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