February 10/2006

Times & Transcript

Pollution trial hears final arguments
by Craig Babstock

Final arguments were made today in the trial of Gemtec and its chief engineer Robert G. Lutes, who face accusations they violated the Fisheries Act.

The Fredericton-based consulting firm and its employee face two charges each of unlawfully depositing a deleterious substance into water inhabited by fish in 2000 and 2001. The charges were laid by Environment Canada in February 2002.

Gemtec was hired by the city and presented a plan to close the old municipal dump on the banks of the Petitcodiac River in 1994.

Charges were also laid against the City of Moncton and Moncton’s commissioner of Engineering and Public Works, Geoff Greenough. The city pleaded guilty in September 2003 and was fined $35,000 and ordered to implement a remediation plan to stop the leachate from entering the river system. The charge against Greenough was withdrawn.

Environment Canada’s investigation began in 2000, after the Petitcodiac Riverkeeper brought the matter to the department’s attention.

In October 2003 the trial began. Crown prosecutor Paul Adams called 17 witnesses and had closed his case when defence lawyer Robert Kenny successfully argued to have the charges thrown out on technical grounds.

Two years later Adams successfully appealed that decision and a new trial was ordered. Judge Yvette Finn, who heard the first half of the trial in 2003, presided over the continuation of the trial this past December. Yesterday she listened to final arguments from Kenny and Adams.

Kenny went first, arguing there is no way this pollution can be blamed solely on Gemtec and Lutes.

“It was an environmental disaster ready to happen and was happening,” he said. “Leachate was clearly going into the river before Gemtec became involved.”

Kenny said the closing report for the old dump was a starting point for dealing with the leachate, not the all-inclusive solution. And he said Gemtec stayed with the project for several years, filing monitoring reports to the federal and provincial governments. But he said no government official ever came to them and expressed unhappiness with the amount of leachate entering the water.

Kenny added that it would be an “impossible task” to cap this dump and have no run-off into the water.

“One hundred per cent containment is not realistic,” said Kenny, referring to evidence given during the trial. “It’s an impossible standard. Nowhere did the defendants undertake to erase all that leachate.

“Imagine how much leachate was going in before Gemtec got involved.”

But Adams countered that the company didn’t even try to hinder the leachate’s journey into the river.

“We’ll just let the leachate flow into the river system without any mitigating steps,” said Adams. “Dilution was the solution.”

The prosecutor said it was strange to see such an approach in the mid-1990s.

“To be frank, this is 1950s environmental management.”

Adams said the city received expert advice saying the proposed closure option may violate the Fisheries Act and they shared those concerns with Gemtec, but the company went ahead and recommended that plan to the city and later implemented it.

Adams said he disagreed with the defence’s contention that if the provincial government was ultimately responsible for this, that absolves Gemtec of guilt. He says the Crown just has to prove Gemtec had some aspect of control over this situation, which he contends the company did.

“No one was more responsible for how that site was managed than Gemtec,” said Adams.

He told the court 50,000 litres of leachate per day were running into the river and made reference to photos of a collector pipe at Jonathan Creek that were entered as evidence during the trial.

“It reminds me of some small brooks I went trouting in when I was a kid – it was extreme,” said Adams.

The judge will deliver her verdict in April.