- Judge Masuhara rejects defendants’ arguments
The wheels of justice grind on at a glacial pace, but sometimes they do the right thing. It’s taken four years, but the BC Supreme Court has finally certified that the class action lawsuit may proceed on behalf of those affected by the Lemon Creek fuel spill in July 2013. Robert Kirk is its representative plaintiff on behalf of 2,500 Slocan Valley residents. Kirk, whose 51-acre farm includes a kilometre of riverfront property, is represented by Nelson-based attorney David Aaron. The suit is described by prosecuting law firm Rosenberg-Kosakoski as “the first environmental class action against the Province of BC.” The class action as certified by Judge David Masuhara includes those who owned, rented, leased or occupied property in the evacuation zone on the date of the spill, claiming damages for “diminution of property value and loss of use and enjoyment of property.”
According to Rosenbeg-Kosakoski, the Province “hotly contested the application to certify this action as a class proceeding, attempting to point blame at its co-defendants,” Executive Flight Centre (EFC), Transwest Helicopters, and truck driver Danny LaSante. Judge David Masuhara rejected the Province’s arguments, concluding that, “I do not find it fair or efficient for individuals to be required to advance through an individual action to obtain some form of redress from the defendants. Moreover, litigating the common issues through a class proceeding has the significant advantage of key findings being decided once.” A further argument, that Kirk be disqualified as representative plaintiff, was also rejected. Judge Masuhara cited a legal precedent stating that, “The representative plaintiff represents the class, but need not be representative of the class. He or she need not have a claim typical of the class, or be the ‘best’ possible representative.”
The defendants had tried to argue that there was not enough evidence of two or more residents being sufficiently affected to constitute a class. Among those filing affidavits on behalf of the class action was Nelle Maxey, who served as the RDCK’s director of the Recovery Centre in Winlaw in the weeks following the spill. To cite only a few of the examples Maxey recorded, there were 30 residents who reported fuel product on the river or shorelines or in their tap water/toilets; 23 residents who reported health concerns and symptoms, with eight reports involving children, and five with symptoms medically diagnosed as resulting from exposure to fuel or vapor associated with the spill; and 16 residents who were concerned about the safety of their drinking water, both before and after the Interior Health authority canceled its order.
The Province also argued that because it “did not have possession nor control over the fuel that escaped from the fuel tanker,” and could not have foreseen the actions of the contracted driver LaSante in using a decommissioned road, this should be disqualified from the class action. However, Judge Masuhara concluded that without an examination of the facts it was insufficient grounds to deny inclusion in the action. The Province asserted that it no longer has a “duty of care” for a closed, unmaintained road, noting that two signs were posted, reading: “End of Maintained Public Road” and “Road Closed.” It claimed that, “there also is the likelihood of indeterminate liability and the impact on the taxpayers if the Province has a duty of care to maintain a closed road.” Here again the judge disagreed, pointing out that, “there remains a factual determination as to whether the road was closed, particularly where the road was accessible and accessed by Mr. LaSante.” Judge Masuhara agreed that there was reason to expect the Province to go beyond road maintenance to include “a duty of care to communicate, warn, deactivate and obstruct and/or deter access.”
All the defendants argued that there were no facts “supporting groundwater contamination or any contamination beyond the affected waterways.” EFC says “it did not ignore its obligations to the public… (and) took immediate action to clean up, remediate and address community concerns.” It claims to have spent $5.4 million remediating the spill, and that the site and surrounding waterways “have been remediated to regulatory standards.” But Judge Masuhara agreed that the class action could claim “direct exposure, continuation and damage to properties throughout the Evacuation Zone.” Attorney David Aaron says his team has hired experts in biology and organic chemistry to assess the long-term environmental impact.
“We now have the benefit of a single proceeding to determine questions as to the presence and persistence of residual toxins in the environment and the impact of the spill,” says Aaron. “It was definitely a shock to the whole community and it’s debatable whether the environment will ever fully return to its pre-spill state.”
Aaron adds that the lawsuit has been remarkable for “the extent to which the defendants are pointing the finger at each other in terms of who’s to blame for the fuel spill.” Separate proceedings include the Province suing EFC for recovery of spill costs and EFC suing the Province for failing to provide indemnity.
