A long running lawsuit over liability for PCB wastes may finally
be over. In Enviro West Inc v. Copper Mountain Mining
Corp. a waste hauler, Enviro West, unknowingly picked
up waste oil highly contaminated with PCBs and mixed it with
uncontaminated oil, resulting in substantial damages. At trial, Enviro West was awarded damages
against Copper Mountain Mining, the owner of the
transformer, and the middlemen who arranged to dispose of the PCBs
- Boundary Electric and Canyon Electric. The defendants
successfully appealed, arguing that Enviro West had been negligent
The Court of Appeal referred the issue of the
hauler's contributory negligence back to the trial judge
for reconsideration. In her additional Reasons, Justice Boyd found that
Enviro West failed to meet the required standard of care to look
out for itself in a number of ways:
FAILED TO ASK FOR THE CONCENTRATION OF THE PCBS OR FOR
Enviro West could not rely on the fact that there was no
industry standard requiring the production of test results before
pick-up. Enviro West was aware that the oil it picked up could
contain PCBs and the question of PCB concentration was always
present. It failed to ensure its employees would screen
the pick up orders and ensure that PCB levels were established and
verified before pick up.
FAILED TO ENSURE ITS DRIVERS KNEW ABOUT THE REGULATORY
THRESHOLD FOR PCB CONCENTRATIONS.
In light of Enviro West's stated mandate as a
"carrier of waste oil (including oil from transformers which
regularly contained PCBs)", the judge concluded that the
driver's training was "abysmal". The driver
testified that he could not recall any specific warnings regarding
PCB-laden oil or ever being advised about any regulations regarding
the threshold concentration for PCBs in the oil he picked up.
Further, he did not see checking the threshold as his
responsibility because he expected the main office would inform him
or stop him before he attempted a pick up of oil that exceeded the
F AILED TO ENSURE THAT ITS EMPLOYEES WERE AWARE OF THE
MEANING OF LABELS TO IDENTIFY HIGH LEVELS OF PCBS.
The judge rejected Enviro West's arguments that it was
not required to provide training to understand the federally
required PCB labels because it was not in the business of handling
PCB-laden waste oil. Enviro West did, sometimes, pick up PCB-laden
oil of an unknown concentration. Had the driver had the proper
training, he would likely have understood the significance of the
warnings he received from Copper Mountain's employees when
he went to pick up the waste oil and the warning signs in and
around the transformer, prompting him to verify whether the load in
issue exceeded the regulatory threshold.
FAILED TO HAVE GUIDELINES OR WRITTEN POLICIES IN PLACE
TO ENSURE EMPLOYEES OR MIDDLEMEN KNEW THEIR STATUTORY OBLIGATIONS
RELATING TO PCB'S.
Enviro West argued that even if it had such guidelines or
policies, these would not have prevented the loss. It should have
been allowed to rely on its knowledge that Boundary Electric could
not handle PCB-laden oil or equipment with a concentration of PCBs
greater than 50 ppm. However, the evidence in the case was not so
clear cut. Boundary Electric told Enviro West there were PCBs in
the waste oil, and although it might be that no one told Enviro
West that the concentration was greater than 50 ppm, there was
evidence that Enviro West knew that all oil from transformers in
old mine sites contained high levels of PCBs.
The judge concluded that Enviro West did not have the
appropriate guidelines and policies in place to ensure the
middlemen who hired it, and its own employees, understood their
statutory obligations not to carry waste oil with a PCB
concentration greater than 50 ppm.
SUMMARIZING ENVIRO WEST'S
The judge concluded at paragraphs 54-55:
In my view Enviro West's primary failure concerned its
failure to properly train and educate its staff. The resulting
ignorance of its employees allowed both the driver and his
supervising manager here to erroneously assume, without
verification and with no proper regard for the warning signs, that
since Boundary Electric was the middleman, the PCB level of the
transformer oil would be within regulatory limits. In my view,
given its much superior information and its ability and duty to
properly manage the hazardous waste in its control, Copper Mountain
is equally blameworthy.
Thus I find Enviro West 37 1/2%
contributorily negligent. Amongst the defendants, I allocate 37
1/2% of the responsibility for the loss to
Copper Mountain, 12.5% to Boundary Electric, and 12.5% to Canyon
Thus, ignorance is no excuse. Every participant in the waste
business has an obligation to properly train their staff
about plausible risks. If they ignore warnings and act carelessly,
they do so at their own risk.
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