Dear Mr. Coelho,…

Dear Mr. Coelho,

Zero Waste Oxford is a committee of community members and elected officials in Oxford County working towards the goal of Zero Waste in Oxford and, by extension and in collaboration with the MOECC, in Ontario. We are pleased to see this initiative, led by you, to consult on regulations around Excess Soil. Similarly, we are pleased that this represents an advance from initial consultations and is more precautionary. The definitions of excess soil are necessary for the management of such and for the protection of communities and the environment. Similarly, the proposed coordination of municipal, provincial and federal authority is important to help provide clarity to all involved: governments, developers, haulers, receiving sites, property owners and community members. With clear regulation, incentive and enforcement it is possible to achieve prevention, precaution and best practice. Those best practices must take into account the full and long-term costs, provoked by high volume or long distance trucking of soils. It appears that this is a consideration, especially as regards climate change. Data collection is an element of these regulations as they are of the Waste-Free Ontario Act and Strategy, but in this case could be more robust in order to assist in identifying solutions to what appears to be a continuing problem provoked by intensification, altered use of urban spaces and the advance of science. Zero Waste Oxford is delighted that this document be in layperson’s language for ease of comprehension by the general public. It is hoped that those sections which best represent community opinion become detailed regulation that will have positive and desired results; Conversely, those sections which are criticized as unsuitable or for which communities declare themselves unwilling hosts need to be revised or removed. Detailed comments follow. In the EBR posting, significant points are made about the following:

•The development of a new excess soil reuse regulation, supported by complementary amendments to existing regulations including Regulation 347 (Waste) and Ontario Regulation 153/04 (Records of Site Condition), made under the Environmental Protection Act (EPA), and Ontario Regulation 332/12 (Building Code), made under the Building Code Act, 1992 (Actions 1, 2 & 18).

•The development of new reuse standards and sampling guidance for excess soil, to support the proposed new excess soil reuse regulation (Actions 12 & 13).

•Clarification on approval requirements related to temporary sites and processing sites (Action 5) The cross-referencing of waste, site and building code considerations is important not only to the issue of Excess Soil, but in other areas as well, and we are pleased that this level of scrutiny of or under multiple codes could become a model for additional advances towards a “Waste-Free Ontario”. Alignment of these standards can produce economic gains through savings of time and money by the public, proponents and various governments and agencies. Sampling guidance, the more stringent the better, is vital to assuring the protection of the environment and the human health of us who live in it. Reuse standards will determine the ways and locations of contact between various degrees of contaminated soil and clean soils or water in the environment. Temporary sites for excess soil can have permanent impact on the surrounding environment. Thus, the processing or storage of soils is extremely important to environmental health as well as logistics. We appreciate that these are highlighted and will be acted on swiftly. The relationship between waste and excess soil is clarified further – Excess soil would be designated as waste from the time it leaves a project area, and would remain a waste until: it is deposited at a final receiving site that is not a waste disposal site and that is governed by a site specific instrument or by-law; it is deposited at an infrastructure project, if it originates from an infrastructure project belonging to the same proponent; or it is deposited at a receiving site that is not a waste disposal site and that is not governed by a site specific instrument or by-law, so long as:

* the excess soil is appropriate based on MOECC’s excess soil reuse standards;

* the excess soil has been used for one of the specified uses, subject to certain restrictions; and

