c/o Sheila Arsenault, County Executive Secretary
P.O. BOX 697,
Wednesday, April 10, 2013
RE: Appeal of the decision to allow the discharge of Hydraulic Fracturing Wastewater from Atlantic Industrial Services’ facility into the Debert Sewer System
To CAO, Ramesh Ummat and Mayor Bob Taylor:
We are writing to respectfully request you appeal of the decision to allow the discharge of hydraulic fracturing (or “fracking”) wastewater from Atlantic Industrial Services’ facility into the Debert Sewer System on behalf of Sierra Club Canada – Atlantic Canada Chapter.
Sierra Club Canada – Atlantic Canada Chapter is a member-based organization that engages Atlantic Canadians through education and political advocacy to green the economy and protect our environment. We have members and supporters throughout the four Atlantic Provinces, including Colchester County. We have a long history of action and education to protect the Bay of Fundy region, in terms of stopping the release of toxins into the environment through our work on pesticide bans, educating youth and children on the unique ecological features of the Acadian forest and our coastal and ocean ecosystems, and being actively engaged initiatives to conserve wilderness and stop unwise developments such as the Digby Quarry. We also take part in numerous advisory groups and processes on the issues of marine protected areas, ocean zoning, sustainable development, and endangered species protection.
It is our position that the County of Colchester should not approve of discharging Hydraulic Fracturing Wastewater from Atlantic Industrial Services’ facility into the Debert Sewer System because of the level of public concern, the potential risks to the local community and environment, the lack of public communication regarding the issue.
We preface our grounds for appeal with a statement that there has been very limited time (10 days) and lack of information released by the county to assist us in formulating our request for an appeal. For instance, some necessary documents have only been posted publicly in the last 24 hours. In spite of our in-depth engagement on this issue, the tight timeline and incomplete information has hindered our capacity to gather the necessary legal expertise and background information, and we request the Committee and Councilors grant us some leeway for any unintentional omissions in our submission.
Legal & Regulatory Context
The Municipal Government Act prohibits the discharge of harmful and radioactive substances into municipal sewer systems that exceed limits established by the municipality or substances that require special treatment beyond dilution to make them less hazardous.
The municipality should be commended for taking the initiative and testing for some additional chemicals (the so-call B-TEX group of volatile organic compounds: benzene, toluene, ethylbenzene, and xylene) that may or may not have been present in the fracking wastewater. Unfortunately, the chemical compounds used in fracking include a much larger suite of chemicals that have not been tested for and represent a threat to the local environment. We also note with concern that the municipality has approved an increase in the chloride salt discharge limit set out in its Sewer Use Policy (formerly set at 1,500. mg/litre) to permitting the discharge of wastewater containing up to 10,000 mg/litre of chlorides. This change did not adequately address the risk to the environment and the waste water system, nor did it take into account the fact that different sources of chloride salts could have different impacts, and should be reversed. Otherwise, no special bylaws or policies have been passed permitting the discharge of harmful or radioactive substances into the municipal waste water system.
As we understand it, Environment Nova Scotia granted AIS permission to accept and treat industrial waste products. This permit allows AIS to treat certain types of waste, however, it does not cover the up to 800 chemicals that may be contained in fracking waste waster or make provisions for safely dealing with radioactive waste. It also does not make adequate provisions for storing the massive volumes of fracking waste that would be produced if fracking were permitted to proceed in this region.
Since the discharge from the municipal waste water system flows into the Chiganois River and ultimately the Bay of Fundy, there are possible impacts of fish, fish habitat, and endangered species such as the endangered Inner Bay of Fundy salmon populations – of which only a couple hundred individual fish remain! - and the threatened American eel.
Nova Scotia’s Environment Act establishes rules for the discharge of deleterious substances and the provincial Endangered Species Act makes provisions requiring protection of endangered species and their habitats. The NS Wetland Policy established rules to protect salt marshes and wetlands, and disallows damage or alteration of wetlands of “special significance.” It also requires compensation for altering other wetlands in the province. The province is also undertaking a review of the risks associated with fracking and this review will only be complete in 2014.
The federal Environment, Fisheries, and Navigation Protection Acts contain provisions regarding enforcement of pollution prevention, protecting fish, fish habitat and disallowing the discharge of deleterious substances into the environment. Health Canada is currently reviewing many of the chemicals contained in fracking waste but this review will only be completed in March 2014 – and only after this will it establish if risk assessments and control measures are needed.
Both the provincial and federal governments have obligations under Friendship Treaties and the Canadian constitution to consult First Nations on issues that may impact their rights, culture, and ability to sustain a moderate livelihood from the fishery. Canada is also a signatory to the UN Declaration of the Rights of Indigenous Peoples Governments, and therefore must obtain free, prior and informed consent for activities such as pollution that could impact them and / or their communities. The Debert facility is located adjacent to areas of cultural significance and a safe and healthy environment is key to meeting commitments to a right to hunt and fish for food, social & ceremonial purposes as well as sustaining a moderate likelihood from renewable resources, as required bit the Supreme Court’s Marshall Decision.
