How Dexter Construction avoided 2 charges under the Environment Act

Nova Scotia’s Minister of Environment & Climate Change has admitted his department negotiated with Dexter Construction before the Public Prosecution Service withdrew a charge against Dexter under the Environment Act. 

The charge was for altering a wetland without prior approval.

The wetland is next to the Arlington Heights C&D (construction and demolition) dump, which receives truckloads of asbestos, construction materials, and hazardous wastes from Halifax sites 175 kilometres away. 

Before it was bulldozed by Dexter in November of 2021, the large wetland (its size is in dispute) acted as a natural buffer to prevent leaching of hazardous materials or silty runoff from the site.

The Arlington facility has been operating for almost 20 years atop the North Mountain in the Annapolis Valley. 

Nearby residents, whose wells are downslope, remain unconvinced by statements from the Environment Department that the dump’s soils are “impermeable” and there is no contamination leaching from the dump into the groundwater. 

Kip McCurdy is a local resident and co-founder of the Annapolis Waterkeepers. Late in the fall of 2021, McCurdy noticed a large area of the natural wetland had been bulldozed by Dexter Construction and there was a lot of silt running off. 

This was the action that led to the subsequent charge in February 2022 against Dexter for altering a wetland without permission under the NS Environment Act. 

The Waterkeepers inquired about the status of that charge this spring, and on May 5, the Examiner emailed the Environment department asking for an update. Communications advisor Mikaela Etchegary wrote that a charge had been filed under Section 50 (2) and any further information would have to come from the Public Prosecution Service (PPS). 

It’s now clear that the case had already been settled — and the charge against Dexter withdrawn — by May 5, the date when the Examiner requested information from the government. 

A letter dated June 2 from Environment Minister Tim Halman addressed to Bob Bancroft, president of Nature Nova Scotia, confirms what had been suspected and reported by the Halifax Examiner in a May 11 article. 

The following excerpt is from the June 2 letter the Minister sent to Bancroft in response to the concerns Bancroft raised about the Arlington dump:

Nova Scotia Environment and Climate Change conducted an inspection at the property on November 17th, 2021 and noted the destruction of a wetland at the site. On February 23rd, 2022, after the conclusion of an investigation, charges were laid under section 50(2) of the Environment Act. As you mentioned, Arlington Heights C & D Limited (AHCD) was required to make a $15,000 donation to Ducks Unlimited. 

In addition, the company was required to provide compensation for the altered wetland at a ratio of 2:1. A signed agreement is in place for the construction of the new wetland which is in accordance with the Nova Scotia Wetland Conservation Policy. The decision to withdraw the charge was made by the Public Prosecution Service in consideration of the negotiated items mentioned above.

According to the spokesperson for the PPS, Melissa Noonan, the charge was withdrawn April 18, 2023, a couple of weeks before the Examiner made its request for information. 

The Annapolis Waterkeepers have requested a copy of the agreement between the Environment Department and Dexter Construction, but the government has denied that request. Dexter declined an interview request from the Examiner.

Ducks Unlimited in the dark

Beth Cranston (left) and Kip McCurdy at an Earth Day rally in Halifax. Credit: Beth Cranston

Ducks Unlimited Atlantic’s managing director Adam Campbell says the donation from Dexter this spring “came out of the blue.” 

Campbell says the non-profit was unaware there were any strings attached, or that it was part of a negotiated settlement between the company and the province for altering a wetland. 

Ducks Unlimited thanked Dexter for its donation and the regional director says the first he knew of the Arlington controversy was what he read in the media.

Waterkeeper Kip McCurdy called the $15,000 paid to Ducks Unlimited “nothing more than a PR stunt” and claims any negotiated settlement should have required Dexter to pay for regular testing of the wells for residents downslope from the dump. 

McCurdy also claims the damaged wetland is larger than what the government identifies. In his view, the 2:1 ratio of newly created wetland to compensate for the area altered or destroyed is an inadequate offset because the estimate of the wetland area was too low. 

Bancroft’s letter from Nature Nova Scotia to Halman, dated May 15, 2023, criticized how the Environment Department has handled the issue around the destruction of the wetland. 

The letter also raised the issue of the department’s subsequent rejection of a review of the dump site by hydrogeologist Paul Hubley. 

Hubley’s review, which was commissioned by the Waterkeepers group, called the original 2004 work done for government to assess the site before it was approved, “flawed and inconsistent” because of the methods used to analyze soil samples and water conductivity. 

Bancroft’s letter stated:

Nature Nova Scotia wishes to comment on the May 11/23 articles in the Halifax Examiner and the National Observer digital newspapers last week regarding the Arlington Heights Construction and Demolition dump. The articles highlighted the bulldozing of a constructed wetland designed to prevent toxic dump leachate from moving down-slope into the wells of 15 nearby homeowners. The charge for destroying this wetland was dropped. The company contribution of $15,000 to Ducks Unlimited does absolutely nothing to rectify the situation at the Arlington dump.

