Harrietsfield, Nova Scotia is a rural community in the Halifax Regional Municipality (“HRM”), southwest of the City of Halifax. It would take you less than twenty minutes to drive there from the Halifax downtown core if traffic were good, but despite its proximity to a vibrant, modern, and wealthy urban centre, Harrietsfield struggles with drinking water problems that have troubled its households for decades.
Like many rural residents of Nova Scotia, Harrietsfield community members depend on domestic wells for drinking water and the water they need to cook food, brush their teeth, bathe, do their laundry, and clean their homes.
Beginning in the late 1990s, industrial practices in a residential area of the community, near several homes and a school, began to raise serious concerns about groundwater contamination.
The story of Harrietsfield community members’ struggles to protect their drinking water from that contamination is a story that spans more than two decades and is still continuing. It is the story of a rural community that resisted becoming a sacrifice zone as the HRM worked to expand its municipal waste management facilities, and it is the story of a community that, despite its successful resistance, is now burdened with a buried “former landfill” and the perpetual risk of further contamination despite the fact that the property in question was never approved or lawfully used as a municipal landfill site.
East Coast Environmental Law has been providing legal information and advocacy support to Harrietsfield community members since late 2013. This project page highlights several important chapters in their story and will be updated as new developments arise.
Before turning to that story, it’s worth pausing for a moment to reflect that the struggle for clean drinking water in Harrietsfield did not begin with the industrial contamination that we describe in the chapters below. Harrietsfield is one of many rural communities in Nova Scotia where naturally occurring elements like arsenic and uranium affect the groundwater table and create health risks for well owners. Unlike Nova Scotians who can rely on municipal water treatment systems to make sure that the water coming out of their taps meets drinking water quality guidelines, rural residents with private wells are personally responsible for testing their water regularly and, if necessary, maintaining private water treatment systems that make their well water safe to drink. Regular well water testing is expensive, and so are private water treatment systems. In low- or moderate-income communities like Harrietsfield, the costs of well water maintenance can make it very difficult—or entirely unaffordable—for residents to feel confident that their well water is clean and safe to drink.
Harrietsfield is not the only community in Nova Scotia that faces such challenges, and Nova Scotia needs a rural drinking water strategy to address these problems in every community that deals with them.
The Early Years of Construction and Demolition Debris “Processing” in Harrietsfield
“We would like to take this opportunity to introduce you to RDM Recycling Ltd. At RDM we know the importance of protecting the environment of today, so that we can all enjoy a better tomorrow. Recycling has now become a necessary part of life, and we are pleased to offer our services to your company. Working together we can make this future bright.”1
In the late 1990s, a corporation named RDM Recycling Limited began to operate a construction and demolition (“C&D”) debris processing facility at 1275 Old Sambro Road (“the RDM site”), a large property in a residential area of Harrietsfield, not far from several homes. In the years that followed, a series of investigations and water monitoring processes revealed that operations at the RDM site were leaching contaminants into the groundwater and affecting Harrietsfield residents’ wells. In some cases, the contamination made residents’ well water unsafe to drink; in others, the contamination caused aesthetic effects that made residents’ well water unpleasant to smell and taste.
Over the years, Nova Scotia Environment (“NSE” or “the Department”, historically called “the Department of Environment and Labour” or “DOEL”) conducted various investigation, enforcement, and compliance activities concerning the RDM site with limited success. Over time, the property at 1275 Old Sambro Road became one of Nova Scotia’s most notorious contaminated sites, and Harrietsfield residents were left to wonder if the Government of Nova Scotia would ever hold the polluters to account.
The property at 1275 Old Sambro Road is a large one that borders Shea’s Lake and the Terence Bay Wilderness Area. Several residential properties surround the site, with houses dotted along Old Sambro Road, Mercury Avenue, Venus Drive, and Whitehead Road.
Early Warning Signs and Failure to Enforce
Beginning in the 1970s, part of the property was used as a salvage yard by the corporation Ernest A. Nicholson Limited, operating as Nicholson’s Auto Salvage. In 1998, Ernest A. Nicholson Limited partnered with RDM Recycling Limited, which began to operate a C&D debris processing facility on the site.
Processing C&D debris is different from disposing of the waste materials generated by construction and demolition projects—or at least it should be. Nova Scotian law draws a clear distinction between processing and disposing of C&D debris, and it regulates the two activities differently.
In the late 1990s and early 2000s, a crucial difference between C&D debris processing facilities and C&D debris disposal facilities in Nova Scotia was that processing facilities were licenced at the municipal level alone and did not require provincial authorization, whereas disposal facilities required municipal approval and authorization by NSE.
As part of its C&D debris processing operations, RDM Recycling Limited accepted loads of waste materials such as drywall, wood (clean and painted), metals, fiberglass fibers, asphalt, asphalt shingles, plastic, creosote timbers, brick, gyproc, cellulose, and carpet. Many if not all such materials were piled outdoors on the RDM site in large heaps for sorting and “temporary” storage.
In theory, materials that could be recycled would be returned to the circular economy, and materials that could not be recycled would be transported from the RDM site for licenced disposal elsewhere. But that is not what happened. Instead, RDM Recycling Limited stockpiled thousands of tonnes of unrecyclable C&D debris on the site, and that debris sat outside, exposed to the elements, for years. The corporation also shredded non-recyclable materials and discarded, stored, or used them in unauthorized ways on the site rather than taking them elsewhere for licenced disposal.
The corporation’s improper “processing” practices did not go unnoticed by NSE. In August 1999, an environmental inspector wrote to Michael Lawrence, a director of RDM Recycling Limited, to follow up on a site inspection that had happened the month before. The inspector wrote:
“Construction and Demolition Debris as defined in Schedule ‘A’ of the Demolition and Disposal Site Guidelines consists of material which are normally used in the construction of buildings, structures, roadways, walls and other landscaping materials, and includes, but is not limited to, soil, asphalt, brick, mortar, drywall, plaster, cellulose, fibreglass fibres, gyproc, lumber, wood, asphalt shingles and metals.
Only exempt materials as defined in Section 31,(2),(b) of the Solid Waste Resource Management regulations such as rock (excluding rock containing a sulfide bearing material), aggregate, soil, brick, mortar, concrete, asphalt pavement, porcelain or ceramic materials, trees, brush, limbs, stumps, root balls, organic mat, and milled wood that is free of adhesives, coatings or other preservatives may be used as fill or as ground covering at the site and do not require an approval from the Department of the Environment.
The disposal or use of any materials other than those exempt materials noted above is a violation of the Solid Waste Resource Management Regulations.
If non-exempt materials are to be stored at the site in such a manner that it is deemed by the Department to be considered a disposal activity, the Department requires that an application be made with this department for an approval to operate as a Construction and Demolition Debris Disposal site. [...]
The site inspection conducted on July 6, 1999 revealed that non-exempt C&D materials (painted wood and other debris) were being shredded and utilized for on-site landscaping around the clay bermed areas and the road leading to the processing area. Shredded non-exempt materials are also being placed at the rear of the processing/sorting area. The Department considers these activities to be disposal practices and therefore are to cease immediately. Only exempt materials may be shredded and used in a manner which is considered to be a disposal activity (i.e. the use of C&D materials to construct a base or pad for expansion or additional temporary storage area). Until a final disposal site for the shredded non-exempt C&D material is located, the Department requests that samples of the shredded non-exempt materials are collected and a leachate analysis is conducted. The results are to be forwarded to the department for review.”2 [Emphases added.]
Despite this clear warning from NSE, unauthorized disposal activities by RDM Recycling Limited continued.
In November 2000, another environmental inspector filed an Occurrence Report with NSE after another inspection at the RDM site. The Occurrence Report stated:
“Upon inspection of this facility, it was determined that a large quantity of mixed, ground C&D material had been deposited to the north western boundary of the property. Much of this area measuring approximately 60-100’ x 800’ has been levelled over with machinery, giving the appearance of a disposal practise. Mr. Roy Brown, Operator, stated that this area is in preparation for a C&D disposal operation. An application to operate a C&D disposal facility is under review with DOEL. The facility is awaiting a re-zoning assessment with HRM that will permit the operation of a C&D disposal site. Although some storage of mixed C&D occurs and separation procedures for plastic, metal, and marketable recoverables continues, it is apparent the bulk of painted wood, amounts of metal & plastic, insulation and other non-exempt materials is either being discarded or stored for eventual disposal on site. Warnings for operating a C&D disposal site without an approval were given previously.
It is recommended an investigation be initiated and charge(s) pursued.”3 [Emphases added.]
Ultimately, charges were not pursued.
Instead, a DOEL District Manager sent a formal letter to RDM Recycling Limited to politely request that the corporation immediately stop its unauthorized disposal of C&D debris.4As that letter also noted, the Halifax Regional Council was then developing new municipal law and policy that would allow C&D disposal facilities to be licenced for the first time within the Halifax Regional Municipality (“HRM”). The District Manager told RDM Recycling Limited that DOEL would consider a disposal application once that process was complete.5
Despite clear evidence of unlawful C&D debris disposal activities on a site that was authorized to conduct C&D processing alone, DOEL not only allowed the unlawful practices to continue but also indicated its willingness to legalize them in future once appropriate municipal laws were in place.
The early history of RDM Recycling Limited’s C&D debris “processing” activities at 1275 Old Sambro Road shows a pattern of corporate failure to comply with provincial environmental laws and a corresponding pattern of enforcement failure by DOEL. DOEL inspection and occurrence reports suggest strongly that, from very early on, RDM Recycling Limited operated its processing facility as though it was a disposal-facility-in-waiting. Rather than being held to account for its unsafe, unauthorized, and unlawful activities, the corporation was allowed to bide its time until local law and policy changed in its favour.
1 RDM Recycling Limited, Draft Letter (Undated), Record of the Respondent in Brown v Nova Scotia (Environment), 2016 NSSC 319, Volume 4(a) at page 11.
2 Nova Scotia Environment, "Letter to Michael Lawrence" (27 August 1999), Record of the Respondent in Brown v Nova Scotia (Environment), 2016 NSSC 319, Volume 4(a) at page 6.
3 Nova Scotia Environment, "Occurence Report" (9 November 2002), Record of the Respondent in Brown v Nova Scotia (Environment), 2016 NSSC 319, Volume 5 at page 14.
4 Nova Scotia Environment, "Letter to Michael Lawrence" (3 January 2001), Record of the Respondent in Brown v Nova Scotia (Environment), 2016 NSSC 319, Volume 5 at page 17.
5 Ibid.
The Push to Permit Construction and Demolition Debris Disposal in Harrietsfield
Processing construction and demolition (“C&D”) debris is different from disposing of the waste materials generated by construction and demolition projects—or at least it should be. Nova Scotian law draws a clear distinction between processing and disposing of C&D debris, and it regulates the two activities differently.
In the late 1990s and early 2000s, a crucial difference between C&D debris processing facilities and C&D debris disposal facilities in Nova Scotia was that processing facilities were licenced at the municipal level alone and did not require provincial authorization, whereas disposal facilities required municipal approval and authorization by Nova Scotia Environment (“NSE” or “the Department”, historically called “the Department of Environment and Labour” or “DOEL”).
Municipal Authorization for C&D Debris Disposal within the HRM
Before 2002, there were no licenced C&D disposal facilities operating within the Halifax Regional Municipality (“HRM”) because the Municipality had no zoning and bylaws in place to accommodate them. Licenced facilities existed elsewhere in the province, however.
