Environment Law

Taku River Tlingit First Nation V. British Columbia(Minister Of Environment), 2014 BCSC 1278, Supreme Court Of British Columbia (Macintosh J.)

BORDEN LADNER GERVAIS LLPJULY 18, 2014 - The Supreme Court of British Columbia allowed a petition brought by an Aboriginal group in relation to whether a mining project had "substantially started" within the meaning of s. 18(5) of the provincial Environmental Assessment Act. The Court ordered the Minister to make a fresh determination of this issue after proper consultation with the petitioners.  Read More


B.C. Environmental Appeal Board Constrains Environmental Permitting

Blake, Cassels & Graydon LLP, February 20, 2014 - A recent decision of the British Columbia Environmental Appeal Board (Board) narrows the scope of the Ministry of Environment's considerations when determining whether permits should be issued under the  Environmental Management Act (EMA), and will likely reduce the scope of future appeals to the Board.

The Board's decision in Ronald Witherspoon et al. v. Director, Environmental Management Act involved five appeals of a permit that authorized a company to discharge refuse to ground from a contaminated soil treatment and landfill facility. The permit also authorized the permit holder to deposit and bury up to 100,000 tonnes of contaminated soil per year, and discharge storm water and treated effluent to an ephemeral stream. Read More


BC Environmental Appeal Board Orders Ministry of Environment to Issue Previously-Rejected Certificates of Compliance

HARPER GREY LLP, JULY 24, 2013 - On July 17, 2013, the BC Environmental Appeal Board ("Board") rendered an important ruling in an appeal by a commercial landowner seeking to overturn a decision of a director of the Ministry of Environment ("MOE").Richard Bereti and Una Radoja of Harper Grey LLP acted for the successful party, Morguard Investments Limited, in this appeal. Read More


Federal Environmental Assessment Substitutions Under The CEAA 2012 Continue In British Columbia

Blake, Cassels & Graydon LLP, May 29, 2013 - On May 21, 2013, Canada's federal Minister of the Environment (Minister) approved the substitution of the British Columbia environmental assessment process with respect to the LNG Canada Export Terminal, a natural gas liquefaction facility project proposed by LNG Canada Development Inc. (LNG Canada). This marks the third time over a six-week period, and only the third time overall, that the Minister has approved a substitution under the Canadian Environmental Assessment Act, 2012 (CEAA 2012), which came into force on July 6, 2012. Full Article


The Supreme Court of British Columbia defers to the discretion of the Environmental Assessment Office

LAWSON LUNDELL, MAY 30, 2013 - On May 17, 2013 the Supreme Court of British Columbia released its decision in David Suzuki Foundation v. British Columbia (Ministry of Environment), 2013 BCSC 874.  The case concerned Holmes Hydro Inc.'s plans to build hydroelectric plants on 10 tributaries of the Holmes River. The issue was whether the plan required environmental assessment under section 5 of the Environmental Assessment Act, S.B.C. 2002, c. 43 (the "Act"). Full Article


2013 Overview of Environmental Law and Regulation in British Columbia Now Available for Download

Blakes 18th Annual Overview of Environmental Law and Regulation in British Columbia 2013 is intended as an introductory summary. Specific advice should be sought in connection with particular transactions. If you have any questions with respect to this Guide, please contact  Firm Managing Partner, Rob Granatstein. Download Link


Canada: Prevention Is A Problem: The Federal Court Of Appeal's Decision In The Tervita (CCS) Merger

The Federal Court of Appeal ("Court of Appeal") has dismissed an appeal from the May 29, 2012 order of the Competition Tribunal ("Tribunal") requiring Tervita Corporation ("Tervita"), formerly known as CCS Corporation, to divest itself of a secure landfill site for solid hazardous waste from oil and gas operations acquired through its merger with Complete Environmental Inc. ("Complete"). This case is the first contested merger to be adjudicated by the Competition Tribunal since 2005. Read More


Mine Or Hauler: Who's Responsible For Waste PCB Oil?

