$35,000 in fines

Owner of Kings County C&D dis­posal site charged fol­low­ing 2016 fire fined for En­vi­ron­ment Act of­fences

Valley Journal Advertiser - - NEWS - BY KIRK STARRATT KINGSCOUNTYNEWS.CA Kirk.starratt@kingscountynews.ca

“I’m just glad that it’s over and now we can get on with things,” Der­rick Shaf­fer said at the con­clu­sion of his sen­tenc­ing hear­ing.

Shaf­fer, the owner and op­er­a­tor of a waste trans­fer sta­tion and a con­struc­tion and de­mo­li­tion (C&D) de­bris dis­posal site, was charged fol­low­ing a fire at his North River Road prop­erty in March 2016 that burned for sev­eral days.

Shaf­fer ini­tially pleaded not guilty to all charges against Shaf­fer En­ter­prises, the C&D site, and 3144393 Nova Sco­tia Lim­ited - the waste trans­fer sta­tion that he op­er­ates with his wife Bar­bara – in May 2017.

Shaf­fer, who has de­ferred fur­ther com­ment on the sit­u­a­tion to a later date, changed his pleas to guilty on three charges in Jan­uary and was sen­tenced on March 21.

Two of the charges were against Shaf­fer En­ter­prises - be­ing re­spon­si­ble for burn­ing des­ig­nated ma­te­rial with­out writ­ten au­tho­riza­tion and con­tra­ven­ing a term or con­di­tion of an ap­proval – while the third charge was against the num­bered com­pany, an­other count of con­tra­ven­ing a term or con­di­tion of an ap­proval.

Prior to be­ing handed his sen- tence, Shaf­fer told the court he ad­mit­ted to “do­ing some things wrong” at the site that weren’t in ac­cor­dance with his ap­proval and he asked for “equal and fair jus­tice” with “ev­ery­thing that’s go­ing on around the prov­ince.”

Fines handed out

Judge Alan Tufts fined Shaf­fer $5,000 on the first charge, $18,000 on the sec­ond charge and $12,000 on the third, for a to­tal of $35,000 in fines. Of that, $30,000 will be di­rected to­ward en­vi­ron­men­tal funds for ed­u­ca­tion or other ini­tia­tives. Max­i­mum fines for the of­fences range from $500,000 to $1 mil­lion.

Shaf­fer has been given one year to pay the $5,000 fine; two years to pay the $12,000 fine and three years to pay the $18,000 fine.

Tufts granted a site as­sess­ment, mon­i­tor­ing and re­me­di­a­tion plan as re­quested by Crown pros­e­cu­tor Robert Mor­ri­son. Tufts did not or­der Shaf­fer to pay to have the de­tails of the case pub­lished in the news­pa­per, cit­ing “ad­e­quate me­dia cov­er­age.”

A fire at the North River Road prop­erty that is the lo­ca­tion of both the trans­fer sta­tion and the dis­posal site broke out on March 22, 2016. The Kentville Fire De­part­ment de­clared the blaze ex­tin­guished on March 27, 2016.

The fire led to En­vi­ron­ment Canada is­su­ing an air qual­ity warn­ing for Kings County. Tufts pointed out that there was no ev­i­dence of any air qual­ity test­ing or of any­one suf­fer­ing from the smoke that re­sulted from the burn­ing of so-called des­ig­nated ma­te­ri­als that weren’t per­mit­ted in dis­posal cells.

Is­sues with op­er­a­tion prior to fire

Tufts said Shaf­fer started deal­ing with the De­part­ment of En­vi­ron­ment re­gard­ing is­sues the de­part­ment had with his op­er­a­tion in Novem­ber 2015. These dis­cus­sions con­tin­ued un­til the fire oc­curred.

“He be­lieved that he had per­mis­sion to con­duct the op­er­a­tion as he was do­ing, which was not cor­rect,” Tufts said. “To be fair, Mr. Shaf­fer does not of­fer this as a le­gal ex­cuse. It ap­pears to be a mis­com­mu­ni­ca­tion or a lack of dili­gence or reck­less­ness on his part.”

Tufts said it’s sus­pected that the cause of the fire was spon­ta­neous com­bus­tion, which ap­par­ently is not an un­com­mon oc­cur­rence for these types of fa­cil­i­ties. Shaf­fer had ear­lier tes­ti­fied about a con­flict he had with the fire de­part­ment, which put his em­ploy­ees to work fight­ing the blaze. Tufts said Shaf­fer de­scribed chal­lenges with the wa­ter sup­ply and the ne­ces­sity to build a road to ac­cess the fire.