In January 1998, the Halifax Regional Council (“the Council”) approved a number of objectives supporting the implementation of a C&D Waste Management Strategy for the HRM. The Council aimed to:
(i) maximize diversion from landfill through recycling of construction and demolition debris in keeping with the Halifax Regional Municipality Solid Waste Resource Strategy;
(ii) increase economic activity and value added processing through recovery of construction and demolition debris;
(iii) provide an opportunity to properly dispose of construction and demolition debris that cannot be recycled; and
(iv) minimize environmental, land use and nuisance impacts from the operation of construction and demolition debris transfer, processing and disposal operations.6
In the years that followed, the Council moved to adopt new land use policies and local laws to regulate the C&D industry and establish specific zoning designations for C&D debris processing and disposal sites within the HRM. In 2002, new C&D policies were established through amendments to the HRM’s Municipal Planning Strategy (“MPS”). Among the changes introduced by the Council was the establishment of a new CD-3 zoning designation which allowed for C&D debris disposal facilities within the HRM.
In 2002, the Council considered rezoning three sites to give them CD-3 designations. One of those sites was the RDM site in Harrietsfield.
To a rezone site as CD-3, the Council had two options. If the nature and location of a site in question meant that rezoning it as CD-3 would comply with the MPS, the site could be rezoned straightforwardly. If the nature and location of the site meant that rezoning it as CD-3 would not comply with the MPS, the Council needed to adopt a site-specific amendment to the MPS to lawfully rezone the site.7
The HRM’s assessment of the proposed rezoning of the RDM site as CD-3 made it clear that the rezoning would not comply with the MPS. There were two issues:
- the site was in a Residential zone, and one of the “fundamental policies” of the MPS was that C&D disposal operations should not be located in areas that were currently designated Residential;8and,
- the C&D disposal operation that RDM Recycling Limited had proposed would expand the corporation’s existing operation beyond its current size, which the MPS did not allow.9
At a public information meeting that the HRM held while it was considering the proposed rezoning of the RDM site, several Harrietsfield community members objected to the proposal, raising concerns such as:
- the risks of increased truck traffic on the main road which children in the community used to walk to school;
- harms that children in the community could suffer as a result of polluting and potentially toxic materials being buried so close to the school;
- harms that all Harrietsfield community members living near the site could suffer as a result of contamination; and,
- potential contamination of local groundwater and wells.10
For its part, the HRM felt that establishing one or more C&D debris disposal sites within the Municipality was “critical to the successful implementation of the Solid Waste Resource Management Strategy”.11 The treatment of C&D debris within the Solid Waste Resource Management Strategy carried budget implications for the Municipality. An HRM staff report that was prepared in September 2002 to inform the Council’s consideration of the proposed rezoning of the RDM site (“the HRM staff report”) stated: “If no proposal for C&D disposal is approved, C&D wastes will be shipped outside HRM, and HRM would lose Resource Recovery Fund Board diversion credits at an approximate cost of $15 per tonne”.12 Other financial considerations were mentioned as well, echoing the objectives of the Solid Waste Resource Management Strategy, which aimed to “increase economic activity and value added processing through recovery of construction and demolition debris”.13
Notably, the HRM staff report also suggested that unlawful stockpiling and disposal of C&D debris within the HRM was due to the absence of authorized C&D debris disposal facilities within the Municipality. The report stated:
“There are currently no C&D disposal facilities within HRM. As a result, C&D materials are being trucked illegally outside the community; large quantities of materials are being stockpiled; and material is being illegally dumped. HRM recently amended its bylaws to make exporting of C&D material illegal. Without an approved disposal site, this will increase stockpiles and illegal dumping."14
The connection between illegal dumping and the lack of approved C&D debris disposal sites within the HRM was also drawn during a public meeting on the matter, the minutes of which were appended to the HRM staff report. The minutes record one presenter as saying:
“Why would we want to adopt a consistent approach to amendments to the MPSs and LUBs? If we did not, we would have illegal dumping of C&D materials which is occurring throughout the region primarily in the rural areas. It is not only a common occurrence in HRM (some say it is because we have extremely high tipping fees) but it is a common occurrence elsewhere across the Province."15
These statements indicate that the HRM’s response to the unlawful stockpiling and disposal of C&D debris at the RDM site and elsewhere was to authorize and regulate C&D debris disposal facilities so that disposal activities could be controlled and waste market benefits could be achieved. This response had the potential to inspire positive changes within the HRM; however, treating illegal dumping of C&D debris as a foregone conclusion of not establishing municipal disposal facilities risked excusing the bad behaviour of businesses like RDM Recycling Limited, which for years had been unlawfully using its C&D debris processing facility as a disposal-facility-in-waiting.
Ultimately, the HRM staff report recommended that the proposed rezoning of the RDM site be refused due to the site’s location within a Residential zone and the fact that operating a C&D disposal facility there would significantly expand the existing operations at 1275 Old Sambro Road.16
However, in October 2002, a majority vote by the Council rejected the recommendation of the HRM staff report and approved the proposal to rezone the RDM site as CD-3.
Provincial Consideration of C&D Debris Disposal at the RDM Site
As a result of the HRM’s decision to approve the rezoning of the RDM site, NSE (then DOEL) had to determine if it would also grant approval for C&D disposal activities at 1275 Old Sambro Road.
In October 2002, MLA Robert Chisholm wrote to the Honourable David Morse, Minister of Environment and Labour, expressing strong disapproval of the HRM’s decision to rezone the RDM site and urging DOEL not to make the same mistake. He wrote:
“In the face of an extraordinary response by local residents against this proposal and HRM staff recommendations that this proposal not go forward, Council last night voted to allow the RDM site in Harrietsfield to be rezoned so they can begin a disposal operation. The process of developing land use bylaws in HRM to deal with this issue has been controversial, but the reworking of bylaws to allow the RDM site to be rezoned is disgraceful.
Residents opposed to this development have made the case that this site is too close to a residential area, including schools, and should not continue. Staff, under incredible pressure from politicians who want a quick and easy solution to a garbage problem in this municipality, agreed with the concerns of residents and recommended to Council that the RDM proposal not go forward. In spite of these concerns, a majority of Council voted against the community and staff recommendation, and for a motion to approve the RDM proposal."17
DOEL was well aware of Harrietsfield residents’ concerns about the proposed use of the RDM site as a facility for the permanent disposal of unrecyclable C&D debris. Among other concerns raised and comments received, several requests were made for the Minister of Environment and Labour to require a full environmental assessment (“EA”) of the proposed C&D debris disposal facility. Although the requests did not result in an EA being required, they did motivate the Minister to require RDM Recycling Limited to provide public participation opportunities as part of its application for approval.
In the spring of 2003, Harrietsfield community members were invited to submit written comments on RDM Recycling Limited’s proposal, and DOEL received a number of submissions expressing serious concerns.18
One resident wrote:
“Residents are dependant on wells for drinking water. Construction and demolition debris can consist of materials that contain hydrocarbons and arsenic to name a few. These contaminants entering the ground can contaminate wells.”
“The area surrounding RDM is residential and conservation area with many lakes, streams and bogs. These environmentally sensitive areas are pristine at this time and are potentially ruined by leachate contamination."19
Another wrote:
“We are on private wells and our community is surrounded by a network of lakes that abut the facility and my concern is about possible contamination of our well water, water table and the surrounding lakes. Are you willing to endanger a community’s health and safety by granting them approval without first conducting an environmental study? A C&D disposal site does not belong in the heart of a community village and within a hundred meters of a subdivision and a few hundred meters of an elementary school."20
Another wrote:
“This facility is adjacent to a conservation area. How can the environment agencies in Nova Scotia allow such a catastrophe to happen? Our lakes, streams and rivers will not be fit for any animal to live near or drink from in future years. This facility is located on the high side of the surrounding area. All run off from the rubbish on and in the ground will run downhill into the surrounding lakes, streams and dug wells within the area”.21
These are just some examples of the many comments received.
At least in part as a response to the concerns being raised by Harrietsfield community members, DOEL required additional water testing on the RDM site to better understand the potential risks of allowing C&D debris disposal in the area. That testing revealed that monitoring wells on the RDM site were demonstrating heightened levels of boron in the groundwater, likely as a result of gyproc, roofing materials, and carpet being stockpiled outdoors on the site, where they were exposed to the elements and primed to create toxic leachate as rainwater and other precipitation passed through them, picking up chemical and metal passengers along the way.22
In October 2003, after discovering the impacts to water that were being caused by operations at the RDM site, DOEL rejected RDM Recycling Limited’s proposal to operate a C&D debris disposal facility at 1275 Old Sambro Road.23 In a decision letter addressed to Mike Lawrence, the Honourable Minister Kerry Morash wrote:
“Based on the existing impacts resulting from the current activity on the site, the Department has decided to apply the precautionary principle referenced in Section 2(b)(ii) of the Environment Act and not issue the Approval for the proposed activity pursuant to Section 52(1) of the Environment Act, which states that when deciding whether a proposed activity should proceed, the Minister shall take into consideration the acceptability of the proposed activity location and also the adverse effects associated with the proposed activity”.24
DOEL’s rejection of RDM Recycling Limited’s proposal demonstrated the value of Harrietsfield community members’ advocacy to protect their community from water contamination and other possible consequences of expanded industrial operations at the RDM site. Although DOEL’s decision not to authorize C&D debris disposal activities at the RDM site was not necessarily permanent—other correspondence from DOEL indicated that RDM Recycling Limited could apply for approval again in future if it dealt with the existing contamination concerns25—it was a significant victory for the Harrietsfield community members who raised their voices and motivated DOEL to examine the environmental and human health implications of the RDM site more closely.
However, despite successfully resisting the creation of a C&D debris disposal facility beside their homes and the community’s school, Harrietsfield community members soon found themselves facing the burial of roughly 120,000 tonnes of unrecyclable C&D debris at the RDM site.
6 Halifax Regional Municipality, Supplementary Report (18 September 2002) at page 14.
7 Ibid at page 2.
8 Ibid.
9 Ibid.
10 Ibid at pages 24-32.
11 Ibid at page 2.
12 Ibid at page 9.
13 Ibid at page 14.
14 Ibid at page 4.
15 Ibid at page 21.
16 Ibid at page 1.
17 Robert Chisholm, MLA, "Letter to the Honourable David Morse" (9 October 2002), Record of the Respondent in Brown v Nova Scotia (Environment), 2016 NSSC 319, Volume 4(a) at page 236.
18 Record of the Respondent in Brown v Nova Scotia (Environment), 2016 NSSC 319, Volume 4(b) at pages 15-39.
19 Ibid at page 18.
20 Ibid at page 19.
21 Ibid at page 25.
22 3076525 Nova Scotia Ltd. v Nova Scotia (Environment), 2015 NSSC 137, 2015 NSSC 137 at paragraphs 16-17.
23 The Honourable Kerry Morash, Minister of Environment and Labor, "Letter to Michael Lawrence" (October 2003), Record of the Respondent in Brown v Nova Scotia (Environment), 2016 NSSC 319, Volume 4(b) at page 181.
24 Ibid.
25 Nova Scotia Department of Environment and Labour, "Letter to the Harrietsfield/Williamswood Community Association" (15 October 2003) at page 183.
