Contamination of local politics by a false pretence and a toxic promise may require primary treatment at the ballot box.
ENVIRONMENT MINISTER BARRY PENNER ordered the CRD to shift to land-based sewage treatment in 2006. His claim that Victoria’s outfalls were contaminating the seabed has since been proven untrue.
As well, Washington State legislators have provided evidence that Penner’s action was prompted by an unpublicized agreement between then-Premier Gordon Campbell and then-Washington Governor Christine Gregoire. Was the legislated right of Victoria electors to control their own financial resources stripped from them under false pretences?
Are there other reasons why the Province is justified in preventing Victorians from making a democratic decision through a referendum about what form of sewage treatment would be best for the community?
OVER THE NEXT 30 YEARS, Victoria-area households will pay somewhere in the neighbourhood of $1.2 to $2.2 billion to fund borrowing by the Capital Regional District for land-based sewage treatment. The costs of operating those facilities over that period will add another $650-$900 million to the cost of treatment—a service that numerous local marine scientists and health officials have said will provide little or no measureable health or environmental benefit.
Once initial annual costs have been settled, electors will be expected to keep paying for this service in perpetuity. The legal right of Victoria electors to choose by a referendum whether or not they are willing to incur the debt those billions in payments would finance was taken from them in 2006. That right is generally protected by provincial legislation, but in this case the need for consent was overturned by a never-before-used section of the Environmental Management Act. That protected right now appears to have been taken under false pretences.
At the time, the Province claimed an area of the seabed around each of the city’s two marine outfalls was so contaminated that they could each be designated a “contaminated site” under BC’s Contaminated Sites Regulation. It was widely accepted in the community at the time that the pollution had to be stopped and recalcitrant taxpayers could not be allowed to stand in the way of environmental protection. Then-BC Environment Minister Barry Penner justified this action on the basis of what came to be known as the MacDonald Report. That report has since been exposed as fundamentally flawed and its main conclusion just plain wrong.
Commissioned by the Province, environmental scientist Donald MacDonald had analysed four years of data gathered by the CRD about what was in the sediment on the seafloor in the area adjacent to each outfall. Although MacDonald admitted he had “insufficient data” to “thoroughly evaluate sediment quality conditions,” he felt he could do “a preliminary investigation.” Based on this preliminary evaluation, MacDonald reported that sediments at the outfalls “are sufficiently contaminated to warrant designation…as a contaminated site.” His report didn’t include an analysis of the source, or sources, of the contamination suggested by the CRD’s data. The outfalls were assumed to be the source. MacDonald included in his report a flow chart that showed the five steps in the process of determining whether such a site was “legally contaminated.” He noted that the second step had not been completed. To determine whether a site is “legally contaminated” would have required completion of the second step followed by three additional, onerous steps.
Penner didn’t bother to complete even the second step. MacDonald’s report was dated May 2006, but by that July Penner had ordered the CRD to create a plan for treatment. His order was made under Section 24(3) of the Environmental Management Act. Its use implied that a significant environmental harm was occurring and suspension of the basic principle of elector assent was therefore justified. This allowed Penner to run around the step-by-step requirements of the Contaminated Sites Regulation, and it allowed him to order treatment without having to specify what, precisely, sewage treatment needed to stop.
Penner could have used the Abatement of Municipal Pollution section of the Environmental Management Act to order the CRD to address potential contamination, but that section would have limited such work to that “reasonably necessary to control, abate or stop the pollution,” or to remediation.
Under that section, the legal requirement for electoral approval would also have been suspended, but the changes that the CRD would be required to make would have been limited to what was “reasonably necessary” to meet provincial regulations. Penner’s ministry would have been obligated to detail precisely what was “reasonably necessary.” He didn’t do that. Instead, he used Section 24 and opened up Pandora’s box. In his order to the CRD Penner stated: “To ensure value for taxpayers, I encourage the CRD to consider new technologies and alternative financing and delivery options, including the potential for private sector development.”
Given that vague direction, it was perhaps inevitable that, 10 years later, the cost of the CRD’s considerations would have mounted to $70 million and the community would be divided into three camps over what action needed to be taken. But during that time, two facts have emerged that challenge the right of the Province to enable the CRD to proceed any further without seeking elector approval.
First, over the past ten years the CRD has continued to monitor the sediment chemistry at the outfalls. Report after report has shown that, aside from occasional exceedances of permitted levels of a few substances, neither outfall would have qualified as a “contaminated site” under the Provincial regulation.
Specifically, in 2011, environmental scientists with Golder and Associates completed an extensive study that looked at the trend in contamination at the outfalls between 1991 and 2009. They concluded the data “does not provide strong evidence that toxicity or other biological responses are expected.”
In 2012, a scientific study authored by Mark Yunker, Avrael Perreault and Chris Lowe presented information that has explained the presence of unexpectedly high levels of polycyclic aromatic hydrocarbons (PAHs) in sediments to the east of the Macaulay outfall. In a wonderful piece of scientific detective work, their analysis eliminated both Penner’s theory—contamination by PAHs from wastewater—and a subsequent theory that the contamination was the result of the sinking of the collier San Pedro off Brotchie Ledge in 1891. By analysing the chemical signature of the predominant PAHs in the contaminated sediments, the scientists were able to determine a more likely source: “dredged sediment containing pyrolised coal waste from a former coal gas plant in Victoria Harbour” that had been dumped there long before the outfall was even built.
At Clover Point, it turns out, there is so little sediment on the rocky bottom to test that reliable samples are difficult for scientists to even obtain. Nevertheless, the data from the last sediment survey conducted there in 2012 showed only a single reading in one location for only one substance—copper—that was above the Province’s guidelines. CRD scientist Chris Lowe told Focus that the as-yet unpublished data for the 2015 sediment survey showed the latest reading for copper at that location was a little more than one-half of the 2012 reading.
In other words, although there is seabed contamination near the outfalls, the contribution from the outfalls to that contamination is limited and there’s no evidence of worsening environmental conditions. This is what local marine scientists have been saying for several years.
The second piece of evidence that has emerged that challenges the Province’s removal of the requirement for elector consent originated in Olympia, Washington. A letter written to Victoria Mayor Lisa Helps by Washington State Representative Jeff Morris and signed by 37 other Washington legislators confirmed that Penner’s order to the CRD was, in fact, motivated by an unpublicized agreement made between then-BC Premier Gordon Campbell and then-Washington Governor Christine Gregoire in June 2006. Campbell and Gregoire and their respective cabinets had met at that time as part of a process “to enhance trade opportunities and create stronger ties between the two jurisdictions.” According to the legislators, during discussions relating to Vancouver’s hosting of the 2010 Olympics, Gregoire told Campbell her government was unhappy about promises made about sewage treatment in Victoria that had not been kept. As a result of that, the legislators claim, Penner ordered the CRD “to make good on those promises.”
According to Morris, then, Penner’s order to Victoria was part of a trade deal. The contamination claimed by the MacDonald Report provided Penner with a plausible rationale for ordering Victoria to shift to land-based treatment. Invoking Section 24 ensured that Victoria electors would not be able to stand in the way of Campbell’s promise to Gregoire.
David Broadland is the publisher of Focus.
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