City pollutes harbour, feds look other way

By David Broadland, March 2012

The long-term environmental consequences of a mistake made by Victoria City Hall are uncertain.

What’s the purpose of federal environmental regulations as they pertain to construction projects like the proposed Northern Gateway pipeline? Are they intended to protect the environment from negative impacts caused by construction? Or are they intended to protect construction projects from the negative impacts caused by public concern and scrutiny?

These questions floated to the top of my mind recently after I posed a series of questions to Transport Canada about the Telus duct relocation project in Victoria Harbour. It appeared that a key stipulation of a Canadian Environmental Assessment Act (CEAA) environmental assessment had been ignored or misunderstood by the City of Victoria, and the regulatory body that was supposed to be protecting the environment and enforcing the law was instead defending the City.

Let me give you some context to set this up. My conversation with Transport Canada will follow.

Work recently done by Ruskin Construction under a contract with the City of Victoria involved dredging a large trench across an area of Victoria Harbour that has been registered with the federal Contaminated Sites Inventory.

The trench was dug in order to relocate communication cables belonging to Telus. The relocation project had been subject to a CEAA Environmental Assessment Screening Report carried out by Transport Canada.

Studies have shown the area that was trenched is badly contaminated, with at least 19 environmental toxins present, each at concentrations that would qualify the site as a “Contaminated Site” under the BC Contaminated Sites Regulation Guidelines (see list to right).

The consequences of stirring up those contaminants was laid out in a report prepared by Stantec Consulting for the City of Victoria. Stantec noted, “Both sediments and contaminants have the potential to affect marine biota. Increased turbidity may interfere with fish respiration, feeding activity and result in direct smothering of marine organisms. Resuspended contaminants may be ingested and result in bioaccumulation within the food chain, decreased invertebrate diversity, abundance and growth and physiological and behavioural alterations.”

The City of Victoria was given permission last September by Transport Canada to go ahead with dredging the trench through the contaminated site. Transport Canada’s environmental assessment of the project accepted recommendations made on behalf of the City by Stantec that the work could be done without significant harm to the environment if certain precautions were taken. But in addition to the mitigation strategy put forward by Stantec, Transport Canada stipulated “that the proponent installs a sediment curtain around the area to be trenched to ensure suspended sediments are contained within the immediate project area.” (Emphasis added.)

On reading Transport Canada’s assessment, any reasonable person would, I think, come to the conclusion that a legitimate process to protect the environment was at work. After all, Transport Canada was demanding that a significant action, above and beyond what the City was offering, would have to be included.

As it turned out though, Ruskin Construction dredged the trench through the contaminated site without deploying the required sediment curtains. Headquartered in Prince George, the company had the lowest of five bids the City received from companies pre-qualified to bid on the Telus relocation project.

When asked why sediment curtains were not used, a spokesperson for the City of Victoria, Katie Josephson, said an “environmental monitor” had been on the site and any decision not to use a sediment curtain would have been made “under their guidance.”

Josephson told Focus the environmental monitor’s work was done “in consultation with Transport Canada and according to their regulations.”

Josephson first identified the “environmental monitor” as an employee of MMM Group, the City’s prime consultant on the relocation project, but two weeks later clarified that Ruskin, the company that did the dredging, had done the environmental monitoring.

Adding two of Josephson’s pieces of information together, we arrive at the startling conclusion that the company doing the dredging also made the decision not to use sediment curtains. (Ruskin Construction did not respond to a request for information)

Josephson also said, “A silt fence or sediment curtain is required for work on land as the issue is to prevent runoff with contaminants from entering the harbour... No sediment curtain is required in-water—only mitigation measures.” (Emphasis added.)

But a spokesperson for Transport Canada, Sau Sau Liu, contradicted the City’s claims about what they were expected to do and what consultation had taken place.

“Transport Canada,” Liu said, “did not advise the City of Victoria, or any other entity, to not use the sediment curtains.”

Transport Canada was also at odds with the City’s interpretation of what “sediment curtains” and “mitigation” meant.

As Liu explained, “A sediment curtain is a fine-mesh fabric suspended from floats and weighted at the bottom to control silt and sediment from entering or spreading in the water, and allows suspended particles to settle in a confined area of water.”

Liu also said, “The mitigation required was the use of a sediment curtain around the area to minimize the spread of suspended sediments.” Liu clarified that “the immediate project area” stipulated in the environmental assessment “refers to the area adjacent to where the work was done.” In other words, the dredging across the contaminated site should have involved sediment curtains strung from one side of the channel to the other, on either side of the dredged trench. A City employee had, by mistake or neglect, misinterpreted the intended mitigation.

Now this sounds like a clear-cut case of the City failing to abide by the terms of a CEAA environmental assessment. Fulfilling the stipulations of that assessment was part and parcel of a federal contribution agreement to provide up to $21 million to fund the new Johnson Street Bridge project. The funding agreement said failure to abide by the terms of the environmental assessment could lead to “default.”

But the studies and the terms of the funding agreement, so far as they purport to protect the environment, appear to be a farce.

I suggested to Transport Canada’s Liu that since her agency had stipulated use of a sediment curtain to prevent environmental damage, it followed that, since curtains were not used, environmental damage would occur.

Liu responded, “No. Transport Canada and the Department of Fisheries and Oceans required the proponent to have an environmental management plan and an approved environmental monitor on site responsible to the environmental management plan. The environmental management plan and use of an environmental monitor mitigate environmental damage.”

Just how deployment in the field of the “environmental management plan,” or even the “environmental monitor” could physically replace the missing sediment curtains in preventing the spread of contaminant-laden sediments was unclear.

Would Transport Canada follow up to determine whether any environmental damage was done? Liu said, “Transport Canada has received environmental monitoring reports for all works conducted to date on this project. We are satisfied with the work to date.”

Although the City claimed Ruskin was the environmental monitor, Liu said the “environmental monitoring reports” were provided by the City of Victoria. And when we asked Liu what specific actions had been taken by Transport Canada that allowed them to conclude “there has been no environmental impact,” she said, “Transport Canada reviewed the environmental monitoring reports provided by the City of Victoria...” But can simply reading a report prove anything?

It gets worse. Scrutiny of Transport Canada’s CEAA Environmental Assessment Screening Report for the Telus Duct Project shows that much of the report is simply a word-for-word copying of paragraphs from a report written for the City by Stantec Consulting. Transport Canada provides attribution for some of this copying, but some copied passages are given no attribution. It boils down to this: the Environmental Assessment is largely written by the proponent. Is that how it works for Enbridge’s Northern Gateway pipeline proposal, too?

It’s not surprising that the City of Victoria bungled the very first shovels-in-the-ground operation in building the new Johnson Street Bridge. The project so far has been a long series of miscalculations dressed up as progress. But it’s harder to understand why Transport Canada would, at considerable taxpayer expense, first produce an environmental assessment that insisted on an action they said would mitigate environmental damage, then willfully look the other way once they learned their instruction had been ignored.

David Broadland is the publisher of Focus Magazine.