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Court Orders 1.6 million pay-outs for historic spill.

May 11, 2017

Following a large fine and huge clean-up costs, a dry-cleaning business in Ontario, United States were thought an expensive lesson on environmental protection and compliance.  The following article will investigate exactly what happened and the lessons that need to be learned going forward for companies

Ontario Superior Court in March instructed the corporation responsible for the spillage of dry cleaning solvents from 1960-1974 to pay compensation $1,632,500 for remediation costs and $201,700 for expert costs. (Huang V Fraser Hillary’s Limited) The court ruled Huang V Fraser Hillary’s Limited (Dry Cleaners adjacent to Mr Huang’s properties) guilty of the spillage of dry cleaning solvents which resulted in the damage of neighbouring property.

Mr Huang after learning of the contamination of soils and groundwater in the surrounding area of his two properties, decided to take legal action. Tetrachloroethylene & Trichloroethylenewere the substances identified to have caused this contamination.

The court found that for fourteen years these substances were allowed to seep into the ground through dry cleaning filters and the dry cleaneing sump in the basement. Also, the chemicals in question were stored in cardboard boxes at the rear of the property and would remain there until the weekly garbage collection. It was also found that the dry cleaners took no steps to solve this problem. In 1974 Fraser Hillary’s Limited installed new dry cleaning machines. The modern technology in these machines resulted in the elimination for potential spills. (Hazardous Material Management)

 

Contamination

In 2002, it came to Mr Huang’s attention that his properties had suffered substantial damage. Through an environmental consulting firm Mr Huang ordered a site assessment of one of Fraser Hillary’s Limited properties which he was contemplating on buying. The assessment found moderate to high levels of contaminants.

When testifying Mr Huang claimed that because of the contamination his bank refused to provide him with the required funds and refusal to renew his existing mortgage. Also, he added that due to the damages he was unable to develop the properties in question in their present condition and once the issues are addressed he intends to proceed with development plans.

 

Description of chemicals

Tetrachloroethylene (PCE) & Trichloroethylene (TCE): Both colourless liquid substances which are highly volatile and toxic. The substance is hazardous to the aquatic environment. Both have a risk of explosion when in contact with other chemicals such as alkali metals, aluminium and alkali hydroxide. The main intake pathways for are via the respiratory tract and through the skin.

 

pce_source_schematic_for_web

 

 

 

 

 

 

 

 

 

 

(Hazardous Material Management)

 

 

Decision of the court

“Section 99 of the Ontario Environmental

Protection Act provides for a civil cause of action between private parties, allowing recovery of any loss or damage incurred as a result of, among other things, the spill of a pollutant, from the owner of the pollutant and the person having control of the pollutant. Both the “owner of the pollutant” and the “person having control of the pollutant” are defined in relation to the time immediately before the first discharge of the pollutant”. (Ontario.ca)

 

Even though there was no existing statutory right to compensation for private individuals at the time during which the spills were occurring, the court held that recovery under section 99(2) was still possible because

  • it was not clear that its application would constitute retroactivity.
  • the presumption against retrospective application is inapplicable where a provision is designed to protect the public.
  • any presumption against retroactivity is rebutted in this case by the clear intention of the legislature.

The Court found that section 99(2) was intended to provide for compensation now for all spills, not simply those that occur after the legislative provision came into effect, and consequently found the defendant corporation liable to the plaintiff as “the owner of the pollutant and the person having control of the pollutant” immediately before it was spilled. (Lexology)

 

The experts confirmed that the substances found in the ground water and soil were from dry cleaning solvents. The court awarded costs to Mr Huang that involved isolating the source of contamination with a permeable reactive barrier and treating Mr Huang’s properties with injections of zero valent iron over an eight to ten-year period.

 

zero-valent-iron-injection

 

 

 

 

 

 

 

 

 

 

 

(Hazardous Material Management)

 

Recommendations

It is clear that Fraser Hillary’s Limited failed to monitor and inspect the environmental and structural integrity of their properties for an extended period of time. Several steps could have been taken to prevent such an incident.

Sump (Bund) Maintenance & Integrity Testing

Fraser Hillary’s Limited should have regularly been testing their sump system to make sure it was holding and draining the waste appropriately.

 

Filter Replacement/Servicing

Filters should have been regularly serviced and replaced when necessary. The appropriate storage units should have been present to house these highly hazardous materials.

 

Housekeeping/Facilities Management

It is imperative that all machinery used in a business is inspected and tested on an annual basis. This would prevent the environmental damage but also as a protocol for the safety and wellbeing of the employees operating the machines daily.

As per the Institute for Occupational Safety and Health:

  • All rooms and equipment have to be cleaned regularly.
  • Use protective equipment while cleaning if necessary.
  • Only conduct maintenance and other work on or in the vessel or closed spaces after obtaining written permission.
  • Only work with vessels and lines after they have been thoroughly rinsed.

 

Risk Assessment

Fraser Hillary’s Limited should have used the following basic steps.

Identify the hazards: In this case Fraser Hillary’s Limited should have identified that the chemicals used on a day to day basis were hazardous. Therefor, should have had the appropriate measures in place to prevent these chemicals from being exposed to the environment.

Determine the level of the risk: Fraser Hillary’s Limited should have estimated how likely the hazard is to cause harm and what the harm is likely to be.

Decide on the control measures: in this case Fraser Hillary’s Limited should have had their sump system tested regularly and filters used should have been regularly serviced and replaced when necessary.(HSA.ie)

 

 

 

 

 

 

 

 

 

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