28 months after FOI request, St. Catharines still has not released chemical testing data for contaminated former GM site slated for residential development 

Twenty-eight months after a Freedom of Information  request was submitted to the City of St. Catharines, officials have yet to release crucial reports detailing the presence of chemicals on the former GM site along Ontario Street that the previous mayor pushed to get developed behind the scenes.  

These reports, Phase I and II Environmental Site Assessments (ESA), contain vital information relating to issues of public health and have been in the City’s possession since at least 2020. 

Under the terms of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) municipal officials had 30 days to respond after the initial FOI request was filed in May of 2022. While the City did respond before the deadline, it did not produce the records requested, instead asking for an extension, which is allowed under the legislation. Officials said they had to consult with third parties who have an interest in the documents, (presumably the landowners or former landowners of the GM site). Following that consultation the City chose to refuse the request for the documents which would list in detail the toxins present in the soil and subsoil as well as concentration levels. These documents would allow the public to be fully informed about the risks, if any, posed by living or being in the vicinity of the former GM site, which was used for heavy manufacturing for about 100 years.

The MFIPPA ensures citizens have a right to access records, or parts of records, that are in the custody or control of public institutions. While that right is not absolute (there are justifiable reasons for the government to guard some information from public consumption, for example, if the release of documents might impact an ongoing lawsuit or a negotiation to purchase property) it is widely recognized that there should be very compelling reasons for the government not to release documents to the public. 

The exceptions that a publicly funded institution may use to justify refusal of access are defined in the legislation and regardless of the position an institution such as City Hall takes, a citizen has the right to appeal to the Information and Privacy Commissioner of Ontario (IPC) if they are not satisfied. The IPC has the independent power to review all documents held within government and render a decision as to whether they should be released, and if the institution acted appropriately in denying access to them under the rules of the legislation. The IPC routinely orders documents be released to the public, overriding officials in government and other public institutions who attempt to hide “responsive records” from taxpayers.

In this case, the City of St. Catharines reached out to the former landowner, General Motors, before deciding they would not release Environmental Site Assessment reports on the 55-acre former industrial site. Municipal officials decided to side with General Motors, which claimed the information was scientific and/or technical, and that it was submitted to the City in confidence because General Motors would suffer reputational harm related to its “competitive position in the marketplace” if the information was released.  

St. Catharines officials claim they had no choice but to deny the request to release the documents. The City further rationalized withholding the documents by arguing that in order to release the information it “must serve the purpose of informing the citizenry about the activities of government” and these documents “do not speak to the City’s activities”. However, the officials admit the documents were submitted as part of a grant application by the current property owner, so the City came to possess these documents through its normal course of business on behalf of taxpayers. It’s also noteworthy that once these documents that detail chemicals present at the site came into the City’s possession, staff shared them with other levels of government. Despite this apparent acknowledgement of a public interest in the information, St. Catharines staff justified their decision to shield the documents from the public, telling the IPC adjudicator that “it is likely that controversy concerning the environmental impact of GM’s tenure on these properties, whether out of context or justified, could damage GM’s corporate reputation.”

It is unclear why public civil servants working inside City Hall on behalf of taxpayers would put GM’s “corporate reputation” ahead of the safety of the residents they serve.

The former General Motors plant stood for decades off the bank of Twelve Mile Creek, a waterway located on the Niagara Peninsula. The location has been at the centre of controversy since the land was sold to a developer in 2014. Heavy industrial chemicals, many of them extremely dangerous, were used on the 55-acre property in St. Catharines and residents fear their health has been put at risk due to ongoing negligence by stakeholders.

The provincial environment ministry confirmed in 2022 to The Pointer that no Record of Site Condition, which shows what toxic chemicals are present on a brownfield property and the remediation work required to clean it, had been submitted to the Province by the property owner.

In 2020, Aaron Collina, president of Movengo Corp., a Hamilton-based development company, worked behind the scenes with former St. Catharines mayor Walter Sendzik and the City’s head of economic development, Brian York, to rezone the contaminated industrial property for a large residential/commercial project. Council, led by Sendzik, changed the zoning months later through a vote to allow residential and commercial use, even though no Record of Site Condition had been provided to show the contaminated land could be used to house residents and businesses.

Since 2018, the public has voiced concerns around the risks associated with the former plant, pleading with elected officials and the developers to take action — demands that led to little work for years as the former mayor and the current landowner instead pushed to get the site rezoned to allow a large mixed use residential/commercial project.

In denying the release of key documents that would provide a clearer understanding of the site’s condition, City staff claimed, “It would be difficult for the lay reader to use this sort of data in context…”, claiming that “most non-experts would need to rely on web searches extensively to try to understand acronyms, test results, regulations…”. St. Catharines officials claimed residents do not need to know the information, may become unduly alarmed by it, can not understand it and can not be relied upon to talk about the issues in context and, therefore, staff are justified to withhold the information.

