Proposed Regulation – On…

Proposed Regulation – On-Site and Excess Soil Management

1) The proposed excess soils regulatory regime provides increased clarity regarding the reuse of soils that do not meet the current “Typical Background” concentrations of the Table 1 Site Condition Standards, and consequently is an initiative that should receive broad support. Overall, the general approach to excess soils management appears to be reasonable, although we would note that the documentation requirements will likely impose considerable costs upon parties attempting to make beneficial reuse of excess soils. This is likely to impede the stated goal of the excess soils regulatory framework, namely to encourage beneficial reuse of such material. It is estimated that the additional costs to complete such testing and documentation would range between $8,000 and $15,000 for a retail fuel outlet property requiring the removal of between 1,000 m3 and 3,000 m3 of soil, not including costs associated with time lost.

2) It remains unclear what the role of municipalities will be with respect to the movement of excess soil within their jurisdictions. Further, it is unclear if the movement of soil may be subject to additional requirements at the municipal level.

3) It is proposed that ESMPs and excess soil characterization reports will be required for many sites generating excess soils. Based on the proposed regulation and associated information received, an ESMP and characterization report appears to require a significant amount of information and record keeping. It would be helpful if MOECC provides a template or form for an ESMP.

4) As part of the registry development process, it may be beneficial to engage a testing group of QPs to receive input on functionality and ease of use. Once completed, MOECC should provide documentation to all QPs and interested parties outlining the soil registry input and update processes.

Proposed Amendments – O. Reg. 153/04

5) The proposed amendments to O. Reg. 153/04 associated with the excess soils regulatory package will address some long-standing circumstances that have frustrated the redevelopment of some properties or resulted in unnecessary expense (e.g., non-standard delineation, impacts associated with treated drinking water, and risk assessments to address salt related contaminants). These proposed amendments are welcomed.

6) It is our understanding that the proposed 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 (i.e., non-standard delineation). Can MOECC clarify what would be considered a reasonable effort and who would have the authority to make that judgement? The provision of a memorandum or guidance explaining the required procedures would be helpful.

7) The proposed amendment would exempt the renovation of a portion of a four-storey or less commercial building to include above-ground 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. Can MOECC provide a rationale for limiting the building height to four storeys? It is recommended that flexibility be included in the regulatory amendment should taller buildings meet the intended spirit of the amendment, as currently proposed.

8) The proposed amendment would expand the exemption of naturally elevated concentrations of substances in native soils to historical fill materials (Section 49.1). Proposed subsection 1.2 of Section 43, Schedule E indicates that a rationale is required for relying on the exemption. Can MOECC provide guidance as to what would constitute a suitable rationale?

Proposed Tool – BRAT

9) It is proposed that a Beneficial Reuse Assessment Tool (BRAT) would be available for use by QPs (per Sections 5 and 6 of O. Reg. 153/04) to permit the development of site-specific excess soil standards for a receiving location. Given that the BRAT would not be subject to MOECC review, it is recommended that the use of the BRAT should be supervised or completed by a QPRA per O. Reg. 153/04, consistent with Section 10 of Part IV.

10) Using the BRAT, a QP is able to produce site-specific excess soil standards applicable to a reuse site. It appears that this tool allows a QP is able to produce site-specific excess soil standards in excess of the applicable Site Condition Standards. Therefore, the importation of soil with concentrations of certain chemical parameters adhering to site-specific excess soil standards may result in exceedances of the Site Condition Standards. Should that property ever require a RSC, this act would represent contamination of the property. Additionally, this process may prevent a proponent from acquiring lending from a financial institution as the property can now be considered contaminated. This process represents a fundamental deviation from MOECC policy regarding the contamination of property. Clarification is required.

Proposed Soil Rules

11) In certain circumstances, leachate testing will be required to evaluate the possibility of leaching. The need for three samples from each APEC could represent a significant cost impediment, particularly with consideration of the current MOECC policy on the determination of APECs from off-site locations. It is anticipated that the minimum number of APECs designated for most highly urban residential properties is at least four, with an APEC to investigate off-site PCAs for each of its property boundaries. Further, the time requirement to complete each of the required leachate tests can be considerable, particularly since these tests are to be completed following the completion of bulk analyses. The potential time impact resulting from leachate analyses should be considered.

12) In cases where soils are obviously impacted by contaminants and there is no potential for their re-use due to the levels of impact, the clause allowing departures from the stated sampling requirements is welcomed. However, it remains unclear why MOECC is proposing that proponents be required to develop ESMPs for materials greater than 100 m3 that are intended to final disposition at a licensed waste receiver.

13) The proposed soil rules (Part IV, Section 14) indicate that “if there is or would be a separation distance of less than 0.8 m between the bottom of the gravel crush of an existing or future building associated with the beneficial purpose and the top of the capillary fringe, or if the depth to the water table is less than 3 m from the surface of the soil”, the shallow soil tables, that is Tables 6, 6.1, 7, or 7.1, should be applied to the receiving site. This circumstance represents a discrepancy with Section 43.1 of O. Reg. 153/04, particularly in cases where less than 350 m3 will be imported and the applicable Site Condition Standards of the receiving site are Table 2 or 3. This discrepancy should be clarified.

14) The allowance for attainment criteria other than single point compliance for excess soils is well received. This application of this approach should be considered for evaluations completed under O. Reg. 153/04.