EFW continues to cause a stink in Oshawa

By Katie Richard The Oshawa Express February 1 2011
Even before construction starts on the proposed Energy-From-Waste facility, it’s causing quite a stink.
Despite garnering support from the Ministry of Environment (MOE) in November, the project still has a number of speed bumps to hurdle over before construction could start.
And talk of legal action between the region and the Municipality of Clarington is one of those speed bumps.
Clarington passed a resolution at its most recent meeting that could see it before the Superior Court of Justice addressing the issue of whether it is bound to its pledge to ‘not oppose’ the garbage-burning facility in its community.
Regional Solicitor Matthew Gaskell fired back with a letter threatening Clarington with a $46 million lawsuit if it breaks the conditions of the Host Community Agreement (HCA) by going before a judge.
“It is of the opinion of the Legal Department of the Region of Durham that initiating court proceedings as referenced in the Resolution would amount to a clear and unequivocal breach of the HCA,” the letter to Clarington reads.
In its resolution, which was moved by Councillor Joe Neal and seconded by Councillor Corrina Traill, Clarington asked the region to amend the HCA in a few areas, mainly clarifying portions.
Clarington gave the region until Feb. 14, 2011 to do so.
Gaskell’s letter goes on to say that it won’t discuss matters of the HCA while “under the threat of litigation.”
In addition, court proceedings could cause a delay of the EFW project, which in turn would cost the region more money, to the tune of $45 million, the letter says. It could also halt the project all together.
If this were to happen, Durham would lose out on the $15 million spent alongside York Region to complete the Environmental Assessment (EA), another $30 million to terminate the project agreement with Covanta, the company slated to build the facility, and $1 million in legal costs, the letter reveals.
“If the Region were subject to any of these costs as a result of Clarington’s breach of the HCA, then the Region would undoubtedly pursue recovery from Clarington,” the letter continues.
Mayor Adrian Foster and Regional Councillor Mary Novak did not vote in favour of the resolution.
In its resolution, Clarington also asked council to alter the original agreement to reflect the EA that was mandated by the Ontario government.
When the MOE approved the proposed facility it put a set of stringent guidelines on the project, meaning Durham couldn’t push forward with the project if the guidelines weren’t followed.
One such guideline was the formation of a public advisory committee “so that the community continues to be involved in the project,” the province says in a release.
But after the advisory committee’s first meeting, many residents are outraged at the process.
Durham resident Linda Gasser, who was invited to the committee meeting as a member, says members of the public were locked out.
“There were plenty of open seats. To my knowledge there were a number of seats that could have accommodated the eight or 10 people out there,” she says.
“Council is responsible for meeting the conditions of EA approval.”
Gasser says she has received no explanation as to why the public was left out in the cold.
“This appears to be a preference of Durham Region staff (to have a closed meeting),” she says.
“It was my decision…that non-invited people couldn’t come in,” says Commissioner of Works Cliff Curtis, adding there was nothing in the province’s mandate that says whether the meetings have to be open to the public or not.
He says it is up to the advisory committee to form its own terms of reference, which was not done at the first meeting. The terms of reference set who can attend meetings and when they will be held among other logistical items.
“Basically my intent was to give them an opportunity to do that (set a terms of reference),” Commissioner Curtis says.
Some members of regional council were upset at the way the committee was formed.
“I have a problem with the process. This is not a transparent process,” says Whitby Mayor Pat Perkins, adding council should have been asked for advice.
“It’s not a meeting of council,” retorts Commissioner Curtis, adding it doesn’t fall under the same Municipal Act. “This advisory committee is not a creature of council.”
Regional Councillor Nancy Diamond says she feels the meetings should be open to the public.
“We have nothing to hide surely. This process, as mandated by the province, should be open in my opinion,” she says.
Gasser says the last set of councillors were not involved enough in the project, which is where they went wrong.
“Last term, council wasn’t involved in many key aspects of this project,” she says.
“Something’s falling into the cracks here.”
Commissioner Curtis says it’s unlikely the next meeting will be open to the public, as the terms of reference still won’t be set. He says if the committee made the point of setting the terms of reference first thing, and chose to host them openly, the public could come in as observers after that point.
“Let’s be clear – the public was not invited to the first meeting,” says Commissioner Curtis.
“We have a number of meetings that are held in this building (regional headquarters) that are not open to the public.”
But Gasser says something needs to be done.
“Durham Region can’t control the mandate. Durham Region can’t control the membership,” she says. “I see so much hope for this committee.”
The date for the next advisory committee meeting had not been set as of The Oshawa Express’ deadline.