B.C. Environmental Appeal Board Constrains Environmental
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.
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.
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.
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").
2013 Overview of Environmental Law and Regulation in British
Columbia Now Available for Download
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
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.
Mine Or Hauler: Who's Responsible For Waste PCB
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:
" 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
 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...
 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.
 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
 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.
 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
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
Remitted to trial court to consider:
Managing office did not ensure that drivers were aware of
implications of transporting PCBs and understood PCB
Lack of guidelines/policies on statutory obligations re:
Comments of plaintiff company's founder and CEO advocating for
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
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
View: The Controlling Chemical Hazards (CCH) guideline
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
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
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.
A New Limitation Act and a New Way of Looking at
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
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
Dangerous Goods Regulations - Major Changes Coming
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