Is South Island Aggregates Operating Without Required Permits?

Shawnigan Residents Association and the Shawnigan Focus Newspaper request Provincial clarification.

Astonishment is the reaction to assertions made on May 13th by Michael Kelly (president of SIA’s parent company, Cobble Hill Holdings) that their contaminated waste facility is in full compliance with various permits issued by the Province.(1)

The Shawnigan Residents Association and the Shawnigan Focus Newspaper, jointly provide the following comments:
It is understood that before the facility, located on Cobble Hill Holdings Lot 23, can legally operate, amendments are required to two Provincial permits.

It is understood that the existing Mine Permit, issued by the Ministry of Energy and Mines (MEM), has not yet been altered to allow the import of contaminated soil.(2)

It is understood that the Waste Discharge Permit, issued by the Ministry of Environment (MOE), also requires amending to reflect several conditions stipulated by the Environmental Appeal Board (EAB), and that this has not happened, nor have the associated requirements been fully implemented by SIA.(3)

The Honourable Mary Polak, Minister of Environment, states “The permit does not provide the company with carte blanche. The permit essentially sets out the requirements that they must meet before they are allowed to operate.”(4) Why then is the Province allowing the company to receive contaminated material, ostensibly in contravention of both permits?

SIA, in presenting itself as “operating and open for business”,(5) appears to be gambling that the tradition of lax enforcement for non-compliance will continue. Encroachments onto parkland owned by the Cowichan Valley Regional District remain outstanding.(6) On April 21st waste water was being discharged from the site,(7) seemingly in contravention of an MOE order requiring a Commissioning Report for the Water Treatment System.(8)

There are serious concerns about the long-standing storage of “potentially hazardous waste” at the SIA site. This soil, illegally transported in 2010, has been sitting on SIA’s Lot 23 with no treatment and minimal protection.(9) It contains elements known to be very harmful to the environment and human health, including tetrachloroethylene and trichloroethylene. Despite orders from the Ministry of Environment(10) and the Cowichan Valley Regional District (CVRD),(11) SIA has done nothing about this highly contaminated material.

Mr. Kelly states “this is no longer a debate about science”.(12) This overconfident declaration is incorrect. A recent Federal Court decision had strong words about decision makers sheltering behind the questionable practice of professional reliance. “What the Minister cannot do is make unsupported statements of science”,(13) writes Justice Donald Rennie in a case where the Federal Minister of Fisheries pleaded that she was guided by expert advisors. In a similar manner, both MOE and the EAB relied heavily on the Technical Assessment Report (TAR) produced by Active Earth, the engineering firm advocating for SIA. Active Earth declined to testify at the hearing but there was agreement among opposing specialists that the TAR was incomplete and that crucial components were in error.14 On May 20th this was sufficient for the Capital Regional District Regional Water Supply Commission to vote unanimously in favour of a motion to direct staff to further investigate the potential impact of the SIA facility on the Sooke Lake water supply.(15)

A law firm Melbourne office has recently filed for a Judicial Review of the EAB decision and questionable science will be a key issue. The Cowichan Valley Regional District has also announced a legal challenge based on zoning bylaws and land use jurisdiction. It is clear that the argument is far from over.(16)

Given outstanding issues of non-compliance on both Lot 21 and Lot 23, and marked disregard for the current conditions of both MEM and MOE permits, it is incumbent on both the Ministry of Environment, and the Ministry of Energy and Mines, to clearly state the position of the Province and explain why SIA appears to be above the law.

Contacts: Calvin Cook ,SRA President (250) 208-2749

David Hutchinson,Co-editor, Shawnigan Focus (250) 882-1843

Reference documents available at: https://drive.google.com/folderview?id=0ByjXcSRz392ZanNxM2NQakJBbEk&usp=sharing
1 paragraph 6 of document: Mike Kelly Statement – May 13 2015
2 section 18 of document: Lot 23 Mine Permit Q-8-094 – Apr 20 2009
3 pages 119-120 of document: EAB Decision Mar 20 2015
4 Shaw TV: https://www.youtube.com/watch?v=rhJQ1f8kOms – May 9 2015
5 paragraph 6 of document: Mike Kelly Statement – May 13 2015
6 document: CVRD to MEM re SIA – Apr 27 2015
7 document image: Discharge – Apr 21 2015
8 page 90, ref [540] document: EAB Decision Mar 20 2015
9 document image: PERC Pile – Apr 19 2015
10 document: MEM to SIA re PERC Ltr 1 and Ltr 2
11 document: CVRD to SIA re PERC – Mar 9 2011
12 paragraph 4 of document: Mike Kelly Statement – May 13 2015
13 ref [39] in: http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/109425/index.do
14 many references (e.g. [211] [212] [329] [535] [536] …) in document: EAB Decision Mar 20 2015
15 document: CRD Motion – May 20 2015
16 Times Colonist: http://www.timescolonist.com/news/local/shawnigan-contaminated-soil-dump-opponents-head-to-court-

The Legal Fights Begin

The CVRD and the Shawnigan Residents Association have both filed petitions to fight SIA’s contaminated waste facility.

