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Les Leyne: Shawnigan soil-dump site operators in a deep hole

It’s difficult to imagine a set of circumstances where the contaminated-soil landfill near Shawnigan Lake can resume operations, following this week’s B.C. Supreme Court decision.
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Protesters block the entrance to the contaminated-soil landfill site near Shawnigan Lake in January 2016. Those fearful that the dumping will affect the local watershed have won a major battle — the B.C. Supreme Court this week set aside the operators' permit to dump soil on the site.

Les Leyne mugshot genericIt’s difficult to imagine a set of circumstances where the contaminated-soil landfill near Shawnigan Lake can resume operations, following this week’s B.C. Supreme Court decision.

The court set aside the environmental appeal board’s approval of the permit and said it should go back to the board for reconsideration.

That would be a significant problem for the operators at the best of times. But the judgment raises questions about the conduct of the firms involved that will be hanging heavily in the air if the issue ever does find its way back to the board. And quite apart from that process, Environment Minister Mary Polak, after staying hands-off on the controversial issue for a few years, is displaying impatience with the outfit and could potentially yank the permit for other reasons.

The companies involved in the design and operation of the site responded optimistically to Tuesday’s verdict. But after several years of public arguments and a tough pronouncement from the court, as a political issue, this case is starting to look as contaminated as the soil being trucked in.

Justice Robert Sewell found that Cobble Hill Holdings and the engineering firm it retained “compromised the integrity of the approval process.”

The crux of the case was that Cobble Hill got an engineering firm — Active Earth — to act as a “qualified professional” do much of the technical work designing the site.

But it was never fully disclosed that Active Earth was an equity partner in the enterprise of operating the facility.

When the provincial permit was appealed by Shawnigan residents and the issue went to the EAB for full scrutiny, the hearings were conducted on the assumption that Active Earth provided its expert technical advice for a standard fee.

It was only after the residents’ group that was fighting the landfill got an anonymous leak that it came to light the engineering firm and the operator had a joint-ownership agreement.

Sewell not only allowed that new evidence, he ruled that Active Earth acted improperly by preparing the technical assessment without disclosing its interest.

He also ruled that Cobble Hill Holdings gave “false and misleading” evidence about the business relationship.

So he ruled the EAB was misled during the lengthy hearing it held on the matter.

Sewell dismissed several other arguments that the residents’ group made about the EAB decision in favour of the permit. But the ones he upheld were more than enough to require a redo.

“I am satisfied that the board ought to have been made aware that the design of the facility and the technical assessment report … [were] prepared by engineers who were not independent and who stood to profit from the continued operation of the facility,” he wrote. “That is a circumstance that goes to the heart of the integrity of the approval process.”

Although the permit itself was not before the court, only the EAB’s decision to uphold it, Sewell said he would have had no problem setting it aside because of the circumstances that came to light.

As it stands, if the matter goes back to the EAB, it will arrive with a declaration from the high court that the project proponents misled the board the first time around, gave false evidence and concealed information that a supposedly unbiased adviser was a partner in the enterprise.

Not the strongest basis for a second attempt at defending the permit.

As well, Polak served notice in October she was considering cancelling the permit outright over assorted water-management issues.

She demanded a response in three days and when she got it, she wrote back in November saying it was unsatisfactory.

“Your response did not clarify your specific intentions to rectify the non-compliances.”

She gave them more time — until Dec. 20 — to account for themselves. There’s been no public word since then, but the clock is ticking.

After the verdict, the ministry expressed official “concern” about the way evidence was presented to the board. It’s going to take time to determine how it affects the permitting process. In the meantime, no soil will be received at the site until further notice.

The operators are in a hole they dug for themselves. It’s going to take a lot of legal wizardry to get them out.

lleyne@timescolonist.com