Twenty-two days after being compelled by Ontario’s Information and Privacy Commissioner to release environmental reports related to the former General Motors site in the core of the city, St. Catharines officials addressed the matter publicly, admitting they have had the disturbing reports that show dangerous contaminants at levels thousands of times above set limits, since 2015.
Now, City officials are claiming they did not try to keep the documents from the public, despite what the provincial watchdog detailed in its decision ordering the release of information that highlights the alarming levels of toxic chemicals found at the former industrial auto plant in the heart of St. Catharines.
It is a “false allegation”, officials claim, that the municipality fought to keep the documents from public view. According to a release, the City was simply complying with regulations prescribed by Ontario’s Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), which outline the process and timelines municipalities must follow after a request for information.
This is not true.
The City initially refused to hand over the documents on August 3, 2022, citing provisions that protect against the release of information if a third-party company might suffer competitive or reputational harm that might impact its ability to do business. The City acknowledged consulting with General Motors, as required, since GM is classified as a third-party that could be affected by the disclosure of the documents. According to the City, GM expressed concerns about a “risk of harm” and potential impacts “related to (their) position in the marketplace” if the two environmental assessments detailing the contamination at the site in 2010 and 2012 were made public.
The freedom of information legislation states a municipality should “as soon as practicable” share records and information if there are “reasonable and probable grounds to believe that it is in the public interest to do so and that the record reveals a grave environmental, health or safety hazard to the public.”
City officials had a choice: either follow GM’s position and withhold the documents under section 10 of the Act, or inform the auto giant that local municipal officials disagreed and would be releasing them.
City officials also claimed they did not have 'control' of the documents because they did not obtain them directly from GM
“The city submits that the withheld ESAs contain scientific and/or technical Information,” the IPC adjudicator wrote in the decision letter.
Scientific information could have been ruled to be proprietary in nature, and its release could have then constituted harm to GM’s competitive advantages in the market.
“The city and Company A (GM) did not refer me to specific information in the records that would be considered scientific,” the adjudicator ruled, revealing how St. Catharines officials sided with GM in trying to argue the documents should be kept from the public.
The adjudicator continued.
St. Catharines officials tried to argue that GM’s reputation could be harmed if the documents detailing the alarmingly high levels of contamination were released.
“The city submits that controversy concerning the environmental impact of Company A’s tenure on these properties – whether out of context or justified – could damage Company A’s corporate reputation in this area.”
City officials also claimed they did not have “control” of the documents because they did not obtain them directly from GM and there were confidentiality concerns around disclosing them, but the adjudicator pointed out this was not the case when St. Catharines officials willingly handed the documents over to the provincial government in 2020.
“The city submits that its actions show that it consistently acted as though it did not have control. (The city says that it was ‘ordered’ to provide the ESAs to MECP [the provincial environment ministry], but it has not provided any context to substantiate that claim.)”
Now, despite the findings of the IPC, St. Catharines officials are claiming The Pointer’s descriptions of the City’s attempts to keep the documents from the public are “false”.
“I do not uphold the city’s decision that the environmental site assessments are exempt under section 10(1),” the adjudicator ruled. “Accordingly, I order the city to disclose the environmental site assessments to the appellant (The Pointer) by December 17, 2024, but not before December 13, 2024.”
The reports, Environmental Site Assessments dating back to 2010 and 2012, contain detailed information on the types and concentrations of toxins that were present in the soil at the 55-acre industrial site.
While some clean-up efforts have been completed at the site by Bayshore, the former proponent who sought to develop the property for future homes, and the current owner Movengo, which is trying to do the same, no detailed environmental assessments have been completed since the two that were commissioned by GM ahead of selling the property in 2014.
While outdated, they offer the most recent understanding of the significant contamination that existed, and could still exist, on the site. Many of the industrial contaminants do not break down easily, and can persist in the environment for decades.
The disturbing details, highlighting toxins that were in some cases thousands of times above safe limits, were only released after a protracted two-and-a-half-year adjudication with The Pointer, when the City and GM fought to keep the details from the public.
The City has faced heavy scrutiny since early November, when The Pointer first reported the documents would be released following an order from the IPC. A Freedom of Information request was filed for the documents in May of 2022. City officials sided with General Motors, refusing to release the documents that detail the contaminants in the soil and groundwater beneath the former industrial auto plant.
