Law MINER SPILLS: Ontario’s Spills Bill

Recently, a newspaper article indicated that the former owner of a company that was responsible a couple of years ago for a spill of polychlorinated biphenals (PCBs) in northern Ontario was back in the haulage business. The spill referred to, besides resulting in several personal injuries and the expenditure of a large amount of money for cleanup, stimulated the Ontario government to proclaim Part ix of the Environmental Protection Act, in force as at Nov 29, 1985. This part had been first introduced in December, 1978, and had eventually been passed by the legislature in December, 1979. The part has become known as the Spills Bill. The objective of the Spills Bill is to require immediate action in the event of a spill and to affix liability. The popular belief is that the Spills Bill deals with highway spills similar to the PCB incident mentioned above, but, in fact, its provisions cast a far wider net that encompasses the mining industry.

Under the Spills Bill, the following definitions have been spelled out:

* a spill means the discharge of a “pollutant” into the “natural environment” from or out of a structure, vehicle or other container that is “abnormal in quality or quantity in light of all the circumstances of the discharge;”

* “discharge” includes addition, deposit, emission, or leak;

* a “pollutant” means a “contaminant” other than heat, sound, vibration or radiation “and includes any substance from which a pollutant is derived;”

* a “contaminant” means any solid, liquid, gas, odor, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from the activities of man that may:

* impair the quality of the natural environment for any use that can be made of it;

* cause injury or damage to property or to plant or animal life;

* cause harm or material discomfort to any person;

* adversely affect the health or impair the safety of any person; or

* render any property or plant or animal life unfit for use by man, and finally;

* “natural environment” means land, air and water or any combination or part thereof of the province of Ontario.

The above definitions are critical to an appreciation of this act. Even though they are paraphrased, it can easily be seen that the Spills Bill has far-reaching effects and, in all likelihood, is leading the way for similar legislation in other jurisdictions of Canada and possibly elsewhere.

Section 81 of the Spills Bill imposes upon the owner and the person having control of a spilled pollutant a duty to do immediately everything practicable to prevent, eliminate or ameliorate the adverse effects of the spill and to restore the natural environment. The duty arises as soon as the owner or person having control “knows or ought to know that the pollutant is spilled and is causing or is likely to cause adverse effects.” In considering potential obligations under this section, it should be noted that the owner and the person having control will be, in all likelihood, two separate, unrelated parties. The section imposes this duty regardless of negligence, and there is no upper limit with respect to potential liability save for the fact that the obligation is to do everything that is “practicable.” This word is dealt with in the Spills Bill as meaning “capable of being effected or accomplished having regard to the technical, physical and financing resources that are or can be reasonably made available.” Accordingly, the larger, wealthier, and more technically sophisticated a company is, the greater will be its potential liability for a spill.

In addition to the potential liability created by the duty imposed by section 81, the Spills Bill also provides that the owner or person in control will be liable in damages for loss or damage incurred as a direct result of the spill of a pollutant to third parties, including Her Majesty in right of Ontario or in right of Canada. This liability is not, however, an absolute liability, and a party is not liable if it can be established that all reasonable steps to prevent the spill were taken or if it is established that the spill was wholly caused by such things as war, terrorism, natural phenomena, and so on. Finally, to make things even more interesting, under the Spills Bill, it is provided that where it is not practicable to determine the respective degrees of fault of two or more persons liable to pay compensation, then such persons are considered to be equally at fault or negligent.

The two above-mentioned matters are the most important elements of the Spills Bill insofar as the public is concerned, but there are, of course, numerous other provisions. It must also be remembered that the Spills Bill is only one part of the Environmental Protection Act, which contains numerous other duties, obligations and liabilities which are of major concern to the mining industry.

As mentioned above, the Spills Bill is often thought to deal only with highway-type spills, but a reading of the definitions quickly dispels this impression. If a party is arranging to dispose of a pollutant, then its main objective should be to rid itself of title to that pollutant as quickly as possible after it leaves its control. If it is possible to accomplish transfer of title and control at the same time, then the disposing party may be able to lessen the risk under the Spills Bill and to have more of the risk assumed by the third party that is going to dispose of the pollutant. As the Spills Bill defines the owner to be the owner “immediately before the first discharge of a pollutant, whether into the natural environment or not…,” it would appear that fancy corporate setups attempting to place ownership and control into a shell corporation will not meet with much success.

Obvious examples of potential “danger areas” come to mind, such as the disposal by a party of waste oil, chemicals, or the like. Less obvious ones may be such things as the sinking of a barge used as a drill platform and having drilling supplies stored on it for use, or the sinking of an ore or supply barge. If such sinkings take place in navigable waters, then other statutes, including federal statutes, may have to be considered, but if the waters are Ontario waters, the Spills Bill would be considered too. It should also be noted that a “disaster” does not have to occur; a spill may occur simply from a leaking container. In addition, the substance that is spilled may itself not be considered to be a pollutant but, through forces of nature or circumstances, may turn into one. Remember that the definition of pollutant includes any substance from which the pollutant is derived. An interesting situation could occur if a non-pollutant was spilled, migrated naturally and was later combined with either a pollutant or non-pollutant spilled by another party so that the original harmless material was converted into a pollutant. In this type of situation, the lawyers could have a marvelous time arguing about what happened to whom (or what), when, how and why.

In short, the Spills Bill is sitting on the books of law waiting to pounce upon the unwary. It is a law with which all mine operators should be conversant. An operator should make certain that any of its employees who are handling or supervising the handling of pollutants are fully conversant with the provisions and implications of Part ix. You do not want your employee wringing his hands over the fact that a spill has occurred; you want him to get busy immediately to contain and clean up the spill. Karl Harries is a graduate mining engineer and a partner with the Toronto law firm of Fasken & Calvin. The information in this article is summary and general in nature and is not intended to be taken or acted upon as legal advice.