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Cassidy Aquifers Issue
Part 1
To aid public discussion regarding concerns about risk of contamination of groundwater in the Cassidy area posed by ongoing industrial activity, TAKE 5 is presenting a two-part article on the Cassidy Aquifer issue.
BY QUENTIN GOODBODY
In this first part of the Cassidy Aquifers article, we will take a closer look at what has happened to date and speculate about what regulatory activity may occur in the future. The purpose of this two-part article is to aid public discussion regarding concerns about risk of contamination of groundwater in the Cassidy area posed by ongoing industrial activity.
Background
In 2011, Schnitzer Steel Canada took over its current site just south of Nanaimo Airport, where it conducts End of Life Vehicle (ELV) processing and other scrap metal recycling. In 2013, the company removed contaminated soil left from previous operators; the site had been used for auto wrecking and metal recycling since the 1950s, long before the introduction of land use zoning in 1987 through passage of CVRD Electoral Area H Zoning Bylaw No. 1020.
Though the site is now zoned I-1, which does not permit auto wrecking and metal recycling, the BC Local Government Act permits land uses that were lawful prior to the introduction of land use zonation to continue as a non-conforming use — providing there is not a six-month break in operations and the operations retain the same scale and scope as prior to the introduction of land use zonation.
In 2016, Schnitzer — on behalf of its landlord, Cassidy Sales and Service Ltd. — filed an application (No. 03-H-16RS (PID: 008-903-603)) with the CVRD for rezoning of the site to I-4 (Industrial Recycling), to accommodate auto recycling, metal recycling activities and exterior storage, which are not permitted under I-1 zoning.
Before and since that application, much concern has been expressed by the public regarding the scale and aesthetic impact of the recycling operations and the risk of contamination to the underlying aquifer that these operations pose.
Acceptance by both Schnitzer and the CVRD of the reality of risk to the aquifer is implicit in actions taken by both since the rezoning application was made. Schnitzer implemented measures to avoid ground contamination by storm runoff from its operations: extensive concrete slabs were installed to floor those areas where ELVs and non-ferrous metals are processed, with runoff from these slabs being directed towards catchment basins for treatment. Regular maintenance procedures were adopted to ensure the continuing functioning of this catchment system.
In 2017, discussions were initiated regarding a legal covenant aimed at mitigating the threat of groundwater contamination by enforcing such preventive measures.
In 2018, the CVRD drafted and gave first and second readings to bylaws 4194 and 4195 to accommodate rezoning of the
Schnitzer site from I-1 to I-4, with allowance for ELV processing and metal recycling.
Meanwhile, discussions on the covenant continued: In 2021, as a pre-requisite step to re-zoning and to holding a Public Information Meeting regarding the rezoning application, the CVRD presented a draft of the covenant for adoption with wording to ensure that so long as scrap metal and ELVs are collected, stored and dismantled on the Cassidy site, specific measures were in place to protect the sensitive underlying aquifer, including hard surfacing, drainage collection and oil separators, and mandatory monitoring well test reports.
After much consultation, on May 3, 2023, the CVRD Electoral Area Services Committee (EASC) was advised that the applicants were in agreement with the wording of the covenant. At that same meeting, the EASC voted to recommend to the CVRD Board that the re-zoning application be denied. Citing uncertainty regarding implications stemming from rejection of the rezoning application, EASC also voted that staff consult with legal counsel on any potential technical issues regarding the denial of the application and report back prior to the May 10, 2023, CVRD Board meeting.
At the May 10, 2023, CVRD Board meeting, the Board reported on a motion adopted in closed discussion that a Public Information Meeting regarding the application be held in June 2023 in accordance with CVRD Development Application Procedures Bylaw 2022, given that the applicants had agreed to the proposed covenant. CVRD staff were also asked to provide the Electoral Area Services Committee with a report summarizing the questions and comments recorded at the upcoming Public Information Meeting as well as provide complete documentation regarding the application.
The Public Information Meeting was held June 19, 2023, in the Aggie Hall, Ladysmith. Ninety-seven members of the public attended, along with extensive representation from the CVRD. Presentations were made by both the CVRD and Schnitzer regarding the rezoning application. A large number of questions from the public were addressed by the CVRD and Schnitzer. A report on this meeting has since been provided by CVRD staff to the CVRD Electoral Area Services Committee. What remains to happen now is a CVRD Board ruling on the rezoning application.
In addition to the above activities, in June 2022, a civil lawsuit was initiated against Schnitzer alleging violations of CVRD land use zoning bylaws and against the CVRD alleging failure to enforce its own land use bylaws.
What’s Happening Now
Schnitzer Steel continues its operations located on top of the Cassidy high vulnerability Aquifer 161 and also continues to take steps to avoid ground water contamination from these operations. Regular maintenance of catchment systems for runoff from concrete pads flooring ELV processing and metal recycling areas is performed to ensure their proper function. Water from five wells on the property are monitored regularly to determine if ground water contamination is occurring.
The CVRD informs that there is no anticipated timeline for moving forward towards a decision on the rezoning application. Interaction with the Regional District of Nanaimo, Island Health and relevant sections of the BC Provincial Government will likely occur prior to a final decision by the CVRD Board. Monitoring of surface water quality in a stream nearby Schnitzer’s property (Thomas Creek) is ongoing. The CVRD’s intent is to establish a network of monitoring stations throughout the region; however, staffing shortages are hampering progress on development of CVRD “in-house” best practices for groundwater management.
Speculation on What May Happen
Schnitzer theoretically could withdraw their rezoning application, trusting that their current operations be determined legal non-conforming. Such would allow for continuation of their activities.
If the CVRD Board approves the rezoning application, absent of any legal directive to the contrary, the current scope and scale of Schnitzer’s existing operations could continue with the company adhering to the terms of the covenant.
Denial of the rezoning application by the CVRD Board would probably trigger an assessment of whether Schnitzer’s current operations are legal non-conforming or not. If they are considered legal non-conforming, then Schnitzer could continue with the scale and scope of its current operations. If they are not, then proceedings relating to land use violations would likely commence; options facing Schnitzer in this scenario would appear to be to either scale back to that level of legal non-conforming activity permitted by the Local Government Act, or move their operations to another suitably zoned location. Given the scale of their investment in the Cassidy property, this appears something the company would be reluctant to do.
Any continuation of Schnitzer’s activities at Cassidy will not satisfy those who feel that the siting of industrial activities considered to pose a contamination risk on top of an important high vulnerability surface aquifer is inappropriate. Focus would turn towards the ongoing civil suit.
Next month we conclude with an comprehensive look at the Cassidy Aquifers, how they formed and how they work.
