Right to Know Week, Day 1: Still in the dark about the sewage plant failure

Happy Right to Know Week!

As I reported last week, mayor Peter Kelly has proclaimed September 26-30 Right to Know Week: “Halifax Regional Municipality is dedicated to the principle of open and transparent government and is accountable to the citizens it serves.” No doubt the proclamation came at the behest of the Canadian Association of Professional Access and Privacy Administration, and so therefore HRM’s public information officer, Nancy Dempsey. Such proclamations are usually routine affairs that no one much pays attention to, but there’s a delicious, if perverse, irony that such a proclamation comes from a city official at the centre of a secret $5.4 million concert loan scandal.

In their backgrounder for Right to Know Week, CAPAPA suggests that

if you are a journalist … write an article about Right to Know Day around the world and/or about local transparency issues … if you have never filed a request before using any of Canada’s national or provincial access to information laws, now is the time to start, and then make a story out of what happens!

which is an excellent suggestion. Regular readers know that I’ve filed lots of freedom of information requests, and so this week I’ll write an article each day about some of those experiences, about some of the larger issues involved and try to assess how well the city complies with both the letter and the spirit of freedom of information laws.

Today I’m going to write about the particularly vexing experiences I’ve had trying to learn more about the failure of the Halifax sewage plant on January, 14, 2009.

Raw sewage back in the harbour

Until 2008, sewage from the older areas of the city was being dumped untreated in the Halifax Harbour and into the ocean. After many false starts, government finally addressed the situation through what was known as Harbour Solutions, which was then the largest public works project ever undertaken in Nova Scotia. Harbour Solutions involved a massive re-plumbing of the city’s sewage system, the construction of four new pumping stations, a gigantic tunnel 85 feet below downtown Halifax and three new sewage plants—one in Halifax near the Cogswell Interchange, another in Dartmouth and the third in Herring Cove. Tthe bulk of the $330 million cost of Harbour Solutions was to come from rate payers. The city contracted most of the work out to Dexter Construction in cooperation with Degremont Inc. of France.

In 2008 the first sewage plant went online—the largest, the one near the Cogswell Interchange. Famously, mayor Peter Kelly went swimming at Point Pleasant Park’s Black Rock Beach and proclaimed a new shit-free day for the harbour. But then, just six months later, the sewage plant failed, and we were right back to spewing over 100 million litres of raw sewage into the harbour per day.

Obviously, the failure of the sewage plant was a matter of immense public interest. At the time, we had no idea what the financial or environmental costs of the failure would be, although it was pretty clear that the reputational costs for the city would be huge. How could something so important, something we spent so much time and money on, go so terribly wrong? The people had a right to know, and so I requested a copy of the engineering study of the plant failure, what came to be known as “the forensic audit.” (I keep posting the above picture, of a Mickey Mouse contraption in front of the sewage plant held together by bailing wire, duct tape and plywood as a reminder of the kind of Red Green-type engineering that went into the plant.)

First attempt at the forensic audit

I first asked for the forensic audit when mayor Peter Kelly said publicly he had read it. But Kelly refused to release it to either the public or to city council, with the excuse that he had read only a draft. It’s still unclear to me under what legal grounds the mayor can receive documentation that is denied city councillors—even if there’s some legal objection to releasing the document to the public, I can find no rationale for keeping it from councillors, whose fiduciary duty includes staying on top of potential litigation, and clearly the sewage plant failure raised all sorts of issues about potential city liabilities.

While arguably the public might have had some recourse to the courts related to the sewage plant failure, that seems extremely unlikely to have gone anywhere. Much more likely at the time was that the three Harbour Solutions partners—HRM, Dexter Construction and Degremont Inc.—would end up suing each other in a bid to avoid paying for fixing the failed the plant.

As spring of 2009 turned to summer of 2009, officials admitted that the forensic audit had been finalized, and that it had been given to Dexter and Degremont. In other words, every potential litigant related to the failed sewage plant had the forensic audit in hand, but still the city refused to make it public citing “potential litigation.”

Clearly this made no sense at all. I felt then, and still feel, that the forensic audit isn’t being made public to avoid embarrassment for the people at fault for the design faults in the sewage plant.

Despite not having access to the forensic audit, which details exactly what went wrong, by August of 2009—after talking with plenty of people who know sewage plants generally, and Halifax’s plant specifically—I was able to piece together the gist of the failure in a piece headlined “How the sewage plant broke.” That article still stands as the definitive public account for what went wrong, and city officials have not contradicted it. But while I could explain what went wrong, I was unable to explain why it went wrong: How was it, exactly, such a costly engineering project could be designed so that an electrical generation room was below hydraulic grade, or that emergency back up generators were mis-wired or that there was no manual override for a power-driven gate? Presumably, the forensic audit will get into the “how” of these matters, or at least give enough information that we can figure out the “how” ourselves.

