Lemon Creek gets an early Christmas present

A Provincial Court Judge has ruled that the BC Government and Executive Flight Centre Fuel Services Ltd. will face charges in relation to the spill that occurred July 26, 2013 when a fuel tanker rolled into Lemon Creek, releasing 33,000 litres of A1 jet fuel into the creek and downstream watershed. This news arrived late the afternoon of December 20, just days after we wrapped up the last issue of the Valley Voice for 2014. Charges were laid under the Fisheries Act against the Provincial Government (Ministry of Forests, Lands and Natural Resource Operations or FLNRO) and Executive Flight Fuel Services Ltd by longtime Slocan Valley resident Marilyn Burgoon.

“This is a very important victory for democracy,” said Ms. Burgoon. “This Provincial Court decision means that government and industry are still accountable for their actions in a court of law. Even when government and industry drag their feet to avoid investigation of environmental offences, justice can still prevail.”

The tanker that spilled 33,000 litres of A-1 jet fuel into Lemon Creek July 26, 2013. Photo Sean Arthur Joyce

However, before a summons could be issued, the evidence had to be reviewed by a judge. This hearing was held in the Nelson Courthouse November 27 before Judge Mayland McKimm. Lilina Lysenko appeared as counsel for Burgoon while Todd Gerhart appeared as counsel for the Department of Justice. According to a media release issued by Burgoon, her evidence—adding up to a book-length testimony of material—substantiated that, “both parties shared responsibility for the fuel entering Lemon Creek, flowing downstream into the Slocan River and Kootenay Rivers.”

Use of the federal Fisheries Act, section 36, was key to bringing the matter into a court of law. Section 36 makes it an offense to pollute any Canadian waterway and has provisions for holding polluters accountable. Burgoon was encouraged in this approach by retired federal Fisheries biologist Otto Langer, who has testified in hundreds of similar cases. “This case again a makes it very abundant that if we had a court of morality that the BC Ministry of Environment and DFO and Environment Canada should also be charged for simply refusing to do the job we as Canadians must expect them to do and pay them well to do that job of protecting the public interest,” said Langer upon hearing of Judge McKimm’s decision allowing the case to proceed.

Langer visited the Slocan Valley three months after the July 2013 fuel spill and inspected Lemon Creek and its immediate downstream environs. “The spill literally wiped out all life in the stream for several kilometers including invertebrates, fish, birds and mammals,” he writes. Upon inspection he noted the persistent odour of jet fuel along the creek as well as “signs of jet fuel … under the rocks in the stream, in the detrital matter along the stream and a sheen of jet fuel was evident flowing along the banks of Lemon Creek.”

Microbiologist Jennifer Yeow of Slocan Valley Streamkeepers, winner of a Kootenay Conservation Program Award.

It has been 17 months since that environmental nightmare, during which time valley residents were met with continual stonewalling from BC’s Ministry of Environment on issues of post-spill monitoring and victim compensation. The private firm SNC Lavalin—hired by Executive Flight Centre and infamous for some of its questionable overseas activities—has been allowed to direct both the scope and details of monitoring. Slocan Valley Streamkeepers, under the direction of award-winning microbiologist Jennifer Yeow, has offered both its own independent monitoring program plus at least a decade worth of baseline data. Yet offers to include this data in the material collected by SNC Lavalin have been met mostly with disinterest, opening the possibility that the firm’s conclusions could be skewed or inaccurate.

Streamkeepers issued its own report on May 24, 2014 noting that evidence of the fuel could still be found in both the stream and side channels 10 months after the spill. Also reported was a continued lack of the microscopic life (benthic invertebrates) upon which watersheds depend for life higher up the biological chain. At a community meeting in Winlaw Hall—the site of the disaster response centre in the weeks following the spill—Yeow reported that EPH (extractable petroleum hydrocarbon) levels had declined from an off-the-chart high of 150-770 ppm (parts per million) in Lemon Creek side channels to 23.7 ppm EPH after the 2014 spring freshet. Although regulations for drinking water are somewhat lax when it comes to fossil fuel-based contaminants, a standard of 5 ppm EPH is considered the maximum allowable. At 10 ppm you can taste it in water.

