Environment Minister Mary Polak has finally cancelled the permit for the controversial Shawnigan Lake landfill site after the facility’s owner, Cobble Hill Holdings, failed to post a long-overdue security deposit.
The cancellation follows a Jan. 27 suspension order issued by the minister that gave the company two weeks to comply with the law on a number of outstanding issues.
In particular the government demanded the company produce a proper closure plan and a complete estimate of the cost of that closure, as well as a security deposit for liabilities.
The suspension order cited the repeated violation of water quality guidelines. Heavy metals have migrated off the site into the local watershed as documented by The Tyee.
The company promised to respond promptly to the Jan. 27 order, but then submitted only two of the three required documents. It also asked for an extension to arrange for the security deposit due to “insufficient finances.”
A letter cancelling the permit noted that the minister was not swayed by the last minute request “given the past pattern of non-compliance and delayed compliance.“
Polak used Section 18 of the Environmental Management Act to cancel the permit. The section gives the minister the right to cancel a permit when a company fails to comply with the terms of its permit or misleads the government on its permit application.
Polak told reporters on Thursday that the section had never been used before by a minister.
Sonia Furstenau, the Cowichan Valley regional director who led the fight against the project, said, “We are happy the government cancelled the permit, but the cancellation leaves a lot of unanswered questions about the cleanup.”
“Heavy metals are leaving this site and entering the watershed and that needs to be fixed,” she said. “The contaminated soil needs to be removed. This should never have happened to this community.”
Polak couldn’t answer questions about the fate of 100,000 to 200,000 tonnes of contaminated soil already dumped at the site. She said ministry technical staff would determine what would need to be removed.
In 2013, the government granted South Island Aggregates and Cobble Hill Holdings the right to fill part of an active quarry with contaminated soil and ash against the wishes of local government.
Since then, the local government and community have fought the provincial permit with court challenges and public protests.
When asked how a company that can’t post a security deposit will clean up the site, Polak answered that the government may have to go to the courts.
“Just because the permit has been cancelled doesn’t mean the company doesn’t have obligations on the site,” Polak said.
But Furstenau pointed out that the government had ignored the company’s poor compliance record as far back as 2008.
The government also did nothing when presented with clear evidence of conflict of interest that existed between the company and engineers vouching for the facility’s safety.
“We gave the government that information in 2015 and they did nothing about it,” said Furstenau.
The dramatic cancellation of the permit follows a scathing and lengthy judicial review of the permitting process released on Jan. 23.
Justice Robert Sewell documented extensive misrepresentation during the approval process including conflict of interest and “false and misleading information.”
As a consequence, Sewell ordered that all shipments of toxic soil to the quarry located at the head of watershed to stop. He also asked the Environmental Appeal Board to review the case again.
In 2013 the Environmental Review Board approved the permit after relying on a technical report on the facility’s safety and suitability that “was prepared by engineers who were not independent and who stood to profit from the continued operation of the facility,” reported Sewell.
In fact the engineers who prepared the assessment had signed a secret agreement with Cobble Hill Holdings that gave them a share of the profits from the facility.
The judge pulled no punches. “If the question before me had been whether to set aside the permit, I would have had no difficulty in setting it aside and remitting it to the ministry for reconsideration because the Technical Assessment Review was prepared by persons who were biased in favour of approving the project.”
“That is a circumstance that goes to the heart of the integrity of the approval process under the Environmental Management Act,” added Sewell.
Four days later, Polak suspended the permit for the facility “due to their failure to address both outstanding as well as past non-compliances.”
The landfill’s 50-year permit requires all water from its settling pond and treatment facilities must meet provincial water quality guidelines.
But that hasn’t happened. Water reports posted on the environment ministry website show that levels of aluminum, chromium, cobalt, copper, iron, lead, manganese, vanadium and zinc exceeded either B.C. drinking water regulations or guidelines to safeguard aquatic life during some testing periods in October and November.
The ministry has not posted new water quality reports for the months of December, January or February.
In a letter to the ministry last year Martin Block, the owner of Cobble Hill Holdings, argued that “in the words of your own staff, this is the best run facility on the island.” He also claimed his facility prevented the illegal dumping of contaminated soil on public lands and elsewhere.
The government needs to reflect on how the permitting process went wrong, said Furstenau, “and why they failed to do anything about it for two years.”
From the beginning the government failed to listen to the evidence on the company’s reputation as well as science on the unsuitability of a quarry as a landfill for contaminated waste, she said.
“The judicial review really called into question how the government makes its decisions.”
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