Regardless, a curious thing had happened that summer: the city government shifted control of the entire Harbour Solutions project, including the failed sewage plant, over to the Halifax Water Commission. Henceforth, I was told, I’d have to address all my public records requests to Carl Yates, the manager and public information officer of Halifax Water. Ever since, Yates has consistently and repeatedly denied my request for the forensic audit. I’ll get into those denials momentarily, but first let’s step back and look at what’s happening between the city government and Halifax Water.

The Water Commission dodge

It used to be that the city government, with city council at the helm, ran the water department. Council set water rates and, more important, made decisions on costly capital improvements in the water system. These sorts of decisions are, I argue, political decisions, but city councillors didn’t want to be held accountable for increasing water rates, and so established the Halifax Regional Water Commission as a supposedly independent corporation that would simply take care of water pipes and infrastructure and set the rates accordingly, in a supposedly non-partisand, apolitical manner. Water rates could go up, but politicians wouldn’t feel the heat. Halifax Water was created by a provincial act in 2007, and the city began transferring various water, and then sewage, assets over soon after.

Problem is, there’s nothing independent about Halifax Water, and there’s nothing non-partisan or apolitical about its actions.

Halifax Water remains firmly under the umbrella of the city. Its liabilities are ultimately the city’s liabilities—should Halifax Water go bankrupt, or make some horrific screw-up costing billions of dollars, it is the Halifax Regional Municipality and ultimately city taxpayers who will have to pay to make things right. So independent it is not.

And Halifax Water is making decisions worth hundreds of millions of dollars about new infrastructure, much of it to access new subdivisions being built in the suburbs. To be sure, the city and Halifax Water go through a process called “Capital Costs Contribution,” which allocates at least some of the capital costs of servicing new subdivisions to the developers of the subdivisions, but as with roads, much of those costs are simply absorbed by the corporation—that is, existing rate payers are paying for some of the capital costs of new development.

It’d be good for the public to have oversight of the allocation of capital costs. It’d also be good for Halifax Water to have to justify publicly giving its managers, including presumably Yates, raises of between 20 and 40 percent over a two-year period, while rolling those managerial salaries into a request for a 41 percent increase in rates.

Ultimately, Halifax Water has to get rate increases approved by the Utility and Review Board, but there is no way for a citizen or a reporter to directly drill down into the numbers, question them or demand accountability. I became interested in Halifax Water because of the capital costs issues; I wanted to better understand how the commission was making its decisions, wanted to look at the same sort of documentation that I regularly review as city council makes capital budgets for things like rec centres or the bus system, so I called Yates to find out when the commission meetings were so I could attend them. He refused to tell me, and said the meetings aren’t open to the public. “We just discuss business matters,” he said, but of course it is precisely those “business matters” the public might want to learn about.

The end result of what I call the “Halifax Water dodge” is that city council has effectively taken a multi-billion dollar operation that used to be open to the scrutiny of public record law and open meeting rules and has hidden it behind a veil of secrecy. This should concern all citizens, and all rate payers.

No reason to keep the forensic audit secret

But let’s return to the forensic audit of the sewage plant failure. The issue has moved down the road considerably, as this past June Yates announced that Harbour Solutions is “complete,”and that insurance has covered nearly all the bills related to fixing the failed sewage plant.

So I of course called him up and asked for the forensic audit again. If Harbour Solutions is “complete,” why not release the audit?

Well, it turns out that Harbour Solutions really isn’t completely, not entirely anyway. There is “one small outstanding issue,” Yates told me in June, and after that is resolved, he’ll make the forensic audit public.

Every few weeks since, I’ve called or emailed Yates asking for the forensic audit, and finally Friday he told me what the hold-up is: “The litigation which is still unresolved is a claim from O’Carroll’s restaurant,” he wrote in an email. “The claim is being defended by Dexter Construction.”

OK. So this morning I went down to the court offices to pull the court file. There isn’t one; so far as I can determine, there’s no litigation between O’Carroll’s and any firm associated with Harbour Solutions. I’ve asked Yates for still further clarification, but have not yet received a response.

Still, this is nuts. Whatever damages O’Carroll’s is claiming must be utterly inconsequential in terms of the $330 million Harbour Solutions budget, and entirely irrelevant to the forensic audit I’m requesting. While construction downtown may have adversely affected O’Carroll’s, there’s no way the restaurant could have suffered direct results from the sewage plant failure.

It’s clear that Yates is simply using the excuse of an outstanding claim, a claim entirely unrelated to the forensic audit, to keep from making the forensic audit public. It’s bullshit behaviour on the part of what should be a public servant.

I’ll get into this further in another post, but my frustrations with the forensic audit illustrate another problem with using the provincial Freedom of Information and Protection of Privacy Act. Sure, I could appeal Yates’ refusal to turn over the forensic audit to the FOIPOP review office, but it will take many years and untold paperwork to get an appeal ruling. In effect, the Act is designed to frustrate the short timelines of the news media.

This article appears in Sep 22-28, 2011.