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Freedom of information documents reveal that DFO has created a suite of new policies and...
It was all supposed to be routine. Get an increase on the line of credit for the decades-old family business and carry on.
Little did Connie Brown and her husband Ward realize that errand would shutter their business.
Most recently, the Browns sold snowmobiles, off-road vehicles and RVs at the location on the eastern edge of the small city of Yorkton, Sask. It’s a third-generation business, which — since Ward’s grandfather and uncle first opened at the location in 1961 — has sold everything from farm equipment to lawn mowers.
The Browns didn’t think much of the agricultural fertilizer facility just west of their 11-acre property, but their bank did. When they applied for a line of credit to purchase new inventory for the shop, the bank required an assessment of the land. When it arrived, the report showed significant groundwater contamination from fertilizers and the bank refused to provide any financing.
Six years later, with no chance of financing, their business is still closed and the Browns are embroiled in a legal battle with Imperial Oil — a Canadian energy giant majority-owned by ExxonMobil — which owns the land where the fertilizer plant sits. The family wants the Calgary-based company to buy them out so they can move on, leaving behind land left worthless.
That sort of closure is unlikely anytime soon.
Connie says she feels abandoned by a provincial government that allows corporations to get away with polluting the land without repercussion. For years, she has watched as the court battle with Imperial Oil gets bogged down.
“I knew it would be hard to go against a big corporation in court, they have lots of lawyers and resources and they’d stomp all over us,” she says. “But I thought the ministry, because there’s evidence to show that this has happened, I thought they would support us.”
Even though the Browns were oblivious to any contamination on their land until 2016, Imperial Oil knew about contamination on its site as early as 2004 when the company commissioned an environmental site assessment, resulting in a 923-page document reviewed by The Narwhal. In 2005, it commissioned a report into contamination on nearby properties, but the Browns say they were not informed of the findings.
Imperial Oil previously operated a cardlock fuel station on its property as well as operating a bulk fertilizer facility — where different agricultural fertilizers are mixed and distributed. Since 2005, that fertilizer facility has been leased and operated by Nutrien, a Saskatchewan-based fertilizer company and the third-largest producer of nitrogen in the world.
According to a briefing note prepared for Saskatchewan Minister of Environment Warren Kaeding in March 2020 and obtained by the Browns through a freedom of information request, Imperial Oil also neglected to keep the government informed of any contamination on the site.
“In 2005, Imperial Oil stated that they intended to monitor the groundwater locations twice a year and would advise the ministry of any significant changes,” the note reads.
“Since 2005, and until requested in 2016, the ministry had not received any further reports from Imperial Oil on this site.”
The Browns say Imperial Oil was reluctant to provide information when requested by their bank, and they did not receive a copy of the most recent environmental site assessment for the area, conducted for Imperial Oil in 2019, until they filed a freedom of information request.
Since 2015, Saskatchewan has required polluters to inform impacted landowners.
A letter from the lawyer representing Imperial Oil, Alexandra Bochinski, sent to the Browns’ lawyer, shows the company was unwilling to provide detailed information even prior to court-mandated mediation of the dispute. The information, Bochinski argued, was technical and would need to be assessed by an expert.
“Furthermore, and for clarity, we note that Imperial Oil will not be in a position to provide comment on the environmental condition of either the Imperial land or the plaintiffs’ land at the scheduled mediation,” Bochinski wrote.
“Rather, Imperial hopes to use the mediation to better understand the plaintiffs’ concerns, alleged damages and future plans for their properties, with the objective of moving this matter towards a potential resolution.”
In an email to The Narwhal, Imperial Oil said it could not comment as the case is before the courts.
The province required Imperial Oil to submit a corrective action plan for the contaminated land, including the Browns’ property. That plan was submitted in 2020 and accepted by the government. It proposed no action to remediate the land.
If the Browns sign off on it, something known as a ‘notice of site condition’ will be added to the official file and no further action will be required. According to the government, that notice is an “acknowledgment by the Ministry of Environment that an acceptable level of risk remains at the subject site and results in a limited release of liability of the responsible party.”
“It kind of lets Imperial Oil off the hook,” Connie says, adding the ministry recommended they accept the plan.
“I said to them, ‘why would we agree to that?’ ”
The Browns’ property sits just outside of Yorkton’s limits, a short industrial strip flanked by a highway to the south and farmland to the north. At its eastern edge, the small Yorkton Creek flows through the flat prairie.
