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The Lemon Creek jet spill and emergency release of data

August 28, 2013

I can’t begin to imagine what it must be like to have your drinking water, and your entire community, contaminated with jet fuel; particularly when, like the folks impacted by the Lemon Creek jet fuel spill in the Slocan Valley, you live in an otherwise pristine area.  The only thing that would make it worse would be feeling shut out of the clean-up, unable to find out what was going on or what you’d even been exposed to. 

So when some folks who live near Lemon Creek contacted West Coast looking to find out what they had been exposed to, we were happy to help.  Although water testing had been done to determine the impacts of the spill, and those tests were informing government orders about which water was safe or not, the province had not released the results of those tests.  We wrote a letter on behalf of local residents demanding that the Ministry of Environment and Interior Health disclose the results of the water testing that had been done in the region. 

The residents of Lemon Creek, Slocan River and Kootenay River within the evacuation area require the data immediately to allow them to assess the risks to their health, their properties and their community.  … Your respective agencies have the obligation, and power, to provide it. 

And last week, on August 19th (five days after we sent our letter), the province of BC and Interior Health finally released that data, allowing residents of Lemon Creek to see where testing had, and hadn’t, occurred, and what had been found.   Here’s the website with the data, and here are the responses that we received from the BC Ministry of Environment and Interior Health

Lessons about emergency release of data

Our letter demanded the immediate release of the test results because they were necessary for the residents of the area to understand the threats to their health and safety.  It pointed to two separate legal grounds on which the information should be released immediately, which may be of use in future situations in which toxic substances escape near homes. 

The first ground is Section 25 of the Freedom of Information and Privacy Act, which states (in part):

Whether or not a request for access is made, the head of a public body must, without delay, disclose to the public, to an affected group of people or to an applicant, information … about a risk of significant harm to the environment or to the health or safety of the public or a group of people, or … the disclosure of which is, for any other reason, clearly in the public interest.

Now section 25 is rarely used, and since the complaint provisions of the Act can be slow, there have been few efforts to force the release of information under this section.  Last year the UVic Environmental Law Centre asked the Information and Privacy Commission to investigate a pattern of government agencies ignoring this requirement, explaining that “[T]here are worrying signs that many public bodies take an overly restrictive view of their duty to disclose under section 25 -- or may simply be unaware of those duties.” 

However, the section certainly can, and should, be drawn to the attention of government officials that are sitting on information related to health and safety or other environmental issues. 

The second legal ground for disclosure was section 7 of the Canadian Charter of Rights and Freedoms, which says:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

We wrote:

A serious breach of the right to life, liberty and security of the person has in this case already occurred and was, to at least some degree, outside of the control of the government.  However, the ways in which that initial breach are addressed, and whether they meet the requirements of the principles of fundamental justice, are very much in the government’s control, and still go to the residents’ section 7 rights. 

In our view, having access to basic information that might help residents determine what they have been exposed to, and at what concentrations, and to make educ[ated] decisions about their own treatment, is very much a requirement of fundamental justice. 

The courts have not conclusively decided whether section 7 can be used to protect people from exposure to toxins, although there are court decisions suggesting that it can.  However, in writing the letter it occurred to me that there may be benefits to asserting section 7 in this type of narrow and discrete way. 

If the government had failed to release the data, as requested, section 24 of the Charter allows an affected resident to apply directly to court.  There would presumably not be any disagreement that the residents were evacuated and potentially exposed to toxins – which seem like a violation of their “life, liberty and security of the person.”  The case could have been argued on the basis of written evidence (which is cheaper than oral evidence), and presumably relatively quickly (since the information was urgently required).   The remedy asked for – information on what they had been exposed to – would have seemed a common sense one (and one which was required in any case by section 25 of the Freedom of Information and Privacy Act).

Contrast that with Ecojustice’s Chemical Valley case.  It’s a very important case, involving a very complicated section 7 challenge to an industrial permit issued by the Ontario Ministry of Environment.  We hope that it is won soon and sets a hugely important precedent.  However, it’s being going on since 2010. 

Next steps

It’s great that the government did the right thing and released the data.  However, getting that data doesn’t answer all questions, or restore the faith of Lemon Creek residents in their water or their government.  Some residents question the credibility of testing done by a consultant, SNC Lavalin, which was hired by the company that caused the spill.  

“The samples were taken by SNC Lavalin hired by Executive Flight Centre,” Russell Hulbert told the Star. “Interior Health and the Ministry of Environment make assessments and decisions based on that data. Where is a third-party monitor for the people getting the real information that supports us, not Executive Flight Centre?”

Clearly, more testing needs to be done, and members of the community should have access to tests and experts that they can trust.  Those are crucial next steps. 

A class action has been launched by Nelson-based lawyer, David Aaron, on behalf of residents of the area.  Interestingly, Mr. Aaron has asked for an interim order from the court ordering the province and the other parties to consult residents (as represented by the Plaintiff in the class action) in the clean-up of the spill, and to appoint an independent environmental scientist to support them.

An interim order requiring the Defendants to meaningfully consult the Plaintiff’s appointed representative, as approved by the Court, with respect to environmental/ecological monitoring and remediation within the Evacuation Zone;

An interim order requiring the Defendants, jointly and severally, to provide the Plaintiff with capacity funding so as to finance the Plaintiff’s meaningful participation in the said consultation process through the appointment of a representative, that being an independent environmental scientist, as approved by the Court. 

This is an innovative approach.  However, I am reminded that the courts will sometimes order a defendant to pay for the legal costs of a plaintiff (through advance cost orders) in order to allow critical legal issues to be fully argued before the court.  Is it so different for a court to require the person who caused a spill, or the government, to fund a scientist to assist the plaintiff in participating in the clean-up of the spill?

If that doesn’t prove a successful approach, one might also wonder whether the “principles of fundamental justice” referred to in section 7 require the government to ensure that those who are subject to a spill are meaningfully involved in its clean-up. 

We, and many others, will be watching the clean-up and recovery of the Lemon Creek spill with interest.

By Andrew Gage, Staff Lawyer