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Secret incinerator documents released

By Graeme McNaughton/The Oshawa Express

A number of documents from a duo of closed meetings dealing with the incinerator have been made public – however, much of what lies inside remains secret.

As part of the Oct. 14 council information package, a number of documents from meetings held Dec. 22, 2015, and Jan. 27, as well as a presentation by now former works commissioner Cliff Curtis, were released.

The two meetings were found to have been improperly closed to the public following an investigation by the region’s closed meeting investigator, Amberley Gavel.

“In our opinion, there were major portions of the discussions that could have been, with good planning and careful management of the flow of the meeting, been made public and transparent,” the report, written by Nigel

Bellchamber, concludes.

The report came following complaints filed in the spring that the two meetings should have been open to the public.

In an emailed statement to The Oshawa Express, Matt Gaskell, the region’s corporate services commissioner, says his department reviewed the documents to see what could and could not be released.

“The closed meeting investigation report had indicated that some parts of both meetings were properly addressed in closed session. However, the report noted that some portions of the discussion did not need to be held in-camera; providing the example of information about the dispute resolution process,” he states.

“As noted previously, council did report in open session on the exact wording of the settlement, which was approved. However, prior to that, the settlement proposal from Covanta was confidential, until it was accepted and approved by council. Members of council needed to hear the without-prejudice settlement proposal, and accompanying legal advice, in order to determine whether or not to settle the proceeding.”

Dec. 22 meeting

On Dec. 22, the regional committee of the whole met in a closed meeting at regional headquarters to discuss the incinerator. According to minutes of the meeting posted to the Region of Durham’s website, councillors received a confidential verbal update on acceptance testing for the incinerator.

The day following the meeting, the region announced that Covanta, the operator of the incinerator, had not passed its acceptance testing, citing that the facility had produced more ash than was acceptable under the contract between the region and the operator.

There are two documents in the release pertaining to this meeting. The first document, a memorandum dated Dec. 11 from Gioseph Anello, Durham’s manager of waste planning and technical services, and Luis Carvalho, a senior project manager with York’s capital planning and delivery branch, details how Covanta had submitted its acceptance test report in late November and believed it had passed the acceptance testing, but that the regions’ staff believe they had not, due to excessive ash production.

This report contains two paragraphs that are completely blacked out – one coming after a section detailing how Covanta had modified its test procedures for how much ash was being made, and another being one of the conclusions of the memorandum from its authors.

The second is a memorandum dated Dec. 18, 2015, from Mirka Januszkiewicz, Durham’s director of waste management services, and Laura McDowell, York’s director of environmental promotion and protection. This report contains the recommendation that the incinerator cannot be given a certificate of approval due to producing more ash than was permitted under the agreement between the regions and Covanta, the site’s operator.

There are two portions blacked out in the public release of this document, both dealing with acceptance testing. It appears that there are four principles laid out as part of the acceptance testing – however, only the first (“The entire test had to be performed under normal operating conditions”) and the third (“The successful completion of the source (stack) test was a mandatory condition”) are seen. The other two are blacked out.

Jan. 27 meeting

On Jan. 27, following a meeting of regional council, the committee of the whole again met behind closed doors to discuss the incinerator. Following that meeting, regional council reconvened, and voted to amend the contract between Durham and Covanta, allowing the operator to produce more ash.

As a result, the incinerator was given the go ahead to go into commercial operation the following day.

The main document pertaining to this meeting is 2016-COW-2, a report previously only seen by councillors behind closed doors. It is this report that recommends that the contract between the regions and Covanta be amended so that the incinerator’s operator would be allowed to produce more ash, thereby bringing the results that had previously been in exceedance down to acceptable levels.

This report also features larger swaths that are blacked out. The vast majority of a section labelled “Confidentiality” is blacked out, with the exception of one sentence, which says that staff were directed to report to council before making any decisions on the acceptance testing of the incinerator.

As well, a section titled “Arbitration Process” is mostly redacted, with the exception of the first section, which says that any arbitration between the regions and Covanta would likely deal with that ash issue, adding that “further background on the residue quantity issue is provided below” — those sections are blacked out.

The only other portion of the “Arbitration Process” not blacked out is one section detailing how regional staff sought clarification from the Ministry of Environment and Climate Change as to what would happen in the event of a second acceptance test, and were told that the ministry would not be in a position to participate in such a test nor the evaluation of its results.

As well, large swaths of a section labelled “Settlement Proposal” are blacked out, although as noted above by Gaskell, this likely deals with the “unprejudiced” view of the settlement deal given by legal staff prior to councillors voting on it – those results were later made public.

Sections entitled “Connection to the Grid,” “By-pass Waste Costs,” and “Liquidated Damages” were also largely redacted.

With this report in the Oct. 14 council information package, the earliest it can appear in front of councillors is at the Nov. 2 committee of the whole meeting, assuming that a councillor request that it be put on the agenda.

However, even if the item is not put on the agenda, it can still be subject to delegation from members of the public.