A Whitehorse-based construction company and its sole shareholder were found not guilty Sept. 14 of contravening an environmental protection order, in part because the judge said it would have been impossible to comply during the winter.
Cobalt Construction Inc. and president Shaun Rudolph were both facing a charge under the Environment Act related to a land treatment facility it operated near Destruction Bay following a nearby fuel spill in 2013. Cobalt’s permit for the facility, meant to store and treat soil contaminated by the spill, expired at the end of 2015, and the company was required to decommission the site.
Cobalt didn’t take any action until February 2016, when the then-deputy environment minister wrote a letter to the company saying an environmental protection order would be issued that would require Cobalt to submit a detailed decommissioning plan within 30 days.
The company responded with a letter containing its initial decommissioning plan in March 2016, stating it intended to till the facility’s soil and collect samples in June 2016 and, based on the sampling results, develop an accurate decommission plan later that season.
Officials at the environment department found the plan contained “insufficient details,” which required information such as a detailed timeline and soil sample results, but did not notify Cobalt. A conservation officer approached the department of justice in April that year, which recommended charges be laid against Cobalt for not providing its plan by the aforementioned deadline. The conservation laid the charges against Cobalt and Rudolph in July 2016, a month after the company hired an environmental assessment company to begin soil sampling.
“The only factual issue in dispute relates to whether the sampling required for a compliant decommissioning plan could be completed by Cobalt within the timeframe required,” Chief Judge Karen Ruddy said Thursday while reading her decision.
Ruddy said the “evidence was clear” that the soil at the land treatment facility would need to be tilled two weeks before someone could take samples for analysis and that the tilling could not disturb the configuration of the soil piles on the site. During the trial, Rudolph had testified tilling the soil within the timeframe given by the environmental protection order would have been impossible because it was winter, the ground was frozen, therefore preventing the use of an excavator. A ripper could have been used, Rudolph had said, but that would have destroyed the pile configuration.
Ruddy said she found Rudolph’s testimony, based on 17 seasons of doing road construction in the area, reliable.
“There’s something inherently unfair and illogical in the notion that someone could be convicted of an offence for failing to comply with an order where compliance is impossible,” she said, noting that although Cobalt’s initial plan was “clearly and objectively deficient,” the company ultimately did comply with the environmental protection order once the ground thawed.
“While I’m not satisfied that Cobalt was duly diligent, I am satisfied that it was … impossible for Cobalt to comply with the EPO within the timeframe specified… In such circumstances a conviction would result in a legal absurdity,” Ruddy said.
“Compliance was simply delayed, a delay that can be said was caused by the conditions of the Yukon winter, conditions well beyond the control of Cobalt.”
Ruddy added the case was “difficult” to decide on and “somewhat unusual.”
She also addressed Rudolph after delivering her decision.
“If you learn nothing else from this, being proactive in your communication with the government, I think, could have avoided a lot of problems for you,” she said.
“For sure,” he responded.
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