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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.
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