NTSB Report: Enbridge Control Room Failure and the Kalamzoo River Spill

An excerpt from a recent report of the National Transportation Safety Board paints a picture of the surprising goings-on in the Enbridge Edmonton Control Centre while Line 6B was spewing oil into the Kalamazoo River system:

Operator B2 said he has never seen this problem before and that it was interesting. Operator B2 stated that the situation looked liked a leak, and Operator B1 stated that they could pump as much as they wanted but could never over pressurize the pipeline. Operator B2 stated that eventually the oil has to go somewhere. Operator B2 said that it seemed as if there was something wrong about the situation. Operator B2 said to Operator B1 'whatever, we're going home and will be off for few days.' Operator B1 stated they were not going to try this again, not on their shift

Andrew Nikiforuk discusses the report and its findings about Enbridge's operations in this article called: "Spill Crisis: 'Whatever, we're going home'".

What does Enbridge have to say about the report?  Enbridge suggests in a press release on its website: "Enbridge appreciates the hard work and due diligence of the National Transportation Safety Board (NTSB) relating to the July 2010 leak.  We have been actively working with the NTSB and immediately reviewing and addressing concerns as they have been raised ... Until the final report is published, we do not intend to pre-empt those findings by commenting on specific details."

Not surprisingly, the findings of the NTSB on the failures in its control centre, which would have been known to Enbridge from the time of the 2010 leak, were not included in any of the information filed by Enbridge in support of its Line 9 Flow Reversal Project application. 

Privacy Commissioner deals with concerns about disclosure of contamination data

The Ontario Information and Privacy Commissioner has recently issued a decision upholding an earlier decision by the Ministry of the Environment (MOE) to release partial records related to an ongoing contamination situation in Cambridge, Ontario.  According to the decision, trichloroethylene (TCE) leaked from a facility into neighbouring properties, contaminated local groundwater and may have posed a health hazard due to the movement of contaminant vapours from the groundwater into the basements of nearby homes.

The MOE received a request for access to information about the contamination, including all test results and reports on remediation in the possession of the MOE.  A decision was made to disclose some of the documents and information requested, but without any homeowner names except where a release had been provided.  At least one homeowner challenged the decision, as did the company responsible for the contamination and clean-up. 

The Commissioner declined to prevent the disclosure of property information on the basis that it was personal information.  The argument was made that property identification information could be used to obtain the names of property owners and was, therefore, personal information.  The Commissioner disagreed:

I also wanted to address the appellant and affected person’s arguments that the individual homeowners would be identifiable from a disclosure of their addresses or other location information using publicly available resources. The fact that the names of individual owners could be determined by a search in the registry office or elsewhere does not convert the municipal address from information about a property to personal information. In Order PO-1847, former Adjudicator Katherine Laird noted that, in the context of a discussion about correspondence concerning possible land use, “…where records are about a property, and not about an identifiable individual, the records may be disclosed, with appropriate severances, notwithstanding the possibility that the owners of the property may be identifiable through searches in land registration records and/or municipal assessment rolls.”

The Commissioner also rejected the argument that disclosure of the information would result in undue financial loss for the homeowners involved:

I accept that the stigma of environmental contamination can result in the lowering of property values and may affect the ability of property owners to sell their properties in the free market. However, in this case, I find that the appellant has not provided me with detailed and convincing evidence that the disclosure of these records could reasonably result in undue loss to the homeowners. Firstly, as the ministry notes, the media has already reported of the contamination in the community. The records contain these newspaper reports. Secondly, from my review of the records, I find that there has already been some public disclosure of the test results to the homeowners and businesses in the community. And finally, I agree with the ministry’s representations that the information in the records including test results and remediation reports, provide a clearer picture of those properties that have been properly remediated to ministry standards. I am not persuaded that disclosure of these records would result in undue loss to the homeowners in the community.

Read the full decision at: Ontario (Environment) (Re).

When innocent parties are held liable for environmental contamination

The Ontario Divisional Court has recently released a decision affirming the authority of the Ministry of the Environment to hold a party liable for clean up of contamination even though that party was not at fault.  As the Court explained: "The appeal centres on the question of what are the appropriate considerations in making a clean-up order under the Act, against an owner of contaminated land who had no responsibility whatsoever for the contamination."

