Three years ago, as the B.C. government’s environmental record was being called into question during a dispute over the delivery of contaminated soils to Shawnigan Lake, the government quietly undercut the ability of public servants to investigate companies that were illegally dumping the worst wastes of the lot.
It stopped producing a critical database that tracked hazardous waste shipments across the province.
Worldwide, waste management companies have become vulnerable to takeover by organized crime or unscrupulous operators who undercut their competitors for contracts and then “dispose” of their waste by illegal means, disappearing toxic sludge much like a mobster gets rid of an associate he has just whacked.
British Columbia is not immune to such activity. I know.
I know, because on two separate occasions I used that now defunct database to show how two different companies had flagrantly violated provincial rules governing hazardous wastes. In one case, the operator was quite literally pumping hazardous wastes into the sewer system, ultimately forcing the government to declare a state of environmental emergency at the site.
Database shuttered as protests grew
The database provided key details on tens of thousands of hazardous waste shipments that occur in B.C. each year.
On any given day, those shipments may include the fluids from old electrical transformers and capacitors that are contaminated with carcinogenic polychlorinated biphenyls or PCBs; waste fluids from the dry-cleaning industry, including tetrachloroethylene, a likely human carcinogen; oil-contaminated soils and wastewater; acid-leaching batteries; and large quantities of biomedical wastes generated at hospitals and health clinics.
That database is now gone, thanks to a decision by the previous BC Liberal government to stop paying anyone inside or outside government to produce it.
In response to questions, the Ministry of Environment and Climate Change Strategy confirmed that the government stopped producing digitized “waste manifest” records at the end of 2014, just as headlines were being generated across B.C. over contaminated soil deliveries to the Shawnigan Lake watershed, which supplies 12,000 Vancouver Island residents with their water.
But the ministry’s senior public affairs officer, David Karn, said that it is simply a coincidence that the then Liberal government halted the program at that time.
“There is no relationship between the date this service was discontinued and protests on Vancouver Island,” Karn said in an email.
Until the end of 2014, all companies handling hazardous wastes in B.C. were required by law to fill out paper forms that provided a wealth of information on each waste shipment. The required information included what precise wastes were being moved, who was moving them, and where they were being moved to. All of this and more was required under B.C.’s Hazardous Waste Regulation.
The information on those paper forms or manifests was then sent to the Environment Ministry, where one person inputted everything into a searchable database. With the information stored electronically, environmental investigators and citizens had a valuable investigative tool at their disposal, should they choose to use it. Instead of sifting through literally thousands of pages of paper forms, they could use the database to follow waste handlers’ toxic trails.
Eventually, Karn explained, the government elected to contract out the keyboarding work, presumably as a cost-saving measure.
“In 2011 government contracted the digitization of manifest data for hazardous waste movement/transport/shipment,” Karn wrote in response to questions. “A fee of $100 was charged for an Excel spreadsheet with the data organized by year. Requests averaged about 10 per year so interest was quite low. In 2014, the three-year contract to provide this service came to an end and was not renewed.”
Information used in investigations by ministry, journalists
Three people contacted by The Narwhal were all highly critical of the Ministry’s response.
Andrew Gage, a lawyer for West Coast Environmental Law, said that the government’s rationale appears to be that if not enough members of the public ask for documents then the government is justified in killing the information source. By default, Gage says, that means that provincial environmental officials themselves aren’t using it either.
“It certainly implies that their main criterion [for not producing the information] was public use not internal use, when it should be the other way around if anything,” Gage said.
“There’s a fundamental role that government should always be playing, which is protecting the public interest, whether the public knows it or not. That is the role of government.” — Sonia Furstenau, Green Party MLA
Green Party MLA Sonia Furstenau represents the Cowichan Valley. She fought against the dumping of contaminated soils at Shawnigan Lake long before becoming an MLA. (Contaminated soils may, in some cases, be considered hazardous depending on how heavily contaminated they are. For example, if petroleum by-products are present in high enough concentrations.)
Like Gage, Furstenau finds the government’s justification troubling. Insufficient public demand for a product is no excuse for halting the production of information that is in the public interest.
“I’m sort of wrapping my head around this as a reason to discontinue the monitoring of the movement of something as serious as hazardous waste, particularly in the midst of a serious building boom that is happening in the urban centres around B.C., when we know that these developments mean that there will be a significant uptick in industrial and contaminated and I suspect ultimately, hazardous wastes,” Furstenau said.
“There’s a fundamental role that government should always be playing, which is protecting the public interest, whether the public knows it or not. That is the role of government,” she said.
The toxic polluter
Sev Samulski, an Abbotsford businessman, couldn’t agree more.
In 2005 the province declared a state of emergency at a warehouse Samulski owned and had leased to waste handler, Canadian Petroleum Corporation (CPC).
Samulski, who heads a company that manufactures concrete blocks, said it is “totally flabbergasting” that the ministry would stop processing information that was instrumental in addressing the highly hazardous wastes CPC had stockpiled at his rented warehouse.
Much of the waste was in rusting barrels that were leaching their contents into the ground.
Some of those barrels contained chromium. Chromium 6, a metallic element commonly used in chrome plating as well as in dying, leather tanning and wood preserving, would earlier be fingered for a cluster of cancer cases in Hinkley, California, which became the subject of the Academy Award-winning film, Erin Brockovich.
