Community Press June 29/2001

Deloro charges against MoE dismissed
by Louise Livingstone

The Deloro pollution charges against the Ontario government were dismissed by Justice Celynne Dorval on June 27, 2001. She found the defendant, Ontario Ministry of Environment (MoE), has established on a balance of probabilities that it was duly diligent in the charge period that is between November 1995 and November 1997.

“Although, too much time had lapsed in fragmented studies of parts of the property previously, as of 1993 the defendant had a detailed and planned approach to the remediation of a complex site,” concluded Justice Dorval.

Janet Fletcher, Environmental Bureau of Investigation (EBI), laid the charges against the Ontario government in November 1997 relating to the Federal Fisheries Act and the Ontario Water Resources Act. She claimed there were continuous discharges of arsenic, cadmium, cobalt, copper, nickel and zinc into the Moira River and Young’s Creek during the period between 1995 and 1997

The Ontario Attorney General prosecuted the case assisted by Doug Chapman and Mark Mattson of the Sierra Legal Defence Fund. The case was based on water and sediment samples taken in the Moira River showing contamination levels well above provincial standards.

Justice Dorval dealt with the contaminants in the sediments and in the water separately. She dismissed the sediment charges because, “I find, however, that there is little evidence before me to establish that the metal contaminants in that sediment were deposited since the defendant has taken control of the site, let alone the charge period. In my view, the evidence establishes only that the levels of metals in the sediments are the result of historical releases, of migration of sediment, of seepages and possible metals from the watercourses “settling” in the sediment. The prosecution has failed to establish these counts and they are dismissed,” said Justice Dorval.

On the water side, she argued the crown must establish three things, “that the defendant permitted the release of contaminants, that there are fish in the water into which it was released, and that the substance is deleterious to any species of fish when added to water.”

There was agreement in the court that contaminants were released into the water and there were fish in the Moira River. As to whether or not the contaminants harmed the fish Justice Dorval concluded, “as I understand the definition, it simply means that once a substance has been found to be deleterious to fish when added to water anywhere, it than becomes an offence to deposit it into water in any other location.” She was satisfied that the prosecution has established all these elements beyond a reasonable doubt.

The defendant, Kenneth Jull, argued it has established that it (MoE) acted with due diligence throughout the period it had control of the Deloro site. In answer to this Justice Dorval said, the “onus on the defendant is not with respect to the entire period of its management and control of the site, but it must establish on a balance of probability that it exercised due diligence with in the period of the event 1995 to 1997.”

Her next task was to define what due diligence means. “Reasonable care and due diligence do not mean superhuman efforts, they mean a high standard of awareness and decisive prompt and continuing action. The defence must show that it took all reasonable steps, not that it took all conceivable steps.”

Although she found the prosecution has established the defendant did not always meet the criteria on the Certificate of Approval for the site, she said this was a separate offense, and not the charge she was dealing with.

She came to the conclusion, “Although too much time had elapsed in fragmented studies of parts of the property previously, 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 pending the approval of funding.

“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.”

After this decision was announced, The Community Press asked the Ontario Ministry of the Environment (MoE) about progress with “this detailed and planned approach.”

“We can turn our full attention to the Deloro cleanup now the charges are dismissed,” said Richard Raeburn Gibson (MoE). He went on to say, before the end of the year there will be meetings with stakeholders about the preparation of the draft closure plan for the Deloro site. A broad public consultation process will follow to decide the final use of the site.

For the last 20 years Tom Deline, reeve of Centre Hastings has fought for action at Deloro. His reaction to the news is, “Let’s hope the ministry [MoE] can now put 100 per cent effort and finances towards containing the Deloro site.” He hopes Deloro public liaison group can meet as it has not met for nearly two years.

Tom Adams who brought charges against MoE for leaving radioactive material in Deloro Village told The Community Press, the date has been set to hear these charges.

“The MoE has taken helpful and constructive action to improve radioactive safety in the village after the charge was brought,” said Adams “We will keep the pressure on the MoE to finally table an action plan,” said Janet Fletcher. “The MoE acknowledges 5,000 kilograms of arsenic still enters the Moira River from Deloro each year, getting into Moira Lake, Stoco Lake and the Bay of Quinte.” She promised the EBI will stay on the case to protect people and wildlife.