July 3 2002

Kingston Whig-Standard   July 3/2002

Ministry to appeal Belle Park ruling

by Sue Yanagisawa

The legal battle between environmentalists and the City of Kingston over containment of Belle Park’s garbage-infused groundwater has just entered Round 3.

Ontario’s Ministry of Environment and Energy filed appeal papers with Ontario’s top court in Toronto yesterday. Notice of the appeal was served on the municipality and its former director of environment, Mirka Januskiewicz, at the beginning of the Canada Day long weekend. Sierra Legal Defence Fund lawyer Robert Wright said he’ll file a similar appeal against the city on behalf of local environmentalist Janet Fletcher later this week.

Fletcher and the Ministry of Environment won the first round of the battle in 1998, when Kingston was convicted by a justice of the peace on seven counts under the federal Fisheries Act of polluting fish habitat in the Cataraqui River. Januskiewicz was convicted on three counts.

Last month, the City of Kingston and Januskiewicz claimed Round 2 after a judge of the Superior Court of Justice let them off the hook. Mr. Justice David L. McWilliam, who heard evidence in the case last November, set aside all seven convictions against the city and three convictions against Januskiewicz, together with one acquittal each. He offered the parties a new trial – if the Crown and prosecution lawyers chose to pursue it.

Januskiewicz was given suspended sentences in 1998. But after she joined the city in appealing her convictions, the Ministry of Environment counter-appealed on penalty and her acquittal. She’s no longer a city employee, but Hal Linscott, director of the city’s legal services, said she’s still covered by the city’s indemnity provisions. Mr. Justice McWilliam’s decision effectively wiped out $150,000 in fines against Kingston and nullified a court order requiring the city to file a plan for containing pollutants on-site.

The order required Kingston to explore the work required in laying a clay cap over the property, which drew cries of outrage from the city. Even as he enunciated it, the justice of the peace noted that he couldn’t force action on any plan. His goal was to make municipal government focus on the problem.

Kingston has always claimed to be pursuing its own long-term plan for dealing with Belle Park’s problems, and interim measures had been taken even as the original trial was underway.

Paul McLatchy, the city’s current environmental manager, said the latest legal wrinkle has no immediate effect on his department.

“The legal aspect of this process has really divorced itself from the technical aspects of what we’re doing on the site today,” he said. “It’s not going to change the direction we’re moving in, in the short term or the long term.”

Those interim controls involve drawing excess water out of the property and pumping it into the sanitary sewer system for treatment.

The solution came under attack during the trial after it was disclosed that dangerous PCBs (polychlorinated biphenyls) had been drawn up from test wells in the park. The process used at the Ravensview treatment plant has no effect on PCBs.

In the long term, the city hopes to eliminate the need to pump the dump’s leachate. McLatchy’s department has planted groups of moisture-loving trees along the park’s north shore to evaluate their effectiveness in preventing seeps. The city has also asked the federal government for permission to create another plot of native marsh vegetation off that same north shore in August.

McLatchy is hoping that native cattails and other wetland plants will neutralize contaminants such as ammonia.

In setting the original convictions aside, Mr. Justice McWilliam concluded that a central legal issue hadn’t been properly addressed at trial – namely, what is a “deleterious substance” under the federal Fisheries Act?

Does a teaspoon of something harmful to fish qualify? Or is deleteriousness defined by a substance’s potential for injury based on its quality, quantity and concentration?

The ministry, contending that the appeal judge erred, is asking to have the original convictions restored and the acquittals overturned. Janet Fletcher isn’t looking forward to another round in the courts, but she’s resigned.

“It just doesn’t seem like a very good way to deal with environmental problems,” she said.

But she’s willing “to stick with it as long as it takes” because the legal principle is important.

“You don’t stand by and watch them pour [pollutants] into the water until you see fish floating on the top.”

The Belle Park legal saga began in December 1996 when Fletcher and friends sampled groundwater percolating out of the old city dump under the water-logged municipal golf course. The seeps were were running unchecked into the Cataraqui River, leaving a telltale path of discoloured river ice.

The samples were tested in a professional laboratory on rainbow trout fingerlings, which died in a dramatically short time.

Fletcher launched a private prosecution of the city in March 1997 and was joined several months later by the Ministry of Environment’s local investigations and enforcement branch, which did its own sampling and laid an additional four charges.

Januskiewicz was included in those charges after a ministry investigator found memos and other documents in her files that indicated she’d known, or should have known, about problems at Belle Park since 1992.

In his trial decision, Justice of the Peace Jack Bell observed that documents in evidence showed “paltry records of expenses – a few hundred dollars – for environmental concerns at the site from 1992 to 1996.”