Engineers found guilty after Riverkeeper investigates, Environment Canada prosecutes

In the summer of 2000, Petitcodiac Riverkeeper Daniel LeBlanc and Lake Ontario Waterkeeper Mark Mattson strapped on hipwaders and set out to sample leachate running from a Moncton landfill into Jonathan Creek in downtown Moncton.

LeBlanc, the first Riverkeeper in Canada, was concerned that leachate from the landfill was contaminating his river. Mattson, an environmental lawyer from Ontario, suspected violations of the federal Fisheries Act. They put together a brief showing the leachate's impacts on fish, and took their concerns to Environment Canada. Environment Canada followed up on the Riverkeeper brief, launched its own investigation and eventually charged the City of Moncton and Gemtec. Six years, one guilty plea, and one trial later, LeBlanc and Mattson's suspicions have been confirmed and now the Petitcodiac River is finally protected from the landfill's toxic ooze.

The City operated the landfill on the banks of the Petitcodiac River from 1971 to 1992, using it as a disposal site for residential, construction, asbestos, medical, and other wastes. Gemtec was retained in 1993 to develop and implement a closure plan for the landfill site. Unfortunately, Gemtec's plan directed untreated leachate from the landfill into Jonathan Creek and the Petitcodiac River, ignoring an expert opinion that this method of closure would not comply with the Fisheries Act.

In 2001 - after LeBlanc and Mattson submitted their brief to Environment Canada - a pipe was built to direct the leachate away from the river and to the city's sewage treatment plant. The diversion reduced direct discharges by as much as 95% and cost just $10,000.

In 2002, Environment Canada charged the City of Monton, Geoff Grenough (the city's commissioner of Engineering and Public Works at the time), Gemtec, and Robert G. Lutes (Gemtec's majority owner and principal environment engineer), with two counts of unlawfuly depositing of a deleterious substance into water inhabited by fish.

The City of Moncton pled guilty, was fined $35,000, and ordered to implement a remediation plan to stop the leachate from entering local waterways. Charges against Greenough were withdrawn.

Gemtec, however, went to trial. It tried to argue that leachate would blend with river water and become less toxic and that the government was truly at fault because it reviewed annual operating reports. Judge Yvette Finn disagreed. On April 26, 2006, the provincial court judge issued a decision finding the firm and Mr. Lutes guilty:

In my view, the evidence presented does not support the conclusion that the defendants either recommended or implemented any measures to avoid the "prohibited act", i.e., the deposit of leachate into the Petitcodiac River system. There were no provisions for proper leachate management or collection in order to minimize leachate deposits as the defendants' approach was predicated on allowing leachate to flow directly into the river system and relying on its dilution capacity to mitigate any environmental harm.

Judge Finn's decision is hailed as a landmark by Waterkeepers because it marks the first time an engineering firm has been held accountable for knowingly drafting and implementing a plan that may not meet Fisheries Act requirements. The conviction also demonstrates how citizens and government can work together to effectively control pollution in Canada.

The complete decision is available here in .pdf format.