The cows knew. Long before any scientist tested the water, Ben and Maria Berendsen's dairy herd refused to drink from the creek near their barn, consuming only enough liquid to survive.
The animals lost weight, grew weak and milk production fell dramatically. Eventually about 100 died and the Berendsens, who had dreams of a better future when they arrived in Canada from Holland in 1981, had to abandon their farm in Teviotdale, north of Kitchener.
The problems were traced to chemicals, including polychlorinated biphenyls (PCBs) and dioxins, seeping into the creek and well water from truckloads of waste asphalt and concrete buried on the farm in the 1960s, after Ontario's transportation ministry reconstructed the intersection at Highways 9 and 23.
Last year, a trial judge found the province negligent and ordered it to pay the Berendsens $1.7 million. But after a 14-year legal battle, the province wasn't prepared to give up. Yesterday, a lawyer for the attorney general told the Ontario Court of Appeal that the ruling, if allowed to stand, "would bankrupt this province."
Crown counsel William Manuel argued that Justice Silja Seppi's decision could open the door to a flood of lawsuits against the government over environmental contamination dating back decades.
The province insists any link between buried road waste and the presence of industrial pollutants in nearby waterways is just "a theory."
Seppi heard evidence that burying road waste on farms was once common.
The province originally blamed the Berendsens' sick and dying cattle on poor farming practices, a claim rejected by the trial judge, who also heard testimony that mice fed water from the creek on their Wellington County farm developed tumours, as well as kidney, liver and spleen abnormalities.
Still, the possibility buried road waste could leach trace amounts of chemicals that would prove harmful was "entirely unforeseeable in the 1960s, let alone in the 1980s," when the Berendsens' water was first tested, Manuel argued yesterday.
The court pressed both sides on that point.
"Mr. Manuel, you deposit waste near water – near creeks and streams and so forth – isn't it reasonably foreseeable to an ordinary person that environmental contamination of the water may occur?" questioned Justice John Laskin, who headed the panel.
"Your Honour, I think you have to look at it a little more carefully," Manuel said.
At the trial, Doug Hallett, a chemistry and toxicology expert who testified for the Berendsens, could not point to a single scientific study showing people or animals had been harmed by the level of contaminants in the creek water, which were within provincial drinking water standards, Manuel said.
But Rick Lindgren, the Berendsens' lawyer, said it is only common sense that "oil and water don't mix." The trial judge said it was obvious road waste likely contained automotive fluids mixed with concrete and asphalt.
Even if the trial court was wrong in concluding the province should have known in the 1960s that burying the waste on the farm could be harmful, it is still liable to the Berendsens for negligence in investigating their complaints in the 1990s, Lindgren argued.
By that time, the province had developed strict rules for disposing of road waste, which included keeping it 100 metres from wells. Despite this, the government insisted water on the Berendsen farm was safe and stopped funding the delivery of fresh water from an outside source.
"All they said was `Sue us,'" Lindgren told the court. "And we did."
Meanwhile, Ontario's milk marketing system had stopped accepting their milk. The Berendsens, who raised their three children on the farm, were forced to walk away. Along with their son, they now farm on 130 hectares near Chepstow, northwest of Walkerton. They moved there in 1994.
The court reserved its decision.
http://www.thestar.com/News/Ontario/article/614790