A lawyer working for Samulski ultimately contacted me to explain his client’s woes. Working with the Ministry of Environment’s electronic waste manifest database I was able to do what anyone in the ministry could have done. I tracked both what was moving into CPC’s leased warehouse and what was purportedly moving out. What that simple audit showed was that 10.6 million litres of liquid hazardous wastes and another 400,000 kilograms of solid hazardous wastes had for all intents and purposes disappeared at CPC’s operations. Some of that toxic soup would later be confirmed to have been either pumped or allowed to flow unchecked into the municipality’s sewer system.
Further investigation showed that CPC owner, Ed Ilnicki, was associated with another waste management company, General Waste Disposal. The principal owners of General Waste had previously operated Aqua Clean Ships, a company doing business on Vancouver’s waterfront. During Aqua Clean’s time operating in Burrard Inlet, millions of litres of diesel oil-contaminated wastewater offloaded from cruise ships effectively disappeared. Again, using the same database, I was easily able to show that the company was taking in far more waste than it was declaring sending out for treatment. As a result of that investigation, Aqua Clean lost all its cruise ship business on the waterfront.
Samulski now says that had the waste manifest data not been available electronically at the time and used to conduct an independent investigation, the ministry may not have been forced to step in and declare a state of emergency at the site, which is what it did in September 2005, a half year after I did the audit and a feature story was published in The Georgia Straight.
Samulski says the resulting provincially ordered and taxpayer-funded cleanup at the site — a site he claimed with justification was a “fireball waiting to happen” — saved him from having to declare bankruptcy. It cost the province upwards of $1 million to clean up the site, while Samulski personally was out $437,000 in well-bore soils tests and other costs related to the environmental catastrophe at the site.
Ilnicki was eventually found guilty on three charges of failing to follow the Ministry of Environment’s orders to provide information on the hazardous wastes he had stockpiled in the Fraser Valley. He was fined $20,000 — less than half the amount it would eventually cost to have a consultant itemize all the hazardous wastes in those unmarked, rusting barrels, and just one-tenth the maximum fine he could have been assessed.
Ilnicki never paid the fine. Nor was he sentenced to jail time, although he could have faced six months incarceration along with being fined.
Environmental prosecutions a rarity
In 2011, Gage looked into the case and found much to be concerned about, writing in a West Coast Environmental Law newsletter, “It’s hard not to contrast the government’s tough on crime rhetoric with the rarity of jail time for environmental offenders.”
Gage went on to say: “We are not advocating for a dramatic increase in the incarceration for minor violations of environmental statutes. Nor do we necessarily accept the ‘law and order’ claims that jail time is always an effective deterrent. But where polluters are handling hazardous wastes or carrying on other business practices that could easily harm human health and entire ecosystems, we do think that failing to comply with the law is a big problem, and should be treated as seriously as we treat criminal offences.”
In light of the government’s decision to essentially scuttle the information source that was one of the causes of Ilnicki’s undoing, Gage told The Narwhal that he has another concern: the province appears less and less inclined even to prosecute environmental offenders at all, let alone fine them.
“The fact is that in many ways the B.C. government just doesn’t really do enforcement anymore of environmental laws,” Gage said. Doing away with a database that could help identify criminal activity just reinforces that impression, Gage said.
Gage’s worry is that as word circulates in the waste management industry that the ministry has effectively hamstrung itself by no longer producing the data that can be used to conduct audits, more companies may be tempted to break laws. Worse, he says, good companies that follow the rules — of which there are many — end up placing themselves at a commercial disadvantage with those that bend or outright break the rules.
“It sends a message that people who do follow the law are actually somehow saps,” Gage said. “They’re at a disadvantage. They can’t compete with those people who aren’t following the law. It actually penalizes the good actors.”
Gage’s contention that the ministry is less and less enthusiastic about chasing bad actors appears to be borne out by enforcement statistics themselves.
The Narwhal searched a government database and learned that in the past 10 years only one penalty has been handed out to a company for violating B.C.’s Hazardous Waste Regulations.
The sole company to be penalized according to the government’s compliance and enforcement statistics is Load Em Up Contracting Ltd., which was fined $575 for “knowingly” providing “false information.” The offence occurred in the Omineca Region some time in 2015. It is likely that during that ten-year time frame more than one million hazardous waste shipments occurred in the province.
“The fact is that in many ways the B.C. government just doesn’t really do enforcement anymore of environmental laws.” — Andrew Gage, West Coast Environmental Law
Furstenau says the lack of fines is troubling in and of itself, but is even more worrying when viewed against the backdrop of the “professional reliance” model put in place in the early years of the first Gordon Campbell-led Liberal governments.
Mark Haddock, who recently completed a review of professional reliance for Environment Minister George Heyman, describes professional reliance as a regime in which “government sets the natural resource management objectives or results to be achieved, professionals hired by proponents decide how those objectives or results will be met and government checks to ensure objectives have been achieved through compliance and enforcement.”
Current compliance and enforcement efforts do not provide an effective check, Haddock’s report found. Among the signs of a system in need of repair is the tracking of hazardous wastes.
“The integrity of the regime depends on strong checks and balances being in place, but also adequate ministry oversight,” Haddock said. That oversight, has been weakened “due to a lack of resources,” Haddock said, noting that the Environment Ministry “has not been able to compile information” from hazardous waste manifests.
That information, as Haddock asserted and Furstenau, Gage and Samulski would likely concur, is “essential to oversight” and the overall “integrity of the system.”
A vital compliance and enforcement tool has disappeared. And with it, perhaps mountains of toxic waste.