Documentation Provided to Annapolis County Council
Seeking Environmental Justice
Who owns the air and water?
January 2022
Most Debris is From out of County 9
2018 Dump Fire Investigation 19
Illegal Auto-fluff Dumping Investigation 19
Suggested Environment Act Amendments 19
Community Declaration of Universal Environmental Rights and Responsibilities 23
Prologue
We are farmers, fishers, craftspeople and professionals - ordinary folk who have built their homesteads in the pristine and idyllic community of St. Croix Cove and surrounding communities. The Bay of Fundy is our front yard; the North Mountain is our backyard. The mountain provides an abundant supply of clean, potable water. The water is collected and stored in a large wetland at the apex of three watersheds. It filters down the mountain through gravel seams and bedrock fissures. We tap dozens of bubbling springs and aquifers with our ~25 wells. Some of these wells date to European settlement of the Cove, more than 325 years ago.
Imagine our horror, then, to wake to the sound of clanging truck tailgates and roaring excavators busily dumping Halifax asbestos waste into our watershed. Imagine our disbelief upon learning that Nova Scotia Environment fully supported this catastrophic devastation of our wetland drinking water supply. We think the department should be protecting our freshwater resources, not conspiring to destroy them.
If this land is to be protected, it will have to be the citizens that do it. This is how we became the Waterkeepers.
The material contained in this booklet has been generated by our ongoing research and interactions with authorities. Along the way we have encountered unfair treatment and exclusion from the development, implementation, and enforcement of environmental laws, regulations, and policies which directly affect us.
Everyone should enjoy the same degree of protection from environmental and health hazards and equal access to the decision-making process in order to have a healthy environment in which to live, learn, and work. This should be the goal of Nova Scotia Environment for all communities and persons across this province.
Goals
Our goals are twofold. First, to ensure the quality of the water we drink, the air we breathe and the health we depend on. Secondly NSECC needs to understand its role of administering Environmental Justice. We want them to understand that voters, taxpayers, and indeed employers expect them to protect our environment, not destroy it.
Awakening
Logging and cutting was completely unrelated to the asbestos expansion proposal. The logging was almost all outside of the defined project area and the clearcut covered nearly 100% of all Arlington Heights properties.
It is unknown how inspectors failed to see exposed asbestos waste in erosion gullies.
A Flawed Process
In a democracy, everyone gets to participate. The process of Environmental Assessment is designed to favor proponents:
They pay a substantial application fee
They then file an expensive report by third parties whose only incentive is success
The third parties often go on to lucrative monitoring contracts
Nova Scotia Environment and Climate Change has never denied an assessment
There is no plausible community involvement
Notifications are obscure
Abutters receive no notice
Soil Characteristics
This excerpt of the 1969 Soil Map of Annapolis County, covering the AHC&D site, shows a small portion of Ha soil, surrounded by M.
Ha (Hantsport) is imperfectly drained:
M (Middleton) is Moderately Well Drained
On the county map, there are 38 soil types:
More than 20% are "Poorly Drained", but not the AHC&D site, nor the soil downhill.
This map is never referenced in any Environmental assessment. Instead, we are told, many times, that "The location within flat topography at a height of land, away from active watercourses, and underlain by a deep clay subsoil with low hydraulic conductivity limits some of the potential effects...."
Families who have lived here for decades and centuries, own property on all sides of the dump, and farm the land know the clay present is interspersed with sandy strata. It is NOT "impermeable". Water easily filters through to wells and into gardens and post holes.
How did "Moderately Well Drained" become "low hydraulic conductivity"? That's the central question of fact. See immediately below for an explanation.
Chain of Custody
In the 2004 Environmental Assessment Report (Appendix D - Geological and Hydrogeological Report) it says on page 66:
And on page 71:
These samples were received at the lab September 28, 2004. Other samples were received at the lab August 8, inviting the conclusion that these samples were taken as an afterthought, perhaps by non-professionals. These samples were the only two, subject to Falling Head Permeability Tests.
Six other samples, probably collected on July 28 or 29, were subject to Atterberg Limit testing on August 9, which revealed liquid limits ranging from 27 to 37.
