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 too.
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 TEST RESULTS.
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 regulatory threshold.
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 NEGLIGENCE
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 Electric.
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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