|A roundup of important new legislation, regulations, government announcements and court cases that we covered in the Environmental Compliance Insider in 2012.
LAW OF THE YEAR
In March, the Natural Resource Compliance Act took effect, making it easier for compliance and enforcement officers to hold offenders accountable for violating natural resource legislation. The law establishes a new designation—natural resource officer—and authorizes ministry personnel to enforce a broader range of legislation across the natural resource sector.
OTHER NOTABLE REGULATORY CHANGES
In Dec. 2011, the government announced amendments to the renewable and low carbon fuel requirements regulation that would require fuel suppliers to reduce the carbon intensity of their fuels. The amendment also includes a 4% cap on the renewable content in diesel and sets the exemption threshold for small suppliers at 75 million litres of gasoline and diesel.
In May, the Vancouver City Council passed a motion to draft a by-law requiring oil tankers and pipeline operators to indemnify the city and local businesses for “worst case scenario” oil spills. It would apply to pipeline operators and oil tankers using Burrard Inlet, Vancouver Harbour and/or the Fraser River.
In Aug., the government released new guidelines on the qualifications of falling supervisors. As of April 1, 2013, all forestry-related falling activity under a Ministry contract must have a designated falling supervisor, whose role is to monitor faller competency and ensure that an appropriate falling plan is in place and being followed.
CASE OF THE YEAR
Waste Company 37.5% Responsible for PCB Contamination
A waste company was hired to drain waste oil from a transformer. But neither of the companies responsible for the transformer warned it that the oil contained high levels of PCBs. So the PCB-tainted oil contaminated other oil in the waste company’s tanker truck and storage tank, all of which had to be sent to a hazardous waste facility for disposal. The waste company sued for the disposal cost; the other companies claimed that the waste company was partly responsible for what happened. The trial court dismissed the contributory negligence claim. But the appeals court ruled that there was evidence that the waste company didn’t exercise reasonable care as to its duties as a hazardous waste collector and sent the case back to the trial court, which determined that the waste company was 37.5% contributorily negligent [Enviro West Inc. v. Copper Mountain Mining Corp.,  BCSC 687 (CanLII), May 14, 2012].
Pulp Mill’s Due Diligence Defence Results in Mixed Verdict at Spill Trial
At a pulp mill, dilute weak black liquor overflowed a tank, spilled into the mill’s sewer and entered its effluent treatment system. Some also spilled onto a roadway and entered a nearby river. The mill was charged with violating the Fisheries Act and Environmental Management Act but argued that it had exercised due diligence. The trial court found that the overflow was caused by a build up of soap in the tank. If the mill had followed its own procedures regarding soap, the foreseeable spill would’ve been prevented. So the court convicted the mill on four of the charges. But the court also ruled that the mill had exercised due diligence as to its spill ponds and thus acquitted it on the charges related to the ponds [R. v. Zellstoff Celgar LP,  BCPC 38 (CanLII), Feb. 16, 2012]. The court sentenced the mill to pay a $30,000 fine and $120,000 to the Habitat Conservation Trust Foundation. In addition, it had to post details about the conviction on its corporate website until July 31, 2013 [Govt. News Release, July 26, 2012].
Due Diligence Defence Fails for Landfill Permit Violations
The government charged a company and its director with violating the terms of their landfill permits by allowing construction and demolitions waste to be improperly dumped at the landfills and failing to file required written annual reports. The director argued that he thought he could provide the annual reports orally. But even if oral reports were permitted, which they aren’t, he didn’t provide any evidence that he gave oral reports every year. In addition, the court rejected the defendants’ argument that other people had dumped the construction waste at the landfills without their permission. The director and the company didn’t take steps to prevent unauthorized dumping and to correct such dumping when it occurred. Thus, they didn’t exercise due diligence, concluded the court in convicting the defendants [R. v. Blackwell,  BCPC 149 (CanLII), May 15, 2012].
