Court acquits MOE Deloro pollution
by Derek Baldwin
The Ontario Court Provincial Offences Division acquitted the Ministry of Environment Wednesday of charges it allowed the abandoned Deloro Mine near Marmora to flood the Moira River with tonnes of arsenic and other heavy metals.
But the Environmental Bureau of Investigation, the agency that brought eight private charges against the government in 1997, said it will try and convince the Attorney General to appeal the decision.
The Attorney General has 30 days to decide whether to file with the Ontario Court of Appeal.
Justice Celynne Dorval, in a ruling delivered in an Ottawa court Wednesday, said the environment ministry will not be held criminally responsible for the toxic mess at Deloro. In her legal opinion, the ministry has made reasonable attempts to prevent the mine from further polluting the Moira rivershed.
Deloro Mine, assumed by the MOE in 1979, has been called the worst environmental disaster in Ontario and has been leaching arsenic from lands abutting the Moira that, according to tests by the EBI, have reached levels up to 160,000 parts per billion in water, 4,800 times the allowable drinking water standard in Ontario, her ruling revealed.
Environmental experts say 2.5 ppb of arsenic in water can be harmful.
As much as 3,000 to 5,000 tonnes of arsenic flowing annually from the mine into the Moira are believed to flow downstream toward Belleville.
Dorval told the court she believed the ministry has done what it could to prevent arsenic from flowing freely into the river, referring to the fact that the ministry has installed a treatment facility on site.
She said “as of 1993, the defendant had a detailed and planned approach to the remediation of a complex site. The defendant proceeded with minor but essential components of its plan . . . I have considered all factors relevant to due diligence and conclude that the defendant has indeed established on a balance of probabilities that it was duly diligent in the charge period that is between November 1995 and November 1997.”
The decision was disappointing for EBI’s Janet Fletcher who laid the private charges against the ministry and ultimately convinced the provincial Attorney General’s office to prosecute on her agency’s behalf.
In a phone interview, Wednesday, from Ottawa, Fletcher said she still doesn’t believe the MOE showed due diligence because the site is still in a woeful state and is spewing heavy metals daily into the Moira rivershed.
Her charges were laid under the federal Fisheries Act and the Ontario Water Resources Act after Fletcher argued the ministry was breaching its own regulations by allowing the pollution to endanger not only the village of Deloro, population 170, but also a river system and all who live downstream to Belleville and the Bay of Quinte.
“I don’t think having a plan is having due diligence,” said Fletcher. “They’ve had a plan for 20 years. This is what I see as a major flaw in the law, that all they have to do is commission a consultant and they’re doing due diligence.” EBI colleague Tom Adams, however, said Fletcher’s work was not all for naught.
In fact, he said, managing to even get the charges heard in court has prompted serious progress by a less-than-willing ministry.
For example, Adams said since the charges were first laid in 1997, the ministry has completed a health risk assessment of the Deloro village, completed a river study, has posted warning signs and has erected a massive fence around the 242 hectare site.
“The health risk assessment did identify children with high levels of arsenic in their urine and high levels of arsenic in the homes in the village. Every step taken is good,” said Adams, from Ottawa.
Fletcher said the decision “doesn’t do much for people living on Moira River and Moira Lake. But I feel good we’ve done that and raised the issue.”
Environment ministry spokesman Mark Rabbior, meanwhile, issued a statement Wednesday noting that since the MOE took over the site it has “invested more than $16 million in the clean-up project, reducing the amount of arsenic coming off the site by more than 80 per cent. The ministry is in the final phase of clean-up which will control and securely contain all types of contamination at the site, from arsenic to radioactivity. Consultation on the final clean-up plan is targeted to begin this year.”
Other private criminal charges laid by EBI that allege radioactive materials have been dumped into the Moira from Deloro will be heard in Ottawa courts Aug. 30.
A multi-million dollar civil lawsuit — previously delayed by the criminal trial — by residents of Deloro and downstream communities can now proceed into the civilian courts if it is certified by court officials.
Residents are suing former mine owners and the government for exposing residents to high levels of metals and contaminants.
Environmental Bureau of Investigation 