Several hundred litres of furnace oil had leaked from the basement of a privately owned property located in the City of Kawartha Lakes.  The oil seeped onto property that the City owned and from there had the potential to adversely affect Sturgeon Lake. The Ministry of the Environment (MOE) ordered the private property owners to remediate the damage. The owners, who had limited financial resources, made an insurance claim, but their insurance funds ran out before remediation could be completed on the City property. The MOE then ordered the City to clean up the contamination on its property and to prevent discharge of the contaminant from its property.

The City appealed the order to the Environmental Review Tribunal (ERT), which refused to allow the City to call evidence directed at proving the City's innocence and determining who was actually at fault for the contamination.  The Divisional Court upheld this decision of the ERT, finding that earlier decisions of the ERT related to fairness (e.g. it would not be fair to hold an innocent party responsible for the costs of clean up) had been supplanted in large part by the MOE Compliance Policy. 

The Compliance Policy states that the "fact that an owner of a contaminated site may have purchased it without notice of the presence of contamination is irrelevant to the purpose of the Ministry legislation [the Environmental Protection Act] and generally will not be considered by the statutory decision-maker to be grounds for relieving that owner from liability under a control document."  According to Section 2 of the Policy, an innocent or "victimized" owner will not be relieved of liability.  If an exceptional or unusual circumstance existed, the timing and content of such an order could be varied - but not whether the order should be issued in the first place. 

The Divisional Court also rejected the argument of the City that the ERT's decision violated the "polluter pays" principle and, therefore, that the decision could not stand.  The Court instead pointed to Section 157.1 of the Environmental Protection Act, which it says "can be accurately described as an 'owner pays' mechanism".  The section makes no reference to fault.  It gives the provincial officer the discretion to make an order against an owner if the officer reasonably believes that the order is necessary or advisable to protect the environment.  The ERT had found that the MOE had acted reasonably in making the order against the City, and the Divisional Court agreed.

Read the decision at: The Corporation of the City of Kawartha Lakes v. Director, Ministry of the Environment.

For your information: Tax-efficient investment seminar

Bill Gunn, a fellow London Chapter CAFA (Canadian Association of Farm Advisors) member, passed this announcement onto me and I am passing it along to you as a courtesy only (not an endorsement).  Please direct any questions to Bill using his contact information below.

Changes coming to the NEB Act in the Omnibus Budget Bill C-38

Here are a few of the changes coming to the NEB Act under Bill C-38, the omnibus "budget" bill:

• The Chair of the NEB can issue directives to the members of the NEB hearing any application "regarding the manner in which they are to do so";
• If the Chair is of the opinion that a time limit imposed on the hearing of an application is not going to be met, the Chair can change the composition of the panel or decide how to apply new Section 55.2 of the NEB Act (i.e. deciding to limit the ability to make representations to the Board):

"On an application for a certificate, the Board shall consider the representations of any person who, in the Board's opinion, is directly affected by the granting or refusing of the application, and it may consider the representations of any person who, in its opinion, has relevant information or expertise.  A decision of the Board as to whether it will consider the representations of any person is conclusive.";

•  All applications and proceedings before the Board are to be dealt with as expeditiously as the circumstances and considerations of fairness permit, but, in any case, within the time limit provided for in the Act;
• For Certificates of Public Convenience and Necessity under Section 52 of the NEB Act, the Board must submit a report and recommendation on an application within 15 months of the date on which a complete application has been submitted;
• Once the report has been submitted, Cabinet may direct the Board to issue or refuse a certificate, and must provide reasons for the decision in its order;
• The Board must make an order on a Section 58 exemption application within 15 months of receipt of a complete application
• Added to Section 112 (the control zone and crossing section) is a new suite of direct penalties for anyone contravening Section 112(1) (the requirement for leave from the Board to work within 30 metres of a pipeline easement - the 30 metre control zone) or Section 112(2) (the requirement for leave from the pipeline company for permission to cross the pipeline with a vehicle or mobile equipment): on summary conviction, a fine of up to $100,000 and/or imprisonment up to 1 year; on conviction on indictment, a fine of up to $1,000,000 and/or imprisonment up to 5 years.

One can definitely question how the last change relates to "Jobs, Growth and Long-term Prosperity", which is the "short title" for the Bill.  Pipeline landowners need to be aware that a failure to obtain the consent required under Sections 112(1) and 112(2) of the NEB Act (not just failure to comply with an order made by the NEB or an inspector resulting from non-compliance with those sections) will constitute a federal offence subject to prosecution under the Criminal Code.

