GENERAL COMMENTS:…

GENERAL COMMENTS:

We support the overall intent of the Ministry to establish a regulatory regime for the movement of excess soils in Ontario, particularly the efforts of the Ministry to shift the responsibility for characterizing the environmental quality of excess soils to the generators of such material (as opposed to current practice where the bulk of due diligence efforts are often completed by the receiver. We are also generally supportive of the proposed amendments to O. Reg. 153/04 that included within the Excess Soils Management Regulatory Proposal, as they will address many known issues that are hindering the beneficial development of brownfield properties.

Nonetheless, we are concerned that the costs to characterize excess soils and prepare Excess Soil Management Plans are significant. For one client, we have provided them with estimates of additional costs between $8,000 and $15,000 for a typical retail fuel outlet requiring the removal of between 1,000 and 3,000 cubic metres of soil. Such costs may have the inadvertent outcome of encouraging illegal dumping of excess soils. Consequently, we would urge the Ministry to expend considerable efforts on both outreach and enforcement of the new regulatory regime once it is in place.

OTHER COMMENTS RELATED TO EXCESS SOILS:

EXCESS SOIL MANAGEMENT PLANS: To assist generators and QPs in preparing appropriate and adequate ESMPs, it would be helpful if the Ministry could provide templates or guidance manuals for the preparation of ESMPs.

The Excess Soil Management regulation will need to provide for an appropriate transition period for locations/projects that are already involved in the movement of soils. Many such projects involve substantial planning efforts of periods of 12 to 18 months, or more. At a minimum, it is recommended that this transition period be at least 12 months to ensure that adequate time is available to prepare ESMPs for ongoing or upcoming projects, and to permit the Ministry a suitable period for education and outreach programs for property owners, contractors, and consultants (QPs).

EXCESS SOIL CHARACTERIZATION: While the proposed sampling frequencies generally appear to be reasonable, the specified sampling requirements should be revisited by the Ministry to ensure that in-situ sampling programs require fewer laboratory analyses than sampling an equivalent volume of stockpiled material. (When completing in-situ sampling, there is a greater knowledge of the proximity of the recovered sample to the potentially contaminating activity, and therefore greater certainty that “worst-case” results are being obtained.

Excess Soil Management regulation will need to include language on the selection of Excess Soil Quality Standards on the basis of volume for receiving locations that have previously received one or more shipments of excess soils.

In certain circumstances, leachate testing will be required to evaluate the possibility of excess soils impacting nearby water bodies. It is unclear if the leachate testing required to determine adherence of excess soils to the excess soil standards is reasonable. While it is acknowledged that TCLP is currently used to classify soils as hazardous waste, the use of TCLP is likely to overestimate the leaching potential of soils used for simple grading. The use of SPLP is more realistic test type since it only induces leaching resulting from typical precipitation. Qualified Persons should be given the potential to utilize either technique. Additionally, MOECC should consult with analytical laboratories to ensure that leachate test reportable detection limits can reliably meet the applicable groundwater standards.

The allowance for Table 1 Attainment criteria other than single point compliance is well received. This application of this approach should be considered for all other excess soil re-use tables.

When referring to ceiling values for Table 1 Attainment Requirements [item c), iv.; Proposal page 63], can MOECC clarify that an upper risk threshold is?

SITE SPECIFIC BENEFICIAL REUSE ASSESSMENT TOOL: The site-specific excess soil quality standards developed through SSBRAT should be capped at the applicable Site Condition Standards for the receiving location. Otherwise, there is the potential that importing soil in accordance with the proposed regulation could actually render a receiving site “contaminated”.

OTHER PROPOSED AMENDMENTS TO O. REG. 153/04:

GENERAL COMMENTS: The proposed amendments to O. Reg. 153/04 to accompany the Excess Soil Management Regulatory Proposal will address some long-standing circumstances that have frustrated the redevelopment of some properties or resulted in unnecessary expense (e.g., vertical delineation, impacts associated with treated drinking water, and risk assessments to address salt related contaminants). These proposed amendments are welcomed. Moreover, while other parts of the Excess Soil Management Regulatory Proposal will require transition periods, the proposed amendments to O. Reg. 153/04 that will accompany the regulatory proposal should come into effect as soon as possible (without a transition period).

VERTICAL DELINEATION: The proposed regulatory package indicates amendments to O. Reg. 153/04 would permit, under certain conditions, the filing of Records of Site Condition where vertical delineation of one or more contaminants have not been achieved. The regulatory package indicates that in cases where there has been difficulty in achieving vertical delineation of impacts, the need for additional investigation is not required if reasonable effort has been undertaken (among other requirements). The need to restrict this option to exceptional cases is understood and appreciated. However, for the purposes of clarity and transparency, it is recommended that the Ministry provide direction / guidance to practitioners as to what would be considered reasonable vertical delineation efforts.

RENOVATIONS OF EXISTING COMMERCIAL BUILDINGS: The proposed amendment would exempt the renovation of a portion of a four-storey or less commercial building to include upper floor residential use from the requirement of obtaining a RSC. The exemption would not apply in the case of demolishing and rebuilding or otherwise altering the building footprint, and would not apply for a change to residential property use for the ground floor level of the building. This appears to be a practicable approach, particularly for buildings located in older urban areas where the building footprint occupies the entirety (or virtually the entirety) of the property, making a Phase Two ESA in accordance with the regulation extremely difficult and/or practically impossible. However, the use of four storeys appears to be arbitrary; we are aware of six, eight, and even ten storey older buildings where such an approach would also be reasonable but which would be excluded from the proposed amendment.

The Ministry may wish to incorporate flexibility into the proposed amendments, or remove the building height restriction entirely.

To avoid a situation where a developer builds a “commercial” building and immediately converts it to mixed residential/commercial use in order to avoid filing a RSC, the Ministry may wish to incorporate a requirement that the building be at least a certain age (e.g., 10 years old).

NATURALLY ELEVATED CONCENTRATIONS IN FILL MATERIALS: The proposed amendment would expand the exemption of naturally elevated concentrations of substances in native soils to historical fill materials. Justification for the identification of local background conditions would require testing of unimpacted properties to demonstrate that the levels in the fill are consistent with natural local background levels. For the purposes of clarity and transparency, it is recommended that the Ministry provide direction / guidance to practitioners as to the requirements for such a sampling program.

CLASSIFICATION OF RELIGIOUS GATHERING PLACES: The proposed amendment would revise the definition of gathering places for religious purposes as comprising institutional property use (rather than community property use as currently defined). It is appreciated that such an amendment would allow religious buildings to be used for schools or day care centres (or for residential use) without requiring the filing of a RSC. However, it should be recognized that many religious centres are established within commercial spaces (particularly for newer immigrant communities). The proposed amendment may inadvertently facilitate flexible use of religious centres for established groups by thwarting the efforts of newer groups to establish their own religious centres. As a result, we would strongly urge the Ministry to revisit this proposed amendment, and if necessary, to find an alternative means to permit schools and day care centres to be opened within established religious centres.

[Original Comment ID: 209825]