“Remediating” Water Contamination by Burying Polluting Waste
In addition to refusing RDM Recycling Limited’s proposal to operate a construction and demolition (“C&D”) debris disposal facility at 1275 Old Sambro Road, Nova Scotia Environment (“NSE” or “the Department”, historically called “the Department of Environment and Labour” or “DOEL”), then DOEL, requested that the corporation develop a Remedial Action Plan to deal with the contamination that had just been discovered. RDM delivered a proposed Remedial Plan to DOEL in November 2003.
In the one of several twisted ironies in the Harrietsfield story, the Remedial Action Plan that RDM Recycling Limited proposed to DOEL included the construction of a large containment cell that would permanently bury roughly 120,000 tonnes of unrecyclable C&D debris—which the corporation had been stockpiling for years—on the RDM site.26
Despite having just rejected RDM Recycling Limited’s application to use the RDM site for the permanent disposal of C&D debris due to water contamination concerns—that rejection being due primarily to clear evidence of actual contamination—DOEL approved the corporation’s proposal to build a containment cell on the site and permanently bury more than a hundred thousand tonnes of potentially toxic waste materials near Harrietsfield community members’ homes.27 The approval flew in the face of the DOEL’s good reasons for refusing to authorize C&D disposal activities at the site, and to all appearances it was a quick fix to a problem that had been building at the RDM site for years.
Importantly, the construction of the containment cell was approved by DOEL as a one-time disposal. The Department was not suggesting that additional disposal activities could be carried out on the RDM site in future or that the site could now be considered a C&D disposal facility or landfill. In an approval letter sent by DOEL’s Environmental Monitoring and Compliance Division in late November 2003, District Manager Christine Penney emphasized:
“This immediate remedial work is for the existing C&D material at the cell location. All C&D material accepted after this date is not to be placed in the containment cell but must be placed in a separate location as a temporary stockpile in accordance with HRM requirements for the operation of the existing recycling facility. A contingency plan is required for any stockpiled C&D material that will address potential impacts to the surface or groundwater resource. The contingency plan must also deal with C&D material that must be taken off site for disposal in accordance with HRM storage time requirements."28
The containment cell was built and filled between 2003 and 2004. After years of improper “processing” and unlawful disposal activities by RDM Recycling Limited, despite clear evidence of groundwater contamination caused by the corporation, and despite community members’ successful advocacy against a C&D debris disposal site in the heart of their community, RDM Recycling Limited was allowed to bury its waste in Harrietsfield and continue its operations.
26 Record of the Respondent in Brown v Nova Scotia (Environment), 2016 NSSC 319, Volume 4(b) at pages 187-99.
27 Nova Scotia Department of Environment and Labour, "Letter Approving Proposed RDM Initial Remedial Action Plan" (27 November 2003), Record of the Respondent in Brown v Nova Scotia (Environment), 2016 NSSC 319, Volume 4(b) at pages 220-223.
28 Ibid at page 223.
Water Monitoring Data Ignored between 2005 and 2009
In addition to allowing the one-time construction of a containment cell for the roughly 120,000 tonnes of construction and demolition (“C&D”) debris that RDM Recycling Limited had stockpiled at the RDM site, the Remedial Action Plan approved by Nova Scotia Environment (“NSE” or “the Department”, historically called “the Department of Environment and Labour” or “DOEL”), then DOEL, included several requirements for groundwater monitoring. Those requirements included quarterly monitoring (four times a year) of:
- eleven on-site monitoring wells,
- ten domestic wells (three on the RDM site and seven private domestic wells of Harrietsfield community members located downgradient of the site), and
- seven adjacent domestic wells of Harrietsfield community members located upgradient or cross-gradient of the site.29
Additionally, RDM Recycling Limited was required to carry out regular surface water monitoring to enable the ongoing assessment of impacts to Shea’s Lake.30
Records of correspondence from DOEL indicate that the initial expectation was that RDM Recycling Limited would conduct the water monitoring for a full year after the containment cell was filled and capped, after which point its application to operate a C&D debris disposal facility on the site would be reconsidered if the water monitoring data demonstrated that contamination was no longer a concern.31
The Sale of RDM Recycling Limited to 3076525 Nova Scotia Limited
By the autumn of 2005, RDM Recycling Limited was experiencing significant financial troubles. In a letter written to Bill Lahey, Deputy Minister of Environment and Labour, in September 2005, HRM Councillor Stephen Adams wrote:
Dear Mr. Lahey,
I write to you with respect to RDM Recycling Ltd. which is a C&D facility in the community of Harrietsfield. RDM has been in business since 1997, processing and recycling construction and demolition debris. In 2004, RDM was denied a permit to dispose of material, due mainly to elevated Boron levels in a test well.
As a result of this refusal, RDM initiated the process to remediate the site. The management and staff worked diligently (with the assistance of DEL staff) to design and construct a clay-lined cell which met or exceeded DEL guidelines. Approximately 120 000 tonnes of material was put in this cell. It was then capped and hydro-seeded.
RDM engaged the services of MGI limited to monitor domestic wells, test wells and surface water. After the cell was capped, tests were performed in Dec. 04, Mar. 05 and June 05. (It should be noted that these tests began in October 01, and have been on-going) There are a total of 13 test wells which were monitored. Of these, 3 showed a decline in the levels of Boron, 9 were stable and one had an unexplained spike in June, with a reading of 1100ug/L. The previous 2 readings were 480ug/L and 454ug/L, respectively.
The 4 wells around Shea’s Lake had readings ranging from 6.7ug/L to 19ug/L. These readings measured surface water from the site, with 3 trending downward and one flat.
17 domestic wells were also included in the monitoring, with 16 of these flat and one in decline. It should be noted that the highest level recorded was 290ug/L, with the lowest being non-detectable. The CCME for Drinking Water is 5000ug/L.
I would be pleased to show you the report from MGI, to verify these results.
Although these tests have not been subjected to a test of statistical significance, they do show favourable trends. As I understand, this was the criterion necessary to warrant a successful application for disposal.
RDM is now at a point where time is of the essence. They are at capacity, and are facing circumstances which could result in bankruptcy; those being they will have to truck tonnes of material to a competitors’ site and incur the tipping fees. This, along with the cost of fuel will surely result in their demise.
To that end, I respectfully request that during their application process, RDM be given permission to dispose of an additional 15 000 tonnes of material, following the same criteria established in the design and construction of their first cell. This will allow them to accept material, thereby saving 20 jobs and ensuring competition in the C&D industry."32 [Emphases added.]
A draft response letter which was later filed in records before the Nova Scotia Supreme Court (“NSSC”) indicates that Deputy Minister Lahey replied:
Dear Mr. Adams:
I am writing in response to your letter of September 26, 2005 requesting permission for RDM Recycling Ltd. of Harrietsfield to dispose of 15,000 tonnes of residual construction and demolition debris on their property.
As stated in your letter, RDM’s previous application for approval to operate a construction and demolition (C&D) disposal site was rejected because of higher than background concentrations of chemicals in groundwater. RDM was given authorization to remediate the site by burying the C&D material in an engineered containment cell.
A condition of this remediation was to monitor both groundwater and surface water in the area to determine the effectiveness of the containment cell and to determine if there would be a reduction of chemicals in the water. A minimum of quarterly samples collected over a full year period was stipulated in order to determine season variations. As of this date, RDM has not completed all the monitoring nor has results from all monitoring been submitted to this department for review.
It would be inappropriate for Nova Scotia Department of Environment and Labour to entertain the construction of additional containment cells until all the monitoring has been completed, submitted to the Bedford Regional Office for review and determined that there is no significant adverse effect being created as a result of this activity.”
It should be noted that there are now other disposal options available to RDM for the residual C&D material which were not available in 2003/2004.
Although NSEL recognizes the potential impacts of this decision to RDM Recycling Ltd., the potential human health concerns must take priority.33 [Emphases added.]
Soon after that, RDM Recycling Limited sold its business to the corporation 3076525 Nova Scotia Limited (“3076525”). 3076525 purchased most of RDM Recycling Limited’s assets and took over the ownership and operation of the C&D debris processing facility at 1275 Old Sambro Road, but it did not purchase the property itself. RDM Recycling Limited retained ownership of the land and the containment cell buried within it.
After most of its assets were purchased, RDM Recycling Limited changed its name to 3012334 Nova Scotia Limited (“3012334”), and 3076525 took on the business name “RDM Recycling”.
Groundwater Monitoring between 2005 and 2010
Operating as RDM Recycling, 3076525 began carrying out C&D debris processing activities at the RDM site. The corporation also continued the water monitoring program that had been put in place through the Remedial Plan that DOEL had approved the previous year—the completion of which was necessary if DOEL was ever going to reconsider an application to operate a C&D debris disposal facility on the site.
As 3076525 was apparently in no rush to apply to operate a C&D debris disposal facility on the site, the water monitoring continued for several years as the new corporation carried out its C&D debris processing activities.
In December 2009, 3076525 asked NSE to reduce the groundwater monitoring requirements that were stipulated in the approved Remedial Plan. The corporation’s request triggered an interesting reaction from NSE, which indicated that it had not been receiving the results of the water monitoring that had been taking place over the past several years.34
Records later put before the NSSC indicate that NSE received at least some results of the water monitoring data up until 2005. Whatever happened to the data that was generated between 2005 and late 2009, it is clear that NSE did not assess it comprehensively until after 3076525 made its reduction request. It was only at that point that NSE looked at the data and realized that a significant new plume of groundwater contamination appeared to be coming from the RDM site, and that several of the private domestic wells owned by Harrietsfield community members were apparently being affected.
29 Nova Scotia Department of Environment and Labour, "Letter Approving Proposed RDM Initial Remedial Action Plan" (27 November 2003), Record of the Respondent in Brown v Nova Scotia (Environment), 2016 NSSC 319, Volume 4(b) at pages 220-223.
30 Ibid.
31 Bill Lahey, Deputy Minister of Environment and Labour, "Draft Response Letter to Councillor Stephen Adams" (29 September 2005) Record of the Respondent in Brown v Nova Scotia (Environment), 2016 NSSC 319, Volume 4(b) at pages 290-91.
32 Councillor Stephen Adams, "Letter to Bill Lahey, Deputy Minister of Environment and Labour" (26 September 2005), Record of the Respondent in Brown v Nova Scotia (Environment), 2016 NSSC 319, Volume 4(b) at pages 286-87.
33 Bill Lahey, Deputy Minister of Environment and Labour, "Draft Response Letter to Councillor Stephen Adams" (29 September 2005) Record of the Respondent in Brown v Nova Scotia (Environment), 2016 NSSC 319, Volume 4(b) at pages 290-91.
34 See 3076525 Nova Scotia Limited v Nova Scotia (Environment), 2017 NSSC 67, 2017 NSSC 67 at paragraph 64.
The 2010 Ministerial Order and Appeal by 3076525
Early in 2010, Nova Scotia Environment (“NSE” or “the Department”, historically called “the Department of Environment and Labour” or “DOEL”) determined that seven private domestic wells owned by Harrietsfield community members located downgradient of the RDM site were either “very likely” or “likely” being impacted by a plume of contaminated groundwater that was spreading from the site. The Department found that three of those wells required mitigation and management because their contamination posed health risks. For the other four wells, the Department found that the contamination did not yet pose health risks but that the wells should continue to be monitored.