Article by Dianne Saxe

March 28, 2012 - In Enviro West Inc. v. Copper Mountain Mining Corp. a waste hauler was hired to remove waste oil from a transformer at a mine. Despite several oral and written warnings, the hauler didn't realize the oil was heavily contaminated with PCBs. As a result, the hauler mixed the PCBs with other oils, creating extensive PCB contamination of its oil inventory and equipment. The hauler sued the mine and its electrical contractors for its resulting losses.The mine and its contractors were held liable for negligence. Even though they had complied with provincial requirements, they had not taken sufficient precautions to ensure the hauler knew the oil was high concentration PCB oil, and was licenced and capable to handle it:

"[101] From the outset, long before the Enviro West oil tanker arrived on site, the critical information concerning the nature of this hazardous waste and the risks associated with the disposal of the PCB waste (both the Transformer itself as well as the oil within) ought to have been adequately communicated by Copper Mountain to Boundary Electric. That verbal communication should have been supported by documentation in the form of a purchase order or work order which detailed this critical information. I find it was unreasonable for Copper Mountain to expect that Costain, the Enviro West truck driver, would be the gatekeeper of this information. I accept that Costain was in no position to weigh or consider this critical information or to assess the associated risks....

[103] While perhaps in compliance with the regulatory requirements, I am not persuaded that by virtue of posting the warning sign and affixing the labels, Copper Mountain can be said to have met the standard of care imposed on a waste generator. Given both Costain's and Enviro West's history of attending at other sites to collect waste oil with PCBs less than 50 ppm, a label reading "Attention PCBs" was not likely to raise any alarm bells in Costain's mind...

[116] Overall, Copper Mountain failed to take any steps to ensure the PCB waste in its possession was handled in compliance with the regulatory requirements. Had Copper Mountain been diligent in providing information about the nature of the Transformer oil and the risks associated with this PCB-laden waste oil, Enviro West would have never collected the PCB waste oil from the Transformer, would have never transferred the PCB waste oil into its tanker truck, and would have never offloaded the PCB waste oil into the storage tank at its Kelowna facility.

[117] But for Copper Mountain's failure to communicate the nature of the Transformer oil in a reasonable manner to Canyon Electric and to ensure that this information was properly communicated to Boundary Electric, Boundary Electric would have never accepted the Transformer [oil] and would have never retained Enviro West to collect, transport and dispose of the Transformer oil.

[118] But for Canyon Electric's failure to advise Boundary Electric that it either knew this was almost pure PCB-laden oil or alternatively that it did not know the PCB content of the Transformer oil, Boundary Electric would have followed its regular practice of requiring and [sic] analytical test report for the waste oil or perform its own field test of the Transformer oil before agreeing to accept this Transformer. Had Boundary Electric had the analytical test report indicating the true PCB content of the Transformer oil, Boundary Electric would not have agreed to accept the Transformer.

[119] But for Boundary Electric's failure to advise Enviro West that the Transformer oil contained PCBs in excess of 50 ppm, that the PCB Report was available, and that Boundary Electric itself had not verified the PCB level in the Transformer oil, Enviro West would not have collected, transported, stored and disposed of the Transformer oil."

The issue on appeal to the British Columbia Court of Appeal was whether the waste hauler had been contributorily negligent, and should bear some of its own losses. The trial judge had found that little blame should be put on the driver's shoulders; since he had had no training in the handling of high strength PCBs. The defendants appealed. The Court of Appeal agreed that the defendants had a good argument about the flaws in the hauler's corporate behaviour, which the trial judge had not evaluated, and sent the issue of contributory negligence back to her for a reconsideration.

Remitted to trial court to consider:
Managing office did not ensure that drivers were aware of implications of transporting PCBs and understood PCB labelling
Lack of guidelines/policies on statutory obligations re: PCBs
Comments of plaintiff company's founder and CEO advocating for testing.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

 Specific Questions relating to this article should be addressed directly to the author.

Dianne Saxe is one of the world's top 25 Environmental Lawyers, according to Euromoney's Best of the Best, 2008. Best Lawyers named Dianne: Toronto's Environmental Lawyer of the Year for 2011. Lexpert recognizes her as one of the best in Canada. Corporate Intl Magazine said we were the 2010 "Environmental Law Firm of the Year in Canada."

 Source: http://envirolaw.com/haulers-responsibility-hazardous-waste/

Oil And Gas

Controlling Chemical Hazards
in the Oil & Gas Industry

The Controlling Chemical Hazards (CCH) guideline is ready for industry review! The CCH committee has been diligently working on this document for the past two years and are now at the stage where your review and comments are needed.

The upstream oil and gas industry uses and produces a variety of chemical products on its work sites. To create safer, healthier work sites, everyone involved needs to raise their awareness of the specific hazards presented by chemicals in the upstream industry. If you work in this industry, you need to be aware of chemical hazards and your role and responsibilities in controlling these hazards. This guideline was written to help you get there.