 You rejected a request by Annapolis Waterkeepers for more testing after a 2018 FOIPOP indicated the presence of many toxic elements at high levels. They had hired a hydrogeologist who also questioned the classification of the site as impermeable. Can the Department provide evidence for a healthy status quo? The existing public evidence in this case indicates a toxic status.

Halman defends decision

A man wearing a black suit, grey shirt and grey tie speaks into a microphone at a podium. In the background are three Nova Scotia flags, coloured blue, yellow and red.
Environment Minister Tim Halman speaks to reporters in Halifax on Thursday, Oct. 7, 2021. — Photo: Zane Woodford

In his reply to Nature Nova Scotia, Halman states he stands by the conclusion Arlington Heights is built on “impermeable soils.” He reassures residents that staff in the Environment Department are continuing to monitor the site and enforce regulations to ensure their water is safe to drink. 

Here’s another excerpt from Halman’s letter:

Regarding the hydrogeologist report provided by the Annapolis Waterkeepers, we have conducted a thorough review and analysis, and our conclusion is that the site does meet the C&D Guidelines requirements and is consistent with the supporting documentation provided during site construction. The permeability of the soils at the site have been determined to be low and in compliance with the requirements.

The department has since provided further supporting documentation to the hydrogeologist who developed the report based on a desktop review. In addition, ongoing monitoring at the site has provided no evidence that shows any impacts of site activities to groundwater.

Halman cites “reporting inaccuracies”

Halman’s letter to Bancroft begins by thanking him and then states the Halifax Examiner articles contained “inaccuracies”:

Thank you for your letter dated May 15, 2023, regarding the Arlington Heights Construction and Demolition disposal site and wetland conservation. Unfortunately, several inaccuracies were printed in the articles and the Public Prosecution Service has since reached out to the reporter with additional details to support the facts, requesting a correction.

Minister Halman is correct. There are inaccuracies in the article published May 11, 2023 in the Halifax Examiner. But our position is these inaccuracies could have been avoided had the Environment Department been transparent in the first place and answered a question about the status of the wetlands charge. 

Here is the May 5 email exchange between this reporter and Environment communications advisor Mikaela Etchegary:

From reporter Jennifer Henderson to Etchegary:

Hi Mikaela. I think this should be my last question related to the Arlington C & D landfill. Could you check on my behalf to see what happened with respect to a charge or charges laid under the Environment Act against Dexter… I think laid in late 2021… for bulldozing a large area of wetland without approval? I believe Dexter was expanding the site to deposit asbestos and altho the company had an EA approval for some of the work, this wetland area was not covered by the approval.

I would like to know the precise charges laid under the Act and if they went to court or have been withdrawn. Also if the company received a penalty and if so, how much?

Thanks for your help, once again…Jennifer

Etchegary’s response:

Hi Jennifer,

NS-ECC laid charges under section 50(2) under the Environment Act (Commencing or continuing an activity without an approval). You would need to speak to the Public Prosecution Service or the company for further details.

Thanks, Mikaela

That was Friday, May 5. The Examiner learned many weeks later that the charge alleging Dexter had bulldozed a wetland at Arlington without approval had been withdrawn on April 23, 2023 — 10 days before the Examiner reached out to Environment for an update and just days before the department renewed Dexter’s industrial approval to continue operating the Arlington Heights dump. 

It’s strange no one in the legal department told the Environment Department’s communications advisor the case was closed. Had that information been forthcoming, the confusion that led to the “inaccuracy” could have been avoided.

Here’s how that happened — which provides an insight into the reporting process when you are looking for information and have been given some of the facts but not all of the facts. 

On the afternoon of May 5, the Examiner called the Public Prosecutions office, as instructed by the communications advisor for Environment. A check of the database by communications advisor Melissa Noonan found one section 50(2) charge levied against Dexter Construction. 

No further info on the charge or past prosecution history was available at that time because the computer system was down. Environment had not specified a date when the charge was laid, so cross-referencing wasn’t possible.

On Monday May 8, Noonan called back to say the 50 (2) charge filed against Dexter on February 18, 2020 was withdrawn on July 29, 2022, because the two-year statute of limitations under the Environment Act had expired. No description of the charge was available, but because it matched the Section 50 (2) violation of the Environment Act and we had no additional information, the Examiner reported the charge against Dexter was dropped because the clock had run out.

It turns out that statement was only half correct. Yes, the charge against Dexter for altering a wetland without approval had been withdrawn. But no, the reason wasn’t that “the clock had run out.” 

The behind-the-scenes maneuvering that led to Dexter getting off the hook is spelled out in Halman’s June 2 letter to Nature Nova Scotia. And additional digging led to a subsequent Examiner article on May 25, 2023 that revealed the corporate donation to Ducks Unlimited as a possible factor in some type of settlement or plea bargain.

