September 23, 2003

Times & Transcript

Moncton pleads guilty in dump case
by Rod Allen

The City of Moncton severed itself from a court case involving the old city dump by pleading guilty to a single charge in provincial court yesterday, leaving tax payers with a bill for anywhere from $35,000 to more than $700,000, depending on what happens next.

The municipal government and its chief engineer Geoff Greenough had been charged jointly by Environment Canada under the federal Fisheries Act with permitting a ‘deleterious substance’ namely toxic leachate from the old dump located in the middle of town – to leak into the Petitcodiac River and a tributary, Jonathan Creek.

Also charged in the case are engineering consultant Gemtec Inc. and its senior engineer, Robert Lutes, as the parties who recommended what is now alleged to be an inadequate closure scheme for the old dump after it was decommissioned in 1993 with the opening of the new regional landfill in Berry Mills north of the city.

At the outset of a scheduled Monday morning trial, however, Crown prosecutor Paul Adams withdrew the original charge against the city and Greenough, then introduced a new one against the city alone, effectively dropping the charge against Greenough.

Defence lawyer Bernie Miller subsequently entered a guilty plea on behalf of the city, and provincial court Judge Irwin Lampert acting on the joint recommendation of both lawyers – imposed fines and levies totalling $35,000 and ordered a ‘remediation plan’ to stop the flow of dump effluent still presumably pouring into the two waterways.

Evidence called during the penalty phase yesterday estimated that at the time the now 32-year-old dump was decommissioned in 1993, 580,000 litres of leachate were pouring into the two waterways every day.

No evidence was called about the amount still pouring in after the city adopted in 1995 the cheaper of two closing-out options recommended by Gemtec (one costing $2 million and the other $13 million, but both allegedly described by Gemtec as being compliant with environmental laws).

However, the court was also told that during tests conducted in 2000 and 2001, rainbow trout were exposed to various concentrations of the leachate. The fish showed signs of stress immediately and within a few hours, were dead in all cases, said Adams.

Miller noted that other findings from Environment Canada suggest the leachate is now considerably diluted by the time it enters the system, although he did not call specific evidence on the amount of dilution or to what degree the diluted leachate is less lethal to fish.

An underground perimeter pipe, which had been collecting and diverting leachate from the dump directly into Jonathan Creek since 1995, has since been removed but court was not told yesterday what effect that has had.

In any event, the court ordered the municipal government to immediately obtain the permits it needs from various provincial and federal authorities to initiate a new remediation plan, with the goal of having the work completed within 18 months.

In court, the cost of the remediation plan was estimated by the lawyers to be “at least $500,000,” although a news release issued from Environment Canada later in the day estimated the cost “as high as $700,000.”

But what price the tax payers will ultimately bear may depend on the remainder of legal proceedings. A separate trial against Gemtec and Lutes started yesterday afternoon before provincial court Judge Yvette Finn.

Two weeks are set aside for the trial and much remains to be done in that case. However, if Gemtec is ultimately found guilty it could put the city government in a position to recover part or all of its remediation costs from Gemtec through a civil action.

Whether the city goes that route remains to be seen, however.

“There is not much discussion on that at this point,” said Assistant City Manager Don MacLellan yesterday.

“We’ll let the process play itself out. What I reiterate now is that the city is just happy to change gears and move on with the remediation plan.”

MacLellan had also issued a news release earlier in the day, couched in terms that suggested it was an explanation for the guilty plea.

“While the fine and penalties are considerable,” said MacLellan in the release, “the funds needed to argue the case would have been greater and given the circumstances, the result uncertain.”

Again acting on the joint recommendation of counsel, Judge Lampert specified that the remediation plan must fortify the banks around the landfill to contain the leachate, divert Jonathan Creek east of the dump to prevent further erosion, build an ‘engineered zone’ around the dump to reduce the toxicity of the leachate, improve any damaged marshland around the two waterways and continually thereafter, monitor various sites around the dump for the presence of leachate and the degree of toxicity.

The court gave the city 90 days to complete the initial process of requiring all the necessary permits, and to pay the $35,000 in fines and levies.

Those include a $10,000 fine, a $5,000 payment to the Environmental Damage Repair Fund administered by Environment Canada and $20,000 to Jonathan Creek Committee Chairman David Holt, for use in ongoing efforts to restore the historic waterway.

Jonathan Creek was the waterway used by the ship which landed seven German ‘founding families’ to the area from Pennsylvania in 1766.

The trial of Gemtec and Robert Lutes – a descendant of one of those families – continues this morning.