In the entire Assessment Report, there is no conclusion as to the suitability of the site.
Location
The Arlington Dump could hardly have been sited in a worse location. Here is why:
The dump is built on a mountain. This puts all lower elevation exposures at risk for contamination by underground or surface water runoff. If contaminated effluent gets into the faulted bedrock fracture zone it could go anywhere. It could even find its way to the South side of the mountain face, and potentially impact valley water supplies.
The dump is built at the apex of three separate and adjoined watersheds. This location exposes a huge geographic area, all the way from St. Croix Cove to Port Lorne and beyond, to the threat of contaminated surface water runoff.
The location of the Arlington dump, near the apex of the North Mountain, may very well jeopardize the security of domestic wells and springs in the Valley. Effluent from the dump will follow fissures in the basalt bedrock wherever they lead. Wells on the south side of the Mountain that are powered by the broad and extensive Mountain aquifer may be at risk. Some valley wells are almost as close to the source of pollution as are the wells in shoreline communities.
The dump is built wholly within the confines of a traditional wetland. The wetland has been drained to accommodate creation of the Arlington Dump. We are supposed to be protecting wetlands, aren’t we? Why do we continue making the same mistakes that our forefathers made a century ago? We are slow learners. NSE is even slower than the rest of us.
The wetland is powered by a broad, moving, shallow aquifer that creates a “perched” water table across the entire site. This river of moving water flows right through all the disposal excavations, and carries contaminated effluent into the watersheds.
The wetland and aquifer together filter, store, and dispense what used to be a clean and dependable supply of drinking water to all the residents of St. Croix Cove. Citizens of the Cove now filter well water and drink bottled water.
The site is located near major recreational facilities. Rumsey Lake is a popular angling and boating destination for thousands of visitors. Hampton lighthouse and beach attract lots of visitors. Now these visitors are serenaded by the sounds of roaring excavators and clanging tailgates or encountering tandem trucks on once-peaceful, too-narrow roads. Many will never return because of the potential exposure to toxic asbestos dust.
Biking tourists will not be thrilled to discover the dump. It is unlikely that they will return to Annapolis County. No nature lover wants to camp near a toxic waste dump.
Visitors to the popular Poole Brook/St. Croix Falls may not wish to swim in the mountain pools or fish the tasty brookies when they realize that Arlington waste water is deliberately shunted into the Poole Brook drainage system. There may not be any fish anyway; large amounts of runoff silt from the clearcut wetland at the dump may smother the brook trout eggs.
There is no benefit for the citizens of Annapolis County in this dump project. There is only liability. The liability exists in the present and will extend far into the future. This dump could create a problem that future generations of Annapolis County residents will be unable to fix, no matter what the cost.
Engineered Wetland
There are many references in the FOIPOP to the ‘Engineered Wetland’. What is it? The cells are underlain by a very large and deep culvert which flows into a ditch that delivers leacheate to a series of pools in the remains of the natural wetland. This “treatment” system is supposed to extract contaminants from the leachate before it flows into the watershed and Poole Brook. As Lanying Zhao of NSECC wrote to Jim Frazee of East Coast Aquatics Consulting on November 18, 2018 (FOIPOP p 12):
Here is the map (FOIPOP p 10) Mr. Frazee used to locate his sample collection. The Outfall and Infall are located way north (top of map) of the dump property. Alongside a photo of the engineering at the cell outlet: (FOIPOP p 1997)
A History of Expansion
Most Debris is From out of County
(We only have one year of receipts in the 2,500 page FOIPOP)
Lax Inspection Regime
Water Testing Ignored
In the original “Proposed Construction & Demolition Debris Disposal Site” submission to Environment Nova Scotia prepared by C.T. Harris, P.Eng. and dated September 10 , 2004 there is a section entitled:
6.1.13 Operation and Maintenance Manual. An Operation and Maintenance Manual will be prepared and a copy of this manual shall be kept at the site at all times. This manual will include the following;
Record drawings and specifications of the C & D Debris Disposal Site.
