Lack of water tests after toxic dump shutdown put Tyendinaga at risk: court documents
When the Tyendinaga Mohawks closed their landfill in 2007 they were required to complete a closure report and conduct water monitoring tests to ensure toxic chemicals didn’t leachate into the ground water directly below.
By Kenneth Jackson
APTN National News
Tyendinaga – When the Tyendinaga Mohawks closed their landfill in 2007 they were required to complete a closure report and conduct water monitoring tests to ensure toxic chemicals didn’t leachate into the ground water directly below.
According to documents filed in provincial court, no such tests were ever done.
In fact, the closure report was never completed according to a notice of application filed in a Belleville court by resident Shawn Brant who is seeking to force the band council to fulfill the requirements laid out by Aboriginal Affairs.
The landfill, which opened in 1968, sits atop fractured bed rock and below that is an aquifer many residents use as drinking water. The dump is also about 100 metres from a creek that drains into the Bay of Quinte.
“The filing is to bring it before a judge so essentially the community can stop the bleeding, deal with the issue, be aware of the risk they are in and be able to take their precautions in order to ensure their personal safety and safety of their children,” said Brant Tuesday.
No retaining liner was placed over the bed rock, instead the earth was dug out and the garbage, that included paints, tires, hydro carbons and construction waste, was placed on the broken stone the documents allege.
The battle over the dump began about 20 years ago when residents started to realize the effects it may be having on them. Most recently three children have been diagnosed with leukemia, developed skin sores and other forms of cancer but doctors have said they don’t believe it was caused by the water. But they can’t say with certainty it hasn’t. The medical science isn’t there to prove one way or the other as previously reported by APTN National News.
Brant’s daughter is one of the girls with leukemia and is in a Toronto hospital fighting the disease. Her friend Paula Sero died last September of the same leukemia. That day she gave her dad a message.
“She asked me to fix this so it doesn’t happen to anybody else,” said Brant who has also been given a mandate by the Mohawk community to fix the problem “by any means necessary.”
Brant said he was able to obtain thousands of documents from the band council to draw up his court application.
Named in the court application is Chief Donald Maracle, the band council, a consulting firm and both the federal and provincial governments.
“Both the respondent chief and council and respondent XCG Consultants Ltd., failed to undertake and implement post closure monitoring, failed to undertake trace studies to determine the extent of leachate and failed to obtain a closure certificate regarding the landfill,” the court document states. “The ground water has not been tested since 2005 and recent claims that it is safe are based upon tests that are seven years old.”
The allegations have not been proven in court. The first court date is Feb. 5.
As part of his application, Brant is also seeking to force proper water testing, a tracer study on the dump to see if toxic chemicals have made their way into ground water, for the band to receive proper certificates required to close the dump and provide a full account of monies received from the federal government for closing the dump.
It’s the money that is also a sticking point. Estimated costs to close the dump jumped from a little over $1.4 million to more than $2 million after it was closed by covering it with dirt and clay.
Aboriginal Affairs required, as part of the closure, that the band would undertake proper monitoring of the dump, as well as receive a closure certificate from the province’s ministry of environment according to the court documents.
But the band council in 2010 wrote Aboriginal Affairs asking for more money to conduct tests some three years after closing the dump. XCG was retained to complete the closure. They estimated $13,100 be allotted for a detailed closure report as part of the original proposal accepted by Aboriginal Affairs. The budget and contract proposal also stipulated it were to follow MOE guidelines.
On June 17, 2010, Maracle wrote Aboriginal Affairs requesting nearly an additional $40,000 to do post closure monitoring.
Emails obtained by Brant show the band council were denied the additional money by the feds. They were reminded of the money they got in 2007 included monitoring and also that they needed the MOE to sign off on the closure. There doesn’t appear to be any follow up from Aboriginal Affairs, nor any further communication from the band according to the court documents.
Maracle wasn’t available for comment but in previous unpublished interviews leading up to the filing of the court application he was asked about specific details of the closure by APTN who had knowledge of the main points of the court documents.
He said the band was never required to obtain a closure certificate from the MOE.
“They wouldn’t give one. They can’t give you one because it’s on the reserve,” said Maracle Nov. 29. “Because it is on the reserve (the MOE) act in an advisory capacity to the council but they don’t apply their legislation on the reserve because they said it is outside their jurisdiction.”
However, he did say they followed MOE legislation as a guideline.
“XCG overlooked the closing of the dump to ensure it did meet the closing standards of the Ministry of Environment,” said Maracle, adding he believed there were cases of illegal dumping at the landfill over the years.
The problems with the dump were known by the band for years according to internal emails obtained by APTN and referenced in the court application.
Capital projects officer, Todd King wrote the council April 14, 2004 saying they needed to close the dump immediately and said he would declare this as an “emergency situation.”
He said Maracle and the council could no longer turn a “blind eye” to the problem.
Testing was done in June 2004 by XCG, as they had in 2001. High levels of various metals were found, including benzene, in and around the landfill.
XCG concluded the chemicals were not from the dump and were naturally occurring.
The dump was then inspected by John Tooley, a district supervisor of the MOE, and he recommended it be shut down. In his report, also obtained by Brant, Tooley outlined the necessary post-closure monitoring required.
Tooley said immediate monitoring needed to be put in place and last for up to a 100 years.
When asked why the band didn’t just dig up the dump and remove it, Maracle said it would have cost too much money.
@afixedaddress
