Forcing the government’s hand

Tomorrow a Harrietsfield woman will become the first citizen in Nova Scotia to lay charges or undertake a “private prosecution” under the Environment Act against two individuals and two numbered companies. Both companies are no longer active, but one of them was in the stable of the Municipal Group, which also owns Dexter Construction.

The private prosecution is an unusual measure aimed at embarrassing the province into taking action to make polluters pay for damage affecting people and the environment.

For more than four years, Marlene Brown has been filling up water bottles at St.Paul’s Church on the Old Sambro Road. Her well contains levels of heavy metals that exceed Canadian Drinking Water Guidelines according to tests carried out by an employee of the Nova Scotia Department of Environment. Brown and as many as 43 other Harrietsfield residents believe their wells remain contaminated as a result of groundwater leaching from a construction debris salvage yard originally owned and operated as RDM Recycling when it opened in 2002.

“Many of us have had uranium, lead and arsenic in the water coming from our taps, for years now, and all we seem to get are hollow promises,” says Brown, whose well is just 500 meters from the junkyard and has tested positive for elevated levels of those substances.

“I’m frustrated by the lack of action on part of the companies who are supposed to clean up this site,” says Brown. “And I’m frustrated by the lack of action on part of the government to enforce environmental laws and to enforce their own Ministerial Orders against those who are responsible for this suffering.”

Brown’s legal argument is being prepared by environmental lawyer Jamie Simpson with support from the non-profit advocacy group East Coast Environmental Law (ECELaw).

“Private prosecution,” says Simpson, “is a means of last resort, used when government fails to enforce laws and people are not being held accountable. “We’re acting now because Ms. Brown and the other residents have waited for 10 years, far too long, for something to be done about their drinking water.”

Section 504 of Canada’s Criminal Code gives citizens the power to lay charges for alleged violations of criminal or regulatory laws, including environmental offences.

Then it’s up to the province’s attorney general to make choices: the AG  may take over the file from the citizen and carry out the prosecution. If the Crown chooses not to do that, a provincial court judge will be asked to determine if the citizen’s case should be thrown out because it is vexing or frivolous or whether there is sufficient evidence to merit the case going to trial. In British Columbia, a woman named Alexandra Morton successfully used a private prosecution to force a fish farm to obey regulations concerning sea lice.

“The goal of a private prosecution is to facilitate some movement on the file for the people affected,” notes Lisa Mitchell executive director of ECELaw. The non-profit group first met Marlene Brown seven years ago and is prepared to pay her legal bill if the water issue ends up in court for a fourth time, although Mitchell hopes dangling  a private prosecution will spur the province to take action against the companies instead.

The RDM construction dump site was closed by HRM in 2013 after years of citizen complaints but there were appeals through the courts from two separate business operators after they were twice ordered by separate Ministers of the Environment to assess the damage and come up with a plan to mitigate the contamination.    (See Timeline below.)

The first Order was issued by the Department of Environment in 2010 but it failed to follow up. A second Order was issued in February 2016 by Environment Minister Margaret Miller to two numbered companies: #3012334  NS Limited, the original operator known as RDM Recycling, and the site’s subsequent operator, #3076525 NS Limited, a business owned by the same Municipal Group of companies that includes Dexter Construction and which took over operation of the site from RDM.

Last month, a Nova Scotia court dismissed the companies’ final appeal of the 2016 Ministerial Order. The province has yet to lay charges against those numbered companies or their directors, Roy Brown (RDM Recycling) and Brian Dubblestyne (Royal Environmental and Green Waste Systems). The co-owner of RDM Recycling Michael Lawrence was also charged but has since died. Tomorrow, the citizen prosecution being launched by Marlene Brown will charge the same numbered companies and the same individuals named by the Department of Environment in its 2016 Order.

The charges include releasing substances causing an adverse effect into the environment and failing to comply with Ministerial Orders, offences under sections 67 and 132 of Nova Scotia’s Environment Act. Brown’s lawyer Jamie Simpson sent a letter to the Nova Scotia Department of Environment advising the government Marlene Brown is about to go to court. Here is part of the response Simpson received back from the department:

NSE (Nova Scotia Environment) does take non-compliance with these Ministerial Orders very seriously and will continue to pursue all options at our disposal to achieve compliance with these orders.

Meanwhile, Marlene Brown and seven other homeowners living with known heavy metal contaminants are still waiting for the water purification systems the province agreed to install last December. Tenders appear to have been gone out but Lisa Mitchell of ECELaw says the problem is that residents still don’t know whether their fight for clean drinking water will take another 30 days or 30 years.

A Timeline: Harrietsfield Drinking Water Contamination

Prior to 1997: For years the RDM site was an auto salvage yard run by Ernest A. Nicholson, Ltd., a firm owned by Roy Brown and Michael Lawrence.

1997: Brown and Lawrence incorporated and registered RDM Recycling Ltd. with the Registry of Joint Stocks. From the start, residents of Harrietsfield were opposed to the operation, with 1,200 people signing a petition against it.

RDM Recycling accepted debris from construction and demolition work in Nova Scotia. It was reported in 2013 that, according to former RDM owner Michael Lawrence (who has since died), some of the material that wasn’t sent away for recycling was ground up and sent to the Otter Lake Landfill. But the rest of the unwanted material remained on site and continued to accumulate.

