07 June 2018 Ms. Laura…

07 June 2018

Ms. Laura Blease
Senior Policy Advisor
Ministry of the Environment and Climate Change
Policy and Program Division
Environmental Policy Branch
40 St Clair Avenue West, Floor 10
Toronto ON M4V 1M2

Dear Ms. Blease

Re: City of Ottawa Comments – ERO Posting 013-2774 – 2018 Excess Soil Management Regulatory Proposal

Please find below comments regarding the 2018 Excess Soil Management Regulatory Proposal (ERO 013-2774) from the City of Ottawa (City).

The City understands the intent of the proposed regulation and supports the beneficial reuse of soils. However, it is the City’s position that if the regulation is implemented as proposed, the intended benefits will not be achieved given the significant costs and extensive impacts to municipalities across the province.

The proposed regulation will result in additional disposal of soils in landfills, a reduction of capacity for solid waste facilities and ultimately a considerable cost increase to deliver infrastructure projects.

On an annual basis, the City of Ottawa oversees between 400 and 600 infrastructure projects, many of which generate excess soil. The majority of projects take place within the existing road right-of-way, and much of the excess soil generated by these projects will likely be considered contaminated under the proposed regulation.

The implications are that the City will ultimately be required to direct considerable funding to test, evaluate, haul, dispose, import, track, monitor and report on several hundred thousand tons of soil moving across the City if this proposed regulation is adopted as presented. This will remove funding from much needed infrastructure renewal activities that will continue to increase pressure to deliver services to residents, businesses and visitors and result in a less sustainable City.

Beyond the economic and logistic implications, the City is also concerned that the timelines to implement the regulation are overly aggressive. Given the magnitude of the implications, there is insufficient consideration for on-going construction projects, imminent design assignments, and appropriate planning of future funds.

Similar to other recently adopted regulations with a significant impact to municipalities, the proposed regulation should have a transitory period with a phased-in approach to reach the Province’s ultimate objective. There should be a minimum of 4 years for the municipality to incorporate the changes and reach full compliance.

The City is also concerned with the added pressure on existing roads from the increased heavy truck activity across its network. It is well known that heavy vehicle traffic is more detrimental to the expected life of a road than passenger vehicles. The Province should consider the detrimental impact on municipal roads imposed by the significant increase in haulage that will result from the adoption of this regulation as it is proposed.

The effective management and beneficial reuse of soils from heavy construction is very important, but the added greenhouse gas emissions from all of the added truck activity should be assessed to evaluate the net benefit. The regulation should be assessed against the intended reductions from the “Climate Change Mitigation and Low-carbon Economy Act, 2016”.

The role of the MOECC in the enforcement and the oversight of the regulation has not been made clear, but the City strongly believes this is a Ministry obligation and should not be downloaded to municipalities through Site Alteration By-laws or the use of similar instruments. Beyond these overarching comments, The City prepared specific comments against line items of the proposed regulation. These are presented below in Section 1. Section 2 reiterates earlier City comments that were not addressed in the proposed regulation from the previous 2017 posting on the environmental registry.

Section 1 – Comments related to current 2018 regulatory posting

Large Volume Soil Reuse Sites
The City is concerned that putting the responsibility on municipalities to enact a site alteration by-law or other municipal instrument that would result in approval of reuse sites is a downloading of a provincial responsibility and that enforcing through the existing tools (i.e., By-laws) at the City’s disposal may not be sufficient. This downloading will lead to pressure on municipalities to hire additional staff and develop technology to review and approve reuse site applications in a timely manner. Additional resources would be needed to monitor compliance once reuse sites are approved.

This reliance on municipalities also has the potential to create inequities across the province due to the variance in By-laws or lack of By-laws between jurisdictions. The potential for excess soil to be removed from a project area in one municipality, be transported across various municipalities before being deposited at a reuse site could make each load subject to a wide range of oversight and enforcement.