“Mr. Shaf­fer be­came very emo­tional in de­scrib­ing his ef­forts around deal­ing with the fire. It ob­vi­ously had a great im­pact on him,” Tufts said.

Shaf­fer had ear­lier tes­ti­fied that he was “$400,000 in the hole” as a re­sult of the fire, in­clud­ing $100,000 that he spent fight­ing the blaze.

Tufts said Shaf­fer has ac­cepted re­spon­si­bil­ity for the fire. It ap­pears clear from the ev­i­dence that Shaf­fer was not sort­ing and sep­a­rat­ing ma­te­ri­als ef­fec­tively as they came into the fa­cil­ity. Some ma­te­rial that wasn’t per­mit­ted in the C&D cell was de­posited on top of the cell, which Tufts said com­pounded the sit­u­a­tion when the fire be­gan.

Tufts said Shaf­fer al­lowed re­cy­clable ma­te­ri­als that he wasn’t sup­posed to keep for longer than 60 days to ac­cu­mu­late. Plas­tics and other ma­te­ri­als that weren’t al­lowed in the cell hadn’t been sorted out, which pre­sum­ably Shaf­fer “would have got­ten around to do­ing.”

Tufts said Shaf­fer’s di­a­logue with the De­part­ment of En­vi­ron­ment wasn’t fo­cused and he had been dis­cussing the sit­u­a­tion with them for months be­fore the fire. Tufts said there was a com­mu­ni­ca­tion gap and a lack of ur­gency to deal with the vari­ances that were iden­ti­fied.

Neg­li­gent, not de­fi­ant

Tufts said he would char­ac­ter­ize Shaf­fer’s con­duct as “neg­li­gent” or “reck­less” but he was not “de­fi­ant” in vi­o­lat­ing his ap­proval. Shaf­fer was try­ing to re­use and re­cy­cle items, which Tufts said was ad­mirable, but the ac­cu­mu­la­tion of ma­te­ri­als over­whelmed the sit­u­a­tion.

Tufts said fines are of­ten linked to the eco­nom­ics of an of­fend­ing op­er­a­tion but he didn’t hear any ev­i­dence on the eco­nomic size and so­phis­ti­ca­tion of the sub­ject busi­ness. This would be an im­por­tant part of his anal­y­sis. Tufts said fines couldn’t amount to a “li­cense fee” for com­mit­ting an of­fence.

Tufts said it isn’t clear how much plas­tic, rub­ber and other des­ig­nated ma­te­rial was present in the cell that caught fire. He ac­cepted Shaf­fer’s tes­ti­mony that there weren’t tires in the cell. There were as­phalt shin­gles, which were al­lowed in the cell but were not per­mit­ted to be burned.

He said Shaf­fer’s fail­ure to cap the cells ad­e­quately in­creased the risk of a fire and made it more dif­fi­cult to fight the fire. Cap­ping of cells was not done as pre­scribed with clay but in­stead wood chips and gravel were used.

There was no ef­fec­tive emer­gency plan; roads and ponds were not con­fig­ured as in­di­cated in the site ap­proval; and Shaf­fer had failed to con­struct stor­age sheds. Shaf­fer also didn’t have ad­e­quate mon­i­tor­ing wells.

Tufts said there was no ev­i­dence that the soil or ground­wa­ter con­tain leachate com­ing from items at the site. Test­ing was or­dered by the De­part­ment of En­vi­ron­ment and con­ducted by Shaf­fer but it was in­ad­e­quate. Tufts said he isn’t sure why the de­part­ment didn’t take it upon it­self to have the test­ing done to an ad­e­quate level to give a clear in­di­ca­tion if the en­vi­ron­ment had been com­pro­mised.

Tufts said high lev­els of ar­senic and lead have been de­tected but couldn’t be at­trib­uted to Shaf­fer’s op­er­a­tion. Tufts said he could spec­u­late on what caused this but it wouldn’t be ap­pro­pri­ate to do so.

KIRK STARRATT

Der­rick Shaf­fer talks with de­fence lawyer Chris Man­ning fol­low­ing Shaf­fer’s sen­tenc­ing on En­vi­ron­ment Act charges on March 21.

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