For Local Xpress.
The former owners of RDM Recycling in Harrietsfield are responsible for cleaning up pollution that is fouling local wells, a lawyer representing the province argued Thursday in Nova Scotia Supreme Court.
Michael Lawrence and Roy Brown are appealing a February 2016 order from Environment Minister Margaret Miller that held them responsible for the cleanup of the contaminated Harrietsfield site and remediation of affected wells.
Sheldon Choo, representing the province, argued that the cleanup order should be upheld.
“There is sufficient evidence linking the activity on the site with the contamination,” Choo said.
But the men’s lawyer, Andrew Christofi, told the court that the minister acted unreasonably by addressing the order to them personally, rather than to their former corporation.
The courts granted intervener status in April to Harrietsfield residents Marlene Brown, Melissa King and Angela Zwicker because they are directly affected by the appeal’s outcome. Their homes are close to the contaminated site and their wells are tainted by the growing groundwater plume coming from it.
They first received letters from the Department of Environment in 2010 instructing them to find alternative sources of drinking water.
The trio are represented by lawyers from the Canadian environmental charity Ecojustice.
“There were serious health risks identified in 2010,” Ecojustice lawyer Kaitlyn Mitchell told the court, referencing expert reports commissioned by the department on residential well water that found elevated levels of metals like uranium that exceeded national drinking water guidelines.
Mitchell and Julia Croome, also with Ecojustice, argued that the minister was abiding by the terms outlined in the Nova Scotia Environment Act and applying the “polluter pays” principle, whereby the minister uses her discretion to cast a “broad net” of responsibility for the contamination by considering all the relevant factors and parties who have been involved in any activities at any point relating to the contamination.
“People or companies who are responsible for the release of a substance — whether they physically released it themselves, could have prevented the release but failed to do so, or had care and control of a company and permitted it to release the substance —should be the ones to pay to clean it up,” Mitchell said after the hearing. “The environment should not simply be left contaminated, nor should the costs of cleanup fall to the public purse.”
Choo, Mitchell and Croome told the court that Lawrence and Brown were directly involved in the operations at the site and had care, management and control of it for many years.
As well, they argued the Environment Department first brought up the risk of contamination from 120,000 tonnes of uncovered waste in 2003, while RDM Recycling was still operating and under Lawrence and Brown’s direction. The company was given a permit to construct a containment cell.
In 2010, the Environment minister issued an order against the five parties who had owned or occupied the RDM site over the years, including Lawrence and Brown, for violating the Environment Act by releasing substances with harmful effects on the environment.
Brian Dubblestyne and Kurt Jacobs’ company, 307 Nova Scotia Ltd., was also named. Their firm bought the assets of RDM Recycling in 2005.
Although Dubblestyne and Jacobs appealed the order, the courts upheld it in 2015, except for one clause regarding the containment cell on the site.
Following a review, the minister revoked the original order and issued two new ones: one for Lawrence and Brown, the other for 307 Nova Scotia Ltd.
The minister found that only Lawrence and Brown were to be held responsible for the issues surrounding the containment cell. The cell was built under their supervision before the company was sold.
Terms of the 2016 order include taking steps to clean up the site and ongoing monitoring of affected wells on and near the site.
But court was told that noncompliance has been an ongoing issue in this case.
In an interview, Marlene Brown said that as far as she knows the water monitoring program has been discontinued. A sample was last taken from her well in December.
“(Nova Scotia Environment) said, ‘Yes, they’re not complying, we’re looking into it,’ which didn’t help us at all,” Brown says.
Brown, Zwicker and King say that despite the hearing, nothing has changed. The contamination has not been cleaned up and they must rely on bottled water.
“Basically we’re no farther ahead than we were,” Brown says.
Mitchell says access to a healthy environment and safe drinking water are basic human rights.
“The community members that we represent have been denied that basic right through no fault of their own so Ecojustice lawyers believe it is important to assist them to participate in this court proceeding to ensure that contamination of their groundwater is cleaned up.”
Justice Denise Boudreau said she would render a decision as soon as possible. The interveners will be back in court on Nov. 24 when Dubblestyne and Jacobs’ company appeals the minister’s order.