The MOECC is proposing that soil banks and other facilities will be waste disposal sites and will be required to obtain Environmental Compliance Approvals (ECAs). Large volume soil reuse sites will effectively be soil disposal sites and should be subject to MOECC approval and the ECA process, not municipal approval and oversight. This should also not be restricted to the boundaries of settlement areas.

The City has concerns regarding the transfer of liability when soil is deposited as a reuse site. Along vesting approval and oversight of large reuse sites with MOECC, the Section 42 of the Environmental Protection Act could be amended to provide immunity for soil that is deposited at a reuse site, similar to what it provided for waste deposited at landfills.

In addition, the City has concerns related to these large volume soil reuse sites that require specific expert review and approval. These include:
• The potential for pre-existing contamination that may be present at a reuse site. A baseline environmental site assessment should be conducted, prior to the acceptance of any excess soil at a future reuse site. A baseline environmental site investigation will also serve to protect those site owners that send soil of documented suitable quality for reuse as well as property owners in the vicinity of the reuse site.
• The previous best management practices approach to a reuse site, indicated that the reuse site must be appropriate for use. The City is concerned that there could be changes to physical soils on reuse sites, such as capping a sandy site with large volumes of clay which would change the infiltration and runoff characteristics of the reuse sites. Similar to a baseline environmental quality report, there should be operational requirements of suitable soils to be imported to these reuse sites.

Large volume reuse sites, should be required to submit detailed background reports related to their baseline hydrogeological & chemical quality for MOECC approval. Municipalities and Conservation Authorities should be consulted for their input. The MOECC should review and approve large volume reuse sites. Upon completion of filling of these large volume reuse sites, a final closure report should be conducted. All these documents should be supported by an on-line registry of large volume reuse sites.

Source Water Protection
Wellhead protection areas typically extend outside village boundaries or settlement areas into the general rural area. Currently wellhead protection areas cover 250 km2 within the City of Ottawa, which includes 60 km2 areas where significant drinking water threat policies apply (up to and including wellhead protection area – Zone C). In addition, the City encompasses 17 km2 of wellhead protection areas for drinking water supply wells from other municipalities for which the City implements Source Protection Policies.

The proposed excess soil regulations should align with the Clean Water Act and the associated Tables of Drinking Water Threats and Circumstances. The proposed excess soil regulations should also provide consideration to local Source Protection Plan policies with regards to municipal drinking water supplies and the potential impact to both water quality (soil quality standards) and water quantity (potential changes to hydrogeologic properties or the local groundwater flow regime).

Excess Soil Transported Out of Provincial Jurisdiction
The proposed regulation does not address the scenario where the receiving site for excess soil is located outside of the Provincial Jurisdiction in terms of the extent to which the proposed requirements would apply. The City of Ottawa is adjacent to the province of Quebec, less than 100 kilometres from the U.S. border, and also contains hundreds of hectares of federally owned land. The proposed regulation does not provide any indication of how excess soil moving to, or from these jurisdictions will be addressed.

Under the ECA for City owned landfills in Ottawa, the only waste that can be accepted must be from within the City’s footprint. Soil used for daily and interim cover however can be accepted from outside the City, including soil from outside the province. If all excess soil deposited at the landfill is designated as waste, the landfill will no longer be able to accept this soil for beneficial reuse as cover.

On-Site and Excess Soil Management – Draft Regulation – Section 1 – Interpretation
“liquid soil” definition – There are portions of Ottawa that contain very soft clay soils. To solely define liquid soil based on a slump test fails to take into consideration the cohesion of naturally occurring clay soils and how these clay soils change based on their behaviour with increased water content. Dewatering of these soft clay soils is not a simple process, such as draining sands or storm water sediment. Similarly, vacuum truck excavation of these naturally occurring soft clay soils is not feasible. A slump test may not be an accurate measure of naturally occurring clay soils as liquid soils for the purpose of this regulation. There needs to be special consideration with regards to dealing with soft clay soils such that they can be considered excess soil for reuse purposes and are not defined as liquid soil.

