HOMEOWNERS IN THE CROSSFIRE
Battle over Domtar site drags on
Property owners in Edmonton’s Homesteader community were likely startled last week by letters from Alberta Environment announcing enforcement action on lands that formerly housed a wood treatment plant.
What they may not know is that the government’s move is just the latest development in an increasingly nasty, multi-year legal fight involving lawsuits and counterclaims, enforcement orders, judicial reviews and environmental appeals — none of which has yet been resolved.
Recent years have seen accusations fly of negligence, bad faith communications and hypocrisy that have put the future development of the site in doubt. While the government claims it is protecting the health and safety of Albertans from a recalcitrant developer, the main target of the enforcement has accused the province of unfair, inconsistent and punitive treatment.
In the middle are homeowners, left to wonder if they truly face any health risks, if the controversy might derail further development of the community, and if the dispute will ever end.
1924 to 1987: A wood preservative plant owned by Domtar Inc. operated on the lands. Creosote, pentachlorophenol and other toxic chemicals were used to treat railroad ties, poles, posts and lumber.
1987 to 2008: The plant is decommissioned, and Domtar conducts partial remediation work, including extensive testing. Nonetheless, residual effects of industrial activity remain in the ground, including creosote, polycyclic aromatic hydrocarbons, dioxins and furans.
2008: Cherokee Canada Inc., a Toronto-based firm that specializes in redeveloping brownfield sites, takes an interest in the property.
2009: Cherokee prepares a remedial action plan that envisions a future 1,200-unit development, as well as the construction of a dirt berm about one kilometre long to separate the houses from the CN Rail line to the south. The plan calls for the core of the berm to be partially constructed with contaminated soil from the Domtar site, then covered with clean soil. The company claims the structure should contain the contamination and allow for natural remediation over decades.
March 2010: Cherokee buys the site from Domtar for $1.8 million. The company claims it made the purchase based on the government’s acceptance of its remediation plan.
2011: Cherokee submits an “updated” remedial action plan, which continues to call for the use of contaminated soil on portions of the site. Again, the company says the plan was accepted by Alberta Environment. The province denies it ever gave approval.
2011-2013: Cherokee begins remediation efforts on the site, and starts construction of the berm.
April 2013: Cherokee prepares a risk assessment for the portion of the berm that contains contaminated soil. It concludes the structure should not lead to any adverse health or environmental outcomes. The government disputes this account.
July 9, 2013: Alberta Environment approves a remediation certificate for Parcel C — the western portion of the old Domtar property — which allowed housing development to begin. Wood treating chemicals were reportedly not handled on this portion of the site; it was instead used to store treated and untreated wood.
In issuing the certificate, the government notes the application is “atypical” because the remediation process used was “natural attenuation” instead of removal of the contaminated soil. Nonetheless, the government issued the certificate after reviewing testing data indicating the soil and groundwater met standards for residential land use.
2013-2014: Work continues on the berm and other portions of the site in accordance with the updated remediation plan, Cherokee says. The company claims the government never raised objections to the berm throughout this period, though the province says it did, in fact, send a letter of warning not to proceed in November 2013.
April and May 2014: Limited testing conducted while the berm is under construction finds some evidence of hazardous substances exceeding provincial guidelines, Alberta Environment says.
October 2014: Alberta Environment says it learns of the berm’s construction, which is nearly complete. The company says the province knew about the project all along and even had representatives on-site from time to time.
April 2015: Cherokee says Alberta Environment appointed a new representative to the project, who suddenly demanded more comprehensive sampling of the berm. The company resisted, arguing it saw no scientific need — in part because more than 800 soil samples had already been analyzed between 2010 and 2015. The government claims it repeated its request for comprehensive berm testing on four more occasions over the next year, but never received agreement.
May 2015: The NDP is elected to power in Alberta.
November 2015: Cherokee says it is informed by the regional compliance manager that the berm is unauthorized. The company says several attempts to meet with compliance staff to resolve the issue and the demand for additional sampling were ignored. This later becomes the subject of a judicial review process, which has yet to be resolved.