One of many victims of the spill. Photo Sean Arthur Joyce

Both Langer and Burgoon were frustrated by the Provincial government’s foot-dragging in the aftermath of the spill. Langer says he “sent around a note” a few months ago complaining of the “lack of desire by the Province or Federal DFO/EC to lay charges on this incident despite having had many months to complete investigations.” That’s when Burgoon stepped up. A veteran of the Perry Ridge Water Users Association (PRWUA), Burgoon has been a longtime leader in the fight to protect the Perry Ridge watershed from inappropriate or negligent industrial activity.

“The Fisheries Act specifically provides for private prosecutions by individuals,” explains Burgoon. “In addition, the right of a private citizen to lay a charge is considered a fundamental part of Canada’s criminal justice system. If government is not going to apply the laws of Canada, it is up to the people to do so. I had no choice but to launch a private prosecution and let a judge review the evidence.” Burgoon’s legal counsel is being supported by West Coast Environmental Law’s Dispute Resolution fund and the legal research of Lysenko and Jeff Jones. A summons will now be issued and a court hearing date will be set in the New Year.

Prime Minister Harper’s Conservative regime has been antithetical to both science and the environment, handing over the keys to industry and setting the stage for record-setting disasters like the Mt. Polley mine tailings pond breach and the Lac Mégantic rail disaster in Quebec. “It is ironic that PM Harper did argue that the feds had created a better focus for the Fisheries Act after Bill C 38 gutted the habitat law in Canada and the government ran ads about higher fines and better enforcement,” said Langer. “Such claims have been proven worthless in that government has amply demonstrated that it has largely neutered environmental legislation, undermined the civil servants that are to do the work and above all destroyed the will to do the job. …If they refuse to do the job that Canadians expect of them how will they assist the citizens to do their job for them?”

Evidence of fuel in Lemon Creek persisted 10 months after the spill. Photo Sean Arthur Joyce

POSTSCRIPT

In a related bit of good news, Interior Health has finally released a report on an investigation into their disaster response procedures to Lemon Creek, widely criticized by affected residents as being slow, uncoordinated and ineffective. As reported by Jan McMurray in the December 17 Valley Voice, the report was written by Roger Parsonage, Regional Director of Health Protection, who led the operational response to the fuel spill in August 2013. Parsonage admitted the disaster was “a learning experience” hampered by bringing too few staff into the response and “no defined structure that we would use for a response.”

“The report states that the initial response was provided by a manager, communications officer and the Medical Health Officer, and these were the right resources,” writes McMurray. “But there weren’t enough of them and we would have benefited from bringing in more people more quickly,” said Parsonage. “This was the key lesson learned—to mobilize resources much more quickly.” He said that additional training has since been initiated for Health Protection staff.

Winlaw ‘Resiliency Centre’ manager Nelle Maxey found her job frustrating to say the least. Photo Sean Arthur Joyce

Another frequent complaint was the haphazard nature of Interior Health communications during the disaster response—ironic in the age of Facebook and Twitter. Further muddying the waters, IH staff were seldom seen at the community response centre, or ‘Resiliency Centre’ as it was euphemistically named. “The Resiliency Centre provided us with a key source of information about the needs and concerns in the community,” said Parsonage. “…We would have benefited and been a better support to the community by being there more frequently.” Parsonage said a toll-free number will be established in the spring so people can call with questions during an emergency.

Significantly, Parsonage admitted that the lack of transparency of IH response was poor “until the issue was forced, and this likely fueled some of the vocal public distrust of Interior Health and the resulting complaints to the Ombudsperson.” That complaint resulted in discussions leading to the release of the IH report. Completed in January 2014, the report was not released until December 3, however. “Putting this out publicly is our commitment to learning from what happened and improving our response should this happen again,” concluded Parsonage.

Well. I stand corrected. Maybe a bureaucrat can learn from his mistakes after all. Happy New Year everyone.