Decision Date: February 11, 2014

Panel: Alan Andison

Keywords: Environmental Management Act – s. 104; preliminary decision; application to vary a stay; permit; contaminated soil; landfill; drinking water

Cobble Hill Holdings Ltd. (the “Cobble Hill”) requested that the Board vary a stay order that the Board had previously granted (Decision Nos. 2013-EMA-015(a) and 2013-EMA-019(a)). The stay suspended portions of a permit, pending the Board’s decision on the merits of several appeals against the permit.

The permit was issued in August 2013 by the Director, Environmental Management Act (the “Director”), Ministry of Environment (the “Ministry”). The permit authorizes Cobble Hill to operate a soil treatment and landfill facility on Cobble Hill’s property located approximately five kilometres south of, and upslope from, Shawnigan Lake. The permit authorizes Cobble Hill to deposit and bury up to 100,000 tonnes of contaminated soil per year, and to discharge storm water and treated effluent to an ephemeral stream that flows into Shawnigan Creek, which eventually flows into Shawnigan Lake. The Shawnigan Lake watershed is a source of drinking water for many people, and the Cowichan Valley Regional District (the “Regional District”) operates water supply systems in the watershed.

In 2013, the Shawnigan Residents Association (the “Association”), the Regional District, and several individuals appealed the permit. Both the Association and the Regional District requested a stay of the Director’s decision, pending the Board’s decision on the merits of the appeals.

On November 15, 2013, the Board granted the stay applications (Decision Nos. 2013-EMA-015(a) and 2013-EMA-019(a)). In granting the stay applications, the Board found that the permit allowed the facility to receive soils containing contaminants such as dioxins and furans, which are persistent in the environment and are highly toxic to fish, mammals, and humans. Also, the evidence showed a divergence of professional opinions as to the integrity of the bedrock underlying the landfill, and whether the permit would adequately protect water resources from contamination. Further, there was inadequate evidence regarding how any harm to drinking water could be remedied or repaired if contaminants escaped from the facility. The Board concluded that contamination of drinking water as a result of the permitted activities would constitute irreparable harm, and the interests of the Association and the Regional District could suffer irreparable harm unless a stay was granted. The Board also found that any harm to Cobble Hill’s financial interests, if a stay was granted, did not outweigh the risk of irreparable harm to water resources and human health if a stay is denied.

Subsequently, Cobble Hill applied to vary the stay, so that the facility could accept soils under four specific contracts. The soils consisted of dredged sediments from certain waterfront locations, and excavated soil from a site near the waterfront in Victoria. Cobble Hill submitted that the soil in question contained marine salts and some metals, but no dioxins, furans or other highly toxic contaminants. Cobble Hill also submitted there was new information that resolved or alleviated some of the concerns that resulted in granting the stay. In particular, there was greater certainty about the status of the bedrock underlying the facility, a water treatment system had been installed, and Cobble Hill had completed the assessments that the Director had required as conditions of the permit. Further, Cobble Hill provided new information about the financial harm it would suffer if it was unable to receive the soils in question.

The Board found that it has the jurisdiction to vary a stay, because a stay is not a final decision. A stay is an interim or temporary order that is in effect only until a final decision is rendered on the merits of an appeal. As such, stay orders are not subject to the principles of finality that apply to final decisions on the merits of an appeal. The Board has the discretion to reconsider the terms of a stay.

After weighing the parties’ evidence and submissions, the Board held that Cobble Hill had established that the risks and seriousness of harm to the environment and human health, if the stay was varied and the soils in question were received, were much lower, compared to the circumstances in which the stay was originally granted. Cobble Hill had provided affidavit evidence from qualified professionals which demonstrated that the probability of these soils having an impact on human health or the environment was nearly zero. The other parties provided no evidence to the contrary. In addition, the Board found that the uncertainties that existed when the permit was granted had been reduced. Further testing had confirmed the contained nature of the facility, and systems were now in place for protecting groundwater and surface water from an escape of contaminants. Also, Cobble Hill had provided evidence which established that it would suffer a real and imminent financial impact if these soils could not be received. In the circumstances, the Board found that the balance of convenience weighed in favour of allowing Cobble Hill to receive the soils that were the subject of the four contracts.

Accordingly, the application to vary the stay was granted. The Board ordered that Cobble Hill could receive the soils that were the subject of the four contracts, provided that Cobble Hill complied with the permit. The original stay remained in effect for any other soils.