Councillors cite legal advice, investigation to explain their secrecy around sewage spill

Hamilton city councillors say they were following legal advice when they decided to keep secret the full extent of a leak that spilled an estimated 24 billion litres of sewage into Chedoke Creek over more than four years

But a spokesperson for Ontario's Minister of Environment, Conservation and Parks (MECP) described that decision as "unfortunate," saying the public should be aware of any overflows to protect people's health and the environment.

And the Royal Botanical Gardens said the spill into the creek set back the effort clean up Cootes Paradise by years.

On Wednesday, the city issued a media release stating that untreated sewage and storm runoff had been spilling into the waterway through a gate that had been left slightly open since January 2014.

That release was the first time the public had heard about the spill since it was discovered in July 2018 and residents were warned to stay away from the water. 

On Thursday several councillors and Dan McKinnon, the city's general manager of public works, acknowledged council and staff had been aware of both the volume and duration of the leak since January, when a report about it was provided in camera  to council.

Four councillors CBC spoke with attributed that decision to legal advice cautioning council that making the information public could harm the city's ability to defend itself against major fines down the road.

"There's no secret, there's no suppression, there's a delay in information in order to follow due diligence to protect the tax payers," said Ward 4 councillor Sam Merulla.

Merulla, along with Tom Jackson from Ward 6 and Brad Clark from Ward 9, all said that when council heard how much sewage had leaked and for how long there was a vigorous discussion, with several members arguing in favour of making the information public.

"When we were in camera hearing about this unsavoury ordeal there was a general feeling among council wanting to release it at that time," Jackson said.

In explaining the city's decision not to, Ward 12 councillor and public works committee chair Lloyed Ferguson cited the ongoing investigation into the leak by the MECP.

"It's a very common practice that within the city … we never talk about issues that are under investigation because things can change," he said. "We don't have the conclusions yet, so we simply don't talk about it."

Ferguson said the information would have stayed secret until the that investigation was complete if it wasn't for someone who "broke the law" by releasing information to the Hamilton Spectator — which published a story Wednesday on confidential reports.

An 'unfortunate' decision

In a statement to CBC, Andrew Buttigieg from the officer of environment minister Jeff Yurek, said it was "unfortunate that the city chose to keep information from the public."

We believe the public should be made aware of overflows and bypasses as they occur and the potential impacts to water quality," he added. "Having real-time information on sewage bypasses and overflows and any associated health risks will help to safeguard public and protect out natural environment."

The response from Yurek's office comes after Hamilton West Ancaster Dundas MPP Sandy Shaw wrote a letter to the minister asking him to order all information the ministry has about leak be made public.

"Given the extreme environmental and public health concerns, I am writing today to request that you order full public disclosure," it reads.

RBG not told how long leak lasted

Chedoke Creek flows into Cootes Paradise, a marsh the Royal Botanical Gardens (RBG) and other agencies have spent years and millions of dollars trying to restore and clean up.

Despite the fact the RBG acts as steward for the sensitive wetland, Tys Theijsmeijer, head of natural areas, said the city had not told the organization how much sewage the marsh had soaked up or how long the leak had lasted.

"We were kind of a little surprised since we're, in theory, all working together to solve the same problems."

He added that 2018, the year when the sewage swamped the creek and the leak was first discovered, was a frustrating one for the RBG because that waste allowed an algae bloom to take over the waterway, smothering everything else that was trying to grow.

"It set us back a lot of years and to know that we've been struggling with this issue for a couple years previous, one we though we had solved, it wears you down," said Theijsmeijer.

At the same time, it gave the gardens an explanation for test results that were confusing researchers.

"[It provided] a bit of relief to know that many of the problems we had been experiencing in the environmental restoration process could easily now be tracked back to that particular issue that was finally solved."

City doesn't know why gate stayed open

McKinnon, who heads up the public works department, described what led up to the leak as a "perfect storm" involving one gate that was left about five per cent open for multiple years, while another upstream was also ajar and "likely amplified the spill in that last six month period" before they were discovered.

He pointed out the city can't afford to manually monitor every one of the "thousands and thousands" of moving parts that make up its sewage and wastewater system, meaning staff rely on technology.

So far staff haven't managed to figure out why the gates were left open and why the discharges weren't detected, but they've managed to narrow it down to a "handful of things."

McKinnon said he's anxious for the results of the MECP investigation as they may have spoken with retirees or people who left for new jobs who city staff haven't talked to.

He added part of what made detecting the spill so difficult was the fact Chedoke Creek is already "impaired" because it's along a highway, near an old dump and acts as an urban watercourse where sewage is discharged on a "regular basis" already.

"This isn't a pristine watercourse you can dip a cup in and drink from."

'One litre is too much'

Still, McKinnon said the discovery of the leak was "heartbreaking" for staff, who he says care deeply about the environment.

He was quick to point out 24 billion litres works out to about four per cent of the annual volume of flow to Hamilton's wastewater treatment plants, something he characterized as "important, but it wasn't a big number."

But even McKinnon was shocked when he heard the total estimate.

"It's way too much. One litre is too much."

One thing McKinnon said he wanted to make very clear is that the city stopped the leak as soon as they found it and that they reported what happened to the ministry right away.

"We didn't knowingly allow the community to be at risk from an ongoing overflow because we wanted to keep it secret," he said.

"If we're under investigation we don't talk about it because we could jeopardize the city's ability to defend itself and at that point there was no more acute human health exposure to it."