Intervenor: Vol 23. No 1 January - March 1998

Casework: CELA Represents Clients at Plastimet Hearing

The Canadian Environmental Law Association is representing the Community Action North End (CANE) at hearings before the Environmental Appeal Board (EAB) dealing with clean-up following the aftermath of the Plastimet fire. Plastimet Inc operated a plastics recycling operation at the site on the north end of Hamilton. The company's warehouse had been filled with plastic auto parts, vinyl and polyurethane foam. When these materials burn, they release hydrochloric acid, carbon monoxide gases and carcinogenic substances including benzene, dioxins and furans.

On the morning of July 9, 1997 a fire broke out at the site and continued to rage on until the early morning of July 12th. The fire generated a dense black cloud of smoke rising hundreds of metres into the air and transporting the plume over the city of Hamilton. The fire also resulted in the release of toxic contaminants which caused serious adverse effects to residents, including breathing problems, sore throat and burning eyes. Approximately six hundred residents had to be evacuated as a result of the toxic smoke.

According to MoE reports prepared after the fire,"worst-case estimates suggest that the Canadian Tolerable Daily Intake (TDI) of dioxins and furans of 10pg TEQ/kg body weight/day may have been exceeded for some people". In addition, elevated levels of contaminant have also been found present in the soil at the site. These include dioxins and furans at concentrations well above the Ministry of Environment clean-up criteria. Following the aftermath of the fire, a group of residents who reside directly adjacent or near the Plastimet site came together to form CANE to address issues of common concerns about the fire and contamination at the Plastimet site.

The MoE subsequently issued a series of field orders to the owner of Plastimet as well as the owner of the site to provide full site security and to undertake clean-up work. The site clean-up did not proceed in a controlled and timely manner, therefore, the director of the MoE issued a notice of its intention to do the clean-up. Following the clean-up, the MoE director issued another order to the owners to collect the clean-up cost. The owner of the site has appealed the clean-up order and the owner of Plastimet appealed the cost order. At the pre-hearing conference before the Environmental Appeal Board, CANE sought and was given party status at the hearing addressing the issues regarding clean-up. CANE will thus be able to fully participate in the hearing by leading evidence, undertaking cross-examination and will have the same rights of appeal as the other parties at the hearing.

The hearing before the EAB regarding the clean-up has been set to commence May 19, 1998 in Hamilton.

Ramani Nadarajah is a lawyer at CELA

Worth Quoting

The January 1998 issue of Canadian Lawyer looked at the tort of regulatory negligence and how government cost cutting may lead to increased litigation and liability of public authorities for enforcing environmental regulations. The article says that courts usually hold that authorities can't be held liable for their policy decisions, but can be for operational ones. According to a December 1996 memo to Jack Johnson, director of the legal services branch at the MoE, from Sheila Willis, an assistant deputy minister, "The purpose of ... [compliance] strategies is to provide the policy exemption defence available under the tort of regulatory negligence. It will also provide operational guidance to our field staff and thereby promote consistency."

However, the article quotes Ramani Nadarajah from CELA as seeing compliance strategies as "the smoking gun. It's very clear that the ministry is aware that it can't really fulfil its core regulatory mandate and must therefore prepare defences to actions which citizens might bring in the future. In the context of what's been occurring in environmental law in the past two years, there has probably been the most dramatic deregulation in environmental law in Ontario."