County’s legal bills in Modflow dispute said nearly $60,000

By DOUGLAS GLYNN
By Douglas Glynn Midland Free Press April 15 2010
As of September 2009, Simcoe County had spent upwards of $60,000 on legal fees in the dispute over access to the calibrated computer model (Modflow) that was relied on to grant the certificate of approval for dump Site 41, a county official has confirmed.
County clerk Glen Knox acknowledged the expenditures last week in response to a request from The Free Press for an explanation after a letter suggesting the amount was closer to $245,000 became public.
(The landfill was mothballed in August, 2009, and the county is challenging in court an order from the Ontario Information and Privacy Commissioner directing it to obtain the computer model data from its consulting firm.)
The letter was written to the Site 41 community monitoring committee (CMC) by Hugh Anson-Cartwright who made a freedom of information request to the county in June, 2009. He requested, “amongst other reports, costing information with respect to the decision by the County to refuse access to the Modflow data and the costs associated with the alternate course of action chosen by the County.”
His letter says 22 of the records among the 305 pages provided to him were “invoices from the county’s lawyers, Graham, Wilson & Green, totalling $112,668.61(with the details blanked out). Together with the invoice from Jagger Hims for $133,350 for the Modflow demonstration at the 2008 tripartite meetings,” the letter says, “the total comes to $245,000.”
(The 2008 tripartite meetings at which the demonstrations were conducted had been proposed by Environment Minister John Gerretsen in a bid to mediate some sort of agreement or settlement between the county and the CMC over access to the ModFlow.)
Knox indicated by email that he was only able to confirm details of the FOI request because Anson-Cartwright had requested his letter be added to the (public) agenda of the CMC’s meeting last Thursday.
“Only portions of these invoices (provided to Anson-Cartwright) were associated with legal services pertaining to his FOI request,” the county clerk said in his email.
“Upon preliminary review of these invoices, the County Clerk’s Department has determined that the amount in respect to his FOI request is less than $60,000. The majority of these invoices contain billings on other matters.”
Anson-Cartwright’s letter asked whether county councillors were aware of the legal costs incurred over the Modflow. However, Tony Hope, deputy mayor of Springwater Township and the county’s representative on the CMC, was not at Thursday’s meeting so the question went unanswered.
In addition to Knox’s comments, Rick Newlove, the county’s general manager of corporate services, reiterated the county’s position “that it does not have, and never did have, the ModFlow Model-(its consultant) Genivar does.
“The County received what we paid for -a report on the findings that includes all data, inputs and results which have been public information. These were the technical assurances which led to full site approvals by the Ministry of Environment.
“The hydrogeological model itself is in the possession of Genivar, a leading Canadian engineering firm, who was contracted by the County of Simcoe to determine the landfill effects on the property. The County was required to spend money on this legal issue because we do not own the ModFlow Model.
While the county has steadfastly clung to its contention that it does not own the Modflow, the Information and Privacy Commissioner has ordered the county to obtain the model from Genivar by taking all steps including legal proceedings if necessary.
Newlove says the county complied with the Order by writing to Genivar to require that Genivar provide the Model to the County. Genivar refused to do so, and continues to do so, for various reasons including proprietary rights.
In August, 2009, county council passed a resolution to seek a judicial review of the IPC’s order.
Newlove said, in part, “it is unfortunate that the facts on the matter often get overlooked or forgotten. The data has always been available to the public and importantly, when questions about seeing the ModFlow model arose, the County, Ministr
y of Environment and the Community Monitoring Committee (CMC) jointly par ticipated in a tri-party review of the ModFlow Model in 2008. “The CMC-approved expert for this review was hydrogeologist Dr Kerry Rowe. These Ministry of Environment sponsored meetings were held in order to provide to the CMC a demonstration of the ModFlow Model and an explanation of the model and results, as well as an explanation by the Ministry of the Environment of its approval process.
“Dr Kerry Rowe found the results acceptable,” Newlove said. “The minutes of these meetings have always been public.”
However, Ray Millar -the former CMC chair involved in the tripartite meetings -has subs e q u e nt l y said the tripartite meetings did not answer his questions, nor the concerns raised by the CMC’s consultant.
“Rather than provide the CMC with the ModFlow data, the county spent taxpayer dollars to provide limited access,” Millar said in an interview last year.
Meantime, Steve Ogden -who made the freedom of information request for the Modflow on behalf of the CMC -is awaiting the outcome of the court challenge which, he says, will likely cost the county “a lot more in legal fees.”
If it is determined the county must comply with the IPC order and if it eventually obtains the Modflow, then it will have to once again deal with Ogden’s FOI request.