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Vancouver Sun: Island group asks court to halt soil treatment plant

BY STEPHEN HUME, VANCOUVER SUN JULY 10, 2015
Residents of the Shawnigan Lake watershed where the province approved a treatment facility for up to five million tonnes of contaminated soil applied Thursday to the B.C. Supreme Court for an immediate halt to the project.

sonia-furstenau-georgia-collinsCowichan Valley Regional District director Sonia Furstenau and Shawnigan Lake resident Georgia Collins at the boundary of an old quarry approved by the province for storage of five million tonnes of contaminated soil removed from old industrial sites. Proponents say the bedrock is impermeable. Furstenau says a small flooded pit to the right is evidence that groundwater is flowing through fractured rock, a view supported by some hydrogeologists not associated with the project.Cowichan Valley Regional District director Sonia Furstenau and Shawnigan Lake resident Georgia Collins at the boundary of an old quarry approved by the province for storage of five million tonnes of contaminated soil removed from old industrial sites. Proponents say the bedrock is impermeable. Furstenau says the small flooded pit to the right is evidence that groundwater is flowing through fractured rock, a view supported by some hydrogeologists not associated with the project. Photograph by: Vancouver SunIn its court application, the Shawnigan Residents Association alleges a secret profit-sharing deal between the companies proposing the facility and the engineers hired to do the environmental risk assessment put the engineers in an unstated conflict of interest.

The allegations have not been tested in court and no rebuttal has yet been filed. Matt Pye, one of the engineers named in the documents, said that given the papers had just been filed, he needed more time to study the allegations before commenting.

The residents’ association says that corporate documents outlining the arrangement were provided by an unknown whistleblower and appear to be authentic.

It asks the court to instruct the proponents of the project to preserve and produce the documents listed in the application within five days.

On May 19, the residents group went to court seeking a review of the provincial environmental appeal board’s decision to allow the use of an old quarry for the facility on land on slopes above the lake that supplies 12,000 people with drinking water.

Late Thursday, the group applied for a Monday hearing, claiming the engineering firm that did the arm’s-length environmental assessment was part of a secret deal to share profits from the landfill over the next 50 years. As such the engineering firm had a vested interest in seeing the project approved, the documents state.

“A document has now come to light that raises serious issues about the representations made … to the ministry and to the board,” says the notice filed Thursday.

“Assuming it is authentic, the profit-sharing agreement was undoubtedly concealed because it places the engineers from Active Earth in a direct conflict of interest, whereby they were relied upon by the ministry and the board for scientific objectivity,” the application claims. “Their ability to provide objective, scientific information and advice was fundamentally compromised.”

The residents group says that assuming the document is authentic, the revelation of the profit-sharing agreement is compelling evidence of “a fraud upon the ministry and a fraud upon the board in concealing its existence.

“The fraud was also perpetrated on the parties in the EAB appeals who were participating in good faith, believing in the integrity of the adjudicative process, its disclosure obligations and the integrity of those who swear oaths to tell the truth when they testify. All were deceived,” the application says.

It says that if the document is authentic, “the science on which the permit was issued was done not by a qualified professional, but effectively by an applicant. The permit application and supporting materials were a sham.”

The application outlines a complicated series of agreements between Active Earth Engineering Ltd., which did the assessments; South Island Aggregates Ltd., which is the proponent of the landfill; Cobble Hill Holdings Ltd., which owns the quarry site; and two numbered companies, 0949812 B.C. Ltd., 0949811 B.C. Ltd.

The application says the whistleblower’s documents, if authentic, show that operating through numbered companies the engineers and the project’s proponents “formed a secret business entity to jointly incur the costs to obtain the permit and jointly profit from the 50-year operation of the landfill (the ‘profit-sharing agreement’).

According to the dates outlined in the court document, the engineers submitted the “technical assessment report” to the environment ministry in August 2012. They continued to supply the ministry with “follow-up reports, communications and presentations in support of the proposed permit” for some time after, the documents state. The company jointly held by the proponents and engineers was formed Feb. 14, 2013. Six months later the ministry issued the permit. The environmental appeal board held its hearings from March to July, 2014.

“While the source of the applicant’s copy of the profit-sharing agreement is unknown to the applicant,” the notice filed Thursday says, “the document appears authentic on its face. It is 17 pages and bears the signatures and initials of the principals of the parties. It is a sophisticated legal agreement that was (sic) appears to have been drafted by lawyers. The signatures appear to be those of the signing individuals when compared to other documents that have been disclosed.”

A supporting affidavit sworn by Calvin Cook, a forestry consultant who is president of the Shawnigan Residents Association, says that on July 7 he was provided with an envelope by association member Blaise Salmon.

“Mr. Salmon informed me that he found the envelope left out in the Shawnigan Watershed office and that there was no other information associated with it to identify who left there or when.”

The affidavit lists copies of corporate agreements and incorporation documents and transcripts of testimony given before the environmental appeal board’s review of the project.

The application filed with the court Thursday cites testimony in which proponents of the remediation project were asked “does Active Earth have a financial stake.” The answer is “No.”

The residents’ group asks the court for the immediate injunction “to protect the integrity of the administrative process and the courts.”

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