Dec 15 2005

The Kingston-Whig Standard   December 15/2005

Cataraqui pollution fight over    by Jennifer Pritchett and Sue Yanagisawa

Almost nine years after Janet Fletcher started a legal battle to stop garbage ooze from leaking into the Cataraqui River from under a municipal golf course, her fight is over.

But the final deal, negotiated in private over the past 10 months between three lawyers representing the Environment Ministry, City Hall and former city employee Mirka Januszkiewicz, is a bitter pill for the environmentalists who worked to have the city fix the site.

The deal was presented yesterday to Superior Court Justice Helen MacLeod as a fait accompli for her to endorse.

The city must pay 60,000 in fines for three convictions under the federal Fisheries Act. The municipality was originally liable for 30,000 in fines on those charges, all of which relate to its unlawfully depositing or allowing the deposit of a deleterious substance in waters inhabited by fish.

The substance in this case was garbage dump leachate.

Since 1997, when Fletcher’s court challenge provoked the municipality to take action, 1.77 million has been spent on remediation at Belle Park, including systems to collect ground water and replacement of some surface soils.

The city’s legal bill for the long battle was put at 457,000.

Yesterday’s deal also changes the sentence for one of three convictions registered and ultimately upheld against Januszkiewicz, who was director of environment for the city at the time of the offences. She left Kingston after a subsequent job she held with the city was eliminated in 2000.

Justice of the Peace Jack Bell, who presided over the initial Fisheries Act trial and sentencing in 1998 and 1999, had originally suspended sentencing against the City Hall staffer.

However, as part of a resolution worked out to avoid yet another appeal, her Toronto lawyer Harry Poch agreed on her behalf to a fine of 1,000.

In return, Environment Ministry prosecutor Jerry Herlihy agreed to give up on a contentious court order that required the city to devise a plan for putting a clay cap over the Belle Park Fairways golf course to reduce the amount of water that percolates through the estimated three million tonnes of garbage underneath the nine-hole layout.

Mark Mattson, who helped Fletcher launch the case against Kingston in 1996 and is now president of Lake Ontario Waterkeeper, was disappointed by the deal.

This is terrible, he said outside the courtroom after learning the details, which hadn’t been elaborated on in court. These guys are letting the polluters off the hook, without a cap.

Fletcher, who moved several years ago from her home in the Inverary area to Nova Scotia, saw the final outcome after years of battling as pretty pathetic.

The city has been dancing around fixing this problem for almost a decade now and it would have been nice if the court had made sure that they did do something about it, she said in a phone interview from her home on the East Coast.

As far as I’m concerned, if the courts aren’t going to be the remedy, then the ministry needs to be the remedy here.

Mattson said: We don’t see this as a failure by the courts. But after the Ontario Court of Appeals decided not to restore four Fisheries Act convictions secured by Fletcher’s private prosecution, Mattson felt the case lost its focus.

The larger part of the original penalty imposed on the city was based on the four counts of polluting fish habitat that Fletcher launched privately with legal help from the Sierra Legal Defence Fund and prosecuted along with the ministry charges.

The justice of the peace levied fines totalling 120,000. And under a whistleblower provision of the Fisheries Act, he assigned half of that money to Fletcher, who had planned to turn it over to Sierra Legal Defence to help cover legal costs. It was a landmark decision for Ontario.

The city immediately launched an appeal, however, and the money never changed hands.

Following the Ontario Court of Appeal decision last year, Fletcher chose not to pursue a new trial, believing that the penalties would be enforced.

The city still had one more right of appeal on sentencing and played it to get rid of the court order. Peter Doody, an Ottawa lawyer the city hired to fight the case, said the study order had been a stumbling block.

The City of Kingston, through Doody, has maintained that capping the site is unnecessary and unreasonably costly. He’s cited figures of 1.3 million to produce the engineering plan and 13 million to install a clay cap.

The city’s environmental manager, Paul MacLatchy, maintains that a clay cap would do little to prevent garbage juice from leaking out.

The dump was founded in 1952 when the city and local businesses began dropping trash on the marsh bed between Montreal Street and Bell Island in the Cataraqui River.

By the time it was officially closed in 1974, the dump had formed a three-metre-deep land bridge linking the island with a steeper mound of garbage at the north end that the city at one point suggested would be developed into a ski hill.

Instead, it became a repository for Kingston’s street sweepings. The rest of the site, covered with a relatively thin layer of soil, became a municipal golf course.

At its heart, however, 22 years worth of garbage is resting on a porous bed of cattail remnants. MacLatchy and the municipality take the position that since the river is penetrating the garbage column from below, capping it against the percolating effects of rain and snow melt would have little effect on pollution levels.

Environmentalists believe a cap could reduce the amount of leachate oozing into the river by as much as 50 per cent. But, without studies, the figure is a guess.

MacLatchy meanwhile, maintains that the preferred option that we’re working toward for Belle Park in the long term is not going to be some sort of silver bullet that comes out of the blue sky.

It’s going to be a combination of what we’re doing now, plus some enhancements, using some natural treatment methods and maybe even some small amount of capping in areas of the site where it is reasonable to do it.