On March 20, 2015 the B.C. Environmental Appeal Board in Shawinigan Residents Assn. v British Columbia (Directors Delegate, Environmental Management Act) (2015 CarswellBC 802) confirmed the validity of a waste permit, subject to an amendment requiring the monitoring of water quality immediately following a storm event greater than 1 in 200 years. The permit authorized refuse to be discharged to ground as well as effluent to an ephemeral stream from a contaminated soil treatment facility and a landfill. The contaminated soil would be processed through bioremediation and landfilling. The landfilling would involve soil encapsulation in engineered cells.
The Appeal The appellants, a residents' association, a regional district and two private residents argued that the permit should never have been issued because the site and the design wouldn't protect local wells, the ephemeral stream, the local creek lake and wetlands around the lake. They believed that there would be harm to domestic water supply, water for irrigation and fish habitat. In support of their position the appellants argued that a precautionary approach should have been adopted to the evaluation of a permit application. This approach they argued, required a rigorous analysis before issuing a permit where the permitted activity posed a threat of serious or irreversible damage to the environment. In the face of uncertainty due to conflicting assertions and flawed assessments, the Board should have erred on the side of protecting the environment by quashing the permit.
Board's Reasons The Board Panel rejected the appellants argument, concluding that B.C's Environmental Management Act S.B.C. 2003, c.53 reflected a policy of compromise between protecting the environment and controlling potentially harmful waste which might otherwise be the subject of "illegal dumping ..in unregulated unapproved locations with all the associated risks to the environment and human health."(at par. 715)
"...a cautious approach is not the same as a 'zero tolerance' approach. The Act provides a legislative scheme that authorizes the introduction of waste into the environment provided that any risk to the environment can be properly controlled, ameliorated and to the extent possible, eliminated." (at par. 284)
The Panel found no compelling evidence that the liner system was inadequate. The method of installation met or exceeded the standards set out in the evidence of a professional engineer and qualified contaminated sites approved professional retained by the appellants themselves. In terms of its design:
"While the Panel cannot say with absolute certainty that the liner will never fail, given the multiple layers of protection at the base of each cell, the increase to a 1 metre thick clay till layer and the prohibition on blasting during liner installation, the Panel is satisfied that this aspect of the permitted works is designed in a manner that will protect the environment and drinking water resources." (par. 526)
Significance of the Decision Environmental law at the municipal, provincial, and federal level recognize that there is sufficient social utility in a number of activities to warrant their authorization even though they involve risks of environmental impact. These laws authorize regulators to issue permits and approvals to construct, maintain and operate facilities which not only accept and process waste, but discharge contaminants into the air and water. The Precautionary Principle recognized in domestic (Castonguay Blasting ltd. v Ontario 2013 SCC 52) and international law (Bergen Ministerial Declaration on Sustainable Development 1990) has assumed an important role in interpreting environmental laws, but the Shawinigan Residents Assn. case brings perspective to the Principle and how it is applied in practice.
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