“I say to the Dept of Environment: Now that you know, what are you going to do about it?”
Lydia Sorflaten was a talking about an affidavit by an internationally-known toxicologist expert who accuses the province of applying the wrong scientific data to approve a one-year pilot project to burn tires at the Lafarge cement plant near Brookfield. Sorflaten lives near that plant at Shortts Lake and heads a group called Citizens Against the Burning of Tires (CABOT).
CABOT and the Ecology Action Centre were trying to persuade a Nova Scotia Supreme Court judge to admit the expert opinion evidence of the Ontario toxicologist during a judicial review next March of Environment Minister Iain Rankin’s decision to greenlight the project.
This is the third time in 20 years Lafarge Canada has tried to get government approval to burn tires replacing 15 per cent of its fossil fuels and lower its carbon footprint.
Sorflaten says even if Justice Denise Boudreau refuses to admit the opinion as evidence because it arrived after the Minister had made his decision — a point of law stressed vigorously by lawyer Sean Foreman for the Department of Environment and John Keith for Lafarge Canada — it doesn’t prevent the province from addressing issues around human health and groundwater the toxicologist claims were missed in the project’s Environmental Assessment.
In his written affidavit, Douglas Hallett claims that the province approved a pilot project to burn whole tires at a lower temperature when the findings of a research study by Dalhousie University’s Engineering Department assumed burning shredded tires at a temperature 500 degrees higher. That’s an important distinction, according to the affidavit, because partial combustion of rubber at a lower temperature produces a carcinogenic chemical called NDMA.
“What this argument says is the province has misunderstood the science; they got it wrong,” said John Keith, the lawyer for Lafarge Canada. Keith said the Court should reject the citizens’ argument because it’s a back door approach that will ultimately lead to a “battle of experts” undermining the authority of the government to make decisions.
“The tire-burning is a one-year experiment with continuous monitoring,” Keith reminded the court, “it’s not a blank cheque.”
Bill Mahody, the lawyer for the citizens’ group, argued the Minister’s decision was “unreasonable,” and in order to demonstrate its unreasonableness, Justice Boudreau should allow the toxiciology expert to explain the science around burning whole versus shredded tires when the Minister’s decision comes up for review next March. The government’s decision can be wrong or flawed but it must also be shown to be “unreasonable” before a judge can interfere and order it be set aside.
Sean Foreman represents the Department of Environment. He noted there was a 30-day consultation period in which citizens had a chance to make their views known before the government made its decision. Foreman said the rule of law prevents new information from being admitted later.
Outside the court, Sorflaten told reporters the citizens worked through the Ecology Action Centre to forward its concerns but 30 days was too short a period to consider finding and hiring an expert of Hallett’s calibre ad cost. That was triggered after the province approved the pilot project at Lafarge Canada last July.
“We aren’t the company and we aren’t the government,” said Sorflaten after the three-hour hearing. “We feel our environment and our health should be protected and the Department of Environment didn’t include a proper evaluation.”
The legal precedent to support the citizens’ case for allowing new expert opinion evidence relies on proving a “complete absence of certain information.” Nowhere in the material and briefing notes the Environment Minister received prior to making his decision is there a single mention of the cancer-causing chemical NDMA, although it showed up during the tire fire in Hagerville, Ontario. Additionally, no consideration appears to have been given to the potential contamination of groundwater or to the Brookfield plant’s operating history in terms of unusual or “upset” conditions.
That noted, lawyers for both Lafarge and the province argued that, in his affidavit, the toxicologist contradicted the idea of a “complete absence” of information by offering to evaluate “the technical adequacy” of the government’s Environmental Assessment. The word “adequacy” suggests a weighing or re-visiting of at least some evidence as opposed to a complete lack of it, argued Sean Foreman.
CABOT member and entrepreneur Fred Blois told reporters the province has failed to carefully consider how burning 20 tonnes a day of whole tires at low temperatures could affect human health as well as animals and the food chain.
Blois noted that cement kiln dust makes up about 40 per cent of the biosolid or sewage mixture farmers buy from Halifax Water to spread on their fields. Blois is concerned that more heavy metals and furans and dioxins will be produced from the partial combustion of burning whole tires and this process will result in greater soil contamination in the future.
Lafarge has applied to the Department of Environment for an Industrial Approval to burn whole tires, with a decision expected next month.
Blois and Sorflaten hope the judicial review will ultimately convince a judge to set aside the approval of the pilot project by the Minister of Environment.
But even if they lose in court, Sorflaten said the new information provided by the toxiciologist should at least require the government to amend the conditions around the project to align with the assumptions in its own Engineering research based on shredding tires and burning them at a higher kiln temperature to limit the production of ash and harmful chemicals.