The Ontario Soil Regulation…

The Ontario Soil Regulation Task Force (OSRTF) has been involved with the issue of excess soil since its formation in 2015 by citizens groups that had been dealing since 2010 with the problems of the dumping of excess soil in inappropriate places. It now speaks for over 20 citizen groups from Clarington, to Ramara, to Chatsworth, to Grimsby in an arc over the golden horseshoe. Its leaders have taken several professional training sessions on soil contamination. Its members were instrumental in court cases and a federal legislative amendment that closed the federal aerodrome loopholes that were used at several sites. OSRTF has produced a peer reviewed model municipal site alteration by-law and presented to many town councils to improve their by-laws and is involved in OMB and the Normal Farm Practices Protection Board hearings in support of those by-laws. It was OSRTF members who pressed their MPP to initiate the review that has ultimately led to these proposed regulations in EBR 013-2774. OSRTF has been involved with MOECC in the policy review and the development of the regulations through the regular meetings of the Excess Soil Engagement Group.

OSRTF appreciates all the effort, time, and care that have gone into the process that led to these regulations and is generally very pleased with the results. The regulations will be a very large improvement and in our opinion achieve a balance between protection of the environment and human health and economical development and re-development. However, the neighbours and municipalities of the receiving sites should not have to bear the costs of cheap development of the source sites.

Our comments on the regulatory package are spread over three additional documents submitted directly to MOECC.
• OSRTF-Summary Comments on Regulatory Proposal-EBR013-2774.PDF
• OSRTF-Comments on Soil Regulations-EBR013-2774.PDF
• OSRTF-Comments on Soil Rules-EBR013-2774.PDF

The following highlights our key concerns in several areas.

Soil Definition
The regulation’s definition is too limited and is problematic when aggregate is excluded but aggregate is defined in the ARA as including “…sand, clay, earth...”. Suggested wordings are provided in the comments.

Waste Designation
OSRTF agrees with a default waste designation. When the operators pay to dispose of the material it is a waste. The comments express our concerns in several areas of how the waste designation can be removed.
On-site processing in itself should not be sufficient to remove a waste designation. The successful remediation of soil is dependent upon many factors, the most important the selection of a process suitable for the contaminant of concern. Passive aeration does not remove lead.
We are most concerned with the Table [4. (1)] that allows an instrument with less stringent requirements on soil quality to set the criterial for removing the waste designation. Municipalities or other bodies with less expertise than MOECC must not be allowed to disregard the soil standards that have been so carefully set.

Beneficial Use
The overview document Ontario’s Excess Soil Management Policy Framework and Proposed Regulation makes two statements that OSRTF agrees with wholeheartedly.
“if excess soil is being reused for a beneficial purpose and the quality of the soil is appropriate for the reuse site, it would not be considered waste.”
“If excess soil is being deposited at a site that is used primarily for depositing excess soil, that soil would be considered a waste and associated Environmental Compliance Approvals (ECAs) would be required.”
However, this is not carried into all aspects of the regulations. Especially troubling is the Table in 4. (1) that lets the instruments of municipalities and other bodies limit the waste criteria to only the soil quality in Soil Rules or even set their own criteria as discussed above. We believe that section 5. (1) Exemption from designation, if reuse site not governed by instrument must also apply as well to sites with instruments if the intentions of the policy are to be upheld. Inexperienced or poor municipalities can be bullied or deceived into receiving waste for tipping fees.

Registry
The registry would be very important to our members and the public. They will expect it to be searchable from a public website. If they see soil dumping in their neighbourhood they must be able to search by address (or map) to see what oversight is taking place and what quality of material is being deposited. Municipalities should be able to track illegal dumping by date, time and plate number back to the responsible source site for enforcement by MOECC for non-compliance of the soil management plan. This implies that MOECC must have the soil management plans on file. The details of the data management system will need to be developed in due course to provide these desired functionalities.

Source Responsibility
The Framework placed the responsibility on the source site for the soil until it reached its final destination. In the regulations the ultimate responsibility is the project manager, who may move on or dissolve, before the impact of irresponsible actions are evident. The ultimate responsibility must be on the owner of the source property who would then become cognisant of that responsibility when he signs a declaration in the plan that acknowledges responsibility for the excess soil throughout its movements and then monitors the project manager.

Environmentally Sensitive Area
The definition of ESA does not include areas of high aquifer vulnerability nor well-head protection areas. Because we have seen supposedly clean soil turn out to be contaminated when tested at the receiving site and have examples of contaminants finding their way to the groundwater, we believe that the precautionary principle must be applied here to protect human health and property values. The comments argue that definition must be expanded to include areas of high aquifer vulnerability and well-head protection areas as designated in provincial or municipal plans and thus limit any soil deposited in those areas to Table 1.

Soil Processing Sites
The regulation and soil rules assume that soil from processing facilities has been adequately remediated according to their Environment Compliance Approvals. We do not believe this to be correct given the non-homogeneity of contamination in soil, the very small amount that is actually tested, the ineffectiveness of remediation on all contaminates, and the variation in the ECAs that are granted to different sites. Most of the examples we have of sites with contamination are soils from soil remediation facilities. Because of the uncertainty and the real potential for serious contamination these soils, even if labeled as Table 1, have no place in environmentally sensitive areas. The comments contain specific recommendations.