Standoff at Polak Springs

By Judith Lavoie, February 2016

Shawnigan Lake residents dig in for a long fight to protect their water from a controversial contaminated soil landfill.

John HorganUNDER ROCKS COVERED WITH SNOW, between a barbed wire fence and a sign warning of potential contamination, water is running underground and emerging in a small stream. The sound of flowing water, combined with an eerily empty settling pond behind the fence at a controversial contaminated soil landfill, reinforces the absolute conviction of Shawnigan Lake residents such as Cliff Evans that untreated contaminated water is flowing from the landfill into Shawnigan Creek and, ultimately, into Shawnigan Lake, the community’s source of drinking water.

“You can hear it running underneath. That’s why we have put up a sign saying “Warning, this water may be contaminated with untreated effluent,” said Evans as he led a group of Shawnigan residents and media on a tour of the perimeter fence.

It is a charge emphatically denied by South Island Resource Management Ltd (SIRM), the company that last year took over management of the operation from South Island Aggregates. SIRM says categorically that no water that has come into contact with contaminated soil at the site is discharged until it has been treated. “If I had any doubt about this site, I would shut it down myself,” said Todd Miziuk, SIRM co-owner.

Miziuk went a step further at a council meeting in Port Moody, where much of the contaminated soil originates, and drank a bottle of water from the site. “This is treated contact water, no colour and no orange sludge,” Miziuk said, referring to orange-brown “Polak Springs” water, bottled by landfill opponents and labelled with a photo of BC’s Environment Minister Mary Polak.

The bottled water skirmish, with SIRM claiming the orange sludge is naturally occurring iron bacteria and opponents saying it is an example of contamination flowing from the lot adjacent to the quarry and landfill, also owned by Cobble Hill Holdings, illustrates the emotionally charged fight that has galvanized Shawnigan Lake’s 8000 residents.

Regardless of potential risks from the landfill site, concerns about the drinking water supply are already affecting the health of residents according to Dr Bill Moulaison, a family doctor in Shawnigan Lake for 24 years.“I am seeing a considerable amount of angst and anxiety in the community. There are several people in my office on a daily basis with increasing anxiety,” he said.

But Muziak points to numerous tests showing no risk to public health and accuses opponents of running a campaign based on false statements and misinformation.

Evans and other volunteers, who patrol the perimeter of the site for about one hour a day and document alleged permit infractions, however, have little faith in company assurances or scientific reports that, in 2013, led the Province to approve a permit allowing the site to accept 100,000 tonnes of contaminated soil (contaminated with salts, hydrocarbons, glycols, etc) a year for 50 years—a decision upheld by the Environmental Appeal Board.

“We keep sending the [list of problems] to the Ministry of Environment and Ministry of Mines and they ignore them,” Evans said with a shrug.

But with the issue uniting almost all factions in the village and no sign of the residents backing down, it will become increasingly difficult for the Province to ignore the Shawnigan Lake battle. The complicated saga includes two court cases, a bribery complaint to RCMP, anonymous informers, charges of a secret profit-making deal, competing scientific reports, demonstrations, arrests and recent accusations by SIRM of vandalism after a large patch of yellow snow was found near the water treatment plant, forcing the company into a full spill response. (The yellow snow has since been found to be stained with marking dye, something which has aroused SIRM suspicions that it was dumped by someone trying to track flow from the landfill.)

High profile opposition to the landfill from NDP leader John Horgan, Green Party leader Andrew Weaver, and diverse personalities such as children’s entertainer Raffi Cavoukian, plus an all-out effort by Shawnigan Residents Association and local politicians to focus attention on what they believe is a fight for their health and the community’s future, is propelling the issue up the provincial agenda.

“This is an enormous issue,” said Horgan, holding a bottle of the murky water. “The government is tone-deaf to the fact that the entire community is saying ‘don’t do this’ and a handful of permit holders are holding sway over the people of this region,” said Horgan, questioning whether anyone from government had looked at the amphitheatre topography and runoff paths into the lake before issuing the permit.

“It’s not rocket science; it’s not even science. It’s a tone-deaf government that didn’t look at the circumstances they were creating…Shut this thing down and let’s start working on a solution that’s in the interest of the people that live here.”

Weaver is using his scientific background to argue for a shutdown. Previous tests conducted by Weaver from Lot 21 runoff found high levels of iron and manganese and, in January, Weaver scrambled over rocks in the ephemeral stream, close to the settling pond, to collect more samples. The tests found elevated levels of sodium and sulphur apparently originating from Pacific Coast Terminal soils dumped at the site, Weaver said.