It is unclear how staff came to these conclusions. Data from Environmental Site Assessments, showing chemical readings, are routinely shared with the public. The provincial government makes its regulations and threshold limits for chemicals publicly available so residents can easily look up important public health information to keep themselves safe, for example, surface chemical readings are published alongside regulatory limits for each toxin to ensure safe water supplies in areas where wells are commonly used by residents. 

However, St. Catharines officials have submitted to the Information Privacy Commissioner that this type of simple, but critically important, information is too complex to understand for most residents, or may be taken out of context by them.  

The reports requested under freedom of information laws would likely reveal the type and quantity of toxins that are present underneath the former GM site; a site that butts against residential and commercial properties, as well as daycare facilities; a site where children play, and unhoused people seek shelter; a site that sits atop 12 Mile Creek and drains into it constantly. 

It is also the location that Sendzik tried to get rezoned for residential construction, helping a developer with a controversial background, Robert Megna, work around rules and procedures when he was supposed to remediate the site. 

Sendzik was photographed fishing from a boat in the Caribbean with Megna a year after he bought the former GM property (the former mayor claimed it was a coincidence and that he had unexpectedly bumped into the developer who then invited him to go fishing).

Former St. Catharines mayor Walter Sendzik, left, fishing in the Caribbean with controversial developer Robert Megna in 2015, a year after he bought the former GM lands.

(Facebook)

Despite Sendzik’s interference to help Megna, the City eventually had to take his company to court in what it described as a “string of legal actions” over the developer’s failure to meet obligations.

A City report detailed that, “in April 2021, the property owners pleaded guilty at Provincial Offences Court to 13 charges under the Building Code Act for failure to provide a schedule of all required inspections listed on permits issued for the property and failure to submit general reviews from a professional engineer.”

The company eventually pleaded guilty to at least 42 charges and had walked away from its role in the development plan, before Collina and his company, Movengo Corp., stepped in. 

Fast forward to the recent effort to obtain information about the chemicals that were documented at the site, and City officials are now arguing that citizens do not need to know what is under the ground.

Citizens have been complaining as far back as 2015 about clouds of dust blowing from the site onto their property, which they feared were “extremely toxic”. Glenn Brooks was diagnosed with breast cancer and informed by his oncology team that the cause was likely environmental in nature. He attributes his disease to living next to the site.  

Through it all the Ministry of the Environment, Conservation and Parks (MECP) and St. Catharines staff were either dithering in their response to public demands for transparency, or, even worse, were issuing reassuring messages regarding the safety of the site.

Meanwhile, behind the scenes City staff were sending private emails to the MECP asking provincial employees to visit the site, describing it as a matter of urgency as they were concerned about oils and PCBs leaching into the ground and surrounding watershed.   

Finally, in 2020, after being pressured by a citizen action group, the Coalition for A Better St. Catharines, the MECP tested and found a significant and continuous run off of PCBs from the site. To this day, residents have no idea of what exactly lies beneath the soil; the ESA reports held by the City would shed light on the condition of the property but the municipality has instead sided with General Motors, refusing to release the information.

Section 5(1) of MFIPPA, the FOI legislation, states that despite any other provision of the Act, a government institution “shall release documents” as soon as practicable 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.” 

The Act mentions public health issues numerous times making it clear that the reasons for not releasing a document can not be applied if there exists a “compelling public interest”. Despite these provisions, City officials make no mention of them in their submissions regarding the freedom of information request.

The provincial Information Privacy Commissioner has the power to force the City to release the documents. When contacted in May for a status update, two years after the FOI request, the IPC stated it hoped to render its final decision by August. When contacted in August the date was pushed to this coming December. 

When contacted for comment, the Office of the Information and Privacy Commissioner of Ontario replied that:

“The IPC recognizes the vital importance of information relating to public health and safety. Each appeal filed with our office is processed on a case-by-case basis and the time it takes to resolve an appeal can vary depending on the nature of the case. If an appeal moves to the formal adjudication process, the length of time for a resolution can be affected by factors such as the number of parties involved, custody and control issues, volume of records and exemption claims.”

The IPC website acknowledges a need to improve timeliness of the appeals process and in its email to The Pointer reiterated that new changes take effect on September 9, 2024 with a view to improving timeliness, efficiency and transparency.

For the residents of St. Catharines, particularly those living around the former GM site, those changes can not come quickly enough.

“We will never know exactly what contaminates the GM property holds. After years of dumping, who knows what’s there. The only thing I am certain of is that the contaminants run deep,” Glenn Brooks states. “The City can turn a blind eye, but they are playing fast and loose with citizens' health and have been doing it for a very long time. I always thought my City would have protection of citizens as one of their main goals, it’s not so where GM lands are concerned. We have become an inconvenient truth the powers have chosen to ignore.”

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