The contamination spreading from the RDM site had several aspects. A memorandum prepared by Melanie Haggart, an NSE hydrogeologist, in February 2010 stated:
“The groundwater monitoring data demonstrate that there are significant impacts to groundwater quality in monitoring wells on the site, as well as significant impacts to one domestic well off the site. In the domestic well and several monitoring wells these impacts continue to increase. A second domestic well may also be impacted, but results are masked by variability which may be due to well construction problems.
It appears there is growing plume of impacted groundwater both on site and leaving the site towards the south. The plume is carrying boron at concentrations which in some wells exceed drinking water health guidelines and/or aquatic life guidelines, as well as other contaminants sourced from C and D waste for which there are no healthy guidelines.
Most significantly, it appears that through complex chemical and possibly microbial changes caused by the plume, uranium is being mobilized into groundwater. The uranium is mostly likely naturally present in solid form in bedrock, but is being dissolved due to the changes in groundwater chemistry (eg. increased alkalinity) caused by the leachate plume from the C and D disposal and handling site, leading to substantially elevated and continuously increasing uranium in groundwater. In late 2009 in one domestic well, uranium had risen from its 2003 levels to exceed drinking water health guidelines by close to 2 orders of magnitude (ie 100 X) and the highest natural background concentrations in the area by about 1 order of magnitude (ie 10 X).35 [Emphases added.]
The memorandum recommended that NSE not allow a further reduction in groundwater monitoring, and it also recommended that further monitoring and management should be required.36
These findings led to several actions being taken by NSE. NSE staff communicated with an Environmental Health Consultant at Nova Scotia Health Promotion and Protection who alerted them to several significant health concerns associated with the groundwater monitoring results. Staff also communicated with 3076525, visited the RDM site, and conducted internal assessments of enforcement measures that could and should be taken.
The source of the “growing plume of impacted groundwater” emanating from the RDM site could not be pinpointed precisely, but one possibility was that the containment cell housing roughly 120,000 tonnes of C&D debris might not be functioning properly. The containment cell had been designed with a leachate collection system that was supposed to collect any leachate generated from precipitation passing through the buried debris and pooling in the bottom of the cell. Those responsible for the site indicated that not much leachate had ever been collected by the system, which could mean that the containment cell and leachate collection system were not functioning properly and toxic leachate was escaping somehow. Alternatively, the small amounts of leachate being collected in the system could mean that the containment cell was working exceptionally well by keeping precipitation out.
Another possible source of the contaminated groundwater plume was 3076525’s C&D debris processing operation on the site. Although 3076525 did not stockpile C&D debris outside, exposed to the elements, for excessively long lengths of time as RDM Recycling Limited had done, debris did sit outside for weeks at a time, where it was possible for it to cause the production of leachate. The groundwater contamination could just as easily be coming from there.
The data and observations that NSE had before it could not say conclusively whether the containment cell or current C&D processing operations at the RDM were the source of the contamination, and the evidence indicated that it could be either or both. Ultimately, NSE staff determined that a Ministerial Order requiring several monitoring, management, and remediation activities should be issued to all of the persons responsible for the RDM site.
The 2010 Ministerial Order
On November 5, 2010, the Minister of Environment issued a Ministerial Order (“the 2010 Ministerial Order”) that named several persons: the corporations 3076525 Nova Scotia Limited (“3076525”), 3012334 Nova Scotia Limited (“3012334”), and Ernest A. Nicholson Limited, and two individual directors of 3012334, Roy Brown and Michael Lawrence.
The Ministerial Order stated that the Minister of Environment believed on reasonable and probable grounds that the persons named in the Order had contravened subsection 67(2) of Nova Scotia’s Environment Act, which states:
67(2) No person shall release or permit the release into the environment of a substance in an amount, concentration or level or at a rate of release that causes or may cause an adverse effect, unless authorized by an approval or the regulations.
The Ministerial Order also stated that the Minister of Environment was of the opinion that “it is within the public interest to do all things and take all steps necessary to comply with the Environment Act or to repair any injury or damage, or to control, eliminate or manage an adverse effect”, and it ordered the named persons to comply with several terms and conditions that were listed in a schedule—Schedule “A”—that was attached to and formed part of the Order.
The terms and conditions listed in Schedule “A” were as follows:
1. Site Assessment / Plume Delineation
a) Engage the services of a qualified Site Professional (pursuant to the Nova Scotia Environment “Guidelines for the Management of Containment Sites”), by December 15, 2010 and notify Nova Scotia Environment of the name and contact information of the Site Professional.
b) Under the supervision of the Site Professional, conduct a phased site assessment, starting with a Phase II assessment which shall include, but not be limited to, delineation in three dimensions of a groundwater plume containing dissolved uranium, boron, calcium, sulphate, and elevated alkalinity and total organic carbon, and any other contaminants of concern identified in the course of site assessment or routine well monitoring; and evaluation of calcium, water soluble sulphates, alkalinity, organic carbon, heavy metals and any other contaminants of concern in site soils identified in the course of site assessment.
2. Mitigation of Impacts to Domestic Wells
Submit by January 15th, 2011 to Nova Scotia Environment for approval a mitigation plan, with implementation schedule, for the mitigation of the impacts of uranium in the domestic wells at 1321 and 1311 Old Sambro Road, and for the mitigation of the impacts of lead in the domestic well at 1300 Old Sambro Road.
3. Site Assessment Submission
Submit a report, prepared by or under the supervision of the Site Professional, on the results of the Phase II assessment to Nova Scotia Environment by February 28th, 2011.
4. Groundwater monitoring Program
a) Submit a Groundwater Monitoring Program to Nova Scotia Environment for review and approval by February 28th, 2011.
b) Implement immediately the following groundwater monitoring program as a minimum standard:
i) Under the supervision of the Site Professional, review the integrity of all monitoring wells and replace or repair wells as required to ensure results are representative of groundwater in the aquifer targeted for monitoring. Construct any new shallow wells such that the well screen crosses the water table and new deep wells such that the well screen monitors the shallow bedrock aquifer, or deeper in the bedrock aquifer as required for the purpose of vertical and horizontal plume delineation.
ii) For the following monitoring wells, quarterly monitoring for RCAp-MS (general chemistry and metals) and groundwater levels, and annual monitoring for VOC (volatile organic chemicals), TPS (total petroleum hydrocarbons) and BTEX (benzene, toluene, ethylene, xylene):
› MW-1; MW-2S, -2M, -2D; MW-3: MW-4; MW-5S, -5D; MW-6S, -6D; MW-7S, -7D, and any additional groundwater monitoring wells that are installed for purposes of delineating the groundwater plume or to replace damaged wells
iii) For the following on-site domestic wells, quarterly monitoring for RCAp-MS (general chemistry and metals), and annual monitoring for VOC (volatile organic chemicals), TPH (petroleum hydrocarbons) and BTEX (benzene, toluene, ethylene, xylene):
› 1287 Old Sambro Road, 1291 Old Sambro Road, and 1269 Old Sambro Road
iv) For the following off-site downgradient domestic wells (if permission of the property owners and resident can be obtained), quarterly monitoring for RCAp-MS (general chemistry and metals):
› 1294 Old Sambro Road, 1300 Old Sambro Road, 1305 Old Sambro Road, 1311 Old Sambro Road, 1316 Old Sambro Road, 1321 Old Sambro Road, 75 Whitehead Road, and any additional domestic wells located within 200 metres of the property boundary of PID #41056102.
v) For the following off-site domestic wells (if permission of the property owner and resident can be obtained), annual monitoring for RCAp-MS (general chemistry and metals)
› 1251 Old Sambro Road, 1237 Old Sambro Road, 1219 Old Sambro Road, 12 Venus Drive, 36 Venus Drive, 50 Mercury Avenue.
vi) Sample all domestic wells at a point in the water lines before the water enters any treatment systems or purification devices, if feasible. If it is not feasible to sample before treatment, the presence and type of treatment system prior to sampling point shall be noted with all data reporting for that well. For all domestic wells, samples are to be collected without field filtration and analyzed as potable water supplies; a standard purge time of 5 minutes shall be used; and laboratory-supplied sample bottles with no head space shall be used.’
vii) Monitor any additional wells or parameters in the groundwater monitoring program which may be required by Nova Scotia Environment
5. Surface Water Management
Under the supervision of the Site Professional, review the site drainage and surface water management plan and revise as required. Identify the locations of any surface water drainage locations past or presently in use. Identify locations where surface water which has come into contact with soluble C and D materials processed or kept on site for periods longer than one week, that can infiltrate to the subsurface. Submit the surface water management plan for approval by Nova Scotia Environment before February 28th, 2011.
6. Surface Water Monitoring
a) Under the supervision of the Site Professional, evaluate current data for impact to Shea’s Lake and submit copy of report to Nova Scotia Environment by February 28th, 2011.
b) Sample Shea’s Lake quarterly at the locations previously sampled by RDM known as SW-1, SW-2, SW-3 and SW-4, and analyse for the following parameters: RCAp-MS (general chemistry and metals).
7. Leachate Management and Monitoring
Under the supervision of the Site Professional, review leachate management activities and monitoring for the site. Submit a revised quarterly leachate quality and level monitoring and management plan for approval to Nova Scotia Environment by February 28th, 2011.
8. Reporting
a) Quarterly reports on the results, including lab reports and a tabular summary, of groundwater quality monitoring for all monitoring wells, surface water quality monitoring and leachate sampling shall be submitted to Nova Scotia Environment within 30 days of the end of each quarter. Quarters shall be the following:
› January 1st – March 31st
› April 1st – June 30th
› July 1st – September 30th
› October 1st – December 31st
b) Reports shall be provided to the well owner and resident on monitoring results for each monitoring event in a domestic well, as soon as they are available from the lab. A copy of the report given to the well owner and/or resident shall be provided to the Nova Scotia Environment, within 30 days following the end of the quarter in which the samples are taken.
c) Monitoring reports provided to the well owner and resident and Nova Scotia Environment shall note the point in the water system at which the sample was taken (pre- or post-treatment, if applicable).
d) Monitoring reports provided to the well owner and resident and to Nova Scotia Environment shall highlight any instances or parameters which exceed Health Canada’s Maximum Acceptable Concentration (MAC) guidelines for drinking water, the most current MAC value, and whether the result represents an increase or decrease relative to previous results.
e) Reports shall include method detection limits.
f) Submit an annual report to Nova Scotia Environment within 30 days following December 31st of each year and include the following information:
i) a description of monitoring well construction for each monitoring well;
ii) a description of sampling method and sample handling protocols;
iii) all monitoring well groundwater quality and water level results, in summary tables including all data from past monitoring events, ordered by sampling date. Method detection limit shall be noted for all results. A digital copy of summary tables in Excel or Quattro Pro format shall be attached;
iv) all domestic well results, in summary tables including all data from past monitoring events, ordered by sampling date. Method detection limits shall be noted for all results. A digital copy of summary tables in Excel or Quattro Pro format shall be attached;
vi) all leachate quality and level monitoring results, in summary tables including all data from past monitoring events, ordered by sampling date. Method detection limits shall be noted for all results. A digital copy of summary tables in Excel or Quattro Pro format shall be attached;
vii) laboratory reports for all analyses being reported for the first time;
viii) plots of concentrations versus sampling date in domestic wells and monitoring wells for the following parameters: alkalinity, calcium, hardness, pH, sulphate, uranium, boron, cadmium, lead, total organic carbon, any VOCs, TPH or BTEX detected in the well on any previous occasion, and any other contaminants of concern in groundwater identified during site assessment. For all plots, Health Canada Maximum Acceptable Concentration shall be shown if applicable.
ix) plots of concentrations versus sampling date in surface water (Shea’s Lake) for the following parameters: alkalinity, calcium, hardness, pH, sulphate, uranium, boron, cadmium. For all plots, the (Canadian Council of Ministers of the Environment (CCME) aquatic life guideline shall be shown if applicable;
x) observations about any significant changes or trends in results
9. Submission of a Remedial Action Plan
Under the supervision of the Site Professional, submit a Remedial Action Plan to Nova Scotia Environment for approval by February 28th, 2011 addressing identified impacts of the release of substance from site PID#41056102 outlined in the site assessment(s).
