when aggregate is excluded but aggregate is defined in the ARA as including “…sand, clay, earth...”. Suggested wordings are provided in the comments.

Waste Designation
OSRTF agrees with a default waste designation. When the operators pay to dispose of the material it is a waste. The comments express our concerns in several areas of how the waste designation can be removed.
We are most concerned with the Table [4. (1)] that allows an instrument with less stringent requirements on soil quality to set the criteria. Municipalities or other bodies with less expertise than MECP must not be allowed to disregard the soil standards that have been so carefully set. This is especially troubling if it would allow aggregate pits under a revised Aggregate Resources Act to rehabilitate by filling from below water table to original grade with Table 3 soil.
 
Assessment of Past Uses
The current use of an area as parkland, residential, or institutional is not sufficient for it to be exempt from an assessment of past uses. We point as an example to the excavation of Exhibition Place for a hotel that encountered contamination from land filling that had occurred many decades before. Agricultural use is also not universally benign. Intensively fertilized or irrigated land can build up fertilizers, pesticides or salts to contamination levels.

Beneficial Use
The overview document Ontario’s Excess Soil Management Policy Framework and Proposed Regulation makes two statements that OSRTF agrees with wholeheartedly.
“if excess soil is being reused for a beneficial purpose and the quality of the soil is appropriate for the reuse site, it would not be considered waste.”
“If excess soil is being deposited at a site that is used primarily for depositing excess soil, that soil would be considered a waste and associated Environmental Compliance Approvals (ECAs) would be required.”
However, this is not carried into all aspects of the regulations. We believe that section 5. (1) Exemption from designation, if reuse site not governed by instrument must also apply as well to sites with instruments if the intentions of the policy are to be upheld. Inexperienced or poor municipalities can be bullied or deceived into receiving waste.
Is filling an old gravel pit with millions of loads over decades to create a pasture at the original grade a beneficial use creating pasture or is it primarily for depositing excess soil? Is the distinction in the regulation defensible in court? We would hope that such a site would be deemed a waste site and require an ECA protective of the groundwater and surrounding environment and residents.

Registry
The registry would be very important to our members and the public. The registry should be available to the public to verify that the soil dumping in their neighbourhood is covered by these regulations. Prospective buyers of a property should be able to see if it has non-native soil. OSRTF is pleased with this latest proposal for the contents and use of the registry, but we do believe that the transportation records should include an indication of soil quality and the registry number.

Source Responsibility
The Framework placed the responsibility on the source site for the soil until it reached its final destination. In the regulations the ultimate responsibility is the project manager, who may move on or dissolve before the impact of irresponsible actions are evident. The ultimate responsibility must be on the owner of the source property who would then become cognizant of that responsibility when he signs a declaration in the plan that acknowledges ultimate responsibility for the excess soil throughout its movements.

Environmentally Sensitive Area
The definition of ESA does not include areas of high aquifer vulnerability or well-head protection areas. We believe that the precautionary principle must be applied here to protect human health and property values because we have seen supposedly clean soil turn out to be contaminated when tested at the receiving site and have examples of contaminants finding their way to the groundwater. The comments argue that definition must be expanded to include areas of high aquifer vulnerability and well-head protection areas as designated in provincial or municipal plans and thus limit any soil deposited in those areas to Table 1.

Soil Processing Sites
The regulation and soil rules assume that soil from processing facilities has been adequately remediated according to their Environment Compliance Approvals. We do not believe this to be a correct assumption given the non-homogeneity of contamination in soil, the very small amount that is actually tested, the ineffectiveness of remediation on all contaminates, and the variation in the ECAs that are granted to different sites. Most of the examples we have of receive sites with contamination (Earthworx, Greenbank, Volk Airfield, Taylor Road, Bailieboro, Pickering Sideroad) are soils from soil remediation facilities. Serious inadequacies must be addressed in these ECAs concerning anything from the sampling frequency of outgoing processed or remediated soils, to requirements for reporting when exceedances are found after export to the receiving site, to mandatory operational changes when repeated exceedances are discovered at the receiving site. There also needs to be clear language in ECAs that holds facilities accountable when their exported soils are found to have exceedances at receiving sites. Because of the uncertainty and the real potential for serious contamination of these soils, even if labeled as Table 1, have no place in environmentally sensitive areas. The comments contain specific recommendations.

Guidance
Following the approval of these regulations support and guidance will be critical for the implementation. The registry has to be designed and implemented - tracking systems promoted - Qualified Persons trained – outreach to excavation and trucking businesses, etc. More importantly, municipalities, being responsible for most of the receiving site instruments, will need guidance through a number of informational campaigns. They could be assisted by an updated Best Management Practices document, a model soil management plan, a model site-alteration by-law, and guidance on protecting their citizens and environment with more stringent conditions than given in the soil regulations.

Enforcement
During the past year media coverage has made it public that there is a lot of illegal dumping and some of it is by organized crime. Strong enforcement with the force of the provincial government will be needed to reduce it. Municipal by-law officers just do not have the clout that is necessary. MECP will have to provide strong enforcement of these soil regulations to level the playing field for the reputable operators.

OSRTF thanks the team that has managed this process and produced these regulatory proposals.