Who’s responsible for mystery fill mountains at centre of $75-million Waterdown Garden lawsuit

Mountains of allegedly contaminated dirt still loom over Waterdown Garden Supplies more than two years after the province first ordered a pollution cleanup at the rural Flamborough property.

Three government orders later, no one can tell frustrated neighbours when or if the 10-metre-high piles will ever disappear - even though the province acknowledges the giant eyesores could hide a larger threat to groundwater.

And no one can explain why the city allowed an estimated 24,000 truckloads of mystery fill to be off-loaded in the first place, given it had a court injunction against illegal dumping on the site as far back as 2015.

Our biggest concern is groundwater contamination. We're all on wells out here," said Don Almas, whose farm backs onto the infamous Highway 5 property east of Troy that has a 25-year history of controversial waste piles, including composting slaughterhouse leftovers in the mid-1990s.

Almas and Jim Whelan, who rallied neighbours and first drew public attention to the soil dumping, are pushing once again for government action on the property. They've also discussed testing their wells for industrial contaminants - but argue broader public safety testing is the least the government should do.

The city allowed all of that dirt to be dumped there ... The ministry has these orders, but nothing is happening," Almas said. You hear what is supposed to be in this stuff, of course you would worry."

The Spectator exclusively reported an explosive lawsuit launched this year by the principals of Waterdown Garden Supplies that alleges two city employees conspired with slain mobster Pat Musitano to dump thousands of loads of potentially contaminated soil at the Flamborough property.

The $75-million lawsuit claims the soil was contaminated with cadmium, mercury, boron, zinc and petroleum hydrocarbons, among other substances. Those claims have not been tested in court.

But even before the lawsuit, the province was already worried that potentially polluted soil had been dumped on top of old monitoring wells on the Highway 5 site.

The Ministry of Environment, Conservation and Parks ordered landowners and dumpers in 2019 to test the soil piles and wells on the property, stop any liquid run-off and remove polluted material because of the risk for contaminants to enter the groundwater."

So far, no one has done the ordered testing or soil removal.

But the ministry told The Spectator past tests done by a consultant for Havana Group Supplies, a construction and excavation company linked to the Waterdown Garden property, had found unacceptable levels of lead, cyanide and oil-based contaminants in isolated locations" at the site. Musitano was a part owner of Havana Group Supplies.

Earlier orders issued in 2018 to deal with property issues that included piled waste shingles and crushed asphalt also went unfulfilled, spurring charges in January against company directors of Waterdown Garden Supplies.

Drone photos of the property from May 2019 also show what appear to be piles of shingles, tires and other debris.

Polluter pay'?

So who is responsible for cleaning up the mess?

In general, the province follows a polluter pays" enforcement regime - but if a polluter cannot be found or has gone bankrupt, current and past landowners can also be ordered to pay for cleanup.

In this case, responsibility for both the property and the dumping is a tangled legal mess.

Waterdown Garden Supplies and principal Gary McHale filed the suit against the city in part to address liability issues related to the soil dumped at the property. The suit argues the city is responsible for allowing municipal fill to be dumped on-site and for not enforcing the 2015 court order.

The city has said it has been provided with no evidence" to back up claims of municipal fill going to the property. The city stated it will engage a third-party firm to investigate the lawsuit's allegations.

The lawsuit claims a mortgage holder on the property obtained a court order evicting Waterdown Garden Supplies in late 2018, leaving the company in a legal catch-22. Waterdown Garden states it can't access the property to address the provincial cleanup order without violating the court's eviction order.

Havana Group Supplies and its principals have also been ordered to do testing and cleanup. A lawyer for the company did not respond to a request for comment Tuesday. Two individuals once linked to the company - Musitano and Grant Norton - were murdered last year.

It's not clear if the province would consider stepping in to do work if the cleanup orders remain unfulfilled.

Ministry spokesperson Jennifer Hall said it would be inappropriate" to comment on the future of the property because it is still under investigation by the provincial enforcement branch.

In the past, the city has occasionally taken over and cleaned up polluted properties - but only after taxes go unpaid for at least three years.

Spokesperson Matthew Grant said the lawsuit against the city prevents him from addressing questions about why Hamilton's 2015 court injunction against dumping at Waterdown Garden was not enforced when trucks started lining up at the site in 2018.

So far, the city public health department has not been asked to do any testing of wells around Waterdown Garden.

But if residents ask me, I would bring that (request) to public health," said the city councillor for the area, Lloyd Ferguson, who admitted he was blown away" when he first saw the mountains of dumped soil in 2018.

Ferguson also noted the city already offers free well-testing kits to rural residents. But those tests are aimed at typical agricultural dangers like E. coli bacteria, rather than potential transplanted industrial pollutants.

The Grand River Conservation Authority is also responsible for the environmental health of the watershed that includes Waterdown Garden Supplies and nearby Barlow Creek.

Spokesperson Cameron Linwood said the authority received two complaints about the property during 2018 and 2019, but determined the province and city were already handling the issue.

Matthew Van Dongen is a Hamilton-based reporter covering transportation for The Spectator. Reach him via email: mvandongen@thespec.com