We submit the following…

We submit the following comments to the Ontario Environmental Bill of Rights (EBR) posting by the Ministry of the Environment and Climate Change (MOECC) regarding its proposed Excess Soil Framework. The following documents were reviewed:
1. Proposed Ontario Regulation under the EPA for On-Site Excess Soil Management (the Proposed Regulation);
2. MOECC document Rules for On-Site Excess Soil Management (the Rules); and
3. Complementary amendments to O.Reg. 347 and O.Reg. 153/04 necessary for the proposed new regulation.
In general, it’s our opinion that by including all contaminated sites in the Proposed Regulation, the MOECC will unnecessarily, in the context of the Proposed Regulation, burden the management of contaminated sites such that fewer will be remediated by ex-situ methods, which is contrary to the objectives in O.Reg. 153/04 that is supposed to encourage the remediation of contaminated sites.
In addition, the objective of the new regulation to promote the beneficial reuse of excess soil at Projects is not typically achievable from the prospective of contaminated sites because these often have a soil deficit due to landfilling contaminated soils that will never be suitable for a reuse under the Proposed Regulation (i.e., there is no excess soil requiring management other than contaminated soil that requires waste disposal/treatment). In addition, many contaminated sites in Ontario are relatively small and their remediations are less likely to occur due to the additional financial burden posed by the Proposed Regulation.
Our specific comments regarding documents 1 and 2 above are provided below. No comments are provided for the complementary amendments because these precipitate from the Proposed Regulation.
We support the objective of the Proposed Regulation, but requests the MOECC consider:
• Revisions that would eliminate the need for relatively small contaminated sites to comply with the regulation because the MOECC should not anticipate significant excess soils from these sites that would be suitable for reuse in the context of the Proposed Regulation.
• A reuse soil threshold for projects where the regulation is mandatory if exceeded. This would focus the Proposed Regulation on Projects that have potential to produce the most reuse soils, reduce the MOECC’s administration and enforcement effort, and remove the burden from smaller projects that could have difficulties supporting the costs for the additional work.
• Consider a revised Assessment of Past Uses element of the Proposed Regulation. Currently, the equivalent to a full RSC Phase One is required and a significantly modified protocol would likely suffice (more detail provided below).
• A re-evaluation of compliance to the Proposed Regulation for linear infrastructure projects where Assessment of Past Uses that extends to 250 m from the Project could be substantial compared to benefits achieved.
Proposed New Ontario Regulation under the EPA for On-Site Excess Soil Management
Definitions:
• The new definitions of greatest significance include excess soil, reuse site and project.
o Excess Soil:
This definition should not include contaminated soil. Contaminated soil is adequately determined by existing O.Reg. 153/04 and has no potential for reuse under the Proposed Regulation. It should be categorized as waste at the site with the only option to ship to an approved waste disposal facility and is not a candidate for reuse. A definition of “contaminated soil” as waste and excluded as excess soil is more appropriate and should be included in the Proposes Regulation.

It could be problematic for the MOECC to provide an avenue for soils from contaminated sites to be shipped to a reuse site. It opens the door to having contaminated loads inadvertently or intentionally being shipped to a reuse site. It’s difficult to predict if the tracking system will be sufficiently effective to prevent the improper disposal of contaminated soil.

o Reuse Sites:
It is a good and a necessary concept for the objective of promoting the beneficial reuse of soil, but to comply with the Proposed Regulation and Rules, practically speaking, only relatively large development projects will be able to benefit from reuse sites. The regulation would best be focused to these Projects, where the benefits are the greatest to all concerned (less soil to landfill, reduction in landfilling costs for the proponent, improvements to the reuse site, and reduced MOECC obligation to administer and enforce the Proposed Regulation).

o Project:
Many contaminated sites are remediated by excavation without further development. The definition seems to require “excavation of soil and includes any form of development”. Does the definition of Project exclude these contaminated sites from the regulation? The Proposed regulation should be more specific and does not seem to exclude contaminated sites in the following Sections. In addition, there is no timeline specified on when development is planned to occur.

Regarding the allowance to now have “temporary storage site(s)” and “soil bank storage sites” as waste disposal sites. Although these tools could be useful for soil management, it may present a problem having these sites open to shipments of contaminated soils. Contaminated soil should be shipped without delay to a landfill or an MOECC approved soil processing site. Interim storage of contaminated soils is not required or recommended and opens the door for improper disposal/management. These sites should only be used for soils targeted for reuse.

Part II Excess Soil:
• This definition should exclude contaminated soil and focus on soil that can potentially be reused to achieve the objectives of the new regulation and not burden the remediation of contaminated sites. Contaminated soil is not excess soil, rather it’s specifically the volume of soil targeted for proper disposal at an MOECC approved facility.

• Requirement to prepare excess soil management plan (ESMP):
o The ESMP process as presented is onerously prescriptive and will add no benefits to smaller projects and may prevent or delay them, especially if the only purpose is to remove contaminated soils to prepare a property for redevelopment or for purchase or address risk. Such contaminated sites should not be incorporated into this regulation and including them would not substantially lead to the beneficial reuse of excess soil.
o 6(3)1 and 2 speaks directly to the above, it essentially prevents a proponent from removing contaminated soil from a site unless it’s both a trivial amount and shipped to a waste disposal site. There’s no potential to reuse soil in this common scenario in Ontario. Why would the MOECC prevent efficient processing of smaller contaminated sites that can’t generate soils for reuse?