It’s the kind of commercial strip that’s a common sight on the outskirts of many Prairie towns. The Arctic Cat off-road vehicles that once lined the parking lot in front of the Browns’ store competed for eyes with the RVs next door, a sort of marker between wide-open plains and city.
That line between rural and urban comes into stark relief beneath the soil as well.
The site assessment obtained by the Browns shows the groundwater under both Imperial Oil’s land and their own is well above provincial guidelines for all fertilizer contaminants analyzed. Nitrates, nitrites, sulphur and dissolved solids showed the greatest levels of contamination.
The Nutrien facility next door stores fertilizers, which are often produced from natural gas. In the United States, approximately 60 per cent of fertilizers use ammonia derived from natural gas. The Canadian Association of Petroleum Producers boasts that 10 per cent of Canada’s natural gas is used to produce ammonia for fertilizer. If it is leaked or spilled, nitrogen fertilizer can have numerous negative impacts on the landscape.
The Assiniboine River watershed protection plan, which encompasses the area around Yorkton, cites agriculture and the impacts of fertilizers on water quality as the primary stressors in the region.
Jesse Nielsen, the manager of the Assiniboine Watershed Stewardship Association, which oversees implementation of the protection plan, said there’s little his organization can do in the Browns’ case if the Ministry of Environment says there are no concerns.
He said the ministry lacks the resources to tackle all of the contamination in the province and doesn’t want to set a precedent by looking too closely at what’s happening on the Browns’ property.
“I think that’s one of the reasons why they’ve given the response to Connie that they have,” Nielsen told The Narwhal. “Because any outsider looking in, it’s like, ‘wow, seems like there’s still some issues here that, you know, are kind of being swept under the rug.’ ”
It remains unclear exactly how the contamination began on Imperial Oil’s land — years of operation at the fertilizer plant have meant ample opportunity for leaks and spills. Whatever the exact cause, it’s clear the contamination has built up over time.
Nitrate levels in one monitoring well on Imperial Oil’s land, measured in 2019, were 237 times higher than guidelines based on water potability and potential impacts on aquatic life, while nitrite levels were just over 100 times higher than guidelines.
Nitrate and nitrite in water can have serious health impacts if ingested, particularly on infants under six months old and pregnant women. Infants can suffer from a lack of oxygen in their blood if levels of nitrogen are elevated, leading to “blue baby syndrome” — something that is fatal if untreated.
Yorkton, with a population of 16,343, relies on groundwater for all of its drinking water. There’s no indication the supply is threatened by the contamination.
Aron Hershmiller, the assistant director of environmental services at the city, said that it is aware of the situation, but couldn’t comment at this time.
Hershmiller said they do not see a lot of nitrate or nitrite in their supply, and groundwater on the whole deals with fewer contaminant issues than surface water supplies.
The nearest source of water for Yorkton is approximately 450 metres from the contamination, according to a report commissioned by Imperial Oil and submitted to the province in April 2020.
An earlier report from 2019 notes the plume of contamination is also slowly moving toward Yorkton Creek on the eastern edge of the Browns’ property.
The April 2020 report concluded there were no “unacceptable risks” from the contamination.
The Saskatchewan government takes a hands-off approach when it comes to managing contaminated sites in the province and does not provide a public database on how widespread the issue is. There is an internal database maintained by the government, but details on sites are only released through specific freedom of information requests.
In 2015, the province moved from what it calls a “command and control” system of regulating contamination, to a “results-based regulatory model.”
Those responsible for contamination, or potential contamination, enter automatically into a process where the only requirement is to notify the Environment Ministry — as well as impacted landowners — of any potential concerns. Everything after that point, including monitoring and cleanup of the potential contamination, is not monitored.
“By default, the ministry prefers voluntary action at impacted sites,” the province’s guidelines for sites impacted by contamination state.
“This allows responsible persons to assess and apply corrective actions in a fashion that best suits their needs yet still achieves the desired result of a reclaimed impacted site. In the voluntary process there is only one obligatory touch point with the ministry and that is notification.”
According to the government’s own records, there were 2,712 contaminated sites in its registry as of Dec. 31, 2020, though it notes this is “not an exhaustive list.” Those represent only the properties that were reported to the ministry. The government says 27 sites had notices of site condition attached to them, removing some liability and essentially closing the file.
