Pcbs R US Violated Several Sections of Storage of PCB Material Regulations (SOR/92-507)

Introduction

2006 Offence

On September 10, 2006 the federally incorporated Polychlorinated Biphenyl (PCB) storage company PCBs R Us entered into a contract with provincially incorporated Eighteen Wheel Transport (EWT), an equipment and machinery transportation company. W.H. Eels, a driver for EWT, picked up the PCBs from the storage depot on November 12, 2006. The PCBs were stored in unmarked rusted tanks, and were to be taken to an out of the way location. The truck used did not have any safety markings, and the EWT staff had not been trained for the handling of PCBs

2005 Offence

The tanks from PCBs R US were in transit to a location, previously visited by EWT owner Willy G. Rindem and W.H. Eels, where PCB tanks had been deposited in 2005 by EWT. The 2005 tanks were not from PCBs R US. The 2005 tanks leaked and contaminated the nearby lake, and eventually went into the Athabasca River and across provincial boundaries. Elevated PCB levels were found in migratory birds near the lake, in addition to the lethal concentration to fish found in the lake.

PCBs R US

2006 Offence

Several charges can be laid against PCBs R US related to the transportation and storage of the PCBs.

PCBs R US violated several sections of Storage of PCB Material Regulations (SOR/92-507) as follows:

9. Every owner or manager of a PCB storage site

(a) shall store all PCB liquid in

(ii) drums that are

(C) painted or treated to prevent rusting;

12. Every owner or manager of a PCB storage site shall

(d) affix to containers of PCB material, other than containers in which PCB equipment is stored, and drained containers of such PCB material, where the PCB material is in a concentration greater than 50 mg of PCBs per kilogram of the PCB material but not greater than 10 000 mg of PCBs per kilogram of the PCB material (1 per cent)

(i) a black and white label measuring 150 mm by 150 mm, in the form illustrated in Figure 4 of the schedule, or

(ii) another label of similar dimensions that indicates the presence of PCBs;

These violations are clear as the Case Brief mentioned the rusted drums and lack of identification stickers. Since Storage of PCB Material Regulations is enabled under the Canadian Environmental Protection Act, 1999 (1999, c. 33) they face the penalties contained in the act.

272. (1) Every person commits an offence who contravenes

(a) a provision of this Act or the regulations;

(b) an obligation or a prohibition arising from this Act or the regulations;

(c) an order or a direction made under this Act;

(d) an order, direction or decision of a court made under this Act; or

(e) an agreement respecting environmental protection alternative measures within the meaning of section 295.

(2) Every person who commits an offence under subsection (1) is liable

(a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both; and

(b) on summary conviction, to a fine of not more than $300,000 or to imprisonment for a term of not more than six months, or to both.

Also, due to the lack of safety marking on the drums the company violated several sections of the Transportation of Dangerous Goods Act, 1992 ( 1992, c. 34 ). The violations from this act are as follows:

5. No person shall handle, offer for transport, transport or import any dangerous goods unless

(a) the person complies with all applicable prescribed safety requirements;

(b) the goods are accompanied by all applicable prescribed documents; and

(c) the means of containment and transport comply with all applicable prescribed safety standards and display all applicable prescribed safety marks.

8. No person shall sell, offer for sale, deliver, distribute, import or use a standardized means of containment unless it displays all applicable prescribed safety marks.

Since PCBs R US contravened the Transportation of Dangerous Goods Act it can face charges pursuant to the act. This also means that the signing officer can face penalties.

33. Every person who contravenes or fails to comply with a provision of this Act is guilty of

(a) an offence punishable on summary conviction and liable to a fine not exceeding fifty thousand dollars for a first offence, and not exceeding one hundred thousand dollars for each subsequent offence; or

(b) an indictable offence and liable to imprisonment for a term not exceeding two years.

39. Where a corporation commits an offence, an officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted for the offence.