10. Submission of Environment Management Plan
Submit a copy of the environmental management plan for the Halifax Regional Municipality licensed operation on site PID #41056102 to Nova Scotia Environment by February 28th, 2011.
The Appeal by 3076525
On December 3, 2010, 3076525 filed an appeal of the Ministerial Order. However, rather than pursuing that appeal immediately by taking it to court, NSE and 3076525 instead kept the appeal in abeyance (on pause) while they discussed its terms. 3076525 was willing to do some of the things that the Order required, but the corporation also took issue with some of the Order’s demands.
In particular, clause 7 of the Ministerial Order—which required all of the named parties to “review leachate management activities and monitoring for the site” and prepare and submit “a revised quarterly leachate quality and level monitoring and management plan for approval”—provided a bone of contention.
3076525 took the position that the leachate management requirements of clause 7 referred mainly to the containment cell on the site, and the corporation argued that the containment cell was not its responsibility. The containment cell was still owned by 3012334, and, as far as 3076525 was concerned, the corporation had nothing to do with it.
For nearly three years, NSE staff worked with 3076525 to negotiate compliance with the Ministerial Order while 3076525 continued to operate its C&D processing business.
During this time, the Harrietsfield community members whose wells had been deemed “very likely” or “likely” affected by groundwater contamination spreading from the RDM site were not informed that 3076525’s appeal of the Ministerial Order was being held in abeyance. The community members had been informed of the existing and potential health impacts that had been discovered, but the information provided to them had left them with questions, and they were scared. Community members with wells that had demonstrated existing or prospective health impacts could no longer trust their water, and expensive treatment systems were out of reach.
Information about 3076525’s appeal of the Ministerial Order was finally communicated to Harrietsfield community members in the autumn of 2013, when NSE finally gave up on its soft enforcement strategy and retriggered the appeal so that it could be taken to court.
At that point, several Harrietsfield residents whose wells were impacted by the contaminated site decided that they were done being kept out of the loop. Harrietsfield community members Jonathan Andrews, Marlene Brown, and Melissa King applied to the Nova Scotia Supreme Court (“NSSC”) to participate as intervenors in the appeal, and the Court granted their application in November 2013.
It was around that time that Mr. Andrews, Ms. Brown, and Ms. King reached out to East Coast Environmental Law and our organization became involved. As we did not have the capacity to participate in litigation, Lisa Mitchell reached out to Ecojustice and Dalhousie Legal Aid to see if help could be found. The two organizations agreed to take the case together, and Ecojustice lawyer Kaitlyn Mitchell and Donna Franey of Dalhousie Legal Aid were appointed as legal counsel to represent the intervenors throughout the rest of the appeal process. East Coast Environmental Law continued to provide support as needed.
3076525’s appeal of the Ministerial Order was heard by the NSSC in October 2014, with final written submissions delivered to the Court in November 2014.
The root of 3076525’s argument was that the Minister’s decision to issue the Ministerial Order was unreasonable, so the Court should quash it. In particular, 3076525 pointed to clause 7 of the Ministerial Order—which required all of the named parties to “review leachate management activities and monitoring for the site” and prepare and submit “a revised quarterly leachate quality and level monitoring and management plan for approval”. 3076525 argued that the leachate management requirements would unfairly burden the corporation with more than $10 million in clean-up costs. It argued that the requirements in clause 7 referred mainly to the containment cell on the site, and, since the cell was owned by 3012334 and the groundwater contamination spreading from the RDM site appeared to be coming from there, it was unreasonable for the Minister to make 3076525 responsible for cleaning it up.
In May 2015, the Honourable Justice Joshua M. Arnold issued his written decision on the matter.37 Justice Arnold rejected one important aspect of 3076525’s argument, which was that the groundwater contamination spreading from the RDM site appeared to be coming from the containment cell alone. As Justice Arnold noted, significant evidence gathered by NSE and corresponding analysis put before the Minister indicated that 3076525’s own operations on the site could also be responsible for the new groundwater contamination that had recently been discovered.38 In that regard, Justice Arnold concluded that it was not unreasonable for 3076525 to be named in the Ministerial Order and bear responsibility for at least some of the monitoring, management, and remediation activities that the Ministerial Order required.
However, Justice Arnold also concluded that NSE had not provided the Minister will all relevant information about the RDM site before the Ministerial Order was issued. Specifically, the record indicated that Minister had not been informed that 3012334 owned the property and the containment cell, nor had the larger history of the containment cell been explained to the Minister. Justice Arnold concluded that information about the ownership and history of the containment cell should have informed the Minister’s decision to issue the Ministerial Order and should have informed the requirements set in clause 7 in particular. For those reasons, Justice Arnold held that clause 7 was unreasonable and should be reconsidered by the Minister.
The rest of the Ministerial Order was upheld.
In the end, 3076525’s appeal of the Ministerial Order concluded with most of the Order being upheld but with clause 7 being remitted (sent back) to the Minister for reconsideration.
35 Melanie Haggart, Memorandum (5 February 2010), Record of the Respondent in Brown v Nova Scotia (Environment), 2016 NSSC 319, Volume 3 at pages 68-69.
36 Ibid at pages 69-70.
37 3076525 Nova Scotia Ltd v Nova Scotia (Environment), 2015 NSSC 137.
38 Ibid at paragraphs 76, 97, 99, 103, 107-108, 110-15.
The 2016 Ministerial Orders and Appeals
After the Nova Scotia Supreme Court delivered its decision on the appeal by 3076525 Nova Scotia Limited (“3076525”), Harrietsfield community members whose wells were impacted by the RDM site heard little from Nova Scotia Environment (“NSE” or “the Department”, historically called “the Department of Environment and Labour” or “DOEL”) and were left to wonder:
- would the Minister of Environment now enforce the portions of the Order that had been upheld?
- how long the Minister would take to reconsider the leachate management requirements that had been included in clause 7?
It was not until late February 2016 that Environment Minister Margaret Miller retracted the Ministerial Order that had been issued in November 2010 ("the 2010 Ministerial Order") and issued two new Ministerial Orders in its place.
One of those Ministerial Orders was issued against Roy Brown, Michael Lawrence, and 3012334 Nova Scotia Limited (“3012334”); the other was issued against 3076525. The contents of each Ministerial Order were very similar to each other and also to the contents of the original Ministerial Order that had been issued in 2010, but the new Orders divided leachate management and remediation responsibilities between the named parties differently.
The 2016 Ministerial Order against Roy Brown, Michael Lawrence, and 3012334
Like the 2010 Ministerial Order, the 2016 Ministerial Order against Roy Brown, Michael Lawrence, and 3012334 stated that the Minister of Environment believed on reasonable and probable grounds that the persons named had contravened subsection 67(2) of Nova Scotia’s Environment Act, which states:
67(2) No person shall release or permit the release into the environment of a substance in an amount, concentration or level or at a rate of release that causes or may cause an adverse effect, unless authorized by an approval or the regulations.
The Order also stated that the Minister of Environment was of the opinion that “it is within the public interest to do all things and take all steps necessary to comply with the Environment Act or to repair any injury or damage, or to control, eliminate or manage an adverse effect”, and it ordered the named persons to comply with several terms and conditions that were listed in a schedule—Schedule “A”—that was attached to and formed part of the Order.
The terms and conditions listed in Schedule “A” were as follows:
1. Mitigation of Impacts to Domestic Wells
Continue to mitigate the impacts of uranium, lead, and other substances in groundwater that may cause an adverse effect, which are present in groundwater beneath downgradient properties, as a result of the groundwater plume sourced from 1275 Old Sambro Road, PID#41056102
-
-
- Downgradient properties include but are not limited to civic addresses 1294 Old Sambro Road, 1300 Old Sambro Road, 1305 Old Sambro Road, 1311 Old Sambro Road, 1316 Old Sambro Road, 1321 Old Sambro Road, 1331 Old Sambro Road and 75 Whitehead Road.
-
- The groundwater plume is as determined to date and as further determined during the course of site assessment and groundwater monitoring.
- Recommendations on the mitigation measures required by this clause shall be made by the Site Professional and shall be submitted in writing, stamped, and signed by the Site Professional, in site assessment documents as they are prepared, and on an annual basis with the results of the groundwater monitoring.
-
2. Site Assessment / Plume Delineation
a) Engage the services of a qualified Site Professional (pursuant to the Nova Scotia Contaminated Sites Regulations), by March 31, 2016 and notify Nova Scotia Environment of the name and contact information of the Site Professional.
b) Conduct a phased site assessment, starting with a Phase II assessment as defined by the Nova Scotia Contaminated Sites Regulations and associated protocols, which shall include, but not be limited to, delineation in three dimensions of a groundwater plume containing dissolved uranium, boron, calcium, sulphate, and elevated alkalinity and total organic carbon, and any other contaminants of concern identified in the course of site assessment or routine well monitoring; and evaluation of calcium, water soluble sulphates, alkalinity, organic carbon, heavy metals and any other contaminants of concern in site soils identified in the course of site assessment.
3. Site Assessment Submission
Submit a report, stamped and signed by the Site Professional, which has been prepared by or under the supervision of the Site Professional, on the results of the Phase II Site assessment and information on any additional site assessment required, with time lines, to Nova Scotia Environment by July 31, 2016.
4. Groundwater Monitoring Program
-
- Continue to conduct the following groundwater monitoring program as a minimum standard:
a) Under the supervision of the Site Professional, review the integrity of all monitoring wells and replace or repair wells as required to ensure results are representative of groundwater in the aquifer targeted for monitoring. Construct any new shallow wells such that the well screen crosses the water table and new deep wells such that the well screen monitors the shallow bedrock aquifer, or deeper in the bedrock aquifer as required for the purpose of vertical and horizontal plume delineation.
b) monitor groundwater as follows:
i) for the following monitoring wells, quarterly monitoring for RCAp-MS (general chemistry and metals) and groundwater levels, and annual monitoring for:
› MW-1S; MW-1D; MW-2S, -2M, -2D; MW-3; MW-4; MW-5S, -5D;
› MW-6S, -6D; MW-7S, -7D; MW-8S, -8D.
