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IMPLICATIONS OF PROPOSED NEW CLEAN-UP GUIDELINES

AND THE REMEDIATION OF FUEL OIL SPILLS

The Ontario Ministry of the Environment and Energy (MOEE) released "Proposed Guidelines For The Clean-Up of Contaminated Sites in Ontario" in July 1994 for public comment. The proposed Guidelines cover a much wider range of chemicals and situations than the existing ones and provide for several new approaches to remediation. Public comment on the new guidelines concluded last Autumn and has now been summarized in "Recommendations to the Minister of the Environment and Energy" prepared by the Advisory Committee on Environmental Standards (an independent provincial government committee). The Guidelines were expected to be released in their final form this past winter, however, this may have been delayed by reportedly vigorous opposition from the petroleum industry and the Guidelines will now have to be considered by the new government.

With the new Guidelines, the MOEE proposes to step back from the clean-up process. They will no longer be involved in discussions regarding proposed clean-up levels and methods in routine cases. The required clean-up criteria will be clearer as a result of the new Guidelines, particularly in the case of contaminants that were not previously covered by the existing Guidelines. In case of fuel oil spills, criteria for clean-up of ground water in potable and non-potable situations are proposed where none existed before. The MOEE will no longer approve clean-up plans, nor issue letters of compliance acknowledging that the clean-up has been completed to their satisfaction. Rather, notification of site clean-up will have to be given to the MOEE. This is required to be in the form of a certificate by a professional engineer indicating that the site has been cleaned up to the appropriate criteria. This shift away from involvement with the MOEE will allow remediations to be carried out more quickly. It will also increase the importance and likely the cost of engineers' professional liability insurance.

The proposed Guidelines envisage three different methods of determining clean-up criteria. The most involved method is site specific risk assessment, involving human health and ecological risk analysis. This involves scientific study and public consultation and would be too expensive and time consuming to be applied to residential fuel oil spills. The background approach involves comparison of the contaminant parameters to measured background levels in Ontario. In most cases, soils in the immediate vicinity of a fuel oil spill will exceed the background levels. Therefore, the generic criteria approach will most often be used for fuel oil (and most other) remediations. Two types of generic criteria approaches are envisioned; full depth clean-up or stratified depth clean-up. The latter is a new option which recognizes that there is little likelihood of human or environmental exposure to contaminants beyond the reach of children and plant roots. Contaminants at depths still pose some risk and, as such, they must meet specified standards and their existence must be registered against the title to the land. Similarly, any clean-up that is done to the non-potable ground water standard (for water and/or soil) would result in a notice on title.

Registration on title will obviously be an issue in the discussion of any proposed stratified depth clean-up with insureds. Many of those who commented on the proposed Guidelines felt that the registration on title (as a document called a "Certificate of Prohibition") would lead to difficulties in obtaining future financing for the property. This requirement may seriously limit the use of the stratified depth and non-potable clean-up options, resulting in less flexibility to tailor the clean-up to the site than the MOEE had intended. It may also encourage dig and haul clean-ups.

The Advisory Committee felt that intent to notifying future landowners of previous clean-ups was good but that the proposed system using a notice on the land title may be unworkable since the land registry system cannot support the documentation related to the clean-up. A public database maintained by MOEE was recommended. The committee also recommended that a notice of all clean-ups be maintained on the database so that negative economic consequences specific to stratified depth and non-potable criteria remediations will not limit the available clean-up options.

The actual criteria for the clean-up of petroleum hydrocarbons in soil has not changed significantly from the current MOEE Guidelines.

To conclude, the proposed Guidelines would:

• Reduce MOEE involvement in the clean-up process.

• Allow the use of stratified depth and less stringent non-potable ground water clean-ups provided the presence of the remaining contamination is registered against title. Look for changes to proposed registration against title.

• Provide ground water clean-up criteria.

• Require certification of clean-up by a professional engineer.

Until the proposed Guidelines are adopted, the current Guidelines remain in force.

 
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Information contact: engineering@waltersforensic.com