Shawnigan Lake battle escalates

By Judith Lavoie, May 2015

With legal costs already over $1 million, the traumatized community continues its fight against a contaminated soil dump.

As Shawnigan Lake residents prepare to fight yet another battle over provincially-approved plans to dump and treat contaminated soil in a quarry above the lake that provides the area’s drinking water, there’s a community-wide sense of disillusionment and systemic betrayal. “I feel that what went wrong are the government processes and rules and regulations,” said Victoria Robson, Shawnigan Residents Association director.

It’s a feeling echoed by most of those involved in the battle against South Island Aggregates/ Cobble Hill Holdings’ plans to bring in up to 100,000 tonnes of contaminated soil a year—much of it from Victoria. The company intends to treat the soil either through bioremediation, using bacteria, fungi and plants to alter contaminants, or through encapsulating the soil in cells with plastic liners.

Initially the company planned to reclaim the active quarry with clean fill, but a more lucrative option evolved after a load of contaminated soil was inadvertently dumped at the quarry in 2010. South Island Aggregates (SIA) owners Marty Block and Mike Kelly saw a way of turning a problem into a business opportunity.

Local opposition erupted immediately, crossing all political lines, but, despite rallies, petitions, publicity, and costly legal pursuits, in 2013 the Environment Ministry decided the plan could go ahead. A 50-year permit was granted. Then, this March, the Environmental Appeal Board backed the decision.

One deciding factor was the amount of protection demanded by the permit conditions, pointed out lawyer John Alexander, who acted for SIA/Cobble Hill. “The permit started from the proposition that this site was in a watershed—a drinking watershed and a recreational watershed—so, if it was going to be considered, it would have to be backed by at least seven layers of protection,” he said. The protection is so complete that the operation could theoretically go anywhere without fears of contamination, he said. 

Robson, who wants to see regulations updated to provide more community protection from activities on private land, remains sceptical about both the protections and the process. The Residents Association tried to adhere to due process and do everything according to rules, she warned, but all efforts failed and other communities should take note that they could find themselves in the same situation. 

Calvin Cook, Residents Association president, struggling to contain his outrage, agrees other communities are at risk. “Here they have taken a pristine site in a designated community watershed. If they can put it here, my Lord, they can put it anywhere,” he said. “The irony is that I am fighting the Ministry of Environment to protect water. Shouldn’t this be the other way round?”

After the SIA proposal received ministry approval, the Residents Association, Cowichan Valley Regional District and two local residents took the case to the Environmental Appeal Board, arguing that the site was too risky, that fractured bedrock would allow contaminants—including hydrocarbons and persistent and highly toxic chemicals such as dioxins and furans—to seep into the water table, threatening drinking water and fish habitat. They further argued that the design of the facility and permit requirements were not sufficient safeguards.

Opponents say there are also questions about the process that have never been answered, such as why Active Earth Engineering Ltd, which drafted SIA’s permit application and was owed money by SIA, then served as an expert witness. Another question concerns the role of Malahat First Nation, which supported SIA, but which also runs a contaminated soil facility on the reserve, which is used by SIA.

Green Party MLA Andrew Weaver, who visited the site recently, points his finger at the “Professional Reliance model,” which has been used to assess permit applications since Liberal government civil service cutbacks left the Province without in-house expertise in many areas.

Instead of using government experts, the ministry now relies on the judgement of qualified experts hired by a project proponent. During the Shawnigan Lake hearings, the CVRD and Shawnigan Residents Association brought in their own experts, whose evidence conflicted with the expert opinion provided as part of SIA’s permit application.

“Herein lies the critical problem with the entire permitting process. The Professional Reliance model for project permitting in use in BC is inherently flawed,” Weaver wrote in his blog. He noted that in March 2014—almost a year after SIA’s permit was granted—the Office of the BC Ombudsperson released a scathing report criticizing the Professional Reliance model with respect to streamside protection and enhancement areas. (The Liberal government has agreed to accept 24 of its 25 recommendations.)

According to Sonia Furstenau, Shawnigan representative on Cowichan Valley Regional District board (CVRD), the BC government has not even adhered to its own rules.

“There’s a process in BC that is meant to be followed in choosing a site for a landfill and that process has not been followed. If it had, there’s no way in the world that this site could have been selected as a fill site—at the headwaters of the lake, on top of an aquifer,” said Furstenau, who believes that, because of the area’s geology, leakage into the aquifer could also put Victoria’s drinking water at risk.

