Contaminated soil appeal filed as pulled permit applauded in Shawnigan

The owners of the contaminated soil landfill at Shawnigan Lake are fighting back after Mary Polak pulled its waste-discharge permit

  • Feb. 28, 2017 10:00 a.m.

Lexi Bainas and Robert Barron Citizen

The owners of the contaminated soil landfill at Shawnigan Lake are fighting back after Environment Minister Mary Polak pulled its waste-discharge permit last week.

Cobble Hill Holdings and South Island Aggregates filed a notice of appeal to the BC Court of Appeal on Feb. 23 requesting that BC Supreme Court Justice Robert Sewell’s Jan. 24 judgement be set aside.

Sewell had set aside a decision by B.C.’s environmental appeal board and reinstated a stay of the permit that allowed the companies to receive and store up to 100,000 tonnes of contaminated soil a year at the site.

In his 49-page decision, Sewell said he’s satisfied that the environmental review board was “misled” with the information that was provided by the proponents when it was considering issuing a permit.

Aurora Faulkner-Killam, from the Victoria law firm Cox Taylor that represents the companies that own and operate the landfill, said she had no instructions to comment further on the decision to file an appeal at this time.

Sonia Furstenau, the director for Shawnigan Lake on the Cowichan Valley Regional District and a long-time opponent of the landfill, said she’s unsure as to exactly what the strategy of the companies is.

“The minister’s decision to pull the permit was not related to Justice Sewell’s decision,” Furstenau said.

“Polak’s decision had to do with the non-compliance of the companies to provide documents that she requested and Sewell’s ruling had nothing to do with that. As far as we are concerned, the permit is cancelled and that’s where it stands.”

Calvin Cook, president of the Shawnigan Residents Association which were the proponents of the judicial review that led to Sewell’s ruling, said the SRA is taking the appeal “very seriously”.

He said considering the long road through the justice system that the association and others opposed to the landfill have been through, and the many reversals throughout the process, the association is taking nothing for granted.

“We’re consulting our lawyers and will respond to this appeal within the next 10 days,” Cook said.

It was a marked difference to the feeling in the community last week. Residents were celebrating with champagne in downtown Shawnigan Lake after hearing that Polak had finally pulled the waste discharge permit.

The location, near Stebbings Road, has seen the “dirty dirt” hauled in from outside the Cowichan Valley and dumped in a plastic-lined hole, causing nearby residents concern about how run-off could affect drinking water sources as well as the lake itself.

Furstenau said at the time that the community was “ecstatic” with the news.

“I want to say thank you to the minister for making the right decision, but the credit for this goes to the community for working so hard and so long on this,” she said last week.

“This is a good day. I’m applauding her.”

But in spite of the celebration, Furstenau still sees work to be done.

“The one caveat, the next step is that the soil will have to be removed,” she said.

“We said that from the start and we’re sticking to it. The soil has to go. It can’t stay. We’ll celebrate today’s victory and the next thing this community will be seeking from higher levels of government is that the soil is removed.”

Shortly before the minister’s announcement, Cowichan Valley MLA Bill Routley stood up in the Legislature and asked, “when the people of Shawnigan Lake were concerned about protecting their drinking water from a contaminated soil dump, this minister of environment said they had no reason to fear because of the system, the one created by this Liberal government would protect them. But according to a BC Supreme Court judge, the Ministry of Environment and the people of the community of Shawnigan Lake that I represent were lied to…Honourable Speaker, now we have a bizarre situation where the minister is saying that the system has let everyone down…How much longer does this minister plan to put my constituents through the spin cycle?”

Polak’s statement was issued not long after.

“Effective immediately, I am cancelling the waste discharge permit for Cobble Hill Holdings because the company has failed to meet the requirements outlined in my Jan. 27 letter.

“The company was given 15 business days to provide three required documents and submitted only two prior to the deadline given. Specifically, the company failed to provide the province with adjusted financial security in the form of an irrevocable letter of credit.

“Cobble Hill Holdings has been provided multiple opportunities to respond to outstanding non-compliances and has repeatedly missed deadlines with respect to its permit requirements,” the statement continued.

“Ministry staff are taking actions to ensure material on the property is managed in a way that does not present a risk to human health or the environment. My decision to cancel the waste discharge permit is based on information and advice from staff who are technical experts in their field,” Polak concluded.

MP Alistair MacGregor (Cowichan-Malahat-Langford) said he was elated at the news.

“Not only was the entire process that allowed the toxic soil dump permit flawed from the onset, but during the first serious rain event of its existence the project failed and discharged contaminated soil directly into the watershed. It shouldn’t have taken this long for the BC government to put an end to this irresponsible and dangerous soil dump that risked inflicting irreparable damage to the Shawnigan watershed and its aquatic life,” he said.

In a scrum held in the Legislature, Polak faced reporters, including Black Press’s Tom Fletcher.

Asked what was going to happen to the material on the site, she said, “That is part of the amendment to the spills prevention order, and also requirements in terms of their closure planning, so our staff will be following up with them to ensure that they fulfill all their obligations.

“Just because the permit is cancelled doesn’t mean the company no longer has obligations on the site. They still are the ones who are responsible for the site and for maintaining it properly and dealing with any remediation necessary.”

Asked if the company has added any extra funds to the $250,000 bond they had first posted, she said, “That is part of the information that was requested that they did not provide us adequately by the deadline, which was a proper recalculation of the amount that they would provide in a letter of credit. They did not do that, and so we will be pursuing all of those obligations that they have and making sure that they comply.”

Polak did not have definite answers about who had full responsibility for removal of the material from the site, or what recourse the ministry might have, or even if taxpayers might be on the hook for the cleanup.

“The government of B.C. is always responsible to take action where a proponent isn’t,” she said. “That is always the case, and is part of making sure that we keep everybody safe. Ultimately it is the legal obligation of the company, and if they fail to do so, then we would certainly pursue them in court. We’ve been successful there on many occasions.”