› any additional groundwater monitoring wells that are installed for purposes of delineating the groundwater plume or to replace damaged wells
ii) for the following on-site domestic wells, quarterly monitoring for RCAp-MS (general chemistry and metals),
› 1287 Old Sambro Road
› 1291 Old Sambro Road
› 1269 Old Sambro Road
iii) for the following off-site downgradient domestic wells (if permission of the property owner and resident can be obtained), quarterly monitoring for RCAp-MS (general chemistry and metals):
› 1294 Old Sambro Road
› 1300 Old Sambro Road
› 1305 Old Sambro Road
› 1311 Old Sambro Road
› 1316 Old Sambro Road
› 1321 Old Sambro Road
› 75 Whitehead Road
› 1331 Old Sambro Road
› any additional domestic wells located within 200 metres of the property boundary of PID #41056102
iv) for the following off-site domestic wells (if permission of the property owner and resident can be obtained), annual monitoring for RCAp-MS (general chemistry and metals)
› 1251 Old Sambro Road
› 1237 Old Sambro Road
› 1219 Old Sambro Road
› 12 Venus Drive
› 32 Venus Drive
› 36 Venus Drive
› 50 Mercury Avenue
v) additional wells or parameters to be monitored in the groundwater monitoring program which may be required by Nova Scotia Environment
vi) sample all domestic wells at a point in the water lines before the water enters any treatment systems or purification devices, if feasible. If it is not feasible to sample before treatment, the presence and type of treatment system prior to sampling point shall be noted with all data reporting for that well. For all domestic wells, samples are to be collected without field filtration and analyzed as potable water supplies; a standard purge time of 5 minutes shall be used; and laboratory-supplied sample bottles with no head space shall be used.
5. Surface Water Management
-
- Under the supervision of the Site Professional, identify the locations of any surface water drainage locations past or presently in use. Identify locations where surface water which has come into contact with soluble C and D materials processed or kept on site for periods longer than one week, or where rainfall on soils and fill material that have elevated Calcium and Alkalinity, can infiltrate to the subsurface. Submit this information to Nova Scotia Environment before July 31, 2016.
6. Surface Water Monitoring
a) Continue to evaluate current data for impact to Shea’s Lake and submit a copy of the report to Nova Scotia Environment.
b) Sample Shea’s Lake quarterly at the locations previously sampled by RDM known as SW-1, SW-2, SW-3, SW-4, and at the intersection of Old Sambro Road and the downstream watercourse of Shea’s Lake. Analyse these samples for the following parameters: RCAp-MS (general chemistry and metals).
c) Sample quarterly the ditch (watercourse) that drains the site at or near the property boundary between 1275 Old Sambro Road and 1251 Old Sambro Road, at a location south of MW5 before it joins the watercourse flowing about 20 metres east of MW5. Analyse these samples for the following parameters: RCAp-MS (general chemistry and metals).
7. Leachate Management and Monitoring
a) Monitor the quality and level (in geodetic elevation) of leachate in the crock in the containment cell and analyze the samples collected for RCAp-MS (general chemistry and metals).
b) By no later than March 31, 2016 provide Nova Scotia Environment with the geodetic elevation of the bottom of the crock in the leachate collection system in the containment cell located at the site (1275 Old Sambro Road, PID 41056102).
c) By no later than March 31, 2016 commence pumping of the crock in the containment cell located at the site (1275 Old Sambro Road, PID 41056102). Once the leachate level reaches 1 metre above the bottom of the crock, the crock is to be pumped.
d) Keep records of leachate pumping volumes and manifests / disposal records documenting leachate disposal at approved disposal sites. These records must be available upon the request of Nova Scotia Environment and copies provided within annual reporting.
8. Reporting
a) Quarterly reports on the results, including lab reports and a tabular summary, of groundwater quality monitoring for all monitoring wells, surface water quality monitoring and leachate sampling shall be submitted to Nova Scotia Environment within 30 days of the end of each quarter. Quarters shall be the following:
› January 1st– March 31st
› April 1st– June 30th
› July 1st– September 30th
› October 1st– December 31st
b) Reports shall be provided to the well owner and resident on monitoring results for each monitoring event in a domestic well, as soon as they are available from the lab. A copy of the report given to the well owner and/or resident shall be provided to Nova Scotia Environment, within 30 days following the end of the quarter in which the samples are taken.
i) Monitoring reports provided to the well owner and resident and Nova Scotia Environment shall note the point in the water system at which the sample was taken (pre- or post-treatment, if applicable).
ii) Monitoring reports provided to the well owner and resident and to Nova Scotia Environment shall highlight any instances of parameters which exceed Health Canada’s Maximum Acceptable Concentration (MAC) guidelines for drinking water, the most current MAC value, and whether the result represents and increase or decrease relative to previous results.
iii) Reports shall include method detection limits.
c) Submit an annual report to Nova Scotia Environment within 30 days following December 31st of each year and including the following information:
i) a description of monitoring well construction for each monitoring well;
ii) a description of sampling methods and sample handling protocols;
iii) all monitoring well groundwater quality and water level results, in summary tables including all data from past monitoring events, ordered by sampling date. Method detection limit shall be noted for all results. A digital copy of summary tables in Excel format shall be attached.
iv) all domestic well results, in summary tables including all data from past monitoring events, ordered by sampling date. Method detection limits shall be noted for all results. A digital copy of summary tables in Excel format shall also be attached.
v) all surface water results, in summary tables including all data from past monitoring events, ordered by sampling date. Method detection limits shall be noted for all results. A digital copy of summary tables in Excel format shall be attached.
vi) all leachate quality and level monitoring results, in summary tables including all data from past monitoring events, ordered by sampling date. Method detection limits shall be noted for all results A digital copy of summary tables in Excel format shall be attached.
vii) laboratory reports for all analyses being reported for the first time.
viii) plots of concentrations versus sampling date in domestic wells and monitoring wells for the following parameters: alkalinity, calcium, hardness, pH, sulphate, uranium, boron, cadmium, lead, total organic carbon, detected in the well on any previous occasion, and any other contaminants of concern in groundwater identified during site assessment. For all plots, Health Canada Maximum Acceptable Concentration shall be shown if applicable. Scales shall be appropriate to visually assess trends relative to MAC.
ix) plots of concentrations versus sampling date in surface water (Shea’s Lake) for the following parameters: alkalinity, calcium, hardness, pH, sulphate, uranium, boron, cadmium. For all plots, the (Canadian Council of Ministers of the Environment (CCME) aquatic life guideline shall be shown if applicable. Scales shall be appropriate to visually assess trends relative to guidelines.
x) observations about any significant changes or trends in results. Clear changes in trend direction lasting more than 2 years shall be highlighted and evaluated for their significance.
xi) all records of records of pumping of the crock in the leachate collection system in the containment cell including leachate pumping volumes and manifests /disposal records documenting leachate disposal at approved disposal sites
9. Remedial Action Plan
a) Under the supervision of the Site Profession, submit a Remedial Action Plan to Nova Scotia Environment for approval by July 31, 2016, addressing identified impacts of the release of substance from site PID#41056102 outlined in the site assessment(s).
b) Implement the Remedial Action Plan upon approval of Nova Scotia Environment.
10. Site Activities 1275 Old Sambro Road
Civic 1275 Sambro Road, PID 41056102 or part thereof shall not be used for the storage, processing, disposal of Construction and Demolition debris as defines in section 2(j) of the Nova Scotia Solid Waste Resource Management Regulations.
An important difference between the 2010 Ministerial Order and the 2016 Ministerial Order against Roy Brown, Michael Lawrence, and 3012334 is that the 2016 Ministerial Order assigned more specific responsibilities for gathering information about the containment cell at the RDM site and providing NSE with the results. As we will see when we turn to the 2016 Ministerial Order against 3076525, those responsibilities were distinct from the new remediation requirements assigned to 3076525.
The 2016 Ministerial Order against 3076525
Like the other Ministerial Orders, the 2016 Ministerial Order issued against 3076525 stated that the Minister of Environment believed on reasonable and probable grounds that the person named had contravened subsection 67(2) of Nova Scotia’s Environment Act.
The Order also stated that the Minister of Environment was of the opinion that “it is within the public interest to do all things and take all steps necessary to comply with the Environment Act or to repair any injury or damage, or to control, eliminate or manage an adverse effect”, and it ordered the named persons to comply with several terms and conditions that were listed in a schedule—Schedule “A”—that was attached to and formed part of the Order.
The terms and conditions listed in Schedule “A” were as follows:
1. Mitigation of Impacts to Domestic Wells
Continue to mitigate the impacts of uranium, lead, and other substances in groundwater that may cause an adverse effect, which are present in groundwater beneath downgradient properties, as a result of the groundwater plume sourced from 1275 Old Sambro Road, PID 41056102
-
- Downgradient properties include but are not limited to civics 1294 Old Sambro Road, 1300 Old Sambro Road, 1305 Old Sambro Road, 1311 Old Sambro Road, 1316 Old Sambro Road, 1321 Old Sambro Road, 1331 Old Sambro Road and 75 Whitehead Road.
- The groundwater plume is as determined to date and as further determined during site assessment and groundwater monitoring.
- Recommendations on the mitigation measures required by this clause shall be made by the Site Professional and shall be submitted in writing, stamped, and signed by the Site Professional, in site assessment documents as they are prepared and on an annual basis with the results of the groundwater monitoring.
a) Engage the services of a qualified Site Professional (pursuant to the Nova Scotia Contaminated Sites Regulations), and notify Nova Scotia Environment of the name and contact information of the Site Professional by March 31, 2016.
b) Conduct a phased site assessment, starting with a Phase II assessment as defined by the Nova Scotia Contaminated Sites Regulations and associated protocols, which shall include, but not be limited to, delineation in three dimensions of a groundwater plume containing dissolved uranium, boron, calcium, sulphate, and elevated alkalinity and total organic carbon, and any other contaminants of concern identified in the course of site assessment or routine well monitoring; and evaluation of calcium, water soluble sulphates, alkalinity, organic carbon, heavy metals and any other contaminants of concern in site soils identified in the course of site assessment.
c) The Environmental Site Assessment shall include all areas on the site where after 2005 construction and demolition debris materials were stored, processed, or disposed; all areas on the site where at any time after 2005, surface water from the areas described was directed; and all areas on and off the site which are hydraulically downgradient of the areas identified above; but shall exclude the footprint of the containment cell. The Environmental Site Assessment shall include delineation of areas where there are sources of elevated Calcium and Alkalinity in soil, fill material, and overburden.
3. Site Assessment Submission
Submit a report, prepared by or under the supervision of the Site Professional, and stamped and signed by the Site Professional, on the results of the Phase II Site assessment and submit additional assessment requirements and time lines to complete it, stamped and signed by the Site Professional, to Nova Scotia Environment, by July 31, 2016.
4. Groundwater Monitoring Program
- Continue to conduct the following groundwater monitoring program as a minimum standard:
- Under the supervision of the Site Professional, review the integrity of all monitoring wells and replace or repair wells as required to ensure results are representative of groundwater in the aquifer targeted for monitoring. Construct any new shallow wells such that the well screen crosses the water table and new deep wells such that the well screen monitors the shallow bedrock aquifer, or deeper in the bedrock aquifer as required for the purpose of vertical and horizontal plume delineation.
- monitor groundwater as follows:
› for the following monitoring wells, quarterly monitoring for RCAp-MS (general chemistry and metals) and groundwater levels:
› MW1-S; MW1-D; MW2-S, MW2-M, MW2-D; MW-3; MW-4; MW5-S, MW5-D; MW6-S, MW6-D; MW7-S, MW7-D; MW8-S, MW8-D.