Evidence from DFO Employees Not the Result of an Illegal Search
A DFO biologist drove by a construction site every day on her way to work and noticed that vegetation near a creek on the site seemed less dense. She informed a DFO inspector when she got to work and they went to the site. They entered through an open gate, took notes and photographs and spoke to a worker operating a Bobcat. The company that owned the site and its director were charged with violating the Fisheries Act. But at trial, the court agreed that the evidence from the biologist and inspector were the result of an illegal search. The defendants were acquitted, so the Crown appealed. The appeals court ruled that the defendants had a minimal expectation of privacy in the site and that there was no evidence to suggest that the actions of the DFO employees were inconsistent with an inspection of a fish habitat. Thus, it ordered a new trial with their evidence to be admissible [R. v. Mission Western Developments Ltd.,  BCSC 1378 (CanLII), Oct. 14, 2011].
Court Can’t Issue Remediation Order for Property Not Declared Contaminated Site
An environmental assessment revealed that the groundwater of property a company used to own was contaminated. The company believed the source of the contamination was a substance that migrated from adjoining properties owned by the other companies. It sued those companies for an order under the Environmental Management Act requiring them to remediate the property. But the court dismissed the lawsuit. Under the law, if a director has declared property to be a “contaminated site,” the court may issue a remediation order for that site. Here, there was no evidence that any director had determined that the property was a contaminated site as defined by law. So the court had no authority to issue a remediation order [Terrim Properties Ltd. v. Sorprop Holdings Ltd.,  BCSC 985 (CanLII), July 6, 2012].
New Trial Needed on Fisheries Violations Because of Court Errors
A company and its director were charged with violating the Fisheries Act by clearing trees and brush from a creek on their property after two DFO officers saw a Bobcat operator working in that area. The trial court acquitted the defendants, ruling that the DFO officers had gathered evidence in violation of the defendants’ right to privacy. On appeal, the court ruled that the trial court had ignored relevant facts in his analysis of the defendants’ expectation of privacy in that area and had misapplied the “predominant purpose” test as to the DFO officers’ inspection. So it ordered a new trial—a decision that the Court of Appeal upheld [R. v. Mission Western Developments Ltd.,  BCCA 167 (CanLII), April 25, 2012].
Operator of Asbestos Company Got 60 Days’ Jail for Defying Order
A man who ran an asbestos abatement and demolition business didn’t send samples to labs for testing for asbestos and instead forged testing reports on stolen lab letterhead. He also employed workers as young as 14, didn’t provide them with PPE or training and instructed them to run away if an inspector showed up at the site. The man then defied an injunction, or court order, barring him from continuing this kind of work. He was held in contempt. In sentencing him, the court noted that his “indifference to the lives and safety of his workers and his open defiance of the injunction required a severe response.” So it sentenced him to 60 days’ jail [BC (Workers’ Compensation Board) v. Moore,  BCSC 109 (CanLII), Jan. 24, 2012].
Court Dismisses Remediation Claim after Lengthy & Inexcusable Delay
In March 2003, property owners sued the prior owners and operators for the costs of remediating contamination on the site. The plaintiffs then did nothing for years to move the case along. So the defendants asked the court to dismiss the lawsuit because of the unreasonable delay. The court noted that although the plaintiff had done some remediation, the bulk of the work hadn’t even started yet. In the meantime, one of the defendants had died and the witnesses’ memories had faded. Because the delay was too long, inexcusable and caused the defendants serious prejudice, the court dismissed the case [Sea Gull Leasing Ltd. v. Wildcat Enterprises Ltd.,  BCSC 417 (CanLII), March 22, 2012].
Conviction for Illegal Timber Harvesting Upheld—Again—on Appeal
The principal of a timber company was convicted of harvesting Crown timber without authority and failing to properly determine the boundaries of his own land. For the third time, an appeals court upheld the conviction. The trial court had reasonably concluded that the company and its principal didn’t do enough to locate the borders of the land, such as finding corner pins and getting a professional survey [Hegel v. BC (Ministry of Forests),  BCCA 446 (CanLII), Nov. 8, 2011].
Petroleum Spill Costs Company $75,000
A barge partially capsized during a commercial marine towing operation, releasing petroleum products into waters frequented by fish and migratory birds. The company was convicted of six violations of the Fisheries Act, Migratory Birds Convention Act, 1994, and Canada Shipping Act, 2001. The court fined it $5,000 and ordered it to pay $70,000 to promote proper management, control, conservation and/or protection of fish or fish habitat, including the area of the spill [Ted Leroy Trucking Ltd., Govt. News Release, July 5, 2012].
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