Fight continues over Site 41 data

By Travis Mealing Midland Mirror
MIDLAND – The County of Simcoe is seeking a judicial review of an Information and Privacy Commissioner (IPC) of Ontario directive that officials in Midhurst insist cannot be obeyed.
The directive requires the county to take any steps necessary, including a lawsuit, to obtain the Modflow model from engineering consulting firm Genivar.
The model is a groundwater flow simulation that outlines hydrogeological conditions at the Tiny Township Concession 2 location, known as Site 41, where a controversial landfill was proposed.
“The county does not have, and has never had, a right to possession or control of the model. It is … owned by the engineering consulting firm Genivar,” the county stated in a press release issued Tuesday. “As a private corporation, Genivar is not under the jurisdiction of the Information and Privacy Commission of Ontario.”
Stephen Ogden is a leading Site 41 opponent whose freedom-of-information request to get a look at the model started this ball rolling in September 2007. He said the county is hiding behind Genivar to avoid releasing the information.
“The withholding of the information is totally inappropriate and prevents the public from monitoring so-called expert opinion, or holding public officials accountable for the quality of the information they use to reach their decisions,” Ogden said in a press release.
“If a court were to uphold the county’s position, this would set up an ‘information firewall’ between the electorate and decisions made on their behalf.”
The county acknowledged a judicial review by Ontario’s Divisional Court may be a costly endeavour, but it defended the move as necessary.
“Given the continued unreasonable position (the county) has been put in, this is the most cost-effective decision. It will yield savings over what is very likely to be an unsuccessful lawsuit…. Furthermore, the county feels strongly that no person or corporation should be compelled to bring a lawsuit that they consider to be wrong in law.”
The application for a review was launched Tuesday, with the county expressing hope the matter will be heard “as soon as possible.”
County officials insist the IPC is wrong to suggest legal action could result in the model’s release, suggesting it has no legal basis to sue Genivar.
IPC adjudicator Colin Bhattacharjee, in an Aug. 21 letter outlining the directive to the county, called the county’s stance “unacceptable.”
“It is deliberately disassociating itself from key records relating to the environmental integrity of Site 41, despite the fact that these records were created by (Genivar subsidiary) Jagger Hims with the use of taxpayers’ money.”
Though it has refused to abide by the IPC order, the county has sought what it calls a “compromise solution,” negotiating an agreement that would have allowed a peer reviewer to conduct an independent assessment of the model.
Ogden deemed the offer unacceptable – he said it limited his choice of peer reviewer and the nature of the evaluation to be undertaken – and the IPC reaffirmed its order.
This week’s legal manoeuvres came nearly three months after county council voted not to proceed with the Site 41 landfill plan. The decision did little to stem opponents’ fears, however, as attention quickly turned to the Ministry of Environment-issued certificate of approval that still allows a dump on the property.
Simcoe North MPP Garfield Dunlop introduced a private member’s bill to revoke the certificate on Nov. 19. The motion passed by a 40-11 vote.
Nonetheless, the battle continues, with critics slamming the county for spending money on legal fees to resist production of the model.
“Why does the county continue to act in a manner that creates suspicion and doubt as to how we are governed?” asked Ogden. “What are they trying to hide, especially now that the project is cancelled?”