* the receiving site is not being used primarily for the purpose of depositing excess soil. That soil should be kept out of Ontario’s landfills is evident at face-value, especially considering the available 20+ years’ capacity in existing dumps at current waste production rates. While it is to be expected that waste production rates will plunge as a result of the Waste-Free Ontario Act and Strategy, it makes no sense to fill dumps with useful soil. There is, however, some danger of misreading of this first point: Might some think that it authorizes the unloading of soils of any degree of hazard but excess to their current site at any available site? This is not the intent of the regulation, but the confusion could exist. That soils be used on the same project by the same proponent, again suggests that excess soil might be moved around a site, or might be temporarily moved off the site to be returned. On a small or medium-scale project this should work well. On a major infrastructure project, such as a highway, rail or other transit corridor, excess soils might travel great distances and introduce soil-borne organisms in other zones in which they are not typical but still be on the same project. This could be a problem in the spreading of noxious weeds like Giant Hogweed or phragmites, insect pests like Asian Longhorn beetles, as well as chemical contaminants, etc. Chemical contaminants are cited in the regulation amendments although they are not exhaustive. Soil that is excavated and removed from areas of a RSC property outside of APECs / impacted areas, where the property is used or has been used, in whole or in part for an industrial use, as a garage, as a bulk liquid dispensing facility including a gasoline outlet or for the operation of dry cleaning equipment, would need to be sampled in accordance with the proposed Excess soil Reuse Regulation. Long-distance movement of excess soil by truck or diesel train has significant climate change and human health impact and should be avoided. All of these have had enough negative impact on the environment to make us very wary of moving soil any distance. If, suitably qualified people find that the specified uses offer positive value to the receiving zone, it may well be beneficial, though the sheer quantity of soil may need to be addressed strongly in the recommendation to avoid some sites “being used primarily for the purpose of depositing excess soil”. The quantity and quality of the soil are key considerations, and Zero Waste Oxford finds that the threshold for more careful planning at 100 truckloads is too high, significantly. The cautionary note about any contaminated soil needs indeed to be sounded – The “qualified person” will need to sample vigorously and extensively to determine that soils are not contaminated or hazardous. The prospect of soil reuse in the absence of a bylaw in the local municipality suggests a lower level of scrutiny, less local consultation, and less opportunity for valued community input. In order to avoid this void, it would be wise for the MOECC to assist all municipalities in developing soil bylaws which would provide local direction and protection. Some municipalities already have these. Formal sharing of these will assist in uniform implementation of the regulations, uniform standards, uniform understanding, uniform public confidence, and uniform practice across Ontario. The development of local capacity needs to happen at the same swift pace as regulations mentioned here. Pilot projects will help develop local capacity and to model how excess soil-reuse management planning can be shared. It is vital that data be collected fully and reported fully, both raw and interpreted forms. Proposed Excess Soil Regulatory Package –New Proposed Regulation and Amendments to Existing Regulations Zero Waste Oxford is not surprised at the findings of the review undertaken by the Ministry. As a result of concerns raised that - excess soil was being illegally dumped, being relocated without appropriate consideration of quality, and that the MOECC ’s best practices were not being followed, the MOECC, supported by partner ministries, completed a review, under the Environmental Bill of Rights 1993, of the need for additional policy to manage excess soil . Both media and local groups have reported illegal dumping of soil including soil contaminated with or sufficiently to become itself hazardous waste. Relocation of excess soil, in cases of contamination, has been without consideration of quality or of human and environmental health impacts. The Ontario Soil Regulation Task Force has documented this impact on vital farmland; The Toronto Star has published it. https://www.thestar.com/news/gta/2014/10/20/toxic_dirt_dumped_in_ontarios_prime_farmland.html The Bailieboro example is not alone in suggesting that a voluntary code in the absence of regulation is not enough assurance for Ontario, and especially its rural communities like Oxford. The denial of responsibility by various companies involved in successive stages in the travel of soil in that investigation shows that clear lines of responsibility are necessary; that accountability is key; and that, voluntary exceedance of regulations, though unlikely to occur might be desirable. The review found a need to introduce a regulatory framework for the management of excess soil that would clarify the responsibility of those projects that generate excess soil (“source site responsibility”). The review also identified the need to identify clear requirements governing the sampling and analysis of excess soil, the tracking of excess soil from the time of its excavation to the time it is deposited at a receiving site, and the soil quality standards that apply to receiving sites. Surprisingly, later in the document there is mention of responsibility of the receiving property owner for waste soil, when in the incidents which have reached the attention of the public, the receiver has largely been guileless in believing that the soil is safe to spread on farmland and use from grazing or crops. There needs to be yet more clarification about the status of the receiving site to determine if the property owner is complicit in the removal of contaminated soils and their deposit elsewhere, or merely an unwitting victim. Excess Soil Management Plan Requirement Excess Soil Management Plan requirements could be stricter, especially as regards the threshold of 1000m3 given - It is proposed that a proponent be required to prepare an ESMP if either of the following criteria is met: 1. if 1000m3 or more of excess soil (about 100 truckloads) is being removed from a project area ; or 2. if excess soil is being removed from an area associated with a potentially contaminating activity (PCA). Equally concerning is the potential for the removal of contaminated soil if the “potentially contaminating activity” has commenced. The language here could be clearer. This same number of 1000m3 occurs in Building Restriction and Applicable Law under the Building Code and needs to be address there too. The Exemption from an ESMP makes sense in terms of emergencies like spills, for time’s sake. The fact, however, that An ESMP would not be required in respect of excess soil leaving a project area in response to an emergency, such as a spill or an infrastructure failure, so that work can be completed promptly, is not clear enough about the “work”. If the work is to remediate the spill or failure – lamentable and to be prevented by other regulation – that is consistent with the intent of the document. If the work is the building, development, infrastructure or other, then priority needs to be given to remediation first, preventative revisions to the work, and additional oversight. Similarly, the exemptions listed below make the rather robust regulations suggested weaker and more limited – The requirement for an ESMP does not apply in relation to excess soil which results from any one of the following circumstances: B) Emergency work requiring the excavation and relocation of excess soil, other than work described in (a) above, necessary to reduce or eliminate any risk of danger to the health or safety of any person; Impairment or serious risk of impairment of the quality of the natural environment for any use that can be made of it; injury or damage or serious risk of injury or damage to any property or to any plant or animal life; or damage to infrastructure requiring immediate work.