City officials confirmed to The Pointer that the documents were in the municipality’s possession since 2015, and official records show they have denied access to the documents at least twice since obtaining them.
Given four weeks by the Information and Privacy Commissioner to prepare the documents, along with a five-day release window (December 13–17), officials delayed until the final working hour of the last day to hand over the information.
No public statement from the municipality, Mayor Mat Siscoe or members of council were made, despite the alarming contents that show levels of toxins well above set standards.
Lead, several types of petroleum hydrocarbons, trichloroethylene, benzene, and polychlorinated biphenyls (PCBs) were all found in either soil or groundwater on the site, well above levels considered safe to the public.
PCBs were discovered at concentrations that reached up to 2,600 times the reporting limit. PCBs cause cancer, harm to the immune system, reproductive system, nervous system, endocrine system and other life-threatening health effects. According to the U.S. Environmental Protection Agency “PCBs are a group of man-made organic chemicals consisting of carbon, hydrogen and chlorine atoms” and were manufactured from 1929. By the late ‘70s they were banned, but even 40 years later, they were still present in the ground at the former GM site at alarming concentrations.
Overall, according to testing done in 2011 for the EA that was completed in 2012, PCBs were found at 110 times the reporting limit. PAHs, PHCs, benzene, ethyl benzene, toluene, xylenes, hexane and other dangerous chemicals were also found at concentrations far beyond the allowable limits; in some cases the presence of toxins was more than a thousand times above the limits. It’s a long list of potentially dangerous chemicals that were lying in soil and ground water a few metres from Twelve Mile Creek when the detailed testing was done for the EAs which were marked “Privileged & Confidential” and never shared with the public.
Considering the potential importance of these documents, silence from local officials only adds to concern among residents who live near the site. Some claim they suffer chronic illness as a result of living so close to the toxic swamp that existed and may persist beneath the former auto plant.
Following repeated requests for comment from The Pointer, the municipality broke its silence on January 8, quietly publishing a statement on its website.
The first official communication since the release of the documents is laden with demonstrably false statements, misleading information and offers no discernible plan for how the City will ensure any risks posed by the site are addressed, either by the municipality or the site’s owner Movengo, the developer. It has not offered any public statements since the release of the reports.
City officials claim reporting by The Pointer alleging the City tried to keep the documents confidential is false, despite the public details in the Information Privacy Commissioner ruling that lay out how decision makers inside City Hall tried to mislead the provincial watchdog while arguing to keep the information private.
City officials argued that the documents came into the municipality’s possession and were to be kept confidential, however the IPC pointed out that municipal officials had no problem handing them over to the provincial government in 2020.
“In my view, this is an indication that the city did not believe that the ESAs provided to it as part of a CIP program application (a municipal grant the developer who bought the property from GM was seeking) were supplied in confidence.”
The City also claimed there was no need to release the information because the provincial government had already publicly provided more updated details of the site.
“It suggests that the MECP (ministry of environment) has released much more current data and has made public presentations concerning the issue (of dangerous contamination on site) to City Council. On this point, it refers to a 2020, presentation by MECP setting out the results from the ministry’s surface water and air monitoring conducted to assess for any off-site impacts from the specified site and a 2020 Surface Water Quality Study technical memorandum.”
Provincial officials told council these studies were not done on site (where the worst contamination was found by the 2010 and 2012 environmental assessments) and that the testing results they presented to council in 2020 were only superficial, conducted at very limited levels and only at a few places outside the former GM property.
This did not stop St. Catharines officials from trying to mislead the IPC, suggesting sufficient testing that was shared with the public had been conducted.
The province has made clear that a full environmental assessment (EA) has to be done before any residential development can move forward.
Despite the obvious need to protect residents through an extensive EA process, elected officials were bent on pushing the development plan forward without any updated studies, while keeping the 2010 and 2012 EAs secret.
Led by former Mayor Walter Sendzik, council recklessly decided to rezone the former industrial land in November of 2020 to make way for the large-scale residential development they trumpeted, despite the knowledge of City officials who knew about the alarming environmental assessment studies since 2015.
The rezoning was aggressively pushed by Sendzik, who had been photographed with the owner of Bayshore, the developer at the time, sport fishing on a boat in the Caribbean while the developer was pushing his plan.