Complete description of the Operational Procedures
Monitoring well logs and surface water monitoring logs, including the location plan showing the monitoring points.
Yet the Aquatic Life Guidelines noted in the very first water chemistry table (FOIPOP P.8) were exceeded 101 times in the 58 water samples we have transcribed. No notice was taken by Nova Scotia Environment and Climate Change (NSECC) . Here is the water chemistry table from the original assessment done in 2004:
Boron
Here is a complicated chart showing Boron levels for the 58 water samples we’ve transcribed. The y axis scale is logarithmic due to the enormous range of values. We would like an explanation of this, and particularly how NSECC did nothing to alert the community, as they are required to do under the Act.
With a single exception, the dozen of charts in the FOIPOP show the units for Boron as mg/l. It’s tempting to ascribe the big differences to reporting error - one microgram is a thousandth of a milligram. Tempting, that is, until you see page 2059, where the Boron values differ by a factor of more than 5000 - ON ONE PIECE OF PAPER. This escaped the attention of the consultant, the dump owner and NSECC, all of whom have a vested interest in not reporting this danger.
The single exception is on page 2004. 44,000 micrograms/liter.
Worth Noting
What the Act Says
Section 69
(3) Any person who discovers or becomes aware of a release of a substance into the environment that is in excess of an amount, concentration, level or rate of release expressly authorized by an approval or the regulations shall forthwith, as soon as that person knows or ought to know of the release, report it in the manner prescribed in the approval or the regulations, as the case may be.
Fire
From CBC September 7, 2018
A major underground fire was burning Friday at a construction and demolition debris site in Nova Scotia's Annapolis County.
The Arlington Heights C&D Landfill near Bridgetown started burning around 7 a.m., but was considered under control by mid-afternoon.
Stephen Wade, chief of the Port Lorne and district fire department, said flames were no longer shooting above ground but the fire continued to burn 3½ meters underground.
Creosote lumber, vinyl siding and other buried construction debris were on fire, he said.
About 70 firefighters from eight fire halls were trying to put the fire out and expected to be on scene all day and possibly into the night.
This fire
Was caused by a fuel spill from a truck tipping over
It was initially extinguished with salt water, which drained the ‘Engineered Wetland’ and thence the watershed
Probably burned for a year
Litter
Nova Scotia Progressie Conservative Platform, 2021:
Litter Bug Laws
One of the most enticing parts of attracting people to both live in and visit Nova Scotia is the beauty of our landscapes and coastlines. It is a shame to detract from that beauty with litter.
Auto-Fluff (Auto Shredder Residue)
Next is a graph from a spreadsheet of 154 John Ross trucks showing deliveries of autofluff from April 2019 to December, 2020. This was allowed because of “an amendment to the C&D Approval allowing a specific type of shredded C&D material to be used as an intermediate cover material at the site.” : See letter immediately above.
The graph shows the amount of autofluff delivered (blue) AND the CO2 emissions it took for the round trip (red)
We believe there could be 4 X 23,000 kg truckloads of this “intermediate cover material” still coming from Halifax each day. It seems obvious that there is not enough debris to warrant this amount of cover, so it is used to cover itself. Unfortunately, we were denied access in our FOIPOP to current receipts.
Mercury
Early on in the FOIPOP there are tables showing Mercury levels above the aquatic life guidelines (page 8) of .0001 mg/l (.1 micrograms/l). Page 29 shows levels of 0.143 micrograms/l, sampled September 11, 2018. The samples were collected after a fire at the dump which started early on September 7.
That 0.143 figure is confirmed in a summary quarterly monitoring report by E&Q Environmental Consulting dated July 15, 2019 (page 2068). The figure for November 2018 is worse (<0.00026 mg = <0.26 µg), though the lab might have gotten careless with decimals.
Mercury is commonly found in autofluff. It is a neurotoxin, as Canadians learned from Grassy Narrows. It is found in freshwater fish. It accumulates in the human brain and kidneys. 0.143 micrograms is well over the Aquatic Life Guidelines - useful in places where fish and fish derivatives are part of the human diet. The US EPA measured total Mercury in 336 watersheds - documenting a mean of 8.22 ng/l or 0.00822 micrograms/l. The reading of 0.143 micrograms is 17 times higher. I have never seen a sign along Poole Brook cautioning fishermen.