Obviously, health and safety are primary concerns followed by structures necessary for normal human life. On the other hand, “for any use that can be made of [the natural environment” is too open to interpretation. Despoliation is a use, but hardly desirable.

The discussion of Qualified Person’s status is inclusive in ways which Zero Waste Oxford finds appropriate. It is proposed that the definition of “qualified person” align with that of O. Reg. 153/04. This alignment recognizes the continuity and overlap of effort associated with brownfield redevelopment and management of excess soil, and the comparable expertise associated with each. To determine if excess soil is safe to reuse, it is clear that it should not be hazardous, which someone with credentials and expertise on brownfields needs to possess. It is wise to use available expertise. As such, the proposed regulation would require ESMPs to be prepared and certified by professional engineers or professional geoscientists. These professionals are regulated by professional licensing bodies with detailed rules of professional conduct and codes of ethics. Complaints may be launched against these licensed professionals with the responsible licensing body which is empowered by its enabling statute to investigate the complaint and take disciplinary action where warranted. Although Zero Waste Oxford has commented previously on consequences, it is always a last resort and means the damage has been done. It would be better to prevent than to attempt to remediate after fining. This does not preclude the participation of others with specific qualifications to ensure that appropriate expertise is utilized where applicable, such as people with demonstrated expertise in risk assessment, agrology, cultural heritage and archaeology and traditional knowledge. The breadth of possible inclusion here is encouraging. The current document does not clarify what would trigger the added participation and would advise that a multi-criteria assessment tool be developed (perhaps along the model of Future Oxford’s) to determine the scope of assessment of soils at origin and deposit sites required. “Cultural heritage and archeology, and traditional knowledge” stand it, it is to be assumed, for both settlers’ and First Nations’ rights and should be clarified as such.