“reuse site” definition – Excluding waste disposal sites from being considered as a beneficial reuse of excess soils fails to take into account the operational needs of waste disposal sites. Landfills operating under MOECC ECAs and regulations are required to use soil as daily, interim, and final waste cover. Excess soils from project sites are beneficially reused to meet the soil cover requirements of these sites. Waste disposal sites will be one of the few types of facilities that will be able to beneficially reuse excess soils that are above the new proposed excess soils regulations, provided that the use falls within the waste disposal site’s ECA.

If waste disposal sites are not able to source excess soils to meet operational needs, they must go to market to purchase soils. In many cases these soils are clean sand aggregate from local aggregate operations. This prevents these clean aggregates from being beneficially used elsewhere and impacts the local aggregate supply. If the clean aggregate is used within the footprint of the landfill, it will result in these soils becoming contaminated. The cost to purchase this soil for operational needs would likely be reflected in increased tipping fees which may in turn lead to an increase in illegal dumping. Use of excess soils above the proposed excess soil standards at a waste disposal site is a sustainable and beneficial reuse of soils.

On-Site and Excess Soil Management – Draft Regulation – Section 3 (1) - Designation as Waste
Under the proposed regulation soil that is deposited at a licensed landfill will be designated as waste. As noted above, this designation is contrary to the beneficial use of soil as daily, interim and final cover. In addition, the waste designation will impact a licensed landfill’s compliance with daily and annual maximum waste tonnage limits dictated in the landfill ECA. If the soil is now waste and therefore counts against the ECA waste limit, either a reduction in waste received or reduction in soil required for operational needs would be the outcome of the proposed regulation.

An increase in ECA waste limits to account for soil that is now waste would be an onerous undertaking, requiring extensive City resources and extensive public consultation when in reality the amount of soil being received would not be changing.

On-Site and Excess Soil Management – Draft Regulation – Section 7.(3).11 – Contents of Plan; and Soil Rules Document – Part II – Section 5 Ai.– Tracking System - page 5
The logistics of infrastructure construction in built environments will make it extremely difficult to implement on site storage as required in these sections. Many City infrastructure projects involve rehabilitation of underground utilities in built-up areas and there is simply no room for soil storage or processing on-site. Generally the only option would be to, close off entire street blocks beyond excavation areas for the sole purpose of storing and/or processing soil. Closing city streets for the sole purpose of stockpiling and segregating soils based on environmental quality during excavation is not feasible. This closing of streets would impact additional property owners, residents and traffic mobility during construction, over and above the impact to streets that are closed for the actual trenching operations.

Given this limitation in physical space, there should be an exemption from the waste designation for off-site temporary storage and/or processing of soil if the soil is returned to the project site for beneficial use during the life of the project.

On-Site and Excess Soil Management – Draft Regulation – Section 22 – Proposed Commencement for Consultation
The City is concerned that the timelines to implement these strategies are too aggressive and that there is a general lack of consideration for on-going and partially implemented projects. The City again stresses that there should be a minimum of four years transition period and that multi-year projects that we are under contractual obligation to deliver, should be excluded from this regulation. Requiring previously tendered contracts to comply with the new regulation will expose the City to significant financial risk.

However, there may be specific projects for which a transition period of longer than four years is required. Of particular concern, are multi-year fixed price City building contracts such as the light rail construction projects. The City requests that a process similar to the 2011 Brownfield update for notification and subsequent exemptions for longer term transition projects be included to address this issue.

On-Site and Excess Soil Management – Draft Regulation – Section 22 – Proposed Commencement for Consultation and Soil Rules Document – Part III – Mandatory Leachate Analyses Requirement
Current leachate testing that is conducted in relation to soil disposal and landfill acceptance of soil as a solid non-hazardous material does not correspond with the proposed excess soil leachate standards. The proposed chemical parameters and detection limits of many parameters do not match those specified under Ontario Regulation 558. This discrepancy will lead to additional leachate testing beyond ESMP requirements for any excess soil proposed for landfill disposal. Given that some portion of excess soil from every right-of-way project generally requires landfill disposal, these projects will be burdened with the additional time and expense of two sets of leachate tests.