July 2016: Alberta Environment conducts its own sampling of the berm. The department says there is evidence of naphthalene in most of the samples, and that the substance is not contained.
Dec. 1, 2016: Cherokee sues for $126 million, claiming Alberta Environment acted in bad faith by “recklessly” changing its position on the remediation plan after the company had already spent considerable money.
Dec. 16, 2016: Alberta Environment slaps Cherokee with an enforcement order demanding a new sampling plan for the berm in Parcel Y, along with adjacent areas to determine if any hazardous substances had migrated. The order also mandates a tight schedule over the following months to complete the sampling, create a remedial action plan, and conduct remediation.
Dec. 20, 2016: Alberta Environment issues an environmental protection order against both Cherokee and Domtar, requiring extensive sampling and remediation of two other parcels. These are Parcel X, a strip of land running alongside the rail line to the west of the main Domtar site; and the Greenbelt, a city-owned strip running along the rail line to the immediate east of the Domtar site. Both parcels border the backyards of homes.
The timing of the order is curious, as the concerns cited by the province seem to stem from environmental reports conducted in the 1990s. In the case of Parcel X, those reports found much of it had been used as a Domtar landfill that contained an estimated 2,200 cubic metres of waste water sludge, chemical preserving solution, wood and industrial waste — all of which was covered over with soil. In 1998, creosote was observed “oozing ” from the ground.
In the case of the Greenbelt, the land contained a ditch and two “ponds” that collected waste water from Domtar operations. A report from 1993 suggested the plant generated an average of 9,100 litres of waste water per day over the 63 years it was in operation. Though Domtar did conduct remedial excavations of the area in the mid-1990s, reports from the time suggested some contamination remained.
January 2017: Cherokee challenges both orders, which are put on hold by the Environmental Appeals Board pending a hearing.
Jan. 25, 2017: The province files a statement of defence to Cherokee’s lawsuit claiming that if any misrepresentation occurred, it was due to poor communication and negligence by third-party consultants Cherokee hired to provide strategic advice on the project.
The province says it accepted the company’s 2009 remedial action strategy “in principle,” but was also clear that more detailed plans would be required. Alberta Environment never issued a written approval of 2011’s updated plan or gave consent to proceed with the berm, the government said in its defence.
“Chemicals characterized as hazardous waste could have been sent off site for disposal and should not have been used as construction materials for the berm,” the statement of defence says.
As well, the province argues that construction proceeded before a development permit from the City of Edmonton was issued, and then contravened the permit (when it was later issued) by including liquid creosote in the berm. Cherokee denies the presence of creosote in the berm.
Allegations made in statements of claim and defence have not been proven in court.
March 29, 2017: The third-party consultants hired by Cherokee file their own statement of defence denying any negligence.
2017-18: Dozens of houses continue to be built and occupied in Parcel C.
February 2018: Legal action is discontinued against most of the third-party defendants in the lawsuit.
March 16, 2018: Alberta Health Services issues public health orders against Cherokee, while Alberta Environment announces new enforcement orders against both Cherokee and Domtar. The orders require fencing and warning signs to be placed around the entire berm, the Greenbelt, Parcel X and Parcel Y within 30 days, while the companies are also required to conduct additional soil sampling, develop plans to remove contaminants and assess the risks to human health.
In a letter delivered to homeowners in the area, the province says the actions are based on recent testing of these uninhabited sections, areas of which were found to have unacceptable levels of substances such as benzene, naphthalene, polycyclic aromatic hydrocarbons, dioxins and furans, lead and thallium.
As well, the province says it is ordering “precautionary” testing of the residential lands in Parcel C, and will take unspecified “further action” if unsafe chemical levels are found.
March 21, 2018: Cherokee distributes its own letter to homeowners, telling them their properties are safe and expressing confusion about the government’s action. The company says the province has long known about the presence of contamination in the uninhabited sections, and has also known some areas — particularly Parcel Y — are scheduled for further remediation.
April to June 2018: The appeals board has indicated a hearing on the 2016 orders issued by Alberta Environment could proceed later this spring, Cherokee says.