Assuming a contaminated soil treatment facility is needed in the area, she suggested, there should have been a widespread search for a suitable site. She says the CVRD offered to assist in that search, but to no avail.

However, SIA lawyer Alexander said that, although there is nothing stopping the CVRD from looking for its own site and setting up in competition to SIA, it first needs to get its own house in order. “It’s the pot calling the kettle black,” he said, pointing out that the regional district has piles of contaminated ash from its former incinerator sitting beside a creek and that the CVRD has yet to deal with 4500 cubic metres of contaminated soil dumped on a Malahat property 12 years ago. Ironically, the SIA site could help deal with those problems and other illegal dumps in the area, Alexander said.

Furstenau scoffed at what she sees as attempts to divert attention from the SIA site and said the more important question is the science behind the proposal.

“Science has proved that contaminants will outlast engineered solutions,” the Residents Association’s Cook said, adding, “The liners are new technology and they haven’t worked in the past. We are taking [poisonous chemicals] and putting them in a rubber baggie.” 

Alexander disagrees, describing cell liners as a recognized technique in dealing with contaminated soil and one that is used by other local operations such as Tervita Corporation on Millstream Road. After 40 years of use there is no sign of them failing, noted Alexander.

After a record-breaking 31 days of hearings, the Environmental Appeal Board issued a 147-page decision which emphasized that board members took residents’ concerns seriously and recognized the unquestionable need to protect water sources, human health and environmental values. But the board ruled that “on a balance of probabilities, the geology and hydrogeology of the site and the facility design, together with the permit conditions, will provide the required protections.” The board added additional requirements, such as prohibiting blasting at the adjacent quarry while cell liners are installed and constructing a permanent roof over the soil management area.

A balance of probabilities is not good enough when it comes to protecting drinking water, wildlife and fish habitat, Cook said scornfully. “None of it passes the sniff test,” he said, reiterating that it is the wrong site for treating poisonous chemicals such as hydrocarbons and glycols.

In addition to the fear of contaminated water, area residents are also concerned the controversy is affecting real-estate prices, Furstenau said.

That is not the only financial worry. Among other unpleasant discoveries made by Shawnigan residents during the protracted dispute is that the system is designed to favour those with deep pockets.

The Residents Association, with 476 members, has spent a staggering $629,000 on legal fees. The group has raised about $250,000 through bake sales, bottle drives and dances, while praying for community goodwill to make up the shortfall, Robson said.

The CVRD has spent about $550,000 on Environmental Appeal Board (EAB) legal costs, said Furstenau. “We weren’t anticipating that they would be that much, but, because the hearings went on so long, the costs are mounting,” she said.

The financial implications make the decision to now escalate the battle a leap of faith.

The Residents Association is looking at requesting a judicial review of the decision and is hoping to introduce new evidence on the impact on the community, real estate values, and the history of the company, Cook said. “The EAB didn’t feel they wanted to consider ex-employees in regard to the conduct of SIA. We have signed affidavits (about on-site disposal and company behaviour) from a couple of former employees.” 

Concurrently, the CVRD is looking into the possibility of a BC Supreme Court challenge on land use and zoning grounds. “It hasn’t been decided yet. The CVRD board has to decide,” Furstenau said. “The CVRD is exploring all of its options.”

In the meantime, South Island Aggregates is preparing to reactivate the site. Lawyer Alexander suggested that, if there is to be more legal wrangling, the parties think carefully before applying for an injunction. “One of the primary considerations is that someone would have to step forward and offer to pay the losses or damages caused by an injunction. That’s a pretty significant thing for the Residents Association. It could be a very big number,” he warned.

Opponents did score a small victory in April when Furstenau and Cook, backed by community representatives such as the headmaster of Shawnigan Lake School, a local doctor, and a realtor, met Environment Minister Mary Polak and ministry staff, who agreed to expand their water sampling program and conduct an environmental assessment of the existing site.

“We also established that the CVRD will be able to participate, which is good because we don’t have a whole lot of faith in the Ministry of Environment right now,” Furstenau said.

It is an opinion shared by many of those living around Shawnigan Lake who feel their wellbeing is being threatened by a private company’s money-making scheme, without any benefit to them.

Despite all the talk about a community rift, residents are remarkably united, Cook said. “There is no rift unless your name is Block or Kelly.”

Judith Lavoie is an award-winning journalist specializing in the environment, First Nations, and social issues. Twitter @LavoieJudith