An investigation by The Pointer previously revealed Sendzik was working behind the scenes with the developer and City officials to orchestrate the rezoning and potentially get the developer taxpayer-funded subsidies (the CIP grant) for the $250 million mixed-use residential-commercial project, which was widely heralded by Sendzik and senior City staff. All of this was done with no public disclosure about the findings from the 2010 and 2012 studies, which found toxic chemicals at levels that would prevent any residential use.
Work on the site has been paused since May when the developer said it was “not prepared” to pay for the critical studies necessary to address the concerns at the property.
But those issues were not known publicly because City officials refused to make the 2010 and 2012 EAs public.
The City declined the request for the information, and The Pointer was forced to file an appeal to the IPC to push for the release of the information.
The first step of the appeals process is mediation conducted by a provincially appointed mediator. During this phase of negotiation the City “confirmed its decision to deny access to the two ESA’s”. Mediation failed, leaving adjudication as the next and final step. The City was steadfast throughout the process, arguing why the two environmental assessments should be kept from the public, refusing to release the documents.
The procedures for the City to follow in situations like this are outlined in the MFIPPA (the provincial legislation that governs freedom of information rights). While the Act provides several factors for the City to consider when deciding whether to release requested information, the stated purpose of the legislation is “to provide a right of access to information” that should be available to the public; and the exemptions for not releasing information should be “limited and specific”.
The MFIPPA contains several sections that outline the City's authority when handling the requests for information it receives. Put simply, under Section 21(7) and Section 28(7), City officials “shall decide whether or not to disclose the record.” In every case, the MFIPPA is unequivocally clear: the decision rests with the City.
The Pointer consulted with officials at the IPC about the process under the legislation.
Had the City’s decision been to release the documents, it would have been required to notify GM and allow 30 days for an appeal to the IPC. In the same way The Pointer had the right to appeal to the IPC to argue why the documents should be made public, GM has the same right to appeal and argue why they should not be released.
Under the MFIPPA, the City had full power to decide whether to release the documents. From the outset, St. Catharines officials sided with GM and kept the documents from public view, opposing demands from residents who for years have asked to see records detailing any toxic hazards at the site.
Thousands of St. Catharines residents live in close proximity to a property where heavy industrial chemicals were used for a century.
City officials argued the following to the IPC: “GM continues to operate a plant in St. Catharines and is a significant partner and employer in the City’s business community and there are multiple GM car dealerships in Niagara. The continued public concern surrounding these properties and especially the impact on the 12 Mile Creek nearby mean that the potential for harm to GM is more than hypothetical.”
Section 16 of the municipal freedom of information legislation states exemptions do not apply if the public interest outweighs the purpose of the exemption.
The City did not express any concern about the potential risk to human health on a site council aggressively tried to transform into houses.
There is clearly a compelling public interest in the ongoing matter. The Ministry of the Environment, Conservation and Parks has already found PCBs to be leaking from the site (a berm was constructed in an attempt to rectify this issue). But the number of other contaminants documented in the ESAs (which are now available and linked at the bottom of the article) and the complete lack of knowledge about their current state, is vital information for residents living nearby.
When asked by The Pointer why the ESAs had not been published on the City’s website for public access, officials responded:
“The IPC’s decision did not give the City permission to proactively disclose nor publish the ESAs except to the FOI requestor, and the IPC has directed the City to treat each request for these documents as separate and distinct. Should citizens wish to obtain copies of these ESAs, we encourage them to reach out to the City through the FOI process.”
The claim by City officials was forwarded to the IPC for a response.
“IPC Orders are the same for all parties, and an IPC Order would not give the institution direction on how to respond to future requests for the same documents,” an IPC official told The Pointer. “Every request and appeal is a separate and distinct process. The IPC would not give instruction to an institution on their obligations to publish information.”
The Pointer sent questions to Councillors Caleb Ratzlaff and Robin McPherson and provided them with a link to a copy of the ESAs.
Mayor Mat Siscoe was also provided a copy of the documents and asked for comment. He did not respond.
(While the City of St. Catharines and the Ministry of the Environment, Conservation and Parks have failed to make the Phase I and II site assessments public, The Pointer is sharing these documents with readers here, along with a copy of the order from the Information and Privacy Commissioner that compelled the City to release the documents.)
Ed Smith is a Local Journalism Initiative Reporter based at The Pointer.