Imperial Oil’s failure to notify the Browns of potential contamination resulted only in a warning letter from the government, issued in April 2020.
In an emailed response to The Narwhal asking about allegations from the Browns that Imperial Oil has not been compelled to follow regulations, a spokesperson for the Ministry of Environment said it takes a risk-based approach to managing contaminated sites and “ensures that those responsible comply with all regulatory requirements using a range of compliance and enforcement tools.”
The ministry said it could not provide further information when asked follow-up questions regarding impacts on adjacent landowners and their rights.
Connie and her husband have been busy learning the ins and outs of the system and trying to get answers. They have written letters to the minister of environment, spent hundreds of hours requesting correspondence through freedom of information and tried to ensure their fight is not ignored.
In one instance, where the family had complained of ongoing concerns with the operation of the fertilizer plant, a ministry inspector for the Yorkton region, Phil Decker, suggested a visit from an environmental protection officer might get the company to clean up its act, but largely dismissed any concerted action.
“Sometimes people just have to accept what their neighbours are doing,” he wrote to a colleague in an email obtained through a freedom of information request.
Connie says she feels the rules are stacked against her and the family business. She can’t sell the land or get financing for her business, but still has to pay taxes and upkeep on the property.
“It’s like we’re being punished by the rules, because the measurements show that we’ve got contamination. But yet, nobody’s giving any consequences to the people that are [creating the] contamination,” she says.
In its guidelines for dealing with contaminated sites, the province of Saskatchewan says it doesn’t assign liability unless forced to do so through an environmental protection order — issued when a polluter does not accept responsibility for contamination that could have a significant impact.
“Conflict between the person responsible and impacted parties are best resolved between the parties civilly,” the document states.
That’s where Connie and Ward find themselves.
After finding out about the contamination in 2016, the family launched a lawsuit against Imperial Oil in 2018, asking the company to buy their land for its value prior to the discovery of contamination, plus costs.
“We’re not out to, you know, be billionaires out of this or anything,” Connie says. “Just a fair amount for our property based on it not being contaminated.”
It’s the financial strain which is her primary concern, but she says the impacts on the environment are also a worry.
Imperial Oil, in a statement of defence filed in 2018, denies any responsibility for the contamination. It has now brought in Nutrien, the operator of the fertilizer facility since 2005, as a third party and alleges Nutrien should be held liable for any contamination or costs associated with it.
Nutrien has since filed a crossclaim, pointing the finger back at Imperial Oil and arguing its agreement to operate the fertilizer facility did not include an assumption of liability. It has also now brought in previous operators of the fertilizer facility, arguing they are liable for historical contamination.
In an email to The Narwhal, Nutrien said it could not comment on the case because it is before the courts.
“It’s gotten completely bogged down,” Connie says, adding they have to return to mandatory mediation soon with all of the new parties tied to the suit.
“They want us to be like 90 years old and forget our names. You know, that’s how they like to play it.”
There is complex science at play, and in reports that delve into groundwater flow and denitrification and risks. There are arguments over responsibility and liability and how best to regulate contamination. Things clean up over time. Maybe the water table is not impacted and the land can continue to be used for industrial purposes. But that’s little comfort to the Browns or others who might be trapped in the same situation.
The bank won’t give them money. The land won’t sell. A mountain of resources is stacked against them.
Connie and her husband are in their 50s and had one eye on retirement when they went to the bank that day in 2016. Now they’re struggling to keep up with the bills, while paying a lawyer to battle with Imperial Oil.
It’s not the way they envisioned things.
“This is a property where we’ve run a third-generation family business, and it should be our retirement now. And now all of that is in jeopardy because we can’t sell the property, because it’s contaminated,” she says, adding she feels a lot of anger at being in this position.
A previous offer to settle the matter was rejected by Imperial Oil at mediation, according to Connie, and she’s not optimistic about the next, so far unscheduled, round with all the additional parties brought into the lawsuit by Imperial Oil.
“I am so cynical. It’s like Big Oil and potash, right? That is what Saskatchewan is all about and that who’s getting catered to,” she says.
“I’ve been paying lots of income tax my whole life, property tax and everything else. And yet, you know, they’re shielding a company that’s multinational, based out of Alberta. They would rather protect them.”
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