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ONEIA Excess Soil Session September 9, 2014 - Panel presentation Janet Bobechko

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ONEIA Excess Soil Session September 9, 2014 - Panel presentation Janet Bobechko

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ONEIA Excess Soil Session September 9, 2014 - Panel presentation Janet Bobechko

  1. 1. Contractors Panel Moderated by Janet Bobechko Soil Management Session September 9, 2014 Janet L. Bobechko Partner, Certified Specialist (Environmental Law) Co-Chair ONEIA Brownfield Committee Blaney McMurtry LLP jbobechko@blaney.com 416.596.2877 (direct line) 416.594.2435 (direct fax) © Janet Bobechko 2014 Blaney McMurtry LLP - 2 Queen Street East, Suite 1500 - Toronto, Canada www.blaney.com
  2. 2. Excess Soil Management  The Management of Excess Soil – A Guide for Best Management Practices (“BMP”) was released by the Ministry of Environment on January 24, 2014  http://www.ene.gov.on.ca/environment/en/resources/S TDPROD_110253.html  Not regulatory requirement  Provide general concepts that “may” be used to address management of excess soil  Being adopted by cities, municipalities  Many unanswered questions  Panel focus is to raise awareness of key practical issues
  3. 3. Soil Management – Legal Issues  MOECC BMP- does this new guidance raise the standard of care for all soil movement?  Do all existing soil removal contracts that have a provision to be in compliance with Applicable Law defined to include “standards, policies and guidelines” need to meet the new BMP requirements?
  4. 4. Excess Soil Movement - Guidance  Excess soil now considered a resource  Source site - where soil excavated  Receiving sites – where soil can be beneficially re-used  Soil treatment facilities not part of BMP  All excess soil should be tracked  “Encourage” use of Qualified Person (QP) within the meaning of s. 5, O. Reg. 153/04  Education and outreach are key to implementation
  5. 5. The Starting Point-Procurement  Best time for all parties to determine that BMP will be used is at the start of the relationship  Initial tender/contracts should specify BMP to be used and what aspects/requirements  Identification and transparency of Soil Management Plans at Source Sites, Receiving Sites based on Fill Management Plans  Difficulty is that Receiving Sites can change rapidly and may not be available at time of actual work
  6. 6. QP Role  QPs exercise professional judgment  Provide options for excavated soil or excess soil  Make decision based on “appropriate analysis and characterization of the soil”  QP to take a “risk based approach”  Consider effects of loading of soil and pre-existing conditions  Use a Risk Assessment as in s. 6, O. Reg 153/04?  Time consuming and costly!
  7. 7. Source Site  QP to be retained to develop Soil Management Plan  Show detailed analysis and sampling plan for excavated soil. (How much is enough?)  Track areas to be excavated with estimated volumes and soil type, and quality of each area copy of instructions to on site contractors identifying are and depth of soil  List of potential Receiving Sites linked to area of the site plan  Difficulty becomes timing and schedule changes – is the original receiving site still available?
  8. 8. Receiving Site  Create Fill Management Plan (QP role)  Understand pre-existing site conditions  Addition of new soil could cause an adverse effect or a degradation of pre-existing conditions  Are there municipal/conservation area requriements?  “Know” quality of soil from source site – how much is enough?  Encourages chemical analysis – no guidance on how many samples –QP decision  “Reasonable identification of potential contaminates based on history and conditions of the sites”
  9. 9. Public Consultation  Encourages Receiving sites to engaged in public consultation- how much is enough?  Could be done in conjunction with municipal requirements for fill permits – not consistent  Advertise – where and how often?  Engagement of First Nations and Metis – who has duty?
  10. 10. Maintain Records  Recommend keeping records for minimum of 7 years after completion of all excess soil management activities or removal of soil from Temporary Soil Storage Sites  Need to consider this in contractual requirements and indemnities for similar length of time  What records to maintain? ALL
  11. 11. Invasive Species  Should consider the spread of invasive species  Provides some names like European fire ants, Japanese knotweed, Phragmites, Giant hogweed, Garlic mustard, Dog strangling vine  Need to control and mitigate or eradicate invasive species  MOECC will provide guidance- currently difficult to determine priorities and how to identify/test (See http://www.invadingspecies.com and https://www.ontario.ca/environment-and-energy/ how-government-combats-invasive-species )
  12. 12. The Process  BMP provides 5 pages of detailed “instruction” on what to consider for each part of the cycle  What you need for source site, transportation, receiving sites, temporary soil storage sites  Onerous requirements – need new pro formas  Bottom line comes down to documentation  Procurement issue - numerous contractual considerations  No simple precedent can protect against liability
  13. 13. BMP Guidance  May be some flexibility in requirements for receiving sites but must consider equivalent of cumulative or compounding effects  Need to consider invasive species – no clarity on what these are and where to find them  Temporary Soil Storage Sites - only as an interim use for 2 years  Difficult for larger projects  Prohibits comingling of material
  14. 14. Practical Issues  Understand what type of material- is it soil?  Understand the volume  Understand all legal and non legal definitions  Ensure proper documentation if relying on an exemption  Conduct due diligence on options  Work with QPs and contractors  Be realistic about risks and liabilities  Review insurance and approval documentation  Create effective paper trail to protect against enforcement and civil liability (7 years)
  15. 15. Questions Janet L. Bobechko Certified Specialist (Environmental Law) Blaney McMurtry LLP Direct Tel. 416.596.2877 Direct Fax. 416.594.2435 Email jbobechko@blaney.com www.blaney.com © Janet Bobechko 2014

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