By Brenda Johnson
View Magazine
March 2006

Imagine waking up one morning and finding your house is shaking. It becomes so violent that your dishes threaten to bounce off your shelves, and cracks start to appear in the wall you just painted last week. And the rain that has stayed outside for 45 years starts leaking into your basement.

The rattling and shaking is coming from the property 30 feet across the road from your front door. A demolition crew is pulling down two buildings. They are dropping huge slabs of concrete to make pieces small enough for a truck to take away. When the slab slamming stops, construction work brings new pounding which lasts about three months and is felt two blocks away.

This is the real nightmare that began almost two years ago for residents on Oliver Street and Wentworth North near the harbour.

Living on the north side of Hamilton has a few downsides, not the least of which is an attitude that people there don't have the same rights as other residents of Hamilton – that they are “used to” poor air quality, excessive noise, and other things associated with living next to industry. Academics from McMaster and other universities have described this as environmental injustice and have identified north Hamilton as one of the clearest examples in Canada.

There are some real disadvantages with living along the harbour, but this story is about what north Hamiltonians are doing about it.

The residents took stock of the damage done to their homes. The vibrations had cracked foundations, broken roof trusses, split driveways and concrete walkways, made windows and doors impossible to seal shut, and created cracks around joints, doors and windows. And nobody seemed to want to take responsibility.

Long-time Oliver Street resident Al Lehman says, “My house is a mess, I had to put a new roof on because the nails have come loose. And our property values have decreased.”

The demolition activity was in preparation for a new state-of-the-art biodiesel manufacturer named Biox Canada Ltd. While residents wondered who was going to pay for the damages, the Biox plant generated enthusiasm from the media, local business organizations, and some politicians. Tony Valeri, then federal transportation minister, said there would be 250 jobs – later corrected to less than 20.

When the residents expressed their concerns about living across the street from a chemical facility and sought compensation for the damage to their homes, they found that their city council had its hands tied because Biox is located on land owned by the Hamilton Port Authority, which puts it under federal jurisdiction.

Zoning laws were established more than a century ago to separate homes from noxious industries, but those rules are administered by city governments, and in Hamilton they can't be imposed on Port Authority lands. Plans for the facility were presented to city council in January 2005, but the debate and vote – a 10 to 6 endorsement – had little consequence.

The opposition came from councillors who argued that Hamilton's waterfront could have better uses than another chemical concern. About this time, Wayne Simpson, another resident of Oliver Street, approached Environment Hamilton for assistance.

The company will be running 24/7 using floodlights and creating industrial noise. Lehman explained how the lights and the noise levels across the street from his house currently affect his daily life.

“Before they turned the lights in the other direction, we could read by them at night and not have to turn on our own lights,” he says. “The noise wakes me up at 4:30 in the morning and my bedroom window faces this place. What's it going to be like in the summertime when our windows are open?”

Biox will be storing and using a cancer-causing chemical called tetrahydrofuran (THF) less than 90 metres from Simpson's front door. He says during the construction, the building crew had to break up and replace a concrete pad three times, apparently because of settling problems.

“Will we be safe when the dangerous stuff is stored here?” asks Simpson. “Are they going to do a good enough job so there won't be any problems for us in the future?”

In August 2005, Environment Hamilton hosted a meeting to bring together residents and Port Authority representatives to talk about the situation. Biox was also invited, but didn't attend. The Port Authority said damage claims should go to Biox. The company said the Port Authority had done the demolition, not them. Residents began to despair of ever winning compensation.

Environment Hamilton had experience with another planning conflict between the Port Authority, residents and the municipality that took place on Beach Boulevard. The issue there was an asphalt plant that opened up on Eastport Drive on another piece of Port Authority land. The Beach residents and city council voiced their concerns about that one too, especially the effects of an odour emitting facility less than 300 metres from a neighbourhood. In that case, city council voted to oppose the facility, but it went ahead anyway because the final decision rested with the Port Authority.

In response, Environment Hamilton helped the Beach residents prepare and submit comments to the Ministry of the Environment when the company applied for the a Certificate of Approval from the provincial Ministry of the Environment. Certificates of Approval are essentially permits issued by the Ministry that specify what rules the company must follow. The residents succeeded in obtaining a key condition – that there be a ‘one-odour unit' at the property fence line. This means that if you are not on the property and you can smell the asphalt, the company is contravening its Certificate of Approval and a phone call will bring Ministry investigators to the site.

Back on Oliver Street, the residents were also fighting, but losing every round. Here again the turnaround came with the Certificate of Approval process. Using the legal tools provided by Ontario's Environment Bill of Rights, Environment Hamilton helped the residents submit comments on the Biox application for a Certificate of Approval. When the certificate was granted, the residents appealed.

Appeals can only be successful if you show that the decision must have been made by an unreasonable person, but the residents won this one on the grounds that there was no stack testing required. They got an agreement with that the company would put in stack testing and let the residents help select who would do it, with the company footing the bill.

Then another government process appeared on the horizon – an application from Biox for a grant from the city under its Environmental Remediation and Site Enhancement (ERASE) program. The logic of ERASE has won awards for the city. Old industrial sites sit empty across the country because no one wants to pay for cleaning them up – and cities collect very low (or often no) taxes on the properties. ERASE offers a deal to entice the private sector – clean up a contaminated site and install a tax-paying facility, and we'll give you back the extra taxes for up to 10 years.

The Biox application was for $686,000 – part of it for the demolition work that had done so much damage to residents' homes. Residents and a representative of Environment Hamilton took the opportunity to speak to the council committee that was considering the grant. They suggested that council withhold the grant until the residents got compensation for the damages they have suffered.

They got a sympathetic ear. Glanbrook councillor Dave Mitchell declared:“ I think there's been some things done here that aren't acceptable in any way, shape or form that really have to be delved into.”

East end councillor Sam Merulla and West end councillor Brian McHattie successfully pushed through a motion to “require that negotiations be established with the residential area, in conjunction with Environment Hamilton and the city, to be sure that their issues are dealt with.”

Three days later, an insurance adjustor from the Port Authority showed up at some homes on Oliver Street to inspect for damages.

The issue came back to the committee on March 7 where Merulla bluntly declared: “ Not a cent will flow until these residents are compensated, at which time, then perhaps the money will flow. Until then, we're not going to entertain this application whatsoever.”

While councillors split on that motion because some wanted legal advice before acting, McHattie and Mitchell got a resolution adopted directing city staff to investigate a change in the rules governing demolitions across Hamilton.

So the Oliver Street residents may have scored a victory for residents across the city. Environment Hamilton has been hearing horror stories from other neighbourhoods about damaging demolition activities. The current rules don't require oversight by a professional engineer unless the buildings are more than two storeys or cover at least 600 square metres.

The final decisions for Oliver Street haven't been made yet. That may happen at the full council meeting on March 22. Maybe the residents will also now see compensation cheques, or even a much desired buy-out.

“Back in the 50s when we first moved here, that property had 2 baseball fields and a park and you could see the Bay,” Al Lehman recalls. “We organized leagues for the kids to keep them busy in the summer. It was a huge success in those days. Now I just want out of here”.

Brenda Johnson works for Environment Hamilton as Project Manager for the North Hamilton Project funded by the Hamilton Community Foundation's “Tackling Poverty” initiative. Environment Hamilton's goal is to integrate industry into our city in a way that's respectful to the community.