The Lafarge plant in Brookfield. Photo: Media Co-op

A citizens’ group opposed to the burning of tires for fuel at the Lafarge cement plant in Brookfield is asking a court to consider a report from a toxicology expert as part of its judicial review of the Nova Scotia Environment Minister’s decision to approve a one-year pilot project.

Douglas J. Hallett (M.Sc and Ph.D in biology and organic chemistry) is an experienced environmental consultant (the Hallett Group). His areas of expertise include toxic chemicals and hazardous waste destruction, and their effects on human health and the environment. He has worked as a cancer researcher and a regulator with the federal government before serving on the International Joint Commission Great Lakes Water Quality Board. His previous company developed a patented process for destroying PCBs.

In a motion filed with the NS Supreme Court last week, lawyer Bill Mahody says allowing the proposed expert report “is necessary to highlight the lack of evidence before the Minister when he approved the tire burning undertaking.” Mahody’s main argument for setting aside the Minister’s decision is that it is “unreasonable” and that the terms and conditions attached are “inadequate to prevent significant environmental harm.”

Asking a court for permission to introduce new evidence that wasn’t before the original decision-maker — in this case Environment Minister Iain Rankin — is an uphill struggle. In this case, Mahody must convince the court the proposed report from its toxicology expert is not only relevant to the debate, but that if the government had examined it, the decision could have been different.

Minister Rankin’s decision to allow tire-burning limits Lafarge to 350,000 tires a year, or 15 per cent of the company’s fuel supply. It’s subject to a dozen conditions. They include a tire storage and waste management plan, as well as the monitoring of emissions, air quality, and noise. Lafarge has said it will make those results public. Lafarge must submit an air dispersion modelling study, as well as a pre-test of particulate from the plant’s 40-year-old electrostatic precipitator. It must provide an emergency response plan in the event of an operational “upset” in the kiln or a fire. The company must establish a community liaison and complaints process.

“I am satisfied that any adverse effects or significant environmental effects of the undertaking can be adequately mitigated through compliance with these terms and conditions, “said Rankin last July when he green-lighted a project which two previous governments had rejected, and his own party had denounced while in Opposition.

Rankin said his decision was “based on science and evidence” that included testing by an engineering team at Dalhousie University that expects replacing coal and petroleum coke with tires will reduce the cement plant’s carbon emissions by 30 per cent. (Lafarge Canada is one of a small number of companies — including NS Power — which will be affected by the cap-and-trade system to comply with federal policy to slow climate change, starting at the end of 2018). Rankin said changing the fuel mix at Lafarge should also lower smog by 20-30 per cent.

But what exactly did the Department of Environment not consider in its decision?

Here, in summary, are some of the 10 points toxicologist Douglas Hallett claims the government record missed, and which his proposed report will address, if the court agrees to accept it:

• Does the government Record reasonably present the fact that when tires are burned, they emit the cancer-causing chemical NDMA  (N-nitrosodimethylamine)?

• Has the record accurately considered the realities of cement kiln production, including “upset” conditions when the kiln not operating as usual?

• What data does the government have on the frequency of upsets over 52 years? The current chemical impact of the plant? Whether the current impact plus the future impact from tire-derived fuel will comply with the Canadian Environmental Protection Act? Was Environment Canada consulted?

• Does the government record show air dispersion modelling of the present and proposed emissions at the Brookfield plant?

• Does the record disclose a complete analysis of NDMA, other priority pollutants and toxic metal oxides from the ash residuals when the kiln is not operating in a steady state?

• Does the project as approved by the minister adequately specify how tires will be introduced into the Lafarge Brookfield kiln?

The record on which Minister Rankin based his decision has been submitted to the court. It includes reports from Dalhousie University’s Engineering Department and the province’s own employees in the Departments of Environment, Agriculture, and Health.

I don’t recall seeing a specific reference to the chemical NDMA nor any requirement as to whether tires can be burned whole or must be shredded. That said, I could have missed something in the large document. A judge will ultimately decide if any or all of these issues matter.

Lydia Sorflaten lives at Shortts Lake, 10 kilometres south of Truro. She’s a neighbour of the Lafarge cement plant and one of five citizens taking the government to court. She says although hiring the toxicology expert is “very expensive” and the donors choose to remain anonymous, she is “relieved” to see the questions Hallett is asking.

“What is more important than the air we breathe, the water we drink, the food we eat for our health?” asks Sorflaten. “The plume affects a large radius (100 km as defined by the first Environmental Assessment done in the ’90s to assess the implications of tire burning). Beyond this, Lafarge sells large volumes of cement kiln dust, which is mixed with biosolids and spread on farmer’s land throughout Nova Scotia. We, the public, need the information Dr. Hallett can provide. We don’t need the additional load of cancer-causing chemicals like NDMA and the dioxins and furans produced when tires are burned.”

Sorflaten wants Lafarge to shred tires (as they do in Europe) to prevent “upsets” inside the kiln that can lead to unwanted releases of ash and chemicals. A release of ash coated Shortts Lake in 2014 after waste oil was added to other fuels.

She says a multinational company with $38 billion in revenue should be required to upgrade pollution controls at the 52-year-old plant before it can burn rubber. Especially considering it is being paid to receive tires (about one-third of the province’s supply). The province collects a fee from drivers to pay for tire recycling established by another Nova Scotia company, C & D Recycling.

NDP leader Gary Burrill says that recycling fee was never intended to provide a fuel subsidy to one company at the expense of another.

The province and Lafarge Canada have until December 6 to file their responses to the request to allow new evidence from a toxicology expert. Arguments on whether to admit that expert report will be made before a judge Dec.14.

Meanwhile, the cement company plans to use its Brookfield kiln to begin test-burning in May, 2018. The plant employs more than 60 people full time and about $2 million worth of preparation work is underway. Last week the company filed its application for an industrial approval, essentially an operating permit to burn tires. The province has 60 days to review the application. Lafarge currently burns tires for fuel at its plants in Quebec and in many U.S. states. Ontario rejected the proposal. Final arguments in the judicial review are scheduled for two days in early March.

Jennifer Henderson is a freelance journalist and retired CBC News reporter.

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