2002: The company’s proposal to add a landfill for construction and demolition waste to the site was approved by HRM Council, against the recommendation of city staff, who expressed concern that the site was in a residential area. The landfill needed Nova Scotia Department of Environment (NSE) approval to go forward.

2003: NSE start testing the residential wells near the site. High levels of boron and sulphate were found in some wells with the likelihood that run-off from the site was affecting surface and groundwater. RDM was ordered to clean up and given permission to build a single, clay-lined landfill cell to permanently store the accumulated un-recyclable debris, which by this point amounted to a hefty 120,000 tonnes. NSE did not approve RDM’s proposal to add a new working landfill for new waste.

2005: According to media reports, area Councillor Stephen Adams, who made the motion to approve RDM’s landfill proposal against HRM staff recommendations in 2002, advocated on behalf of the company and requested that NSE grant RDM permission to build an additional cell to store the new waste it had accumulated. However, city regulations (By-law L-200) for C&D processing sites stated that materials can only be stored on site for a year. Based on HRM’s own by-law, RDM should have been facing fines and penalties, but instead was receiving assistance from Adams, the area councillor. NSE declined the new cell proposal.

In November, a new company (#3076525 Nova Scotia Ltd.) owned by Kurt Jacobs and Brian Dubblestyne bought the recycling business of RDM Recycling, but not the property, from the original owners Lawrence and Brown (#3012334 Nova Scotia Ltd). The new company — 307 NSL — leased the property from Lawrence and Brown and retained the name RDM Recycling.

2009: Water sampling of on-site and domestic wells had been taking place for six years. Harrietsfield resident, Marlene Brown (who lives across the street from the site) had been saving the quarterly water tests and noticed increases in iron, lead, manganese, suspended particles, and colour starting in 2006. As concerns over drinking water amplified, RDM approached the NSE to ask for less frequent water sampling. In response, NSE asked its hydrogeologist Melanie Haggart to analyze the data and, according to Ecojustice, she reported “a growing plume of impacted groundwater both on site and leaving the site toward the south.” She also said the increased uranium levels, while likely naturally present in the bedrock, “is being dissolved due to changes in groundwater chemistry.”

2010: NSE sends letters to some Harrietsfield residents informing them that lead, arsenic, and uranium had “likely” or “very likely” contaminated their groundwater supply. The department also issues a Ministerial Order against 301 NSL, 307 NSL, and the directors of 301 NSL (Lawrence and Brown) to engage in various cleanup and monitoring activities. These include monitoring a number of domestic wells and mitigating the impacts of uranium and lead on several of these wells.

RDM directors, Jacobs and Dubblestyne appeal the Ministerial Order on the grounds that the government order to undertake a $10.6 million cleanup relating to the containment cell filled with tons of non-recyclable material was created by the previous owners and was approved by the NSE. They claimed their involvement with the site did not lead to any contamination and that their firm should be removed from the Order.

With the help of Ecojustice and East Coast Environmental Law Association, some of the residents affected became intervenors in the case. Marlene Brown, Melissa King, and Jonathan Andrews argued that if the company wins the appeal and is removed from the Order then others listed can do the same.

Despite the Order, RDM continued operations as per usual, and were issued annual licences to operate by HRM in both 2011 and 2012.

January 2013: the site was shut down when the company was denied a permit to operate based on a letter by NSE of non-compliance with the Environment Act.

October 2013:  Residents of Harriestfield go public with their frustration with the Minister of Environment for not enforcing the three-year old clean-up order of RDM Recycling Ltd. They say the water is so high in heavy metals that it can’t be used for bathing or watering plants. A number of wells had been tested regularly since 2003 and arsenic, lead, and cadmium levels had exceeded Canadian Drinking Water Guidelines, and since 2003, uranium, boron and lead levels had all been increasing.

2014: The appeal of the Ministerial Order went to court.

2015: The Nova Scotia Supreme Court upheld the clean-up Order, with the exception of the clause requiring 307 NSL (Jacobs and Dubblestyne) to remediate the containment cell. The court found 307 NSL responsible only for the pollution pertaining to the portions of the property they used, which did not include a containment cell.

2016: Because the court accepted, in part, the claims made in 2010 by 307 NSL, NSE issued two new clean up Orders in February — one directed at 307 NSL, which targeted them for their specific role with the site, and the other against 301 NSL and directors, which was basically the same as the 2010 Ministerial Order.

Two appeals of the Ministerial Orders were then filed with the provincial Supreme Court: One by 307 NSL and the second by 301 NSL and directors.

Three Harrietsfield residents — Angela Zwicker, Marlene Brown, and Melissa King — were granted intervenor status in the court proceedings. They were represented by Ecojustice lawyer Kaitlyn Mitchell.

November 2016: the appeal by 301 NSL to have itself removed from Order was denied by the Nova Scotia Supreme Court.

March 2017: The appeal by 307 NSL was denied by the Nova Scotia Supreme Court. It ruled that the Ministerial Order against 307 NSL is valid. It’s now up to the province to enforce the Order (which doesn’t actually say the company must clean up the site, but rather must develop a plan to do so, among other requirements).

April 2017: In a first for Nova Scotia, Harrietsfield resident Marlene Brown is laying charges as a private prosecutor under the Environment Act. The criminal charges are regulatory in nature, not formally criminal, as they aren’t in the Criminal Code. They are offenses under the Environment Act.