This guideline adopts a management system approach to controlling chemical hazards. This approach assumes that managing and controlling the risks associated with hazardous chemicals begins long before any worker actually handles or disposes of these chemicals. In this approach, the task of managing and controlling chemical hazards falls on a whole string of companies involved in any given upstream project or program.

Everyone along the way has a role to play, from project planners to supervisors and workers. The guideline can be accessed via the this link.

View: The Controlling Chemical Hazards (CCH) guideline

Hazardous Waste Disposal

Far Reaching Liability in
Hazardous Waste Disposal

By Luke Dineley, Borden, Ladner Grevais, LLP

In a recent decision by the British Columbia Supreme Court, Enviro West Inc. v. Copper Mountain Mining Corp (2010 BCSC 1443), a waste oil collection company was awarded significant damages when it was not informed that the oil it was hired to drain from a transformer contained a high level of Polychlorinated Biphenyl ("PCB"). The owner of the transformer and all the companies down the contractual chain were found liable in the amount of $766,033.75.

The plaintiff waste oil company, Enviro West Inc., was hired by Boundary Electric (1985) Ltd. to drain the oil from a transformer owned by Copper Mountain Mining Corp. Copper Mountain was restarting a mining operation and had hired Canyon Electric to perform a restructuring of the mine’s electrical system. Canyon Electric subcontracted part of the work to Boundary Electric, including the removal of the transformer, who in turn subcontracted with Enviro West to remove the oil in the transformer.

The parties were all aware that the oil in the transformer contained PCBs, but both Boundary Electric and Enviro West, who were not licensed to handle hazardous waste, believed the level of PCBs in the oil was below the regulatory limit. Enviro West collected the PCB laden oil from the transformer, mixed it with the waste oil in its truck and transported the oil to a storage tank at Enviro West’s holding facility. As a result, approximately 91,000 litres of oil were contaminated with PCBs. Enviro West disposed of this oil and cleaned its facility and then brought the action seeking to recover those costs.

The court held that all the parties were liable to Enviro West. Copper Mountain failed to take any steps to ensure the PCB waste in its possession was handled properly, such as providing information on the nature of the oil and its risks. If they had, Enviro West would never have collected the oil and suffered the resulting damage. Canyon Electric failed to advise Boundary Electric that the transformer contained PCB laden oil or that it did not know the PCB content of the transformer. Boundary Electric failed to test the oil in the transformer and failed to inform Enviro West that it had not verified the PCB content. 

Each of the defendants were negligent and each defendants’ negligence materially contributed to the plaintiff’s loss. As a result, all the defendants were held liable.

This case demonstrates the great diligence and care that must be taken when dealing with hazardous waste. All efforts must be made to ensure that it is handled properly and safely and that all parties are fully informed.


Environmental Claims

A New Limitation Act and a New Way of Looking at
Environmental Claims

Time has not always been on the side of claimants who discover environmental damages long after the fact. Proposed new legislation may change all that, but it is wise to be prepared and to act quickly when problems are discovered.

Read the latest Environmental Law Brief by BCEIA Director Richard Bereti and colleagues at Harper Grey, LLP. Read More



Some Deals Stink:
Environmental Contamination and Land Transactions

Lawyers like chasing down "environmental angles" on their files just about as much as they like chasing down tax angles. Whether it's a corporate or commercial transaction, or dealing directly with real property, clients these days need legal and technical guidance on lurking environmental Issues.

A convenient example is one encountered every day by commercial solicitors: the purchase and sale of land. If there is one thing unwitting purchasers of contaminated land have in common, it is that each wishes they would have simply found out the site was contaminated so that contamination could have been considered in the deal along with all other important factors.

Some insight into this area of law can help you to avoid certain pitfalls. Read this new insight by BCEIA Director Richard Bereti



Dangerous Goods Regulations - Major Changes Coming Soon

If your company ships dangerous goods, being aware of current regulations can save your company timely delays and costly fines. The IATA Dangerous Goods Regulations is the only manual trusted by shippers to provide a reliable and comprehensive outline of dangerous goods regulations.

The 52nd edition of the IATA Dangerous Goods Regulations has adopted significant changes this year. Starting January 1, 2010 new packing instructions and marking requirements will become mandatory. The price for the 52nd Edition is $275.00 + HST. To order your copy, please send an email, fax a PO or call us at the number below.  Don't get caught without one. 

Contact: David S. Rogers, BC HAZMAT Management Ltd. Phone 250-656-3382