› any additional groundwater monitoring wells that are installed for purposes of delineating the groundwater plume or to replace damaged wells
› for the following on-site domestic wells, quarterly monitoring for RCAp-MS (general chemistry and metals),
› 1287 Old Sambro Road
› 1291 Old Sambro Road
› 1269 Old Sambro Road
› for the following off-site downgradient domestic wells (if permission of the property owner and resident can be obtained), quarterly monitoring for RCAp-MS (general chemistry and metals):
› 1294 Old Sambro Road
› 1300 Old Sambro Road
› 1305 Old Sambro Road
› 1311 Old Sambro Road
› 1316 Old Sambro Road
› 1321 Old Sambro Road
› 75 Whitehead Road
› 1331 Old Sambro Road
› any additional domestic wells located within 200 metres of the property boundary of PID #41056102
› for the following off-site domestic wells (if permission of the property owner and resident can be obtained), annual monitoring for RCAp-MS (general chemistry and metals)
› 1288 Old Sambro Road
› 1251 Old Sambro Road
› 1237 Old Sambro Road
› 1219 Old Sambro Road
› 12 Venus Drive
› 32 Venus Drive
› 36 Venus Drive
› 50 Mercury Avenue
› additional wells or parameters to be monitored in the groundwater monitoring program which may be required by Nova Scotia Environment
- sample all domestic wells at a point in the water lines before the water enters any treatment systems or purification devices, if feasible. If it is not feasible to sample before treatment, the presence and type of treatment system prior to sampling point shall be noted with all data reporting for that well. For all domestic wells, samples are to be collected without field filtration and analyzed as potable water supplies; a standard purge time of 5 minutes shall be used; and laboratory-supplied sample bottles with no head space shall be used.
5. Surface Water Monitoring
- Continue to evaluate current data for impact to Shea’s Lake and submit copy of report to Nova Scotia Environment.
- Sample Shea’s Lake quarterly at the locations previously sampled by RDM known as SW-1, SW-2, SW-3, SW-4, and at the intersection of Old Sambro Road and the downstream watercourse of Shea’s Lake. Analyse these samples for the following parameters: RCAp-MS (general chemistry and metals).
- Sample quarterly the ditch (watercourse) that drains the site at or near the property boundary between 1275 Old Sambro Road and 1251 Old Sambro Road, at a location south of MW5 before it joins the watercourse flowing about 20 metres east of MW5. Analyse these samples for the following parameters: RCAp-MS (general chemistry and metals).
6. Reporting
- Quarterly reports on the results, including lab reports and a tabular summary, of groundwater quality monitoring for all monitoring wells, surface water quality monitoring and leachate sampling shall be submitted to Nova Scotia Environment within 30 days of the end of each quarter. Quarters shall be the following:
› January 1st– March 31st
› April 1st– June 30th
› July 1st– September 30th
› October 1st– December 31st
- Reports shall be provided to the well owner and resident on monitoring results for each monitoring event in a domestic well, as soon as they are available from the lab. A copy of the report given to the well owner and/or resident shall be provided to Nova Scotia Environment, within 30 days following the end of the quarter in which the samples are taken.
› Monitoring reports provided to the well owner and resident and Nova Scotia Environment shall note the point in the water system at which the sample was taken (pre- or post-treatment, if applicable).
› Monitoring reports provided to the well owner and resident and to Nova Scotia Environment shall highlight any instances of parameters which exceed Health Canada’s Maximum Acceptable Concentration (MAC) guidelines for drinking water, the most current MAC value, and whether the result represents and increase or decrease relative to previous results.
› Reports shall include method detection limits.
- Submit an annual report to Nova Scotia Environment within 30 days following December 31stof each year and including the following information:
› a description of monitoring well construction for each monitoring well;
› a description of sampling methods and sample handling protocols;
› all monitoring well groundwater quality and water level results, in summary tables including all data from past monitoring events, ordered by sampling date. Method detection limit shall be noted for all results. A digital copy of summary tables in Excel format shall be attached.
› all domestic well results, in summary tables including all data from past monitoring events, ordered by sampling date. Method detection limits shall be noted for all results. A digital copy of summary tables in Excel format shall also be attached.
› all surface water results, in summary tables including all data from past monitoring events, ordered by sampling date. Method detection limits shall be noted for all results. A digital copy of summary tables in Excel format shall be attached.
› all leachate quality and level monitoring results, in summary tables including all data from past monitoring events, ordered by sampling date. Method detection limits shall be noted for all results A digital copy of summary tables in Excel format shall be attached.
› laboratory reports for all analyses being reported for the first time.
› plots of concentrations versus sampling date in domestic wells and monitoring wells for the following parameters: alkalinity, calcium, hardness, pH, sulphate, uranium, boron, cadmium, lead, total organic carbon, detected in the well on any previous occasion, and any other contaminants of concern in groundwater identified during site assessment. For all plots, Health Canada Maximum Acceptable Concentration shall be shown if applicable.
› plots of concentrations versus sampling date in surface water (Shea’s Lake) for the following parameters: alkalinity, calcium, hardness, pH, sulphate, uranium, boron, cadmium. For all plots, the (Canadian Council of Ministers of the Environment (CCME) aquatic life guideline shall be shown if applicable.
› observations about any significant changes or trends in results
7. Submission of a Remedial Action Plan
- Under the supervision of the Site Professional, submit a Remedial Action Plan to Nova Scotia Environment for approval by July 31, 2016 addressing identified impacts of the release of substance excluding areas that are clearly attributed to a release only from the containment cell.
Unlike the 2010 Ministerial Order, which implied that 3076525 shared responsibility for conducting monitoring, management, and remediation activities in relation to the containment cell at the RDM site, the 2016 Ministerial Order to the corporation differentiated 3076525’s remediation responsibility from the responsibilities borne by Roy Brown, Michael Lawrence, and 3012334 by requiring 3076525 to focus its remediation efforts on areas of the RDM site that were not clearly associated with the containment cell.
The Appeal by Roy Brown and Michael Lawrence
Roy Brown and Michael Lawrence appealed the 2016 Ministerial Order that was issued to them. The appeal was heard in October 2016 by the Honourable Justice Denise M. Boudreau of the Nova Scotia Supreme Court (“NSSC”).
Harrietsfield community members Marlene Brown, Melissa King, and Angela Zwicker participated as intervenors in the appeal, represented by Ecojustice lawyers Kaitlyn Mitchell and Julia Croome and supported by East Coast Environmental Law.
At the time of the appeal hearing, 3012334 still owned the property at 1275 Old Sambro Road, and Mr. Brown and Mr. Lawrence were the sole directors/officers of the corporation. 3012334’s status with the Registry of Joint Stock Companies had been revoked for nonpayment of registration fees—as was also the case when the 2010 Ministerial Order was issued.
In their appeal, Mr. Brown and Mr. Lawrence argued that the Minister’s decision to issue the new Ministerial Order was procedurally unfair because the revoked registration status of 3012334 was, in their view, the reason why they were named personally, and they had not been informed about the significance of the corporation’s revoked status before the Order was issued. They also argued that the Order should not have named them personally since the corporation owned the property to name them personally was to improperly “lift the corporate veil”. Additionally, they argued that the Minister did not consider all of the relevant factors when making her decision to issue the Order.
Justice Boudreau’s written decision on the matter was issued in November 2016.39 In it, Justice Boudreau rejected the appellants’ arguments and upheld the Ministerial Order in full.
The 2016 Appeal by 3076525
3076525 appealed the new Ministerial Order that was issued to it. The appeal was heard in November 2016 by the Honourable Justice D. Timothy Gabriel of the NSSC in November 2016.
Harrietsfield community members Marlene Brown, Melissa King, and Angela Zwicker participated as intervenors, represented by Ecojustice lawyers Kaitlyn Mitchell and Julia Croome and supported by East Coast Environmental Law.
In this appeal, 3076525 argued that the Minister’s decision to issue the new Ministerial Order was procedurally unfair, in particular because the decision was allegedly informed by misleading or inaccurate information that NSE staff put before the Minister and the corporation was not given an opportunity to correct that information. The corporation also argued that the terms of the Order were unreasonable.
Justice Gabriel’s written decision on the matter was issued in March 2017.40 In it, Justice Gabriel rejected the appellant’s arguments and upheld the Ministerial Order in full.
Importantly, as concerned 3076525’s position that the new Ministerial Order was unreasonable, Justice Gabriel noted that between 2010, when the first Ministerial Order was issued, and 2016, when the second Ministerial Order was handed down, the Minister had received additional scientific data and analysis from NSE that indicated even more strongly than before that 3076525’s operations on the RDM site were a source of contamination and the groundwater contamination spreading from the site could not be attributed to the containment cell alone.41 As Justice Gabriel put it: “If anything, the information which became available to her after the 2010 MO only reinforced the reasonableness of the Minister’s decision to issue the 2016 MO”.42
39 Brown v Nova Scotia (Environment), 2016 NSSC 319., 2016 NSSC 319.
40 3076525 Nova Scotia Limited v Nova Scotia (Environment), 2017 NSSC 67., 2017 NSSC 67.
41 Ibid at paragraphs 85-91, 95.
42 Ibid at paragraph 95.
Joint Commitment by the Government of Nova Scotia and Halifax Regional Municipality to Provide Water Treatment Systems to Affected Residents
In April 2016, as the appeals of the 2016 Ministerial Orders were unfolding, several Harrietsfield community members were informed that they would receive site-specific water treatment systems for their homes.
The decision to provide several homes in Harrietsfield with water treatment systems emerged from a joint commitment by the Government of Nova Scotia and the Halifax Regional Municipality. The joint commitment aimed to make sure that Harrietsfield residents whose well water quality had been affected by the RDM site would have potable drinking water that met the Canadian Drinking Water Quality Guidelines. The joint commitment also included a program of regular water sampling and testing to monitor the residents' water quality.
Eight homes in Harrietsfield received water treatment systems, accompanied by ongoing monitoring, as a result of the joint commitment.
Private Prosecution by Harrietsfield Community Member Marlene Brown
Failure to comply with a Ministerial Order issued under Nova Scotia’s Environment Act is an enforceable offence, but despite the named parties’ failures to comply with the Ministerial Orders issued in 2010 and 2016, no charges were ever pressed by NSE.
The appeal decisions of the Nova Scotia Supreme Court in November 2016 and March 2017 were welcomed with excitement and relief by Harrietsfield community members who were anxious to see a proper clean-up of the RDM site. However, after witnessing years of compliance and enforcement delays by the persons responsible for the site as well as by NSE, some felt that it was time to take matter into their own hands.
In April 2017, Harrietsfield community member Marlene Brown initiated a private prosecution of 3012334 Nova Scotia Limited (“3012334”), Roy Brown, Michael Lawrence, and 307625 Nova Scotia Limited (“3076525”), charging the corporations and the named individuals for their failure to comply with the 2016 Ministerial Orders and for violating subsection 67(2) of the Environment Act by unlawfully releasing a substance into the environment that caused an adverse (harmful) effect.
As described above, subsection 67(2) of the Environment Act was the subsection cited in all of the Ministerial Orders issued against the persons responsible for C&D debris activities at the RDM site. It states:
67(2) No person shall release or permit the release into the environment of a substance in an amount, concentration or level or at a rate of release that causes or may cause an adverse effect, unless authorized by an approval or the regulations.