The CVRD’s case is that the Ministry of Mines and the Ministry of Environment cannot authorize a contaminated soil treatment and landfill facility that is not a permitted use of the property within the F1 – Forestry zone under the CVRD’s Zoning Bylaw.  More information available here: http://www.cvrd.bc.ca/civicalerts.aspx?AID=1304

The Shawnigan Residents Association has filed an application for judicial review in the British Columbia Supreme Court, seeking to have the Court set aside the March 20, 2014 decision of the Environmental Appeal Board and overturn the permit granted for a contaminated soil landfill in the Shawnigan Lake watershed.

SRA’s petition is available on the legal archive section of their website: http://thesra.ca/about-the-sra/water-protection-legal-action/legal-action-archive

These are positive developments in the fight to protect our watershed, our drinking water, and our future.

CRD Regional Water Supply Commission to discuss SIA and Sooke Lake

This Wednesday May 20th, the CRD Regional Water Supply Commission will be considering a motion submitted by Victoria councillors Ben Isitt and Jeremy Loveday, and Central Saanich councillor Zeb King regarding possible contamination of the Sooke Lake watershed from the SIA facility. Here is a link to the meeting agenda, with the motion and appendices (provided by Sean) at agenda item 16, beginning on page 67.

Public input in support of the resolution is welcome, and public are welcome at the meeting, which starts at 12:30 at 625 Fisgard Street, 6th Floor Boardroom.

https://crd.bc.ca/about/how-we-are-governed/committees-commissions-appointments/local-and-regional-utilities/regional-water-supply-commission

Stay Strong, Shawnigan

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Yesterday, over 1000 people gathered at the BC Legislature to sent a clear message to the government of BC: we will fight the spectacularly stupid decision to allow a toxic dump in our watershed.

A huge thank you to the extraordinary volunteers who organized the rally – Victoria, Netta, Sally, Sierra, Anne-Marie, Lois, Jennie, Al, and many others worked tirelessly to bring together an incredible event. Thank you also to all those who collected signatures over the last six weeks – you have brought over 15,000 allies to this fight.

We are not a small group – we are a united community and our support comes from across Vancouver Island, the mainland, and across BC. And that support will only continue to grow.

We will persevere no matter how long it takes, no matter what it takes. We will persevere because we are on the side of what is right, we are on the side of clean drinking water, we are on the side of ensuring the future of Shawnigan.

We know that this fight is going to be hard, that there will be setbacks, and that we will at times feel discouraged.

However, what we are fighting for –drinking water and the future of our community – is worth fighting for with everything we’ve got.

It is essential to remember that the outcome we are seeking – the revoking of the permit and the clean up of this site – will take enormous effort, and we cannot allow ourselves to relent.

Every day, I am so amazed and impressed by the kindness, support, and caring that people in the community are showing for each other. Know that this is what will keep us strong, and know that every act of kindness and compassion moves us one step closer to victory.

So what’s next?

There are many avenues that we will continue to pursue. As a community, we need to carry on supporting each other. Some leaders will need to step back, and allow for the opportunity for new leaders to step forward.

I will organize a community meeting and announce the date early next week – watch for updates here and on social media.

On Wedesday, May 20th, the Capital Regional District Water Supply Commission will discuss the following motion: BE IT RESOLVED THAT the Regional Water Supply Commission direct staff to report on the potential impact of the South Island Aggregates facility on the Sooke Lake water supply in light of new information considered during the BC Environmental Assessment Board process.

The meeting is open to the public, and takes place at 625 Fisgard Street, 6th Floor Boardroom, at 12:30 pm. If you are able, please consider attending.

Watch for announcements this coming week on a number of fronts – we are just getting started. Stay strong, Shawnigan.

Stop Work Order – Clarification

The Stop Work order issued to SIA applies to them bringing in soils to one part of their property (Lot 21).  They are allowed to continue work on the quarry on Lot 23, which is where the Ministry of Environment has issued the Contaminated Soils Permit.  The company is continuing activity on Lot 23.

As a community, we need to remain steadfast in our commitment to not allowing a contaminated dump in our watershed.  Continue to write letters, continue to speak out, and be sure to be at the rally at the Legislature on Wednesday May 13th.