NSECC says: "Arlington C&D and Asbestos Disposal Facility was issued a warning for accepting material that was not approved by this department." Assuming the tipping fees are not zero, we are curious: who has the money? Is it forfeit? Does AHC&D retain it? Did they pay tax? Were the ill-gotten gains distributed to those harmed?
The Cover Material Itself
On page 160 of the FOIPOP there suddenly appears an email, followed by pages of data about auto shredder residue:
The first part of the requested documents is a summary of results authored by Industrial Environmental Consultants Inc. of Nashville, TN. The summary lists Canadian standards which they got from an unspecified source. Turning to Boron on page 165, they say the Canadian standard is 500 mg/l , when it is actually 5. Barium is listed as 100 mg/l, when it is actually 1. On pages 181 to 331 are exhaustive test results.
A few entries are in excess of standards:
Remember “this material is being used to cover the cell and then final cover material is soil”. What kind of government permits this kind of material anywhere near a water supply?
Trichlorofluoromethane, also called freon-11, CFC-11, or R-11, is a chlorofluorocarbon. It is a colorless, faintly ethereal, and sweetish-smelling liquid that boils around room temperature. CFC-11 is a Class 1 ozone-depleting substance which damages Earth's protective stratospheric ozone layer.
Annual Reports
To Summarize
Sept 30, 2021
The Honorable Carmen Kerr
MLA for Annapolis
349 Main Street
Middleton, NS
B0S 1P0
Phone: 902-309-3158
Hi Carmen,
Annie and I have had a recent covid exposure. Instead of a meet, please allow me to outline some of our community concerns and requests about the Arlington dump below. We also offer suggestions for updating the Environment Act to better address modern issues and to help prevent repeats of the Arlington debacle. Minister Halman has a mandate to update the act; can you advise and help us propose appropriate changes to the Act?
We are working our way through a 2500 page foipop request. There is certainly room for improvement in the administration of the Freedom of Information Act. The material we received was a jumble of unsearchable, disorganized files. Many documents (we paid for each one) were repeated several times. Pages are missing or removed to other locations in the files. Irrelevant and unrequested material abounds. Overall, the presentation of the information matched the confused, careless, and disorganized picture the files painted of the department’s work.
Our present concern is the substantial amount of material that was denied to us with little explanation. For most of it we could find no obvious reasons in the list of access prohibitions. We will, of course, appeal to the commissioner but that will take time. Meanwhile, may we ask your help in discovering two important information trails? We are certain that former minister Irving knows the details of these investigations; hopefully he will be willing to share them with us.
2018 Dump fire Investigation
The first is the vexing problem of the 2018 fire investigation. We are given no details in the foipop except reports that water tests triggered by the fire showed contamination that “exceeded Canadian guidelines for the protection of aquatic life.” We also know that no one bothered to take air samples as the acrid smoke wafted through our communities. We are additionally aware that the fire continued to burn for at least a year after the fact, and may be smoldering yet. Sadly, the Department did not share even these small bits of information with the communities affected at the time of the incident. Can you help ferret out the details of the Department investigation?
Illegal Auto-fluff Dumping Investigation
A second denied request was access to documents relating to the department investigation of illegal dumping of auto-fluff. Our complaints date back to 2018; we have been repeatedly told that “an investigation is ongoing,” but no information on that investigation has been forthcoming save a letter from Ms. Lonergan stating that “compliance action has been taken” and a later correspondence from Deputy Minister Towers that describes a promise of enhanced water testing. He also told us that the “compliance action” was nothing more than a warning. A warning for long-term, deliberate, illegal dumping in defiance of a direct order from the Minister? What? Will you please look into this? By our count, at least 106 loads of fluff were dumped after the Minister’s order to cease and desist of Oct. 1, 2019. Under Part six of the Environment Act and penalty 169, Arlington Heights should be liable for a minimum $100,000.00 fine. The maximum fine would exceed $100,000,000.00. That would finance a lot of site remediation. Where is the justice here?
