Dexter Construction will not face a charge of altering a wetland without regulatory approval at a dump it owns in the Annapolis Valley.
The charge was filed in February 2020 after a site inspection by the Department of Environment at the Arlington Heights Construction and Demolition dump in December 2019.
Melissa Noonan, a spokesperson for the Public Prosecution Service (PPS), told the Halifax Examiner the charge under the Environment Act Section 50 (2) was withdrawn last summer (July 2022).
Under the Environment Act (sect 157), the proceeding against Dexter Construction had to be started within two years of the offence taking place. It did not go forward and PPS says there was no out-of-court settlement nor fine.
Our request for an interview with Greg Morris, the crown prosecutor handling the case, was turned down on the grounds that Morris was “swamped” with other files.
No other explanation has been provided for why the charge did not proceed.
The Department of Environment referred inquiries back to the PPS. We’ve asked Dexter Construction for comment, and will update this article should we receive a response.
‘Bulldozing of a wetland’
The site inspection that led to the charge took place following a complaint about “the bulldozing of a wetland” from a member of a citizens group called the Annapolis Waterkeepers.
The group continues to be concerned about silty runoff from the dump, which had been expanded in 2018 to start receiving asbestos and other materials from demolition sites in Halifax.
The three-hectare (about 10 acres) wetland had originally been engineered and approved by the Department of Environment to act as a buffer so that any leachate from the hazardous wastes would be contained, and not move down the slope and into the wells of about 15 homeowners.
Homeowners remained concerned. Photos of the wetland area clearcut by Dexter were taken by a member of the Annapolis Waterkeepers group in April 2022 and posted to the group’s Facebook page.
The 2022 photos show runoff and silt in the same wetland area Annapolis Waterkeepers say was bulldozed by Dexter a couple of years earlier.
According to Kip McCurdy, the founder of the Waterkeepers group and a nearby resident, the news the charge against Dexter has been withdrawn only intensifies his frustration about what he perceives as a lack of enforcement during the dump’s almost 20 years in business. McCurdy told the Examiner:
The two year prosecution limitation is a get-out-of-jail-free card for industry. Between slow discovery of offences and slow prosecution, how can meaningful oversight and penalties ever occur? Nova Scotia Environment and Climate Change (NSECC) has always been loathe to charge and prosecute companies for offences; 150 million kgs of illegally dumped auto-fluff over a five year time period at Arlington Heights rated nothing more than a warning.
Over the years, we have documented and complained about dozens of breaches of terms and conditions. We have also recorded many violations of the Environment Act at Arlington Heights.
NSECC has not forced compliance on a single one of these offences. In doing so, the department aids and abets destructive and illegal acts by continually declaring that the dump is fully compliant.
It is not the dump that is compliant, it is NSECC. Dexter gets whatever it wants, whenever it wants.
For several years, the former operator of Arlington Heights C & D buried a toxic mix of crushed auto parts, used oils, and plastic known as “autofluff “ without the required government approval.
The Department of Environment eventually verified the information and issued a warning to manager Jennifer Ehrenfeld-Poole, the daughter-in-law of the facility’s original owner, Meb Poole.
The Dexter bulldozing wasn’t the first clearcut of the wetland area, according to McCurdy.
Back in the fall of 2018, McCurdy complained that an area of the newly engineered wetland had been “clearcut without prior government approval” by Ehrenfeld-Poole.
McCurdy claimed this not only violated the Environment Act but also the terms of the government approval to expand the facility so it could begin receiving asbestos.
Here’s part of the response McCurdy received in October 2018 from the Environment department:
On September 6, 2018, NSE staff conducted an inspection at the facility. The site inspection revealed no evidence of wetland disturbance or runoff. The wetland on the property is engineered as a leachate collection system. At the time of the inspection, the asbestos waste disposal facility met the terms and conditions of the approval.
The facility was issued an Environmental Assessment approval on March 7, 2017. The facility intends on expanding the asbestos disposal facility. Logging and cutting of trees on this property relates to site development for the expansion and was contained within the approved boundaries.
Fast forward to the present. McCurdy says about 15 homeowners downslope from the Arlington Heights C & D site are not reassured after documents the Waterkeepers group obtained through a freedom of information request revealed high levels of mercury and heavy metals in surface water half a kilometre away from the dump.
McCurdy says the residents think it not unreasonable for Dexter to pay for regular testing of domestic wells downstream from the dump.
“Many of us have tested to establish background water quality data,” says McCurdy. “The tests are prohibitively expensive; mine cost $800. We can’t afford to do that very often. We think that NSECC and Dexter should monitor downslope water supplies beyond dump property. They created this problem, we did not. They refuse.”
As a footnote, in July 2018 the McNeil government trumpeted it was appointing Brian Cox to specialize in prosecuting offences under the Environment Act.
“Having an experienced Crown attorney who specializes in environmental and regulatory issues will help us to ensure that people and companies are held accountable when they put our environment at risk,” said then-Environment Minister Margaret Miller in a press release.
Cox is still on the job, according to Melissa Noonan with the Public Prosecution Service, but other prosecutors are also tasked with environmental cases from time to time.
Big industry can do whatever they want whenever they want to do it. Government after government does not care. 2 years statute of limitations is a joke.
At this rate there will be no need to pave paradise .. it will all be ruined before the pavers are called out. They will just have to pave something else.
I would be interested to know how many hectares of quarry and disposal sites Dexter owns or operates across the province now. Drive down many a rural backroad and you’ll find a Dexter sign.
For it’s part the PPS seems extremely cautious. There are many cases where charges are never pursued when environmental offences are reported and it never makes the news. There seems to be lots of cases where they get reported to officers and they never even get as far as the PPS because officers decide it’s better to educate than to go through the work of charges/fines. For the PPS to pursue a charge it feels as if a provincial staff person basically has to watch an offence happen in order for the provincial lawyers to feel confident enough to pursue a case. Anything less than that seems like it’s too much work for them to make a solid case.
DOECC enforcement are also under resourced. As are NS Agriculture enforcement (and realistically almost any other provincial department).
It’s illegal to infill below the high water mark on freshwater lakes in NS because it’s ‘crown land’. Go to any freshwater lake in NS that has cottages and look at how many places have infilled below the high water mark (hint…it’s a lot). Virtually nobody has ever been caught or charged even when reported. Contractors and landowners are getting away with breaking that law on a massive scale causing habitat loss, nutrient loading and many other issues associated with shoreline infilling. Officers don’t have the resources to be enforcing the laws that are on the books and are clearly being broken every week, year after year.
Anybody with access to publicly available satellite images can go on in July/August/September images can see farms with ponds or are near lakes/rivers that have gone bright green with algae due to poor nutrient management. Virtually none of these farms are are ever charged or given education on how to do better nutrient management…if anybody remembers Walkerton Ontario…these things can have terrible consequences to nearby residents.
I wonder what the Environment Minister Tim Halman has to say?
It’s difficult not to view NS Government inaction as related to their draconian approach to ‘solving the housing crisis’.
This is outrageous. Either NSECC is so under-resourced that they can’t possibly do their job properly, or else they are simply just too incompetent to do their job properly. Maybe some combination of the two…? The alternative explanation is that they are just too beholden to industry to be effective as a regulator to properly enforce environmental laws and regulations. However one looks at it, NSECC is grossly negligent in fulfilling its duties to the people of Nova Scotia.