Dirty Soil - Shawnigan Lake

Sonia Furstenau

Shawnigan Lake is a community that has decided to stand up and stand together to protect its drinking water.

In the summer of 2012, South Island Aggregates (SIA) owners Mike Kelly and Marty Block, along with engineers Matt Pye, Jeff Taylor, and David Mitchell from Active Earth Engineering, came to Shawnigan with their plan to turn their rock quarry into a contaminated soil landfill. The quarry is located halfway up a mountain at the south end of Shawnigan Lake over the headwaters of our watershed.

The proposal was to bring in 100,000 tonnes of contaminated soil each year for 50 years and dump it on the site, while still operating as an active quarry. The contaminants listed in the permit include dioxins, furans, phenols, hydrocarbons, arsenic, lead, chlorides, and other toxins and chemicals known to be harmful to human health.

Records of a public meeting show that out of over 350 people who attended, only two voiced support for the proposal: the quarry owner’s daughter Nikki Block and Michael Harry, then chief of the Malahat First Nation.

Despite this clear community opposition, the Ministry of Environment (MoE) moved forward and issued a draft permit in March 2013.

More than 300 people took the time to send written submissions that highlighted the potentially negative environmental, health, social, and economic impacts of this proposed site. The Cowichan Valley Regional District (CVRD), the Capital Regional District, the Cowichan Tribes, Vancouver Island Health Authority, and the Provincial Health Minister all added their voices to the opposition. The Ministry of Environment’s Statutory Decision Maker, Hubert Bunce, found none of these concerns to be compelling. Later we were to learn that this is what the ministry considered “community consultation” – they read our letters, responded with form letters, and considered this to have been the task of “listening to the community.”

In August 2013, the MoE issued Waste Discharge Permit 1050809 to SIA. (The permit is now held by Cobble Hill Holdings (CHH), also owned by Mike Kelly and Marty Block.)

Legal Actions
The CVRD and the Shawnigan Residents Association (SRA) filed appeals of the permit to the Environmental Appeals Board (EAB). Letters of opposition from the Cowichan Tribes First Nation, the local MLA and MP, Vancouver Island Health Authority, and the Capital Regional District were all submitted.

Over 31 days between March and July 2014, the EAB heard testimony from ten expert witnesses, including geologists, hydrogeologists, engineers, and a water treatment specialist. All experts raised concerns about the suitability of the site and about the engineering and design of the landfill. One expert, on the record about the proposed site stated, “this is crazy.”

Active Earth, the engineering firm that assessed the site and designed the landfill, and who were wrong about there being “75 metres of impermeable rock” underneath the site, did not testify.

On March 20, 2015, the EAB released its decision to uphold the permit, deferring over and over again to the information provided by Active Earth, despite the engineers not having been subject to cross examination during the hearings, and despite the many inaccuracies in their reports that were identified during the hearings.

Letters and Rallies
Hundreds of letters were written to Mary Polak, BC Minister of Environment, and to Premier Christy Clark, asking them to revoke the permit. Within five weeks, a petition with over 15,000 names had been generated. A rally at the Legislature was held on May 13 with over 1,600 people in attendance. Cowichan Valley MLA Bill Routley presented the petition in the Legislature, but the Minister of Environment did not stay to hear our MLA’s speech.

On the same day, SIA/CHH announced they were “open for business” and ready to accept contaminated soils.

Conflict of Interest, Perjury, Fraud, Bribery?
In July 2015, a document that outlined a business partnership between SIA/CHH and their engineers, Active Earth Engineering, was anonymously delivered to the Shawnigan Residents Association. It is a signed contract in which the two parties agree to a 50-50 split of profits from the contaminated landfill.

The community thought that surely, given that the company and its engineers had concealed this partnership throughout the application process for the permit, and denied its existence under oath during the EAB hearings, the Ministry of Environment would have sufficient grounds to at least suspend the permit until the courts had heard the case. But the Ministry took no action, continued to allow dumping at the site, and sent the message out to all of BC that they are comfortable with permit applicants misrepresenting themselves throughout a permitting process.

Breaches, Water Testing, Conflicting Science
On Friday, November 13, 2015,eight months into operations of their fifty year permit, during the first heavy rainfall of the year, a new stream of water was found leaving the site. The breach was reported to MoE not by the company, as required by their permit, but by local residents who discovered it.

VIHA issued a do not use water advisory for South Shawnigan Lake that lasted for five days.

MoE came back with water sampling results, which found elevated levels of aluminum, iron, and manganese – and told the community not to worry – it will just taste bad and stain our clothing. (It is hard not to draw the parallels between the statements from our government and the governor of Michigan, who told the people of Flint that the water problems there were just “aesthetic”.)

Instead of what has been promised to us by the company and the government from the start – that water leaving the site would meet the strictest water quality guidelines – we had water leaving this site that nobody would want to drink. And that water flows downhill to Shawnigan Creek, which flows downhill to Shawnigan Lake, the source of drinking water for thousands.

This breach, and the government response, resulted in weeks of protests on the road in front of the site where hundreds of people gathered on cold, dark mornings.

A judicial review of the 2015 Environmental Appeal Board decision that upheld the permit is ongoing. In January 2016, the Malahat Nation, whose reserve is located close to the site, filed a court application to support the granting of a stay of the permit.

The Malahat said evidence presented to date in the judicial review left them concerned that “proper, independent science” may not have been considered in the decision by the ministry or the board.

The City of Victoria has also passed a motion in support of revoking the permit for the facility.

New Neighbours – The Province of BC
In February, a land title search for Lot 21, which is the lot adjacent to the newly permitted contaminated landfill site in Lot 23, revealed Lot 21 is now owned by the Province of BC. The previous owners, 0742484 BC Ltd., did not keep up with their tax payments and the lot was forfeited to the Province. 0742484 BC Ltd. has two Directors – Martin Block, and Michael Kelly.

Residents who have been monitoring the site say that there has been activity on Lot 21, which Block and Kelly say is a dormant site and one they have nothing to do with.

Standing Up, Standing Together
The citizens of Shawnigan Lake have been clear in their opposition to this permit from the very beginning, but the government of BC has refused to listen to us.

And so we have become very organized.

Shawnigan is a community that has learned to work together. We have teams that work on everything from monitoring the site to fundraising for the legal battles.

We intend to protect Shawnigan, and in doing so we have become a model for what a community can achieve when the people decide to work together.

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Sonia Furstenau is the Cowichan Valley Regional District area director for Shawnigan Lake. www.soniafurstenau.ca

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