Our experience with the Arlington Dump fiasco has revealed glaring deficiencies in both the Environment Act and the administration of that act. These deficiencies have allowed unscrupulous permit holders to bend, distort, and even ignore terms and conditions of their operating permits with no repercussions. Unpunished violations are both unjust and unacceptable; illicit business practice and dysfunctional regulatory oversight continue to degrade environmental and human health. In the public view, these conditions are so prevalent and commonplace that NSE is widely perceived to be part of our environmental problems, not part of the solution.
Suggested Environment Act amendments
I think we can work together to change that impression. We need to start with revisions to the Environment Act. I think that all parties agree that changes are necessary.
The most important change is affirmation of community right to be informed, and to approve (or reject) development proposals: Community Primacy.
Note that there is only one small sideways reference to civic consultation in the introduction of the current version of the act: c.2, s. (h.). NSE is obligated to
(h)…”facilitate effective public participation in the formulation of decisions affecting the environment.”
This is too weak. There must be a mandated obligation to engage the public prior to issuing approvals. As it stands, “facilitate” is interpreted by the Department to mean that proponents must post notifications in newspapers and provide guidelines to establish Community Liaison Committees. Clearly NSE has the ability to notify individual property owners directly of project proposals--why do they not do so? Though liaison committees are required by conditions, their composition is determined solely by the permit holder. Communities are given no rights to influence the composition of these committees. The committees therefore function generally as PR exercises for the business in question rather than as vehicles for effective engagement of community opinion.
Would it surprise you to know that despite section (h), NSE has issued six project approvals and renewals for Arlington Heights over a period of fifteen years without considering a single word of public comment? There has been no comment because of the secrecy surrounding the registration, assessment, and approval process. Postings buried in the back pages of newspapers offer ineffective notice. Both the Department and the proponent seem to want to avoid any public participation in the assessment process. This “trust us, we know what we are doing” and “we are the experts here, not you” attitude must cease.
In Arlington, that paternalistic attitude, secretive approval process, and failure to engage the public has cost our communities dearly.
When Lanying Zhao (regional hydrologist) recommended approval of the original Arlington C&D facility she did so without ever visiting the site. She admitted this under questioning at a Waterkeeper meeting with NSE reps in 2018. Nor could she recall important information supplied by the proponent in the application registration. In follow-up email communications, her responses to our questions were confused, contradictory, and sometimes illogical. Worse than that, we discovered that in formulating her answers to our questions she almost definitely plagiarized material from the UNH website and framed it as her own. (We encountered the identical references in our own research). Clearly Ms. Zhao rubber stamped her approval without investing the required due diligence. She therefore never understood that the dump had been sited in the middle of the Arlington Wetland--a freshwater reservoir resource that has supplied the communities of Arlington and St. Croix Cove with abundant pure drinking water for over two hundred years, even in the worst droughts. We have since learned that rubber stamp approvals are common in NSE environmental assessments.
Ms. Zhao tried to reassure us, downplay her incompetence, and cover her butt by insisting that the soil at Arlington was “impermeable,” and that groundwater quality at the dump had not changed since 2005. She insisted that even in the unlikely event of a small amount of fugitive pollutant, potential contaminated leachate would never migrate down the mountain into our wells and springs.
In 2011 Ms. Zhao was forced to recant, acknowledging that Arlington leachate contained ammonia, benzene, toluene, a variety of heavy metals, and other analyzed parameters that exceeded Canadian Water Quality Guidelines for the protection of aquatic life.
A similar test from 2018, taken hundreds of yards down slope from the dump, revealed similar results and a much larger extent of the water quality problems. Our wells are only a few hundred yards farther down the mountain slope.
Sorry for the long way round to make a simple point: if NSE had consulted with the public in the beginning, the importance of the Wetland reservoir would have been identified, the false claim of impermeable soil would have been rebuked, and all of our present problems would have been avoided.
So, lets us propose together the following amendment to the Environment Act:
No development project shall proceed without fully informing the communities that will be affected, and obtaining their explicit agreement.
