Chapter 1
INTRODUCTION

The Environmental Bureau of Investigation (EBI), a nonprofit division of Energy Probe Research Foundation, was established to investigate pollution crimes. When our staff discovers a possibly polluted site or local citizens ask for our help in stopping pollution in their community, we meticulously and scientifically investigate the pollution and take measures to stop it, including publicizing the problem, alerting government regulators, and if necessary, launching a private prosecution. By providing investigative and technical resources, EBI allows the public to participate in the protection of community resources.

EBI's first project was in late 1996 assisting Janet Fletcher, an environmental activist and a member of EBI's advisory board, and the Sierra Legal Defence Fund in investigating a closed, city-owned landfill in Kingston, Ontario, that was leaching contaminants into the Cataraqui River. In February 1999, the city was convicted of the charges and fined $150,000. As we write this guide, the city is appealing the conviction. However, in March 1997, the day after the charges were laid against it for contaminating the river, the city sent earthmoving equipment to begin cleaning up the delinquent site. And since then, Kingston has begun cleaning up other areas, including a notorious coal tar site.

In 1997, EBI, Janet Fletcher, Thomas Adams (another EBI advisory panel member), and Sierra Legal Defence Fund laid four charges against the Ontario government for polluting the Moira River at the abandoned Deloro mine site, near Peterborough. In 1998, the groups laid additional charges against the province for radioactive pollution. Following these charges- the first ever brought by private citizens against the province- the Ontario government has taken some long overdue protective actions, such as posting signs and fencing the highly contaminated site to keep the public, as well as deer and other game, away from the site's arsenic and radioactive pollution. As we write, the Deloro trial is ongoing.

In 1999, Lynda Lukasik, a Hamilton, Ontario, environmentalist, laid charges against the City of Hamilton under the Environmental Protection Act and federal Fisheries Act for discharging polychlorinated biphenyls (PCBs) and toxic ammonia into Red Hill Creek from a city dump. EBI helped Lukasik by gathering evidence, including pollution samples and documents, and Sierra Legal Defence Fund is providing legal representation. The City of Hamilton had apparently known about the problem of leachate leaking from the dump into the creek for years. Since the charges were laid, the Ministry of the Environment has told the city that it "was required to take the necessary remedial measures to eliminate the seepage of wastes into the Creek," and at the time of writing, the city has begun a remediation plan. The charges will go to trial in late 2000.

Before the City of Kingston charges, environmental texts by leading lawyers and academics said that environmental groups would be hard-pressed to acquire the meticulous expertise and credibility required to win in court. Instead, the thinking went, environmentalists should try to influence governments to better manage pollution. As a result, few environmental groups ever tried the criminal courts, and when they did, they rarely expected to succeed. Now that a precedent has been set, showing that environmentalists can stop pollution through investigations and prosecutions, we hope more citizens will keep these options in mind as they seek to protect the environment.

In Ontario during the 1990s, the provincial government laid off hundreds of environmental enforcement and abatement officers. The provincial government also closed three environment laboratories (Kingston, Thunder Bay, and London) and significantly reduced the Environment Ministry's budget (by 42% between 1995 and 1997¹). The numbers of federal and provincial investigations and charges have dramatically decreased. Ontario Ministry of the Environment environmental prosecutions alone have dropped by over 50% since 1995.²

Although laws exist to protect our environment, they often remain unenforced. In Ontario, the government no longer adequately enforces the Fisheries Act, leaving lakes and streams unprotected and vulnerable. Furthermore, government agencies often use environmental law enforcement only as a last resort, after years of negotiations and compromise with polluters, during which the environment suffers. Even the best environmental laws will not make a difference if no one enforces them.

In the face of governmental cutbacks in environmental investigation and law enforcement, the environment desperately needs citizens' help. Thus, the public needs to learn what to look for in the field, where to obtain information, how to collect evidence, and how to use the information to get results.

Many books are available on environmental health impacts, but most fail to explain sampling for potential legal action. Books on environmental law focus on court procedures and often skim the surface of the evidence gathering process that precedes it. This guide combines information from these texts and other environmental books and guides (see the bibliography) with the hands-on experience acquired during EBI investigations. Since we aim to add to, and not repeat, what others have written, we will make references to other texts throughout.

Given EBI's familiarity with Ontario's regulations and court system, the guide often uses Ontario examples, but you can apply the basic principles wherever you are investigating. We plan to expand the guide's geographic scope in subsequent editions.