Depending on the terms of the contract with EWT, PCBs R US may be able to be charged with more violations. If it was specified what an ‘out of the way’ location actually is, there are several possibilities. If it simply refers to another storage facility that complies with Storage of PCB Material Regulations than no further charges are needed. However, if the site was specified to be a location hidden in the wilderness PCBs R US can also face the following violations under Storage of PCB Material Regulations:

8. Every owner or manager of a PCB storage site shall

(a) keep the entrance to the site locked or guarded;

(b) maintain at the site a register that contains the name of each person, and the name, address and telephone number of that person’s place of business,

(i) who is authorized by the owner or manager to enter the site, and

(ii) who enters the site; and

9. Every owner or manager of a PCB storage site

(g) shall place on skids or pallets all PCB equipment and containers of PCB material that are not permanently secured to the floor or a surface;

(j) shall store PCB equipment and containers of PCB material in a manner that makes them accessible for inspection;

(k) shall store PCB material in a manner that prevents it from catching fire or being released;

The intent of PCBs R US is important when analyzing which violations and charges to place upon them in addition to ones the previously mentioned. The contract may hold more information necessary to further assess the charges upon PCBs R US and its officers. It is possible that they intended that EWT to take the PCB drums to an out of the way location that followed all regulations. It is more likely that they did know the drums would be deposited in the wilderness, but proving that would be difficult without the contract. Luckily for PCBs R US, the barrels had not released any PCBs or there would be many more charges levied against them.

2005 Offence

Since PCBs R US were not responsible for the drums left by EWT in 2005 they will face no charges in relation to them.

Eighteen Wheels Transport

EWT faces charges and violations for both the transport of PCBs R US drums and for the previous deposition of PCB drums in 2005.

2006 Offence

Beginning with the PCBs R US contract, EWT faces similar charges to those of PCBs R US for the transport and storage of the PCB drums. Due to the drums condition (rusted) and the lack of safety markings on the drums and truck, EWT faces violations and charges under the Transportation of Dangerous Goods Act:

5. No person shall handle, offer for transport, transport or import any dangerous goods unless

(a) the person complies with all applicable prescribed safety requirements;

(b) the goods are accompanied by all applicable prescribed documents; and

(c) the means of containment and transport comply with all applicable prescribed safety standards and display all applicable prescribed safety marks.

8. No person shall sell, offer for sale, deliver, distribute, import or use a standardized means of containment unless it displays all applicable prescribed safety marks.

The following sections show that both W.H. Eels and Willy G. Rindem, in addition to the corporation EWT, face charges under the Transportation of Dangerous Goods Act.

33. Every person who contravenes or fails to comply with a provision of this Act is guilty of

(b) an indictable offence and liable to imprisonment for a term not exceeding two years.

Since they had previously deposited PCB drums on the site it is reasonable to assume that they intended to leave the drums onsite again. Since they were in possession of the drums they would have to comply with Storage of PCB Material Regulations.

4. Every person who owns, controls or possesses PCB material, or who owns or manages a property in or on which PCB material is located or a parcel of land on which PCB material is located, shall store the PCB material at a site that is

(a) a building, room, shipping container or other structure; or

(b) an area that is enclosed by a woven mesh wire fence or any other fence or wall with similar security characteristics, where the fence or wall is at least 1.83 m high.

They did not follow the following regulations pursuant to Storage of PCB Material Regulations :

8. Every owner or manager of a PCB storage site shall

(a) keep the entrance to the site locked or guarded;

(b) maintain at the site a register that contains the name of each person, and the name, address and telephone number of that person’s place of business,

(i) who is authorized by the owner or manager to enter the site, and

(ii) who enters the site; and

9. Every owner or manager of a PCB storage site

(a) shall store all PCB liquid in

(ii) drums that are

(g) shall place on skids or pallets all PCB equipment and containers of PCB material that are not permanently secured to the floor or a surface;

(j) shall store PCB equipment and containers of PCB material in a manner that makes them accessible for inspection;

(k) shall store PCB material in a manner that prevents it from catching fire or being released;

12. Every owner or manager of a PCB storage site shall

(i) a black and white label measuring 150 mm by 150 mm, in the form illustrated in Figure 4 of the schedule, or

(ii) another label of similar dimensions that indicates the presence of PCBs;

Since they violated the Storage of PCB Material Regulations, they face charges under the Canadian Environmental Protection Act:

272.(1) Every person commits an offence who contravenes

(a) a provision of this Act or the regulations;

(b) an obligation or a prohibition arising from this Act or the regulations;

(d) an order, direction or decision of a court made under this Act; or

(e) an agreement respecting environmental protection alternative measures within the meaning of section 295.

(2) Every person who commits an offence under subsection (1) is liable

(a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both; and

(b) on summary conviction, to a fine of not more than $300,000 or to imprisonment for a term of not more than six months, or to both.