Receiving Sites Identification and Rules Zero Waste Oxford is happy that “a key objective of the proposed regulation is to ensure that excess soil is only deposited at receiving sites that are appropriate”. As stated earlier, excess soil’s dumping in landfills has significant negative impacts on the environment and economy and is to be avoided. Further, the dumping of excess soils comprises a risk of contamination of soil, water and air as well as health risks from dust and fine particulate matter, and climate change through greenhouse gas emissions. Not only the quality and quantity of soil need to be determined by a Qualified Person. The consideration of the receiving site needs to be important. Additionally, given the negative factors, there should be a determination of the need to move soil and deposit it by a Qualified Person. Excess Soil Tracking System Zero Waste Oxford is of the view that tracking excess soil is highly important, not only for the data it will produce about quantities and qualities of soil, but to provide analysis in the same way as waste will be tracked. The statement about “unknown” soil is troubling given the history of contaminated soil dumping – “The tracked excess soil quality may include an “unknown” category if sampling results were not required or are not otherwise known” – and needs to be deleted from the regulations so that all soil movement is tracked. Section “e” is vital – “Where excavated soil is stored within a project area, TESSS, processing site, or soil bank, in stockpiles, the location of every stockpile and, in respect of each stockpile, the origins and amounts of excavated soil in that stockpile, and the quality of the soil in each stockpile”. Mixing of soil qualities must be deemed to produce the lowest of the grades in the vicinity, to prevent spreading of contaminants, and clearly should be avoided. This part of the regulation will also need to be coordinated with the MNRF who requires soil movement in aggregate extraction but could and should track the soils scraped from the site more clearly, while also addressing the use of food-grade quality excess soil in rehabilitation. Hauling Records and Cumulative Record of Excess Soil Movements and Excess Soil Movements Zero Waste Oxford encourages the data-keeping involved in hauling records, but wonders why paper records would be considered in the 21st Century, when hand-held technologies are capable and when using standardized electronic formats will assist in cumulative records, efficiency, and potentially environmental impact. These records need to be transparent and available to the public, best through a searchable data-base which would receive constant uploads of information in a timely manner. Additionally, the requirement that detailed documents be available at the location of the excess soil, during its haulage and at the receiving site suggests that there will be enforcement of the various and necessary regulations. This implies additional capacity for the MOECC which could include load inspections and/or site inspections at any time. This kind of practice has been somewhat successful for other Ministries such as Transport where unsafe vehicles have been identified and removed from public roads until repaired. Some gains in efficiency could be achieved by combining enforcement of excess soil haulage with blitzes by Ministry of Transport officials along routes known to be transporting excess soil. Sample of the loads should be included in these inspections to verify that the contents are as stated. Inspectors may require tools other than the suggested sniff test for chemical composition. This is necessary to prevent waste (hazardous or otherwise contaminated) from being falsely labelled as excess soil, and is key to producing a level of assurance among municipal officials and the public about soil being stored or reused in other ways. Registration of Information on the Environmental Site Registry The entry of information on the EBR is an excellent idea although there are some questions about the capacity of that site for the information currently being submitted. Might this overwhelm the site? Further, the erroneous posting of information with a 28 day window to correct it seems like an opening of the EBR to the posting of insufficient and inaccurate information for periods which could be critical. More accurate initial postings should be the goal; a much shorter period for correction may be necessary but ultimately, mistakes are not desirable. The insertion of landfills into this part of the document is concerning since excess soil risks overwhelming landfill capacity in the short-term and annulling gains in waste diversion and reduction made under the Waste-Free Ontario Act and Strategy. “To this end, MOECC is proposing that landfills with an ECA under the EPA would be required to register that they are a receiving site for excess soil and to provide information on the Environmental Site Registry related to the soil they receive” – would appear to be an aberration in the document. If disposal is necessary in some small fraction of all excess soils, hazardous toxins in soils, it needs to be noted as an exception and dealt with using appropriate technologies which will not result in short or long-term impacts on the environment or human health by themselves or in conjunction with other cumulative factors. Hazardous/Liquid Waste & On-Site Soil Processing While hazardous and/or liquid wastes raise levels of alarm through their toxicity and their ability to spread contaminants quickly and far, on-site soil processing offers some promise of reduced climate change (through reduced transport) and reduced risk (through immediate and local treatment). The activities which exempt soil from classification as waste include the following:

•Passive aeration

•Passive drainage of excavated soil generated on-site

•Mixing of excavated soil generated on-site

•Soil turning

•Applied chemical and/or biological treatment of in-situ soil . Of these, passive aeration and drainage are acceptable only if they do not produce off-gassing or effluent harmful to the environment. The use of aeration to stimulate biological processes can be an effective means to converting compacted soils into more fertile ones, which in turn could be used to produce green spaces on the original site surrounding the construction, on berms or rooftops. Drainage may also make sodden soils more viable to grow in. The mixing and/or turning of excavated soil may be permissible but only if it is with soils whose quality may be different but which do not contain contaminants. Mixing excavated soil with the false precept that “Dilution is the Solution to Pollution” is outdated and dangerous. While excess soil should by definition be free of plastic particles and/or solids, it may be worthwhile for the MOECC to test multiple sites where excess soil is being produced to see if such is the case, and then to fund experiments with biological methods including perhaps wax worm larvae in controlled settings to see if plastics can be safely removed without other negative consequences. Similar and additional treatment processes conducted off-site should be examined in experiments and pilots to measure their effectiveness and safety for those conducting the work, those nearby and the general population. After human and environmental health factors are considered, an evaluation should be made of cost/benefits of these being off-site or on-site. Temporary Excess Soil Storage Sites (TESSS) It is laudable that TESSS exclude processing. Otherwise these sites could easily become toxic and hazardous waste processing sites, which is not their apparent intention nor likely in accordance with the wished of local resident and/or municipalities. That the period of storage be limited and clearly defined is also useful. Would the TESSS also disappear at the end of the two-year period? Is this an interim use or would the “temporary” site then seek out other excess soil sources to continue to fill it? In that case, community expectations of the meaning of “temporary” might be frustrated in the same way as they are at the MNRF’s definition of “interim uses” which are perpetuated for decades if not centuries. The necessity of segregation of various soil types and accurate record-keeping is reinforced in this section as it should be. On the other hand, it is disturbing to note that the planning of TESSS assume that noise, dust, mud tracking, run-off and erosion. All of these have negative environmental and cumulative human health impacts which need to be avoided. Mud tracking onto roads can result in accidents, property loss and death; run-off and erosion can transport contaminants into other soils or watercourses, produce harmful levels of mud in waterways resulting in the death of aquatic life (See also MOECC turbidity standards and kill rates), or burial of plant and animal life through interruption of photosynthesis or suffocation. The regulations need to specify how the sites are designed and/or built to reduce these hazards to zero. Operational Requirements for Excess Soil Processing Sites Including Soil Banks Unlike TESSSs, these sites would hold soils for longer, even indeterminate periods. This will mean that these sites will need to have a more rigorous community process to lead to their approval. Since they are in effect industrial, they need to be located in industrial areas suitable to the high truck traffic, and kept far from “sensitive receptors”. Many of the comments for the TESSSs also apply here as cautions. Circumstances When Hauling Excess Soil is Exempt from ECA Requirements There are too many exemptions from the level of scrutiny to receive an Environmental Compliance Approval. In fact, in some communities, ECA’s are known as “Environmental Contamination Approvals”, indicating a need for robust legislation and enforcement which might restore public confidence in the MOECC and government in general. Under the EPA and Regulation 347, waste management systems (which include waste haulers) are required to obtain ECAs or, in some cases, be registered on the Environmental Activity and Sector Registry (EASR) in accordance with O. Reg. 351/12. The proposed amendments would remove this requirement in relation to haulers transporting excess soil to TESSSs or receiving sites. ECAs (or EASRs) would still be required for haulers transporting excess soil to waste disposal sites that are subject to ECAs (including excess soil processing sites, soil banks and landfills). Hauling of sediment would also be exempt for an ECA or EASR requirement. In all cases, haulers of excess soil would still be subject to the operating standards for waste management systems set out in section 16 of Regulation 347. The exemption of waste haulers from stringent regulation flies in the face of reports of the danger presented by many garbage scows to other users of haul routes, including those from Kevin Kirkham of the MTO. An argument from ethos suggests that other parts of their concern for safety of the public may also be substandard. This is not merely rhetorical.

