Feb 26 2001

Kingston Whig-Standard

Meet the experts tonight on Belle Park pollution

by Sue Yanagisawa

Kingston’s appeal of pollution convictions and $150,000 in fines levied over its leaky retired dump-site beneath Belle Park is back in court today, ostensibly to set a date for an appeal hearing.

But the case may not make it onto the court schedule this year. City documents outlining the basis for its appeal were filed only last month and Ministry of Environment prosecutor Jerry Herlihy will need time to prepare a written response on behalf of the Crown.

ADVISORY FORUM

Meanwhile, tonight the Kingston Environmental Advisory Forum is inviting people to an information meeting on Belle Park’s environmental past and future at City Hall between 7 and 9 p.m.

The participants include:

– Paul MacLatchy, manager of the environment division of city planning and development services;

– City consultant Steve Rose, Belle Park project manager for Malroz Engineering Ltd., hired in 1997 to deal with the leaks;

– Ken Reimer, director of the environmental sciences group at Royal Military College, whose students recently conducted an independent study documenting PCBs [polychlorinated biphenyls] in the sediments off Belle Park’s south shore;

– Kerry Rowe, Queen’s University vice-principal of research, a geotechnical engineer with expertise in landfills.

The public is invited to quiz the experts about the problems generated by landfill practices over the last 50 years.

A media release from the city suggests the meeting will “explore” information about the type of material deposited at Belle Park from 1952 until around 1973, when the dump was closed. Such information was not available during the city’s pollution trial.

The convictions under the Fisheries Act were registered two years ago and relate to leachate found seeping into Cataraqui River in late 1996 and early 1997.

To date, the city has not paid the fines. It is fighting an order issued by the justice of the peace requiring it to develop a plan over 12 months “for the capping of the site in accordance with current standards of practice.”

LONGTERM MONITORING

The order also specifies the development of a site-maintenance program and long-term monitoring. The order does not require any engineering to be done, only that the city demonstrate it is actively pursuing a solution.

The municipality has put in interim management measures which include pumping ground water out of the site for treatment at the Ravensview sewage-treatment plant.

But the city consistently blames the presence of serious contaminants in the river sediment on neighbouring properties. The city has also consistently held that leachate leaking from the dump is more an aesthetic concern than an environmental problem.

The original Fisheries Act charges involving Belle Park were undertaken as a private prosecution in early 1997 by local environmentalist Janet Fletcher, assisted by Sierra Legal Defence, a non-profit environmental law firm. Later the same year, the Ministry of Environment laid more charges on its own and joined the prosecution.

A whistle-blower provision in the Fisheries Act entitled Fletcher, as a private citizen, to $60,000 – half of the fine levied on the four charges she prosecuted. She said at the outset of the trial that she would assign that money to the Sierra Legal Defence Fund, the charity that provides financial underpinning for the work of the law firm.

Sierra lawyer Doug Chapman also disclosed, at the end of the trial, that Sierra spent about $50,000 mounting the case, an amount which included expensive lab tests.

Dianne Corcoran, who was then acting head of the city’s legal department, refused to say how much public money had been spent hiring outside lawyers to defend the charges. She attended the trial every day, but the city’s defence was placed in the hands of Ottawa lawyer Peter Doody. Ousted city manager Mirka Januszkiewicz was represented by Harry Poch of Toronto.

Former mayor Gary Bennett claimed not to know how much money was spent on the process. However, a freedom of information request filed by lawyer Mark Mattson, asking for the city’s outside legal services bill, eventually did elicit an accounting of $299,423.78 in legal fees, dispersements and GST.

In the city’s appeal documents, prepared by lawyer Doody, Kingston is claiming 11 grounds for challenge – including Fletcher’s assignment of her whistle-blower fee to the Sierra Legal Defence Fund. It was suggested by Doody during the trial and now again on appeal that Sierra Legal Defence set Fletcher up to lay the original charges as a money making venture.

TOXICITY TESTING

The appeal also contends the justice of the peace erred in disregarding and failing to appreciate the highly technical evidence on toxicity testing, which was central to the case; and the appeal also argues that the fines were both excessive and improper.

The city’s appeal documents contend the municipality can’t be properly convicted over municipal garbage juice running into the river unless the toxicity of samples can be demonstrated at the precise temperature and pH levels they were taken.

The standard is set very high in the appeal: if the seepage is toxic, it has to be proven toxic enough to make the river poisonous to fish that are resident, rather than transient, in the river.