Sandra McCulloch / Times Colonist
February 22, 2014 10:10 PM
Cowichan Valley Regional District board members initially liked South Island Aggregates' plan to bring in contaminated soil, with board chairman Rob Hutchins calling it "a good-news story" and a potential solution to the illegal dumping in the Shawnigan area.
But the love is gone, and the CVRD and the company are duking it out in B.C. Supreme Court and the court of public opinion.
Six months after South Island Aggregates was issued a provincial permit for a soil remediation facility in the Shawnigan Lake area, the company is now conducting business on a limited basis, awaiting a ruling that could shut the project down.
Controversy has surrounded the initiative since the permit was approved Aug. 21, 2013, with opposition from local residents and political bodies leading to an Environmental Appeal Board hearing beginning March 3.
The mood was more positive at a meeting on May 29, 2012, at a Mill Bay coffee shop, when Hutchins praised SIA partners Martin Block and Mike Kelly on their initiative, but warned that the public wouldn't like having a contaminated-waste dump in the area.
Kelly recorded the meeting on his cellphone — something he says he does as a matter of course while discussing his development plans with municipal authorities. It's legal in Canada to record conversations as long as one party knows the recording is taking place.
The informal chat — a transcript of which Kelly provided to the Times Colonist — shed light on the prominence of politics and the importance of public perceptions to the CVRD board, something that has not come to light until now.
Block and Kelly were called to the meeting with Hutchins, area directors Bruce Fraser and Mike Walker and CVRD planning and development manager Tom Anderson.
Hutchins repeatedly urged SIA to delay its application to the Ministry of Environment for a year so the CVRD could keep the ministry's focus on cleaning up 11 sites in the Shawnigan area where contaminated soil has been dumped illegally.
"We are in the business of politics, and you cannot reason when emotions are so highly charged," he said.
Hutchins said the SIA project, which would provide a legal option for dumping, "is probably a solution" to the issue.
"However, are we going to be able to come out and say that right now, after we have been hitting hard on the ministry and we have got their attention, to suddenly turn around and go 'Listen'?"
"The potential is there for a proper solution to the whole dumping issue in the whole CVRD. ... Political timing is horrible. Talk about horrible. You have a government that is likely on its last legs, very sensitive to any public outcry in the year before the election," he said.
"We have a situation where there is hysteria amongst [indecipherable] in the Shawnigan basin, who are going to make this sound like contaminated soil is going to be rushing down the creek into the lake on a daily basis."
Hutchins urged SIA to hold off on their application.
"Put a moratorium on any considerations for one year, while we get a handle on the situation — we build our relationship with [the ministry], we get the community to settle down, we do the basic groundwork evaluation," Hutchins said.
"We realize this puts SIA in a challenging position in terms of [going] forward, but we are in a challenging position because the community is expecting people like Bruce [Fraser] and Mike [Walker] and myself, even though we don't have any regulatory involvement in this, we have a political position to take."
Hutchins said Terry Lake, then environment minister, had a year to go before an election. Given that, Hutchins said, he found it "very unlikely [the ministry] would approve a highly controversial, highly emotionally charged application."
Without going over preliminary data, the CVRD could not at that point take an official position on the project, Hutchins said.
"Our position would have to be, 'We're asking for this decision to be delayed.' "
Fraser suggested the public wouldn't care about science. "They will never get around to looking at the merits of the site, the research work that you have done, the test wells, the monitoring of the creek, and all that," he said.
Hutchins cautioned SIA not to be defensive in public meetings, "because it puts people's back right up when you become defensive. You have a good-news story to tell. Tell a good-news story."
On Wednesday, Hutchins said that he and other CVRD directors were optimistic when they first heard of SIA's plan and it appeared to be an apparent solution.
"However, SIA's engineering claims were challenged, and when contrary scientific opinions exist on the same matter, it is prudent to adopt the precautionary principle," Hutchins said.
The fact the conversation was covertly taped "speaks to the proponents' character and intentions," he said.
"The context was that SIA needed to delay their project until the issues had been addressed and that it was politically necessary for the CVRD and [ministry of environment] to examine the project closely before another contaminated soil issue was created, however benign it was purported to be."
On Oct. 11, 2013, the CVRD filed suit against SIA, declaring that a landfill is not permitted under the current F-1 zoning. SIA responded that its mining permit requires the quarry be backfilled. A trial date has not been set.
An Environmental Appeal Board hearing on the issuance of SIA's permit is set to begin March 3.
• 50-acre site at 640 Stebbings Road, off south Shawnigan Lake Road, which was founded in 2006
• The company mines sand, gravel and boulders in its quarry for use at construction projects on the south Island.
• Extraction of mineral resources requires a permit under the Mines Act. The permit requires the mine be backfilled and runoff water be controlled.
• A proposed soil management facility will accept waste which would be encapsulated in a lined cell.
• Hazardous waste, which has potential to produce leachate wastes, will not be accepted.
Aug. 21, 2013 — The Ministry of Environment issues a permit for South Island Aggregates/Cobble Hill Holdings Ltd. to establish a soil remediation facility in the Shawnigan Lake Watershed, at 640 Stebbings Rd., to receive up to five million tonnes of contaminated soil over 50 years.
The provincial government received about 300 submissions from local government, First Nations, health officials and members of the community in response to a draft permit issued in March.
Sept. 11, 2013 — The Shawnigan Residents Association filed to stay the permit.
October 2013 — The Cowichan Valley Regional Districts officially asked that South Island Aggregates halt all work on its soil remediation facility and landfill until such time as its appeal has been heard. The CVRD filed its application to the Environmental Appeal Board for a stay shortly after it appealed to the province for the SIA permit to be rescinded because of threats to drinking water, zoning bylaw infractions and land governance issues.
The CVRD also filed a request for a Supreme Court ruling on the primacy of CVRD land-use zoning bylaws that prohibit the transfer of contaminated soil into the Shawnigan Basin and the processing and landfilling of that material.
November 2013 — The Environmental Appeal board announced a four-week hearing would be held on SIA's permit in Victoria in March and early April 2014.
Dec. 24, 2014 — South Island Aggregates applies to vary an Environmental Appeal Board ruling so it can accept about 40,000 tonnes of contaminated soil from Victoria and Port Rupert.
February 2014 — Environmental Appeal Board allows soil dumping to begin on a limited basis. The five-week appeal to be heard by the board will begin March 3 and will review the issuance of SIA's permit.