2005 Offence

EWT visited and deposited the 500 barrels of PCBs at the site, and therefore must have been in possession of the barrels before hand. The 2006 barrels lacked proper identification and it is reasonable to assume that the previously stored barrels also lack proper markings. This is not specified in the brief, but is an easy check to perform. Since EWT was in possession of the drums Storage of PCB Material Regulations applies.

(a) a building, room, shipping container or other structure; or

(b) an area that is enclosed by a woven mesh wire fence or any other fence or wall with similar security characteristics, where the fence or wall is at least 1.83 m high.

8. Every owner or manager of a PCB storage site shall

(a) keep the entrance to the site locked or guarded;

(b) maintain at the site a register that contains the name of each person, and the name, address and telephone number of that person’s place of business,

(i) who is authorized by the owner or manager to enter the site, and

(ii) who enters the site; and

9. Every owner or manager of a PCB storage site

(a) shall store all PCB liquid in

(ii) drums that are

(g) shall place on skids or pallets all PCB equipment and containers of PCB material that are not permanently secured to the floor or a surface;

(j) shall store PCB equipment and containers of PCB material in a manner that makes them accessible for inspection;

(k) shall store PCB material in a manner that prevents it from catching fire or being released;

12. Every owner or manager of a PCB storage site shall

(i) a black and white label measuring 150 mm by 150 mm, in the form illustrated in Figure 4 of the schedule, or

(ii) another label of similar dimensions that indicates the presence of PCBs;

Since they violated the Storage of PCB Material Regulations, they face charges under the Canadian Environmental Protection Act:

272.(1) Every person commits an offence who contravenes

(a) a provision of this Act or the regulations;

(b) an obligation or a prohibition arising from this Act or the regulations;

(d) an order, direction or decision of a court made under this Act; or

(e) an agreement respecting environmental protection alternative measures within the meaning of section 295.

(2) Every person who commits an offence under subsection (1) is liable

(a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both; and

(b) on summary conviction, to a fine of not more than $300,000 or to imprisonment for a term of not more than six months, or to both.

The 2005 barrels leaked and PCBs entered the nearby lake, the subsequently into the Athabasca River and across provincial boundaries. The lake was on Indian lands and since the PCB contamination passed provincial boundaries it became a federal matter. EWT violated terms of the Canada Water Act (R.S., 1985, c. C-11).

9. Except in quantities and under conditions prescribed with respect to waste disposal in the water quality management area in question, including the payment of any effluent discharge fee prescribed therefor, no person shall deposit or permit the deposit of waste of any type in any waters composing a water quality management area designated pursuant to section 11 or 13, or in any place under any conditions where the waste or any other waste that results from the deposit of the waste may enter any such waters.

R.S., c. 5(1st Supp.), s. 8.

30.(1) Every person who contravenes section 9 is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars for each offence.

Continuing offences

(2) Where an offence under subsection (1) is committed on, or continued for, more than one day, it shall be deemed to be a separate offence for each day on which the offence is committed or continued.

R.S., 1985, c. C-11, s. 30; R.S., 1985, c. 16 (4th Supp.), s. 143.

EWT stored the barrels in 2005 and at some point began to release PCBs. Given the time frame and extent of contamination it is reasonable to conclude that the release was not on a single day therefore the continuing offence applies.

The area where the PCB drums were stored close to the nests of migratory waterfowl. After the release, the PCB levels of nearby migratory birds were found to be elevated relative to normal. It is possible that these elevated levels may negatively impact the birds, so the Migratory Bird Conventions Act, 1994 (1994, c. 22) needs to be examined. If the PCBs negatively impacted the birds EWT violated

5.1(1) No person or vessel shall deposit a substance that is harmful to migratory birds, or permit such a substance to be deposited, in waters or an area frequented by migratory birds or in a place from which the substance may enter such waters or such an area.

If they did indeed violate 5.1 (1) they will be found to be contravening

13.(1) A person or vessel commits an offence if the person or vessel contravenes

(a) a provision of this Act or the regulations;

(b) an obligation or prohibition arising from this Act or the regulations;

EWT can face various charges, as can Eels and Rindem

13.(1.1) Every person or vessel that commits an offence is liable

(a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both; and

(b) on summary conviction, to a fine of not more than $300,000 or to imprisonment for a term of not more than six months, or to both.

(1.2) If a corporation commits an offence under this Act, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to the offence, and is liable on conviction to the penalty provided for by this Act, whether or not the corporation is prosecuted for the offence.