City delays case to make deal

The Hamilton Spectator, September 13, 2000
by Eric McGuinness

Hamilton negotiating guilty plea on toxic liquid seepage in Red Hill

The City of Hamilton is negotiating terms of a guilty plea on charges it allowed toxic liquid to leak into Red Hill Creek from the old Rennie Street garbage dump.

When the case came up in court Monday, lawyers asked Justice of the Peace Don Stevely for another week to make a deal covering two charges laid privately by an east-Hamilton environmental activist and one by the Ontario Ministry of the Environment (MOE).

The city might not plead guilty to all three. A plea bargain could involve the city admitting guilt on one or two while the other or others are withdrawn or stayed. Payment of legal costs and a fine, if any, are likely part of the discussions.

Lynda Lukasik laid two private charges last November, one under Ontario’s Environmental Protection Act and one under the federal Fisheries Act.

An MOE investigator added the third charge under the Ontario Water Resources Act.

Lukasik is represented by Doug Chapman, lawyer for the Sierra Legal Defense Fund, who told Stevely the parties involved wanted the matter put over to Monday.

“Negotiations are going on right now. We are in the midst of those negotiations.”

Stevely sought assurance he wasn’t being asked to set a trial that day, and Chapman said: “I understand it is definitely not for trial. We estimate it will be shorter than half an hour and longer than 15 minutes.”

Stevely then asked, “Are we talking about a plea?” Chapman replied, “That’s a possibility, sir.”

Alderman Chad Collins, who chairs the city’s transport and environment committee, confirms the possibility was discussed by council in a closed-door meeting with legal staff last week.

A source outside City Hall suggested council might formally approve an $8-million to $11-million remediation plan before the next court appearance.

Collins said no council meeting was scheduled but didn’t rule out a special meeting of the committee of the whole.

The Rennie Street case is believed to be only the second in which the MOE has investigated and prosecuted an alleged pollution offence after a private citizen or citizens laid charges.

Lukasik, assisted by the Toronto-based Environmental Bureau of Investigation (EBI), collected samples of liquid seeping into the creek from waste buried beneath a city works yard built after the dump closed.

They say fish dipped in the leachate died within minutes. They also turned up correspondence n which the city acknowledged concerns about seepage and promised remedial action in August 1998.

The ministry alleges that between Aug. 5 and Sept. 30, 1999 the city discharged or allowed the discharge of toxic leachate that impaired water quality in the creek.

In the only previous such case that’s come to light, the City of Kingston was convicted and fined $150,000 last year after charges were laid by citizens, the EBI and later the ministry.

There are appeals by both sides in that case, which also involves a waste-disposal site.

Since Lukasik’s charges were filed, the city and region put floating booms and absorbent pads in the creek to trap leachate. They also installed temporary systems to collect leachate from the creek bank.

Staff propose installing an $8-million permanent system that will require federal and provincial approval.

Another $3-million might be required to treat collected leachate before it’s released into the sewer system.

Collins said council only approved the permanent solution in principle when it gave the go-ahead for the temporary measures to keep leachate from reaching the creek.

The city’s case is being handled by lawyer David Crocker of the Toronto firm Power Budd. Vivian Harvey is agent for the Crown, representing the MOE.