Managing Excavated Soil That is Liquid Waste Liquified soil, water with high levels of suspended particles of soil and/or other substances are of great concern to the environment as they have potential for entering ground water, drinking water, water courses and/or of clogging waste-water treatment. Dewatering is important to separation, but still has consequences for water. Additionally, it can tax current or future infrastructure, storm and sanitary sewers, waste water treatment plants and even overburden them. Given the reports of the volumes of raw sewage being released across the country into watercourses including Ontario’s, it might be wiser to examine why excess soil is being mixed with water with an eye to reducing this to as close to zero as possible. In several rivers, such as the Thames, fish and filtration plants cannot handle any additional levels of particles in suspension or solution. Using watercourses, even inadvertently, as disposal sites is unacceptable. Inert Fill Definition Since organic material, a major component of soil, is to be excluded from the definition of “inert fill”, major alignment with current provincial efforts to remove organics from the waste stream is evident. Further, the exclusion of organic matter from fill means that more of it can be separated for reprocessing – a double win with recovery of organic matter and inorganic matter. It is proposed that the definition of “inert fill” be amended to clarify that excess soil is not considered inert fill. “Inert fill” means earth or rock fill or waste of a similar nature that contains no putrescible materials or soluble or decomposable chemical substances, and does not include excess soil. Rock fill, asphalt and other solids from deconstruction (commonly and fallaciously called demolition) are recoverable and valuable resources when used as is or when reprocessed to standards in industrial sites well away from water sources, and in conditions where neither receptive sensors (i.e., neighbours) or workers are exposed to the dust from the materials and processes. Excess Soil Reuse Standards and Site Specific Beneficial Reuse Assessment Tool (SSBRAT) It is vital that these standards be set high, implemented swiftly and enforced robustly. As noted, the agricultural lands are of the greatest importance to Ontario’s sustainability, and one of the factors which drives Zero Waste Oxford to planning to reduce potential misappropriation or contamination of prime farmland in Ontario’s Food Belt, of which Oxford is a proud, even leading part. Where in the Medium Volume Standards, allowable levels of contaminants in residential properties exceed those in farmland, there is an unnecessary human health risk for those who grow vegetables in home gardens or fruit trees on lawns. Similarly, the even higher levels permitted for community use properties puts users of community gardens at risk. Given the rise of micro-farming in some suburban regions, as well as of gleaning and gardening in urban cores, this needs to be addressed. Such contaminants are also likely to find their way into the water table and/or water sources – prevention of the contamination would be the ideal. Zero Waste Oxford finds it irrational that the following components or pathways of toxicity are not considered in the development of excess soil standards:

*Consumption of garden products cultivated at a receiving site

* Agricultural land use specific exposure scenarios

* Livestock watering

* Irrigation water

* Dust Inhalation

* Consumption of milk or diary product produced at a receiving site

* Consumption of plants or animals cultivated at a receiving site

* Protection of reptiles and amphibians. These are all (except the last) pathways for contaminants to enter human bodies and result in cumulative human health impacts. The fact that reptiles and amphibians may have earlier or more dramatic reactions to exposure to contaminants suggests that we should heed their warning. All of the activities listed have direct impact on people in Ontario and especially in Oxford, The Diary Capital. Zero Waste Oxford is pleased to contribute to this advancement of the movement to a Waste-Free Ontario and to see the congruence of these regulations which much of its thinking. Significant reductions in the transport and disposal of soil would be beneficial to Ontario in general and to Oxford in particular. These comments are offered in good faith to assist with these improvements.

Sincerely,

Bryan Smith, Co-Chair
Zero Waste Oxford

[Original Comment ID: 209795]