• Perhaps a better trigger for a Project to fall under the Proposed Regulation, and the requirement to have an ESMP, is the anticipated volume of soil that could be reused. When such a volume reaches a certain threshold the concept of reuse and the necessary resources and benefits of reuse become more reasonable.

• In relation to contaminated sites, much of the content of the ESMP is essentially redundant to Phase One and Phase Two environmental site assessments (ESAs) that would have already been completed. The technical elements of O.Reg. 153/04 adequately regulates/addresses this work. If a proponent decides to remediate a property and obtain an RSC, the MOECC already has sufficient regulatory control of this work. If a proponent chooses to remediate without getting an RSC, then this should not be discouraged by the Proposed Regulation because it’s contrary to the objectives of O.Reg. 153/04. In the latter scenario, proponents in the industry tend to follow the technical elements of O.Reg. 153/04 without getting an RSC.

• The proposed tracking system should focus entirely on soils targeted for reuse, not contaminated soils, including sampling at the reuse site. It is unclear how the tracking system will discourage improper soil disposal at reuse sites and sampling at the source sites without some reciprocal sampling at the reuse sites seems to be a necessary control. There is little information available on how reuse sites will be operated. Will groundwater monitoring be required? Will a Project Leader be informed regarding environmental conditions at the reuse property before deciding to ship to it? Where will liability at the reuse Site end if it’s owner can’t be held responsible for conditions at the Site over the long term?
Rules for On-Site Excess Soil Management
This document primarily focuses on the ESMP and the comments above all apply. However, some specific comments regarding this document are below.
Part III Assessment of Past Uses and Soil Characterization
• The assessment of past uses is another name for a Phase One ESA. In the context of the Proposed Regulation, some elements seem unnecessary and streamlining could be possible:
o What use does a Conceptual Site Model (CSM) for the source site have in this Proposed Regulation? The project itself will reset and render the CSM invalid and the CSM has no effect on waste disposal or reuse sites.
o Interviews often add little to no value to a Phase One ESA. It should not be required under an ESMP.
o Unless the records review produces Phase Two ESA reports for the Project Area, it’s not likely it will add value for the beneficial reuse of soil. In our experience with Phase I ESAs air photos rarely add value, title searches and directory searches are good for past land uses, Eris Ecolog reports are good for covering off-site through data base searches, but the end result being to increase the required laboratory program for the Phase II to include all of the most commonly requested suites (VOC/BTEX, PHCs F1 to F4, PAHs, and metal).
o A limited records review, site reconnaissance, evaluation and reporting would be all that’s necessary to support the Proposed Regulation.

• The sampling and analysis plan is generally a Phase Two ESA and for most sites would have already been done and under the Proposed regulation gets repeated. Some specific comments:

o The ESMP elements that have stockpiles being covered or underlain by impermeable materials is unreasonable and not currently being done in the industry. Why would Project Leaders need to cover a stockpile of uncontaminated soil that is targeted for reuse?

o Measuring the maximum concentrations of contaminants by field screening methods needs further consideration. Most field instruments measure contaminants as aggregates (e.g., combustible gas detectors as hexane equivalents, PIDs as isobutylene equivalents unless a response factor is considered, PHC wet methods etc.), except the most expensive, rarely used, and not readily available equipment, such as portable GC-MSs and XRFs.

o One can rarely measure the “volume of any free-flowing product”. Further what’s its implication on the beneficial reuse of excess soil? Such soil would need to be taken to a landfill and would not get reused and any volume estimate would be difficult to obtain and irrelevant.

o The MOECC is using the terms regarding sampling points and sampling locations in relation to averaging, with sampling locations being equivalent to that described under O.Reg. 153/04, but there does not seem to be a reference to being within 2 m, in addition to being at the same depth.

• Comments regarding the new tables: (1) the development rationale makes sense and it could be useful for considering depositing uncontaminated material at reuse sites; and (2) the volume independent table will not likely be useful, but more work would be required to confirm this. Contaminated soils will never meet these new tables and supports removing them from the Proposed Regulation such that there is less chance of contaminated soils going to reuse sites.

It is noteworthy that the MOECC’s previous good work developing the Site Conditions Standards under O.Reg. 153/04 has yielded substantial benefits in the development of these new Reuse Tables.
Other
• Linear infrastructure may have significant difficulties operating under this regulation. For the applicable ESMP to include all elements proposed, such as the Phase One and Two ESA equivalent activities would be a significant undertaking on some Projects. A more streamlined approach that is more considerate regarding how such Projects unfold under the Environmental Assessment Act is highly recommended. These projects don’t typically involve the frequency of soil sampling for laboratory analysis required under the Proposed Regulation. Also, these projects unfold over periods of years and documents used to tender these projects will need to change to support the Proposed Regulation.