“While it is clear to me that there are no immediate health concerns to the residents of Shawnigan Lake from the samples I collected, questions still remain. In my opinion it would be prudent for the Ministry of Environment to immediately cease operations at the facility,” he said.

But Polak shows no sign of wavering and said she must respect the independence of ministry technical experts and ensure she does not act without appropriate evidence. “The original decision to grant the permit was made by a ministry statutory decision maker who is a technical expert, independent of any political process,” she said.

A ministry spokesman said far from ignoring complaints that the company is in non-compliance, staff have investigated the site several times. “To date, samples have shown no concerns for human health or environmental impacts,” said the spokesman.

Those on the front line, such as Sonia Furstenau, Cowichan Valley Regional District director for Shawnigan Lake, are not mollified by ministry reassurances. “I want the government of BC to understand that this community is totally determined, totally committed to stopping this insanity from carrying on,” said Furstenau as she watched a helicopter, provided by a well-wisher, lift off from Shawnigan village, carrying contingents of media and politicians on trips over the landfill and quarry site.

The view from the helicopter shows the close proximity of the site to Sooke Lake, the source of Greater Victoria’s drinking water, and, even though there is no evidence of hydrogeological ties, the geography has the potential to make other communities uncomfortable.

“It’s actually closer to Sooke Lake than Shawnigan Lake,” mused Calvin Cook, Shawnigan Residents Association president, gazing down from the helicopter at the site, where, outside the gates, about 500 protesters waved placards while trucks sat immobile on the approach road.

In Victoria, councillors unanimously passed a motion in January asking that the permit be revoked and that contaminated site regulations and contaminated soils permitting be amended to allow thorough local government input, with full consideration of local land use regulations.

However, the struggle may be decided in the courts rather than by protests or politics.

A BC Supreme Court decision is expected shortly on a regional district petition asking the court to enforce zoning bylaws. In another court action, the Supreme Court is hearing a case brought by Shawnigan Residents Association, expected to last until late January, asking for a judicial review of the Environmental Appeal Board decision. It is a case fraught with twists and turns, some of it hinging on whether new material is admissible.

An envelope, delivered anonymously in July to the Residents Association, documented a secret profit-sharing deal between South Island Aggregates, Cobble Hill Holdings and Active Earth Engineering Ltd, the company that wrote the technical report for the site.

The documents allegedly show Active Earth agreed to write the report for a 50-50 split of the landfill’s future profits, through a numbered company.

While Cobble Hill Holdings and Active Earth have conceded such an agreement existed as a method of ensuring the engineering company was paid, their lawyers say it was never enacted and was then abandoned. The Province has said that site studies were also conducted by ministerial staff.

But opponents want to know how much reliance was placed on an engineering report they claim was tainted. “Our stand is that these documents were concealed from the Environmental Appeal Board,” Cook said. “We feel the board would have made a different decision if they were fully aware of all the information they should have been aware of.”

Documents released as part of a court order include allegations, not yet proved in court, that former Malahat First Nation Chief Michael Harry, who supported the landfill, was receiving a “consulting fee per tonne of soil.”

The documents include a February 2014 email from South Islands Aggregates co-owner Marty Block to Active Earth engineers which says “I am hopeful that in the future we won’t have to deal with First Nations, but, that being said, we must be in agreement that they get paid first, in fact they normally hit us up before the damn job ever starts, for example we sent them to Vegas for New Years.”

Block, although still with Cobble Hill Holdings, has no connection with SIRM and has had nothing to do with the site operation since last year, when SIRM took over operation of the landfill from SIA.

Revelations about dealings with the Malahat First Nation prompted Shawnigan resident David Hutchinson to ask RCMP for a criminal investigation, but, as is usual, RCMP would not confirm whether an investigation is underway

Michael Harry has since stepped down and the new Malahat chief and council have written to Polak expressing serious concerns about information used to make the decision. “We ask that you provide the Nation with information that confirms that the science provided by Active Earth has been re-assessed,” says the letter signed by Chief Caroline Harry. “If the ministry is unable to provide the requested information or has not undertaken an independent re-assessment, the Nation must reconsider its position on the permit.”

In an interview with Focus, Caroline Harry was more blunt.

“I want the permit to be ended completely. I see the damage this has done to Shawnigan Lake,” she said. The Malahat appeared in court in late January, backing residents’ appeal for a stay of the permit on the basis of concerns around Active Earth’s involvement.

Concerns have also been expressed by Cowichan Tribes Chief William Seymour.

That support is heartening for opponents, but, so far, there is no sign of a resolution or even a truce.

“It’s only going to get bigger,” said Furstenau. “We are not going away. We are only getting stronger and louder over time.”

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