Private prosecutions can be an effective means of forcing polluters to abide by environmental laws. In Canada, everyone has the right to initiate a private prosecution against a person, or an entity, who allegedly violates the Criminal Code or a legislated statute that provides for penalties for violation. A private prosecution involves an individual, or a group of individuals, gathering evidence of a wrongdoing and laying charges against the alleged offender. Neither the police nor government enforcement agencies need be involved, but you should welcome and encourage them to participate. In a private prosecution (unlike suits under common law), the individual or group who lays charges need not have suffered injury or loss.

Critics have suggested that individuals and environmental groups, such as EBI, who launch environmental prosecutions are "bounty hunters" and "in it for the money." Yet most environmental legislation (including the Environmental Protection Act and the Ontario Water Resources Act) has no provisions for awarding part of any fines to the informant. Only two statutes - the Fisheries Act and the Migratory Birds Convention Act - include provisions for paying half of the fine (if one is granted) to the party who started the prosecution (the other half goes to the federal or provincial government). Legislators wrote these provisions into the acts to encourage the public to participate in the protection of community resources. Nevertheless, the financial costs of investigation and legal proceedings generally far outweigh the gains.

A prosecution's main goal is to stop a specific, environmentally harmful activity. It may also discourage the accused and other polluters from continuing other environmentally damaging activities. The fines alone are not the main incentive for polluters to change their ways; the costs of a court-imposed cleanup, other penalties, and negative publicity have much more convincing power.

You should not take the right of private prosecution lightly. If you plan to lay charges against an individual, a company, or a government, make sure you obtain all the relevant facts and bring your complaint forth in good faith. Do not abuse the process by starting frivolous, vexatious, or trivial actions.

As Elizabeth Swanson and Elaine Hughes warn in their book The Price of Pollution, private prosecutions can be "onerous, time-consuming, emotionally draining, costly and risky."³ Don't do it alone. Get advice and support from scientists, lawyers, local environmentalists, university professors, community groups, and so on.

Environmental investigations may lead to private prosecutions, but other options may be more appropriate depending on the case and your resources. Private citizens can play an important role in environmental protection by reporting offences to government agencies, which may not have the resources to instigate an investigation of a particular problem but may use citizen evidence as a basis for further investigation or prosecution. Another option is gaining media attention through press releases, videos, and so on; often merely exposing the polluter to public scrutiny may trigger abatement measures.

As experienced investigators and environmental lawyers, we hope that this guide will inspire you to undertake investigations in your communities.

• Internal and external correspondence, reports, minutes of meetings, and other notes held in the public domain

• Remedial Action Plan (RAP) reports

• Certificates of Approval

• Monitoring data released by the company, regulatory agencies, or other sources

• MISA data

• NPRI data

• Environment Registry information

• Inspection results and non-compliance reports

• Certificates of Incorporation

• Previous studies (check the public, university, or government agency libraries)

• Company's annual reports and other public documents

(Not all of these documents will be needed in the beginning or in every case.)

• Contact local environmental groups (see section 3.1).

• Check the Environmental Registry under Ontario's EBR (see section 4.7).

• Contact EBI.

• Contact a lawyer (preferably a public interest lawyer or someone willing to work pro bono).

• From documents you've obtained, and with the information in section 2.0, identify the contaminants that may be present at the site.

• Contact the Canadian Association for Environmental Analytical Laboratories for a list of accredited laboratories in your area (see Appendix H).

• Contact the laboratories to confirm the tests they perform and their prices and to obtain instructions on how to take and handle samples.

• Decide where you will send your samples.

• Make a preliminary visit to the site.

• Take notes on each visit.

• Select sites for sampling if appropriate.

• Take samples using appropriate containers and safety equipment.

• Ensure chain of custody of the samples.

• Videotape and photograph sites.

• Have samples analyzed and/or tested for toxicity.

• Compare the results with other information and guidelines (see section 4.0 and Appendix D).

• Approach experts with the information gathered and ask their opinions.

• By creating a violation table (see Appendix E for an example), you and your lawyer can judge whether an offence has been committed. Consider potential legal defences that may be available to the polluter (e.g., due diligence) and determine whether further investigation may be necessary before proceeding with legal action.

Step 8: Contact the appropriate regulatory agency and make a formal complaint (see section 7.0)

• Determine which agency oversees the type of environmental offence that has occurred.

• Bring your information to the agency. This may be the final step for some of you.

• Another option in Ontario is to apply for an investigation through the Environmental Commissioner of Ontario under the Environmental Bill of Rights (see section 7.1).

• Whether you stop here or pursue the matter further through legal means, you may want to make the evidence you have gathered public through the media (see section 8.0).

Step 9: Proceed with legal action (see section 9.0)