We also need to refocus the stated purpose of the Act. The current emphasis is on the use and development of environmental resources. Business is encouraged to do so with a variety of incentives, not the least of which is a promise to reduce regulatory hassles as in clause C2, s. (j):
“promoting this Act primarily through non-regulatory means such as co-operation, communication, education, incentives and partnerships.”
In other words, NSECC wants business to develop our environmental resources and pledges to assist business in that development by minimizing regulatory intervention. Is this why there has been no penalty for illegal dumping of Auto-fluff?
Experience has shown that business cannot be trusted to operate on the “Honor System.” If regulations are not enforced, they will not be respected. Lack of enforcement encourages businesses (as at Arlington) to ignore terms and conditions of approvals, often to the detriment of communities affected; indeed, causing harm to the health and welfare of all.
Citizens expect their Environment Department to do more than abet Environmental exploitation. Let us therefore delete section (j) and add the following amendments to our list:
The primary focus of the act shall be to protect environmental and human health by preventing any further deterioration of our air, land, and water resources, and by committing to remediation of contaminated environments.
NSE shall vigorously enforce regulatory compliance.
There are other areas that require amendment:
Inspections
What can one say about the honesty and competence of inspectors that do not seem to notice millions of tons of illegal auto-fluff fouling their boots? Do the inspectors need whistleblower protection or remedial ethics training?
Almost all inspections are regular and pre-arranged. From employee testimony and perusal of our foipop request it seems that five day’s notice is not uncommon; even inspection visits resulting from citizen complaints are often arranged with the permit holder before the investigation. Needless to say, unannounced visits would be far more reliable indicators of compliance
Approvals
The Act sets time limits on the department’s assessment process; project approvals are almost always issued within 50 days of receiving the application registration. I say project approvals because approval is guaranteed—NSE has not rejected a single application in the last ten years. Project registrations are often long and technically complex documents which cannot be adequately assessed in the time span allotted, even if the examiners have no other work to do. It is clear that assessments must rely on data provided by the proponent or the proponents paid agents, and judgment must be rendered without the benefit of independent confirmations. NSE must be given the time and the resources necessary to independently test claims and data supplied by proponents.
Private Dumps
Private dumps are an open invitation to environmental abuse. There is no independent oversight at these facilities. At Arlington the gates are locked after some deliveries and are not opened until the load is buried. Some loads arrive in the middle of the night.
Private dumps also deprive municipalities of a rightful and much needed revenue stream. Municipalities are expected to supply waste management facilities within their jurisdictions. How can they do that if companies can dump within municipal boundaries while by-passing the fees that support municipal services? If private dumps are allowed to exist, a portion of revenues should go to the County, and the Dump should be required to adhere to municipal as well as Provincial regulations. Private dumps should be required to employ full-time independent scrutineers appointed by the county.
For your convenience, I summarize some of the amendments to the Environment Act that we deem necessary below. We hope that you will work with us to help incorporate these changes into a revised Act.
The primary goal of the act should be to protect and restore environmental health, and thereby protect and restore human health.
The act must assert the principle of community primacy. Citizens have a right to be informed and a right to approve (or reject) projects which will affect their neighborhoods.
The mission of the Environment Department must be clearly defined as a duty to prevent ANY further deterioration in the quality of our common Land, Water, and Air resources.
The NSECC mission statement must include a directive to remediate contaminated environments
Enforcement must be robust enough to serve as a deterrent.
Inspections shall be unannounced
NSECC shall be given the time and resources necessary for robust independent assessment of proponent claims and data.
NSECC shall require all private dumps to pay municipal fees, honor municipal regulations, and employ independent oversight.
Even if we accomplish these amendments, there is still the problem of getting NSE to follow their own regulations. It is quite clear and provable that NSE has failed the due diligence test at Arlington; but that is a matter for later discussion.
Next please find our Community Statement of Environmental Rights and Responsibilities as drafted at a public meeting in 2018 in the St. Croix Cove Church. Our MLA declined to attend the meeting.
Sincerely,
Kip McCurdy
for the Annapolis Waterkeepers
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