Still looking for transparency

In Halman’s letter of June 2, he says the Crown Prosecutor was made aware of a settlement agreement. But PPS spokesperson Melissa Noonan says its lawyers can’t talk about agreements negotiated outside of court. 

The Waterkeepers have asked the Department of Environment for a copy of that agreement, but the request was denied. The group will try to access it through Freedom of Information Protection of Privacy (FOIPOP) legislation — which can be as long as an 18-month wait.

And what about the other Section 50(2) offence under the Environment Act laid against Dexter Construction in February 2020? 

After the PPS emailed to say the May 11 article contained an error, the Examiner learned the company had been charged for commencing an activity without approval in Hants county. Dexter failed to obtain approval from the Environment Department before it began temporarily infilling part of the Nine Mile River during construction on a bridge in February 2020.

Tale of two wetlands

The story gets more complicated. 

Just as there were two identical charges involving Dexter, there also appear to be two interpretations of what constitutes “wetlands” associated with the Arlington Heights C&D site. This may have led to another “reporting inaccuracy” in the May 11 article. 

The large wetland, which the Waterkeepers estimate at three hectares (about 10 acres), is part of a natural buffer between the dump and the brooks and homes downslope. This is the one Dexter was charged with bulldozing in 2021. 

But there is also a smaller, artificial wetland that was “engineered” when the dump expanded in 2017 to accept asbestos.

“The wetland altered at the property was not constructed nor used for the treatment of leachate at the property,” writes Hallman in his letter to Nature Nova Scotia.

But Kip McCurdy of the Waterkeepers says that in response to earlier questions, Environment has repeatedly told them that the “large wetland” was designed to receive and treat leachate from asbestos disposal beds. 

McCurdy says “details of the claim appear in the Project summary and Description and in the Environmental Assessment Registration for the asbestos expansion plan of 2017. The plans name the large wetland as the designated receptor of the runoff and leachate, and describe the ditching, settling beds, filters and screens that were to be installed and maintained as a necessary part of the project.”

McCurdy thinks it possible that even inspectors with the Environment Department may have confused one wetland with another. 

In 2018, McCurdy wrote to the then-Minister of the Environment, Margaret Miller, to complain about a clearcut he observed on what he describes as the large, natural wetland. 

The response he received from the Department found no evidence of that. Here’s the email exchange detailing the complaint and the response from the department.

From McCurdy:

Sent: September 4, 2018 12:47 PM
To: Minister, Env <[email protected]>
Subject: Complaint: Clearcut at Arlington Heights Asbestos disposal Facility; erosion of disposal cells leaving exposed and open bags of asbestos

Yesterday during a hike in my woodlot, I discovered that the wetland at the Arlington site had been completely clearcut. The wetland served not only as a greenbelt buffer between the dump and adjacent properties, but as a drinking water reservoir for all the residents of St. Croix Cove.  The wetland is now barren of vegetation, badly rutted and subject to erosion.  Worse, the site will not be able to revegetate and anchor the soil for at least a year.  This exposure of bare soil will also deliver discolored water and silt to the wells and springs of the people of St. Croix Cove.

The reply:

OCT 3 2018 

Dear Kip Mccurdy: 

Thank you for bringing your concerns regarding the Arlington Heights Construction and Demolition (C&D) debris disposal facility, 1481 Arlington Road West, Hampton, to the attention of Nova Scotia Environment (NSE). 

On September 6, 2018, NSE staff conducted an inspection at the facility. The site inspection revealed no evidence of wetland disturbance or runoff. The wetland on the property is engineered as a leachate collection system. At the time of the inspection, the asbestos waste disposal facility met the terms and conditions of the approval. 

The facility was issued an Environmental Assessment approval on March 7, 2017. The facility intends on expanding the asbestos disposal facility. Logging and cutting of trees on this property relates to site development for the expansion and was contained within the approved boundaries.

To this day, McCurdy insists the logging he saw in 2018 took place on the large wetland outside the approved area and that a charge ought to have been brought against the former owner of the dump, Meb Poole, before Dexter bought it in 2020.

Despite Halman’s reassurance, the citizens who formed the Annapolis Waterkeepers group in 2018 are not confident the government has their back. 

The group has filed documents appealing Halman’s decision of April 27, 2023 to renew Arlington’s industrial approval for another year. (Coincidentally, that approval was granted just four days after the charge against the owner-operator, Dexter Construction, disappeared.)

The Waterkeepers had requested to be notified about the Industrial Approval decision because any appeal or protest must be filed within 30 days. The government did not notify the group, nor was the renewal of the industrial approval posted on the department website.

The Arlington Heights dump has operated for nearly 20 years. In March of this year, Minister Halman stated he is willing to meet with the Waterkeepers to discuss their concerns.

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