Drainage dispute between neighbours leads to comtempt order

In a dispute between property owners over drainage, Madam Justice Eberhard of the Ontario Superior Court of Justice ordered imprisonment of up to 20 days for one of the defendants after he and his wife failed to carry out drainage work earlier ordered by the Court.  The Court had already provided several opportunities to "purge" the contempt through compliance with the order.  Justice Eberhard provided the following comments on "neighbour disputes" near the end of her Reasons:

This court has plenty of experience with neighbour disputes. It is among the range of differences between people where passions run high. People really care about their homes, their autonomy in the living space, their peace in the environment they have carve out for themselves, their dreams and plans.

The dispute itself destroys that peace, those dreams and plans, and not only for the people directly involved: the whole neighbourhood is disturbed. Factions can form. Blame is debated. Everybody wonders if they are next.

The court is presented with neighbour disputes that may have no solution that satisfies everyone. Someone is necessarily disappointed. Seldom is there a right answer on these things.

But there has to be an answer. The only service a court can be in these neighbour disputes is to make a decision. Then, the neighbours must abide by the decision. There is clarity and the argument can stop, albeit with one of the neighbours entirely unsatisfied.

It is the only way it can work. The court can be of no service whatever unless its orders are complied with.

Justice Eberhard also had this to say about lawyers:

The best advocacy in such disputes arises even before the matter comes to court where counsel can assist the court in providing that service. The best advocacy invokes the perspective and wisdom of professionals experienced with the ravages of litigation, organized and equipped not only to advance their clients’ position in a calm and measured way, but also to seek out and imagine a realistic, peace-building solution. (This is a rebuke.) 

Read the decision at: Evans v. Snieg.

Farm land exterminator fined $20,000 over pesticide use

MOE Press Release:

WALKERTON – On March 14, 2012, Kenneth Schiestel pleaded guilty to one violation under the Pesticides Act for the improper use of a pesticide causing harm or discomfort to a person.  The Court heard that Mr. Schiestel is a licensed exterminator with a retail company that specializes in pesticide applications to farm lands throughout the Grey and Bruce Counties. In 2010, the ministry received a phone call to report that Mr. Schiestel had commenced spraying pesticide on a field while another person was standing nearby. The spray plume of the pesticide came in contact with the nearby individual who developed a skin rash shortly thereafter. The ministry attended the site and collected samples.

Mr. Schiestel was charged following an investigation by the ministry’s Investigations and Enforcement Branch.  Kenneth Schiestel was fined $20,000 plus the victim fine surcharge, and was given six months to pay the fine.

Plains Midstream complains that some media using images from 2011 spill, not the latest spill

Plains Midstream Canada cautions the public on its website that, "You may have seen some shocking images circulating over the last couple days.  While we appreciate that images are an important part of telling a story, some of them are incorrect.  We have seen images online, on t.v. and in the news that are not related to the Rangeland pipeline incident at all, such as images that depict oil saturated wetlands and oil slicks.  Some of the images depict the Rainbow pipeline spill from 2011 ... We have contracted both photographers and videographers to create a visual portrait of the release site."

A spill of light sour crude oil into a tributary of the Red Deer River near Sundre, Alberta was discovered on June 7.  Preliminary estimates suggested a release of between 1,000 and 3,000 barrels of oil into the environment.  Plains Midstream is warning residents that "water drawn directly from the Red Deer River north of Sundre to the Gleniffer Reservoir should not be used for human or animal consumption".  Plains Midstream is still cleaning up from last year's 4.5 million-litre oil leak in a remote area northeast of Peace River.

Construction begins on controversial solar farm near Belmont, Ontario

Construction has now started on a controversial 448 acre solar farm located northwest of the Town of Belmont in Southwestern Ontario.  The farm will cover prime agricultural soils, but is not subject to the current restrictions on use of Class 1, 2 and 3 agricultural soils for large-scale solar projects.  The proponent, First Solar, obtained a contract from the Ontario Power Authority (OPA) under the former Renewable Energy Standard Offer Program (RESOP).  The new prohibition on use of prime agricultural land came into effect only with the new Feed-in Tariff (FIT) Program. 

While the project benefitted from the lack of protection for agricultural land under the old RESOP program, it also took advantage of the new changes to municipal authority brought in under the Green Energy Act.  Under the Green Energy Act legislation, municipalities have little or no ability to challenge the approval of renewable energy projects within their jurisdictions.