Consultant, lawyer explain Cole Drain clean-up operation

Monday night’s committee meeting included two presentations about the Cole Drain clean-up operation — one from an environmental engineer with GHD, the company that provided staff to help direct the clean-up, the other by an environmental lawyer, whose job it was to warn councillors what they could and could not say.

Or, as Coun. Norm Arsenault reminded councillors when he wrapped up the discussion with a warning: take the lawyer’s caution to heart, be careful what you say when talking to residents, and if you’re going to put anything in writing, have it vetted by the CAO.

Will Armes, the environmental engineer with GHD, explained the company was hired to advise the town of the actions that needed to be carried out once a spill was reported to the Ministry of the Environment, Conservation and Parks.

He spoke to councillors about the steps taken and decisions made beginning Aug. 17, the evening material of a dark colour, with an odour and an “organic sheen” on top, was reported in the Cole Drain. He explained the town was directed by the MECP to hire a contractor to remove the material in the ditch, and an environmental consultant to supervise and advise on the clean-up “24/7.”

The town followed ministry policy for a spill from the time it was reported to the time when the clean-up was halted, and the material had been trucked away, he said.

There was a total of 1.8 million litres pumped from the drain, and of that, 1.1 million litres was trucked to Mors, a waste management company in Beamsville, and another 700,000 litres to the Port Weller and Niagara-on-the-Lake sewage treatment plants once the lab analysis was received.

In response to a question about the cost to date, CAO Marnie Cluckie replied that it is up to about $873,000. Armes added that appropriate steps were taken to reduce those costs, including shutting down what he called dewatering — pumping out the drain — at the right time.

“With any emergency there are ways to reduce costs,” he said, including “don’t clean up more than you need to. That was certainly done well in this case.”

Faced with repeated questions of identifying the material and its risk to residents, Armes said “to prove something is not a health risk can be difficult to nail with a certainty.” It was an organic pollutant that had high levels of e-coli in it — it was not something you would want humans to swim in. A different approach might have been taken if it was discovered at a splash pad or beach, he said, but “the water is not going to come out of the drain and get you.”

Lawyer Dennis O’Leary told councillors the town’s response was appropriate in satisfying its requirements for handling what he said was properly considered a spill, by its broad definition under provincial legislation  — “a discharge into the natural environment from any structure, container or vehicle, of a pollutant that is abnormal in quantity or quality,” and that the ministry came to the conclusion it was a spill. Looking at it in hindsight, he said, he would have no problem describing it as a spill.

O’Leary, of Aird Berlis in Toronto, also spoke to the difference between a ministry directive and order, and said when a ministry representative arrived onsite, he could have issued an order, but that could have included doing a number of things that didn’t need to be done. A verbal directive, as the town received, and that followed in an e-mail, allowed the town to retain control of the operation while continuing discussions with the ministry.

His caution was aimed at limiting discussion of a source — the owner of the pollutant can be be ordered to pay costs, but the source has not yet been identified, and that investigation is ongoing. He warned against talking about “possibilities” that could be defamatory.

“The time to name and point fingers” is when there is proof of the individual or company responsible for the material in the drain, he said. He also reminded councillors insurance polices “are complicated and lengthy,” and recommended the town’s insurance policy not be discussed in public.

Coun. Erwin Wiens repeated his concerns about the lack of information for residents, and that “after four weeks you don’t know what it is.”

“That’s correct,” said Armes, repeating that they know the “family of the organic material, but we don’t know what it is.”

When Coun. Wendy Cheropita pressed for a description of the contents of the spill, referring to a discussion at an earlier council meeting that the lab results were “too complicated” to release to the public, she was told that question had been asked and answered. 

Lord Mayor Betty Disero remains concerned about communications with the public, and asked Cluckie about efforts to answer residents’ questions. Cluckie estimated she spent “at least 20 hours talking on the phone.” Acting operations director Kevin Turcotte and drains superintendent Brett Ruck also spent considerable time talking to residents, and other staff were given a script to provide information to those who called.

“We don’t have a very large workforce,” she said. “Staff have done their level best to not speculate and just get facts out,” specifically about the content of the material in the drain.

Disero encouraged councillors, members of staff and media to “just ensure when we’re talking about this we’re not stirring people up to a frenzy,” to be calm, “explain what we’re doing and explain the new rules, and that we can’t do things as we did in previous times.” She added she would be doing a video for the public Tuesday.

Coun. Erwin Wiens said the problem wasn’t that staff wasn’t talking to the public, it’s that residents “don’t believe they’re getting answers.”

He remains perplexed about the lack of information, he said, and that “we have no idea four weeks out what it is, and we’re into this for $900,000.”

“I’m not used to situations when everything gets vetted through consultants and lawyers and at the end of the day we don’t get any answers,” he continued. “It doesn’t sit right with me at all.”

Both Armes and Cluckie spoke of next steps that will include a report that will summarize the situation, and that will give more information about the contents of the material in the drain, although Armes said it won’t necessarily identify the source.

The CAO, when asked by Disero whether in hindsight she would have done anything differently, but was also cautioned not to say more than she should, replied there will be a debriefing of staff. “We will reflect on it at the appropriate time, so that we can get better and better.”

A neighbour of the Cole Drain told The Local she was disappointed to hear there was a discussion Monday evening that residents could have listened to but were not told about.

She was specifically asked if she wanted to be on a list of residents the town would use to communicate updates to those in the area about the situation, which she did.

“I have not received any communication from them. I sent my email address Sept. 1, asking to be included on the distribution list as they suggested. And no response. Any updates we are receiving have not come from the town but rather media.”

Ron Simkus, resident and retired mining engineer who has been commenting on the drain clean-up through weekly e-mail blasts to more than 100 people, continues to maintain the town and MECP were not dealing with a spill, and nothing he heard Monday night has changed his mind. The source has not been found, and the investigation has not shown that anything was “discharged” into the drain. The 1.8 million litres pumped out during the clean-up would have been massive, he says, and impossible to miss.

Although the lawyer said in his definition of a spill that the discharge would have to be a pollutant  that is “abnormal in quantity or quality,” Simkus says there has been nothing released to say it was hazardous to humans or wildlife — in fact it was stated there were no dead fish in the drain. He maintains it was swamp water, and believes what follows will be litigation behind closed doors to determine who is going to pay for the clean-up that to him was unnecessary from the start. While that’s not what was reported by the the environmental lawyer or consultant Monday, he says, “I guess we’ll have to agree to disagree.”