In addition to the disconnect with current leachate testing for landfill disposal, discussions with members of the technical advisory groups for the proposed excess soils requirements have revealed that the laboratory methods to meet the required detection limits are not finalized. Furthermore, there will be at least an additional six months delay to obtain certification when the laboratory methods are finalized for the leachate testing method.

Collection of in-situ soil samples is not a trivial expense and is usually completed years ahead of our construction projects. The City is presently conducting soil investigations for many proposed construction projects that are projected into 2020 and 2021 construction. As these leachate samples cannot be analyzed currently to meet the proposed requirements, the City requests that any requirements for leachate testing be implemented four years after the laboratories are able to provide certified analysis for these tests.

Soil Rules Document – Part II – Section 5 – Tracking System - page 5
Soils that are demonstrated to meet Table 1 Standards through analytical testing should be exempted from registration and tracking requirements, regardless of the volume of excess soil generated. If all soils leaving a project area have been demonstrated through the prescribed testing protocols to meet Table 1, a revised tracking system whereby these “clean soils” are documented in bulk movements is a reasonable approach that would reduce the administrative burden for documentation of clean fill.

The bulk movement system is only proposed for soils that meet Table 1 based on testing results. If the Qualified Professional (“QP”) has indicated that testing is not required, then the soils should not be allowed to use the bulk movement system. These non-tested soils should be subject to the proposed full registration and tracking requirements as proposed.

Soil Rules Document – Part II – Section 5 – Tracking System - page 5 and Part IV – Section 7 – Local Background Concentrations
The City has many areas that contain soils with naturally elevated concentrations of substances (i.e. background metals in clay soils). If demonstrated through laboratory testing that the receiving site soil is similar in chemical composition to the source site soils, bulk soil movement between the source and receiving sites with naturally elevated concentrations of substances would also be appropriate. These soils with naturally elevated concentrations of substances should also be exempted from being considered as waste when removed from the project area.

The City is also concerned that many clay soils that are otherwise suitable for reuse, may be excluded from use based on the naturally occurring salt levels within the soils. If proper baseline environmental site condition reports are conducted at a potential reuse site containing clay soils in the Ottawa area, it is likely to contain naturally occurring salt levels that may also be above potable water use standards. In addition to the chemical quality, a fulsome hydrogeological understanding of how these naturally occurring saline clay soils behave is critical. In many cases, these clay soils act as a barrier to protect the underlying potable water use aquifers and their natural salinity should not be a detriment to beneficial reuse.

Soil Rules Document – Part II – Section 6 – Excess Soil Destination Assessment and Identification - page 11
Preparing reports based on where soil may potentially be reused will result in extremely complicated reports that will be very difficult to interpret. Currently, when conducting an investigation on a source site, it is a simple process given that there is only one set of standards for comparison, based on the current property use. For example, a park in a municipally serviced area would generally be Table 3, residential/parkland/institutional soil standards.

If the report now needs to extrapolate where soils could be potentially reused, all of the tables could then be used for comparison, which will create confusion of the interpretation of soil characterization source site reports. The proposed Soil Rules include nine sets of generic conditions (Tables 1 to 9) and variations in small & large volume standards, in addition to different criteria based on land use – agricultural, residential/parkland/institutional; or commercial/community/industrial. Most of these categories have different standards for all property use scenarios. For all of these different site conditions there are also corresponding leachate analysis requirements for specific parameters. Lastly, adding the proposed statistical compliance method and ceiling value standards is another further set of numbers to look at for all differing soil disposal and land use types.
When our site investigations are conducted in the construction planning phase, the potential reuse site is generally not known. To generate soil characterization tables with differing disposal volumes for all potential reuse sites will result in reports that are unnecessarily complex and will make the tender process very complicated for project bidders.

