Any quarry can apply for a permit to accept contaminated waste, regardless of where it is located.
A DECISION IN NOVEMBER by the BC Court of Appeal appears to have opened the door for the province’s 2600 rock and gravel quarries to enter the lucrative contaminated soil disposal business.
Madam Justice Daphne Smith, overturning an earlier BC Supreme Court decision, ruled that the zoning powers of the Cowichan Valley Regional District could not prevent the operation of a controversial contaminated fill site in a gravel quarry near Shawnigan Lake. This decision was a setback for Shawnigan residents engaged in a long battle to protect their drinking water.
The bad news for drinking water may be an opportunity for quarry owners around the province, especially when combined with other features of BC’s lax regulatory regime.
BC has no site requirements for contaminated soil facilities in a quarry. Under BC’s Mines Act , any quarry can apply for a permit to accept contaminated waste, regardless of where it is located, and how close it is to a drinking water source. No independent environmental assessment is required. This can be a problem, as sand and gravel quarries are typically porous, and often a bad place to store soil which can contain a long list of contaminants, including hydrocarbons, dioxins, heavy metals and PCB’s.
In the Shawnigan case, the contaminated landfill site is in a quarry situated four kilometres uphill from the lake, in a provincially designated “Community Watershed” which provides drinking water for 12,000 people. The main feeder creek to the lake flows directly through the quarry property. In the words of one hydrogeologist, “It would be hard to imagine a worse place to locate a contaminated fill site.” However, the fact remains: the Province of BC has no location requirements.
While this is bad news for drinking water, it points to a new line of business for quarries, which are often located conveniently close to population centres with a need for disposal sites.
THE "PROFESSIONAL RELIANCE MODEL" used by the Province does not require the use of arms-length professionals to advise them on environmental impacts. In the case of mine or quarry applications, the professionals who submit a contaminated site proposal, which the government relies on to make its decision, can be paid with a share of the profits once the government approves the deal. Thus a quarry owner can avoid the considerable expense of hiring engineers or other professionals on a fee-for-service basis, and instead form a business venture with the engineers. The engineers get paid only if the project goes ahead.
This is contrary to common sense if you want objective engineering advice, but evidently the Province has no problem with it.
In the Shawnigan case, even the quarry owner, Cobble Hill Holdings, apparently believed that independent engineers were required. Quarry co-owner Martin Block, under oath to the BC Environmental Appeal Board, denied any partnership with Active Earth Engineering. A 50/50 partnership was later revealed by a whistleblower’s brown envelope. Cobble Hill Holdings and Active Earth initially tried to minimize this partnership, first claiming that the partnership never took effect, and then that it was “held in abeyance.”
Both the quarry owners and engineer appeared to be as surprised as everyone else when the government acknowledged that the partnership was fine with them—“independent” expertise isn’t a government requirement. (It should be noted that the Code of Ethics of the Association of Professional Engineers and Geoscientists of BC cautions against fees being paid on a contingency basis and have, as a result of citizen complaints against Active Earth, investigated; as yet, there’s no word on the investigation’s outcome.)
In summary, three aspects of BC’s regulatory regime—no local zoning concerns, no siting requirements, and no independence of experts—have set the stage for gravel quarries all over the province to jump into the lucrative contaminated fill disposal market.
The potential profits are enormous. To take just one example, the federal government is now spending over $780 million on the clean- up of contamination at the Esquimalt Graving Docks. Over $5.8 billion in contaminated site clean-up costs was slated as of 2015 by the federal government alone.
There is one insurmountable problem however: the significant ongoing threats to both drinking water and the environment.
Affected communities can be expected to protest, strongly. But the Shawnigan example shows just how wide the Province has opened the door for quarry owners who might be tempted to enter the lucrative contaminated soil business. And judging from Shawnigan’s experience, contaminated site owners can expect sustained government support as they attempt to ride out public opposition.
Tragically, the provincial government has abandoned its vital water protection role, putting both public health and the environment at risk. Premier Christy Clark and Environment Minister Mary Polak bear responsibility for this. They will ultimately be called to account by the public, and the regulations changed. Unfortunately, this may not be until after irreversible harm has been done to aquifers and surface water which provide drinking water in BC.
Blaise Salmon of Mill Bay is part of a research team which has been closely following the Shawnigan contaminated fill site for four years.
UPDATE: On January 5, 2017, the Cowichan Vallery Regional District announced that it had applied to the Supreme Court of Canada for a review of the BC Court of Appeal ruling.