“What we have here is a web of litigation wherein no defendant has taken responsibility for this environmental disaster. We are intent on making sure that the people of the Slocan Valley are not left out high and dry to bear the burden of other peoples’ negligence.”
Aaron says he is still getting phone calls from worried residents wondering if they need to register to be included in the class action. By default all those persons included in a class definition are automatically represented unless they explicitly opt out. Court-approved notices will be published both for the mechanism to opt out and the current status of the case. However, personal damages, such as the medical impacts of exposure to jet fuel inhalation, are included in a separate civil suit. The plaintiff has yet to bring an application to court for certification of that action.
- The True Costs of Negligence
Out of sight, out of mind. When the headlines fade, it’s easy to fall prey to this human tendency to forget. But for those families living on or owning property in the Lemon Creek fuel spill’s evacuation zone, the environmental effects are distressing and persistent. I’ve been following this story since the day after the spill on July 26, 2013. It’s been deeply disappointing to see both government and the private firms involved minimizing the human and ecological impact on the Slocan Valley. As attorney David Aaron has stated, whether or not the ecology will return to its pre-spill state is unknown.
“We are grieving,” says Marilyn Burgoon, President of the Perry Ridge Water Users Association. “The memory of all that was lost is sad and haunting. Not knowing the long-term effects makes our community anxious.”
As the representative plaintiff for the class action lawsuit, Robert Kirk’s testimony is eye-peeling. He’s noticed that the formerly abundant bird life on his 51-acre property has decreased alarmingly. On average, he says, four great blue herons would feed at his pond and along the river throughout the summer months. Since the spill he has only seen one heron that made a brief appearance in 2015 but didn’t stay long. He was used to seeing a daily average of 16 whistling swans on his property over a 30–45 day period during the winter. He now reports one sighting of only five swans for a brief stay and thinks that the spill has left them nothing to eat “because the bottom of the river is barren.”
“For the 16 years that I resided at my property prior to the spill,” Kirk states in his affidavit, “I would have to refill the feeder each week. Since the spill, I have noticed that the feeder is now infrequently visited, such that I need only refill it once every three months.”
The damage extends to other creatures. At least a dozen painted turtles used to show up on his property in spring, remaining throughout the summer. Kirk has seen none since the spill, and very few frogs or dragonflies. Nor has he seen the “thousands of flies hovering over the river surface and trout jumping up at them,” except for a few minnows in the summer of 2015. Butterflies too have disappeared. Valley residents are well familiar with the age-old game trails for deer and moose winding through their land. These have been eerily empty on Kirk’s property since the spill. And bats – our best natural defense for controlling mosquito populations – have also disappeared from his acreage.
Wayne Savinkoff grazes cattle on Kirk’s property and they too are giving signs that all is not well. “Prior to the spill, the cattle were content grazing at my property throughout the summer. Since the spill, the cattle will not drink around the shoreline of the Slocan River. Rather, to drink from the river, they wade deep into the river up to their bellies. After spending a week on my property, they try to push the fence down and leave.” Kirk adds that there seems to be a 40-foot strip along the river that is avoided by wildlife.
Grand Forks resident Nadine Heiberg says her family has owned a property on Nixon Road near Appledale since her father William Nevocshonoff bought the property in 1942 while working as a horse logger. When he died, the property was inherited by Nadine and her sister Annette Davidson – a seven and a nine-acre parcel.
“I have seven children and we used to visit and go inner tubing on the river,” says Heiberg. “What residue is in there now? It was pristine and now it’s changed, the land is contaminated. We feel violated – this was someplace to heal. How do you put a price on paradise lost?”
The human toll has been no less. Slocan Valley farmer Jim Ross welcomes the certification of the class action lawsuit, calling the spill “a preventable tragedy of huge proportions. There has been tremendous suffering: burning eyes, blisters, sore throats, headaches, respiratory distress, and neuromuscular symptoms. Scores of wildlife are dead. People have been displaced from their homes, their farms contaminated, their businesses shut down.”
Versions of these articles will appear in the Valley Voice newspaper, May 18 edition, valley voice.ca.