A private prosecution is a legal proceeding in which a private citizen steps into the shoes of the state to prosecute an offence that could ordinarily be prosecuted by the government (for example, in Nova Scotia, by the province’s Public Prosecution Service).
Ms. Brown’s private prosecution of the persons responsible for the RDM site marked the first time that a private prosecution of an environmental offence had been launched in Nova Scotia.
East Coast Environmental Law supported Ms. Brown in her efforts by contracting local lawyer Jamie Simpson to represent Ms. Brown as her legal counsel. Mr. Simpson worked with Lisa Mitchell to conduct legal research and navigate an unfamiliar legal process in the hopes of getting justice for Harrietsfield community members. The work was daunting, but the absence of decisive enforcement action by NSE suggested that if Harrietsfield community members wanted justice, they would have to take the initiative themselves.
The Public Prosecution
In Canada, whenever a member of the public begins a private prosecution, the Crown has the power to quash the prosecution or take it over.
In some cases, it can be helpful for the Crown to take over a private prosecution. Compared to private citizens, governments typically have far greater resources and legal expertise at their disposal and can more easily bear the financial and human labour costs of taking a case to court.
When Harrietsfield community member Marlene Brown launched her private prosecution with the support of East Coast Environmental Law, our hope was that the action would motivate Nova Scotia’s Public Prosecution Service (“PPS”) to step in and finally prosecute the environmental offences at the RDM site. In our view, the Harrietsfield community members who were impacted by the RDM site did not deserve to bear the additional burden of conducting a prosecution: that responsibility belonged to the Crown.
With that in mind, Ms. Brown and East Coast Environmental Law wrote to the PPS and asked them to take over the prosecution. In July 2017, the PPS announced that it intended to do so, and shortly after that the private prosecution became a public prosecution.
The prosecution stagnated for several years after the PPS took it over, with the PPS adjourning or agreeing to adjourn the proceeding at least seventeen times, by our count. In 2021, the PPS referred the prosecution to Nova Scotia's restorative justice program. Our hope is that the restorative justice process succeeds in bringing resolution to the community.
The Remediation of the Former RDM Site
According to its website,43 in May 2018, Nova Scotia Lands Inc. (“NS Lands”)—a provincial Crown corporation which describes itself as “the go to agency for environmental clean-up, asset management information and land management in the province of Nova Scotia"44—was asked to assess the scope and cost of work that would be required to remediate the RDM site. NS Lands began by hiring the consulting firm AECOM to conduct a site assessment and propose potential remediation plans (or “closure options”) for the site.
In March 2019, AECOM delivered a site assessment report (“the AECOM report”) which included a letter that described three potential closure options for the RDM site:
“Closure Option 1 – Cap the Existing Landfill Site: this option involves leaving the landfill waste cell in place, cap it with a better performing cap, and remove the leachate. All associated remaining waste material and contaminated soils on-site are to be removed and disposed of at an approved facility. The site would be graded and contoured post waste and contaminated soil removal.
Closure Option 2 – Relocate Existing Landfill Material to a New Landfill on-site and transport existing fill material off-site: this option includes removal of the existing landfill completely, building a new lined cell on-site, placing the materials in the cell and capping it and remove all other site fill material and dispose of at an approved facility and grade site.
Closure Option 3 – Remove the Landfill and Associated Fill Material and Dispose Off-site: this option involves removal of the landfill and all associated fill material on-site with disposal at an approved facility and then final grading of the Site."45
Presumably responding to the unanswered questions about whether the existing containment cell on the site was functioning properly or allowing toxic leachate to escape and contaminate local groundwater, Closure Option 1 envisioned making changes to the containment cell which would hopefully ensure that it would function as planned going forward and would no longer pose contamination concerns. Closure Option 2 proposed the construction of an entirely new containment cell on the site to replace the one that was already there, and Closure Option 3 envisioned the complete removal of the existing containment cell and all of the C&D debris that was buried within it.
AECOM’s cost estimates indicated that Closure Option 1 would be the least expensive and would cost roughly eight and a half million dollars ($8,530,569).46 The estimated cost of Closure Option 2 was nearly sixteen million dollars ($15,965,844), and the estimated cost of Closure Option 3 was roughly twenty-five million dollars ($25,190,750).47 Additionally, AECOM estimated that an extra $4,244,500 would be needed for each of the three proposed closure options, no matter which was chosen, for the removal and disposal of leachate liquid from the existing containment cell.
In May 2019, representatives of the Government of Nova Scotia and Government of Canada announced that a jointly-funded clean-up fund had been created to finance the remediation. The closure option chosen was AECOM’s Closure Option 1—leave the existing containment cell in place but make changes so that it would hopefully function as planned going forward—and responsibility for managing the remediation remained with NS Lands.
Notably, the NS Lands website refers to the property at 1275 Old Sambro Road as “the former RDM Landfill Site in Harrietsfield” despite the fact that the RDM site was never a landfill or an approved C&D debris disposal facility. This misnomer appears repeatedly in public documents associated with the remediation, and it suggests an unfortunate misunderstanding of the history that led to the one-time approval of C&D waste debris disposal on the site.
Some information about the remediation is available online,48 and tender documents issued by NS Lands as part of the process of hiring contractors for the remediation offer insight into the evolution of the clean-up plans for the site.
Notably, the AECOM site assessment that was conducted to evaluate the scope of work required for the remediation discovered several areas on the RDM site—beyond the containment cell—that appeared to contain C&D debris that had been buried or disposed of unlawfully.49 AECOM estimated that there was roughly 68,000 cubic meters of miscellaneous debris throughout the site: some of it at the surface, and some buried.50
The AECOM report that NS Lands received in March 2019 suggests that early plans for the remediation envisioned that the C&D debris which had been buried or otherwise disposed of unlawfully—i.e., outside the containment cell—would be excavated and taken off-site for disposal at an approved facility elsewhere.51 However, tender documents issued by NS Lands in 2020 make it clear that at some point along the line, the plan became to excavate and then re-bury much of that debris on the site itself by expanding the existing containment cell.52
The remediation of the RDM site was a positive development in many ways, and we hope that it will make positive changes to groundwater quality in Harrietsfield by safely storing the thousands of tonnes of polluting materials that were enclosed in the original containment cell and buried unlawfully around the rest of the site. However, given the history of the original containment cell and the many unanswered questions about its contributions to the groundwater contamination in Harrietsfield, many questions and concerns remain. Only time will tell if the refurbished and expanded containment cell will function as planned.
Whatever happens, one thing is perfectly clear already, and that is the terrible irony that after advocating successfully to prevent a C&D debris disposal operation at the RDM site, Harrietsfield community members have nevertheless ended up with a mountain of buried waste in the heart of their community, at a site that is now being called a “former landfill” by the Crown corporation tasked with managing it. The injustice of their situation should not go unnoticed, and all Nova Scotians should be concerned by the story that brought us to this point.
The story of water contamination in Harrietsfield is, in part, the story of polluting and at times clearly unlawful industrial practices. It is the story of poorly enforced provincial environmental laws, and it is also the story of an evolving waste management regime that turned a rural community into a sacrifice zone as parts of the Halifax Regional Municipality benefited from development and sought to manage the corresponding production of C&D debris more economically and efficiently.
Our society generates massive amounts of waste, and waste that cannot be repurposed needs to go somewhere. Much of it is dangerous and carries significant environmental and human health risks. Much of it is buried out of sight and out of mind for those who do not live near disposal areas, but it is glaringly within sight and top of mind for those who do.
Corporate polluters should be held to account for the harms they cause, and governments should be held to account for their failures to enforce their own environmental laws. But, as we reflect on the story of Harrietsfield, it is also important to consider the ethical responsibilities that our society bears as a whole, and to make sure that when our way of life carries an environmental price tag, we either share the costs equitably or learn to live without creating environmental burdens that someone, somewhere must carry.
43 Nova Scotia Lands Inc., “Former RDM Landfill in Harrietsfield” online: <http://www.nslands.ca/projects/rdm-landfill.php>.
44 Nova Scotia Lands Inc., “Home” online: <http://www.nslands.ca>.
45 AECOM Report (21 March 2019), Attachment J: Closure Options Letter at page 3.
46 Ibid at page 6.
47 Ibid at page 6.
48 In April 2021, NS Lands released an update on the progress of the remediation. It provides some information about the work that was done on the site and NS Lands’ plans for long term monitoring and maintenance, but that information is not detailed. See Nova Scotia Lands Inc., “Harrietsfield Remediation — April 2021”, online: <http://nslands.ca/pdf/projects/NSLands-Harrietsfield-QA-Update-April-2021.pdf>. An additional update was published in April 2022: see Nova Scotia Lands Inc., "Harrietsfield Remediation — April 2022", online: <http://nslands.ca/pdf/projects/NSLands-Harrietsfield-QA-Update-April-2022.pdf>.
49 AECOM Report (21 March 2019), Attachment J: Closure Options Letter at pages 5-6.
50 Ibid.
51 See for example ibid at pages 3, 6.
52 See for example Nova Scotia Lands Inc., "Request for Proposals for Harrietsfield C&D Landfill - Cap Replacement and Site Closure" (22 June 2020) at pages 38, 220-26, 330 ["NS Lands Tender Document"].
Harrietsfield in the News
Jean Laroche, “Cleanup of contaminated Harrietsfield salvage site to begin soon” CBC News (10 August 2020).
Emma Smith, “COVID-19 making it harder For HARRIETSFIELD residents to Access drinking Water” CBC News (08 April 2020).
Drew May, “A Problem in the Water” The Signal (28 August 2019).
Stuart Peddle, “Pricey Harrietsfield water fix too costly to make residents happy” Saltwire - The Chronicle Harold (09 August 2019).
Aya Al-Hakim, “Halifax MP announces $15M project to clean up water in Harrietsfield” Global News (23 May 2019).
Mairin Prentiss, “$15M fund created to clean up contaminated Harrietsfield salvage site” CBC News (23 May 2019).
Francis Campbell, “Municipal councillor says Harrietsfield water woes not because of recycling facility” The Chronicle Harold (11 February 2019).
(N/A) “Unprecedented' assessment commissioned for contaminated Harrietsfield site” CBC News (12 June 2018).
Graeme Benjamin, “Harrietsfield contaminated water case adjourned for 12th time” Global News (25 April 2018).
Sean Previl, “Harrietsfield contaminated water case heading to Halifax city hall” Global News (02 August 2017).
Alexander Quon, “Nova Scotia takes over prosecution of Harrietsfield pollution case” Global News (25 July 2017).
Marieke Walsh, “Harrietsfield resident to file ‘private prosecution’ against companies for polluting drinking water” Global News (26 April 2017).
Marieke Walsh, “Harrietsfield resident calls for swift cleanup of contaminated site in Nova Scotia” Global News (13 March 2017).
Phlis McGregor, “Harrietsfield homeowner wants clean drinking water” CBC News (01 June 2016).
Blair Rhodes, “Province to tackle Harrietsfield water problems” CBC News (08 November 2016).
Marieke Walsh, “Minister says Harrietsfield well-water is safe, residents disagree” Global News (19 June 2015).
(N/A) “Harrietsfield residents urge action on contaminated water” CBC News (29 October 2013).