OMYA cleared of waste dumping
Old letters from provincial officials gave firm go-ahead to dispose of slurry
The Ottawa Citizen
Friday, July 22, 2005
PERTH - In a dramatic turn of events, the Ontario government yesterday dropped three waste dumping charges against OMYA Inc., after the company released documents showing that provincial officials sanctioned the practice more than a decade ago.
The documents are letters written in 1992 detailing discussions between OMYA and Environment Ministry officials in which the Swiss multinational corporation sought and received permission to dump slurry at its quarry near the village of Lanark. The dumping four years ago was at the heart of charges that could have cost the company up to $33 million in fines.
But according to the documents, the government did not consider the slurry to be industrial waste when it gave permission in 1992 for the material to be stored at the quarry. The prosecution did not know the letters existed, and Crown
attorney Jerry Herlihy was caught off guard when OMYA lawyer Douglas Hamilton tabled them in court Wednesday.
But once the correspondence was revealed, Mr. Herlihy said he had no choice but to withdraw the illegal dumping charges, despite a four-year investigation and other pre-trial preparations.
"I am not satisfied that we have a reasonable prospect of conviction," he told Ontario Court Justice Jack Nadelle, who agreed and dismissed the charges.
The question remains however, how ministry officials in Ottawa dealing with OMYA failed to realize throughout their investigations that a decade earlier, their colleagues had given OMYA permission to do what it did.
"The letters were not in the files when the investigators looked. We have some concerns about it but we don't know what happened," said Ministry of the Environment spokesman John Steele said.
"We are looking into it. We don't have an answer at this time."
Mr. Hamilton said the charges should never have been brought, but he acknowledged that ministry officials probably lost the documents and the prosecution was unaware of them.
OMYA, which has been battling Lanark county residents and officials over everything from its expansion plans to how much water to take from the Tay River for its operations, wants to put the unhappy episode behind it.
"I am extremely pleased at the decision. We knew we didn't do anything wrong because we followed the direction given to us by the ministry," said OMYA Canada president Olivier Chatillon.
"It is unfortunate that we went through this litigation but now we want to continue to build a positive relationship with the ministry."
Two years ago, OMYA was charged with illegally dumping 5,600 tonnes of liquid industrial waste at the company-owned Tatlock Quarry, about 85 kilometres from Ottawa. Calcium carbonate mined from the quarry is crushed and sent to a plant near Perth, where it is mixed with water from the Tay River to produce a white slurry. The slurry, which is used to produce paper, wallboard, toothpaste, plastic and food additives, is shipped throughout North America. The railcars that transport the slurry are cleaned up and how the residue, which includes potentially dangerous chemicals, is stored was at the heart of the case.
In its solid and dry form, the slurry is considered safe and can be stored at the quarry. But in liquid form it is deemed unsafe if not stored properly. The fear is that it could seep into surrounding land.
A senior provincial environment officer testified that he inspected the quarry four years ago and found evidence of liquid slurry or waste, which under the law cannot be stored at the quarry. The government accused OMYA of transporting potentially dangerous waste without a permit. It also said OMYA used a trucking company that was not licensed to handle the material, which it dumped at a site not approved for such waste. The dumping allegedly occurred between Dec. 1, 2000, and March 21, 2001.
But the government case began to unravel Wednesday when the letters were revealed in court.
In an Oct. 27, 1992, letter from OMYA official Keith Murphy to environment officer Tor Rustad at the MOE's Ottawa office, Mr. Murphy sought "to confirm the discussions and conclusions reached" on the disposal of slurry during a telephone conversation held the previous day.
"During our phone conversation, we discussed the idea of returning this material to the quarry for use in our land reclamation project. Because it is a calcite/water slurry and because it is basically product washed from railcars; we agreed that it did not fall into any waste category. As discussed the transportation does not have to be done by a licensed waste hauler," Mr. Murphy wrote.
"Based on this understanding, we are proceeding with the intent of digging out the impound and returning it to the quarry. Could you please send a fax confirming your understanding of this development."
Mr. Rustad happily obliged. In his reply of Oct. 29, 1992, he wrote:
"This letter is in response to your facsimile of October 27, 1992. Our office agrees with your proposal to dredge the calcite sludge from the lined process pond and to place it for reclamation at the quarry."
Copies of the letters were reproduced from OMYA files and the company's lawyers kept the ace in their cards close to the chest. They did not receive copies of the correspondence from the government during the trial's disclosure process and knew the MOE must have lost or misplaced them.
Mr. Herlihy told Judge Nadelle that the letters were "inexplicably" not in ministry files and said later that government investigators who worked on the case and witnesses had no idea the letters existed. The assumption is that in the decade or so since they were written, the letters somehow got lost. He told the Citizen outside the court that if he had known about them, the charges would likely not have been filed.
"The long and short of it is that the letters weren't there when we needed to see them. If we had seen them, we'll probably never be here," he said.