There are “little if any risks” associated with a biosolids-spreading project in Turtle Valley, a B.C.Supreme Court judge ruled on Friday, in addition to noting the company behind the project has gone further than what is required by legislation and has made efforts to work with residents in the area.
The ruling, handed down by Justice Dev Dley in a packed courtroom in the Kamloops Law Courts building, effectively gives Arrow Transportation the green light to continue with a controversial City of Kamloops biosolids contract, which will see 23,000 tonnes of stockpiled treated sewage sludge delivered to the Turtle Valley Bison Ranch for reclamation of previously logged land.
Following day-long submissions from Arrow and opponents during the private nuisance civil case, Dley delivered his decision.
(Ordinarily, he would take time to write reasons for his decision, but Dley sad he took the unusual step of presenting immediately late in the day because delaying the decision would not be beneficial to any party.)
Dley determined that the application by 30 Turtle Valley residents for an injunction against Arrow Transportation lacked evidence. He said the burden of evidence in the case was on the residents to prove a “high degree of probability of harm,” noting they fell short of proving traffic, odour and health risks.
In fact, Dley said, evidence presented was “misleading,” with parts omitted. He questioned written expert medical testimony, which was called “the most important piece of evidence in the application” by Daniel McNamee, the lawyer representing the Turtle Valley residents opposed to the biosolids project.
Dley noted the testimony included words like “perhaps” and “possible” when analyzing risks of the project, including to drinking water.
“I have some concerns with the material I have been provided,” Dley said. “It is, to some degree, misleading. It fails to consider the steps that Arrow has taken and address concerns alleged.”
McNamee presented the residents’ primary concerns: increased traffic, impacts on drinking water and odour. He detailed a “pristine” rural area, with nine trucks daily coming in and out of the area to deliver biosolids.
David Jarrett, lawyer for Arrow, maintained the company has complied with all necessary regulations — even going beyond, with double the required setbacks from Chum Lake — and said risks were speculative. He accused protestors of moving the goal posts when raising issues of concern about the project and insisted the residents’ issue was not with the transportation company, but with the provincial Organic Matter Recycling Regulation, for which he said there is an avenue for lobbying change through local MLAs.
“The concern that Arrow has is, what more can it do?” Jarrett said, arguing a courtroom is not the forum for such provincial legislative changes. “It’s a bit like whack-a-mole.”
Jarrett also dismissed inference from residents that testing has not been done, noting one resident had intercepted from a lab test results anticipated by Arrow. The results apparently showed the company was in compliance, but the results were not mentioned during evidence presented by McNamee, which was of concern to Dley.
“His affidavit doesn’t swear that he didn’t take any samples,” McNamee countered.
Residents maintain the Organic Matter Recycling Regulation is not thorough enough when it comes to biosolids testing.
Dley told the courtroom no decision would make everyone happy. At one point prior to a break, he suggested the two parties go away and each make concessions. However, they returned with agreement — with the parties still on opposite sides of the issue.
“Unfortunately, we were not able to come to a resolution,” McNamee said when court reconvened.
In making his decision, Dley said he understands residents might feel betrayed by the provincial legislation and offered suggestions for the two sides to come together.
Though not a court order, Dley specifically suggested monitoring of the westerly boundaries of the aquifer and, if any traces of biosolids were found from the adjacent field, the project should be “stopped immediately.”
Additionally, he recommended the project be restricted to the one field on the bison ranch.
In addition to denying the injunction request from the residents, Dley awarded undetermined costs to Arrow. The company would not comment immediately after the decision on Friday and it is unclear when it will resume hauling biosolids to the area, which is near Chase and about 45 minutes west of Kamloops.
After the decision, McNamee called the decision disappointing and could not say if further legal action is planned.
Opponents had erected a blockade in Turtle Valley, which prevented Arrow trucks from accessing the bison ranch. Arrow applied for and received a court injunction that ordered the blockade removed and, last month, opponents complied with the court order.
However, another group of protesters, calling themselves Secwepemc People at Sacred Fire, have since set up a blockade.