Grounds for this Appeal
1. Atlantic Industrial Services (AIS) should never have received the shipment of fracking wastewater from Kennetcook as they contain radioactive elements, for which AIS has no permit to store, manage or transport. The fracking fluids may also have contained any number of unidentified toxic chemicals. AIS only tests for what is suspected to be contained in the wastes and not for a broader range of chemicals and elements that could be present in the waste from industrial processes. Could there be other chemicals and toxins in the waste that they have not tested for ? AIS has made a bad business decision and they should not be utilizing a taxpayer-funded sewage treatment system to subsidize their bad decisions.
2. If Atlantic Industrial Services is allowed to proceed with the discharge of these materials through the municipal system, does anyone truly expect that this will be the only request of its kind? The community has not be properly informed and asked to give free and informed consent to allow AIS to house, treat, and handle wastes with elevated radioactivity. This decision has implications for the future and proper discussions with the affected community need to be part of any responsible decision-making process and to date this has not taken place.
3. As stated in the appeal written by Mark Tipperman on behalf of local residents of Colchester County, the release of the fracking wastewater violates Sections 5.1 and 5.3 of the Municipal Sewage By-law. Section 5.1 states that anything that causes or may cause [emphasis ours] a health or safety hazard is prohibited from being discharged into the sewerage system or wastewater facility. The same prohibition applies to effluent in violation of any Provincial or Federal legislation. Section 5.3 indicates that the discharge of waste classified as hazardous, or containing a variety of listed materials is prohibited. The decision to allow the discharge of the fracking wastewater into your sewer system is in violation of Sections 5.1 and 5.3 of the Municipal Sewage By-law.
4. The significant changes in the AIS facility (both in terms of the volumes and types of waste it is receiving) and the high level of public concern regarding this approval should trigger an environmental assessment and broader community consultation. In a short amount of time, there have been over 2,000 signatories to an online petition regarding this very issue. Nova Scotians are concerned that AIS is poised to become the fracking waste dump for Atlantic Canada. The lack of assessment and consultation has place the County in the un-enviable position of having to accept waste for which they have inadequate information, not to mention inadequate time and expertise to assess its risks to municipal infrastructure and the health and safety of the community the environment. The level of concern and the risks posed by this undertaking must be fully investigated and understood via an Environmental Assessment before AIS is allowed to process this waste and the County decides to permit its discharge into the environment via the sewer system.
5. The NS Environment Act embraces the precautionary principle and the environmental stewardship principles when it comes to all decision-making. The Act states that “the precautionary principle will be used in decision-making so that where there are threats of serious or irreversible damage, the lack of full scientific certainty shall not be used as a reason for postponing measures to prevent environmental degradation.” The stewardship principle “recognizes the responsibility of a producer for a product from the point of manufacturing to the point of final disposal.” The decision to allow fracking to proceed in the province in the first place and to allow AIS to accept fracking waste without full knowledge of its contents and or our capacity to deal with this waste has violated the precautionary and stewardship principles laid out in the NS Environment Act. The Municipal Council should not participate in perpetuating this mistake by accepting fracking wastewater.
6. The regulation of deleterious substances used in fracking has been identified by Canada’s Commissioner of the Environment and Sustainable Development as being under the mandate of Environment Canada and Health Canada. However, the review of chemicals used in fracking is far from being complete. Accepting fracking wastewater in advance of the evaluation would be reckless and place the municipality and the receiving environment at risk. Similarly, the provincial review of the risks of fracking will only be complete in 2014. The County, at the very least, should receive information from Health Canada and the provincial government regarding the risk posed to the environment from chemicals used in fracking before making decisions that could have lasting and costly effects.
7. The increased risk to the environment, health, and safety due to the discharge of fracking wastewater from the AIS facility has occurred without adequate consultation with adjacent Mi’kmaq First Nations on the part of the provincial and federal governments. Prior to consultation with Mi’kmaq about the risks posed by treatment and discharge of fracking waste in the area, it is extremely unwise for the County to accept its release into the municipal sewer system and via that system, into the Cobequid watershed.
While we are sure Mr. Ummat’s qualifications as an engineer are impeccable, there is a conflict of interest in his new position as a CAO in the capacity to offer opinion and advice to the council regarding whether or not accept or reject the approval based on his report. This is because Mr. Ummat, acting as engineer to the County, was involved in providing advice and expertise that shaped the original decision to accept fracking wastewater. We ask that Mr. Ummat recuse himself from the proceedings regarding this matter and an arms-length qualified person be identified to advise the County on this issue.
We call on the Municipality of the County of Colchester to do the cautious and just thing by not accepting this approval and denying AIS the approval to discharge fracking wastewater through the Debert Sewer System.
Thank you for your careful consideration of our comments. If you have any questions please do not hesitate to contact us.
Heidi Verheul B.Sc (Biology)
Former resident of Colchester County