Cobalt Construction Inc. and president Shaun Rudolph were found not guilty of charges under the Environment Act. (Mike Thomas/Yukon News

Construction company, president found not guilty of environment charges

‘Unfair’ to prosecute company for failing to dig soil samples during winter, judge rules

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.

Contact Jackie Hong at jackie.hong@yukon-news.com

Yukon courts

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Premier Sandy Silver, left, and Yukon’s Chief Medical Officer of Health Dr. Brendan Hanley speak at a COVID-19 update press conference in Whitehorse on Nov. 19. On Nov. 24, Silver and Hanley announced masks will be mandatory in public places as of Dec. 1, and encouraged Yukoners to begin wearing masks immediately. (Crystal Schick/Yukon News file)
Masks mandatory in public places starting on Dec. 1

“The safe six has just got a plus one,” Silver said.

Dr. Brendan Hanley, Yukon’s chief medical officer of health, speaks at a press conference in Whitehorse on March 30. Hanley announced three more COVID-19 cases in a release on Nov. 21. (Crystal Schick/Yukon News file)
Three more COVID-19 cases, new exposure notice announced

The Yukon’s Chief Medical Officer of Health, Dr. Brendan Hanley, announced three… Continue reading

Yukonomist Keith Halliday
Yukonomist: COVID-19 strikes another blow at high-school students

They don’t show up very often in COVID-19 case statistics, but they… Continue reading

The Cornerstone housing project under construction at the end of Main Street in Whitehorse on Nov. 19. Community Services Minister John Streicker said he will consult with the Yukon Contractors Association after concerns were raised in the legislature about COVID-19 isolation procedures for Outside workers at the site. (Crystal Schick/Yukon News)
Concerns raised about alternate self-isolation plans for construction

Minister Streicker said going forward, official safety plans should be shared across a worksite

Beatrice Lorne was always remembered by gold rush veterans as the ‘Klondike Nightingale’. (Yukon Archives/Maggies Museum Collection)
History Hunter: Beatrice Lorne — The ‘Klondike Nightingale’

In June of 1929, 11 years after the end of the First… Continue reading

Samson Hartland is the executive director of the Yukon Chamber of Mines. The Yukon Chamber of Mines elected a new board of directors during its annual general meeting held virtually on Nov. 17. (Joel Krahn/Yukon News file)
Yukon Chamber of Mines elects new board

The Yukon Chamber of Mines elected a new board of directors during… Continue reading

The Yukon Hospital Corporation has released its annual report for 2019-20, and — unsurprisingly — hospital visitations were down. (Crystal Schick/Yukon News file)
Annual report says COVID-19 had a large impact visitation numbers at Whitehorse General

The Yukon Hospital Corporation has released its annual report for 2019-20, and… Continue reading

Whitehorse City Hall. (Joel Krahn/Yukon News file)
City hall, briefly

A look at decisions made by Whitehorse city council this week

City council was closed to public on March 23 due to gathering rules brought on by the COVID-19 pandemic. The council is now hoping there will be ways to improve access for residents to directly address council, even if it’s a virtual connection. (Crystal Schick/Yukon News file)
Solution sought to allow for more public presentations with council

Teleconference or video may provide opportunities, Roddick says

Megan Waterman, director of the Lastraw Ranch, is using remediated placer mine land in the Dawson area to raise local meat in a new initiative undertaken with the Yukon government’s agriculture branch. (Submitted)
Dawson-area farm using placer miner partnership to raise pigs on leased land

“Who in their right mind is going to do agriculture at a mining claim? But this made sense.”

Riverdale residents can learn more details of the City of Whitehorse’s plan to FireSmart a total of 24 hectares in the area of Chadburn Lake Road and south of the Hidden Lakes trail at a meeting on Nov. 26. (Ian Stewart/Yukon News file)
Meeting will focus on FireSmart plans

Riverdale residents will learn more details of the City of Whitehorse’s FireSmarting… Continue reading

The City of Whitehorse is planning to borrow $10 million to help pay for the construction of the operations building (pictured), a move that has one concillor questioning why they don’t just use reserve funds. (Crystal Schick/Yukon News)
Councillor questions borrowing plan

City of Whitehorse would borrow $10 million for operations building

Most Read