CVRD wants decision allowing some dumping at Shawnigan site set aside

A see-saw battle over the dumping of contaminated soil in a quarry near Shawnigan Lake heads back to the B.C. Court of Appeal next month.

The Cowichan Valley Regional District is seeking to set aside an April 15 decision that eased a ban on dumping and allowed the site’s operators to continue receiving soil.

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In a new application, the district argues that, by allowing dumping to continue, the Court of Appeal failed to protect the CVRD’s victory in B.C. Supreme Court on March 21.

In the lower court decision, Justice Brian MacKenzie concluded that the Stebbings Road quarry is being operated as a landfill, which is not a permitted use for the property under the district’s zoning bylaws. The decision included a pair of injunctions preventing operators from accepting additional soil.

Cobble Hill Holdings Ltd. and South Island Aggregates Ltd., which own the property, and South Island Resource Management Ltd., which operates the site, appealed that ruling and, in the interim, sought to stay the injunctions against dumping.

Court of Appeal Justice Pamela Kirkpatrick sided with the companies, ruling that a partial stay of the injunctions was preferable to “forestall the potential closure, bankruptcy, or foreclosure” of the companies.

“In my view, such a stay is also in the public interest in that it protects against the spectre of an orphan site and illegal dumping of contaminated soils,” she said.

The decision allowed the companies to fulfil six existing contracts to receive and store up to 106,000 tonnes at the quarry. The contracts are worth about $5.6 million.

The regional district, however, believes the judge erred by placing the companies’ financial interests ahead of the public’s interest in having the zoning bylaw obeyed, said Brian Carruthers, the district’s chief administrative officer.

“We feel that she didn’t adequately consider the public interest,” he said.

Victoria lawyer John Alexander, who acts for Cobble Hill Holdings and South Island Aggregates, said the companies will have no comment until the district’s application is argued and decided.

South Island Resource Management said in a statement that it was still reviewing the CVRD’s application and plans to file a response in court next week.

The partial stay of the dumping ban was to remain in place until the full appeal of the B.C. Supreme Court decision can be heard in August.

But the regional district’s application will be heard by a panel of three judges on May 9, Carruthers said.

“Our concern is that we don’t want more material brought on site,” he said. “We have concerns about the appellants’ capacity to remove the soil that’s there now, if they’re not successful, let alone in the future.

“So it’s really about, let’s not compound the problem.”

If the Court of Appeal declines to set aside Kirkpatrick’s decision, the companies should be required to post $12 million as security to cover the cost of removing any soil dumped at the property as a result of the partial stay, the district argues.

The Ministry of Environment issued Cobble Hill Holdings a permit in 2013 to receive and store up to 100,000 tonnes of contaminated soil a year at its quarry.

The permit was upheld by the Environmental Appeal Board in 2015, but has been subject to court challenges by residents who fear contaminants will eventually leach from the site and pollute the lake and their drinking water.

lkines@timescolonist.com

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