Soil Rules Document – Part III – Assessment of Past Uses - page 15
Even though the proposed regulation allows for modifications to the assessment of past uses (Section 7, Schedule D Compliance), it is likely limited in application for City projects based on the transfer of liability from City investigations to contracted parties acting on behalf of the City for implementation of soil movements. Modifications to the assessment of past uses scope will result in increased risk to the City.

Soil Rules Document – Part IV – Section 2-C – Municipal Comment - page 30
This section of the Soil Rules document indicates that in order to use the non-potable soil quality reuse tables that you must follow Section 35 of the O. Reg. 153/04, which states that there is a need to notify the Clerk of the municipality of the intent to use non-potable criteria & the municipality has 30 days to respond.

Portions of the City that are supplied by municipal water spans over 417 km2 within our urban area. However, within this urban area, there are several areas of the City that were previously not supplied with municipal water and still exist on private services. Therefore, we cannot presume that all excess soil reuse sites can apply non-potable water use criteria within our general urban boundary.

In addition, there are 26 smaller rural villages outside of the general urban area. Some of these are connected to the central water supply, some are on stand-alone municipal wells, and others are on private water supply wells. Municipal wells also have designated wellhead protection areas under the Clean Water Act and local Source Protection Plans.

Commenting on every site that would like to apply non-potable water use standards in proximity to these settlement areas will cause an administrative and financial burden to the City to verify that the site is municipally serviced and whether or not there are conditions that would prevent the use of these standards.

Soil Rules Document – Part IV – Section 13 – Statistical Compliance - page 37
Using statistical compliance methods to meet the proposed excess soils reuse standards creates a conflict with the single point compliance method that is used under the Records of Site Condition Regulation. If a small volume reuse site is allowed to import excess soils up to the Ceiling Values standard, then the portions of the site receiving soils above the Records of Site Condition Standards but below the appropriate Ceiling Values Standard will now be out of compliance with the Records of Site Condition Standard. If a Record of Site Condition were to be subsequently filed on this reuse site, these soils that are above the Records of Site Condition Standards would be required to be removed, to file a generic Record of Site Condition.

Some potential options to address this conflict are:
• Remove the statistical compliance method and ceiling values standards from all excess soils reuse standards;
• Amend the Records of Site Condition Regulation to allow for the same statistical compliance methodology, including Ceiling Values tables; or
• Remove the statistical compliance method and ceiling values for small volume standards; and ensure that the ceiling values for the volume independent soil standards do not exceed the Record of Site Condition small volume standards.

Section 2 – Comments from 2017 excess soil plain language posting, still requiring comment

INFRASTRUCTURE PROJECTS
The requirement that excess soil cannot leave a project site unless a reuse site has already been identified poses an administrative and logistical challenge on all City projects. For infrastructure projects, the City would have to either a) identify available receiving sites in advance of tender or b) download the responsibility of identifying receiving sites to the construction Contractor through the tender – which in both instances have substantial cost and time implications on every project.

HAULING & TRACKING RECORDS
Tracking individual truckloads is a significant administrative burden on the City. The City encourages the Ministry to consider allowing bulk movements and tracking of similar materials (e.g. – the same truck moving multiple loads of the same material, from the same source site, to the same receiving site, on the same date, etc.) in order to ease the impact of this burden.

REGISTRY AS SOIL MATCHING RESOURCE
The majority of City construction projects result in an excess of soils. Finding suitable receiving sites for these excess soils is logistically challenging. It would be useful if the soil registry could be utilized as a resource for identifying receiving sites that are seeking soils.

Yours truly

Marian Simulik
General Manager,
Corporate Services and City Treasurer

Stephen Willis, MCIP, RPP
General Manager, Planning, Infrastructure and Economic Development

cc Gordon MacNair, Director, Corporate Real Estate Office
Alain Gonthier, Director, Infrastructure Services