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A British Columbia used oil company has successfully sued the owner of a PCB transformer, and everyone down a contractual chain, for failing to warn them that the oil was almost pure PCBs. It was awarded $776,033.75.

The plaintiff, Enviro West Inc. (“Enviro West”), was hired by Boundary Electric (1985) Ltd. (“Boundary Electric”) to drain the waste oil from a transformer (the “Transformer”) owned by Copper Mountain. Copper Mountain hired Canyon Electric to do a major restructuring of the mine’s electric system. Canyon subcontracted part of the work, including disposal of the Transformer, to Boundary Electric, which in turn subcontracted the actual disposal to Enviro West. The Transformer was labelled “Askarel”, and everyone knew there were PCBs in the oil, but neither Boundary nor Enviro West knew that the level of PCBs was over the regulatory limit, 50 ppm. Neither Boundary nor EnviroWest were licenced to handle PCB waste.

As a result, Enviro West collected the PCB laden waste oil from the Transformer; mixed it with waste oil in its tanker truck; transported the PCB laden waste oil to a storage tank at EnviroWest’s holding facility, thus contaminating approximately 91,000 litres of waste oil with PCBs.  The PCB contaminated waste oil was later sent to a hazardous waste facility for disposal at an alleged cost of approximately $895,000, which costs the plaintiff seeks to recover as damages.

According to Justice Boyd:

“[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.

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 and would have never retained Enviro West to collect, transport and dispose of the Transformer oil.

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 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 Transformer oil.

Each of the defendants’ negligence has therefore had a material contribution to the plaintiff’s loss.”

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