Comment 1 The initial…

Comment 1

The initial experience with the Regulation to date has shown that soil contamination at levels exceeding the generic ESQS is far more common than was likely anticipated by the Ministry in formulating this Regulatory approach. This is consistent with many practitioners' experience that some level of contamination (often only marginally exceeding standards) is very common in urban areas across the Province, particularly older urban areas. A great deal of development activity occurs in these areas, resulting in the generation of significant volumes of excess soil.

The common occurrence of soil contamination of this nature, combined with the application of very conservative ESQS will result in far higher volumes of contaminated soil being generated across the Province than was previously the case, and this can be said with a high level of certainty. It is expected that the volume of contaminated soil requiring disposal will far exceed the operational needs of landfills (e.g., as daily or interim cover materials), such that contaminated soil being sent to landfill sites in the Province will simply be consuming airspace and displacing waste disposal capacity for the more traditional waste streams that the landfills were intended for (i.e., MSW and ICI wastes).

With the Registry coming on line January 1, compliance levels with the Regulation will increase. As compliance increases, so will the volumes of contaminated soils requiring disposal. Landfills can thus expect to see waste volumes increase and remaining capacity decrease more rapidly than was previously the case, creating a significant problem for waste management planning across the Province. Displacing waste capacity in this way has the potential to be very damaging given the difficulty in adding new capacity.

Further consideration of this issue is required. While some partial relief can potentially be provided through development of site specific ESQS through applying either the BRAT or risk assessment approaches, these are unlikely to be adopted to a sufficient extent to make a large difference, considering project timelines and schedule implications, and the likely lack of sufficient QP capacity to allow the widespread adoption of these approaches. Even if these approaches were more widely adopted, this would likely not provide sufficient relief to address the problem.

Solutions to this issue likely will require some combination of the following elements:
- approaches that would allow for some further relaxation of the generic ESQS, either broadly or in some situations
- the ability to more easily increase disposal capacity for contaminated soils across the Province - this would likely require establishing processes for the development and more rapid approval of a new class of waste disposal sites for contaminated soils
- a further delay in the next implementation phase of the Regulation.

The Ministry is strongly urged to undertake a further review of this issue with urgency. This should include a focused consultation with industry to further review experience with the occurrence of contaminated soils across the Province and potential solutions. It is acknowledged that it is clear that the previous framework (or lack thereof) inevitably resulted in the improper disposal of a large portion of the excess soils generated across the Province (although it is noted that as oversight was lacking, the quality of those soils is unknown; however, it is likely that the majority of those would have been relatively mildly contaminated). A framework for the proper management of such soils is clearly required, but the framework that we are now in the process of implementing is almost certainly going to create significant new waste management problems. A much better understanding of the waste management implications is required to ensure that the needed disposal capacity for contaminated soils is in place before the full implementation of the new excess soils framework.

Comment 2

Similar to the preceding comment, it is expected that QP capacity across the Province will be strained with the full implementation of the Regulation (i.e., with the Registry coming on line). Further review of this potential capacity constraint should also be undertaken.

Comment 3

Clarification should be provided on the expectation for licensed waste disposal sites to complete Registry filings as receivers of excess soil, for situations when the soil is: 1) being beneficially reused for some purpose at the waste disposal site property, and 2) when the soil is being received as waste for landfilling. Are waste disposal site operators subject to filings on the Registry in either of these circumstances? Or perhaps just the former?

The Registry allows source site Project Leaders to select landfill sites as receiving sites, but it is unclear under what circumstances the landfills are required to register the receipt of the soil, noting that registering the receipt of waste soils would be burdensome.

Comment 4

It is understood that a large portion of the topsoil produced across the Province is produced through the amendment and processing of excess soils. This activity needs to be better incorporated into the Regulation so that these producers can still receive excess soils as if they were reuse sites, but then would still be able to commercially resell the topsoil produced as a clean soil not subject to further requirements. While it is acknowledged that the additional rules relating to retail landscaping soil depots partially address this situation, they are likely to be too restrictive such that these producers may struggle to source soils. It is unclear why the types of source sites should be restricted if the soils in question are properly characterized and meet the applicable ESQS for the final use. In addition, the volume limits are likely to be too restrictive for many of these producers. These requirements are likely to result in increased costs and a further economic burden to development activity.