R. v. Zellstoff Celgar Limited Partnership Date:, 2012 BCPC 38

Citation: R. v. Zellstoff Celgar Limited Partnership Date: 20120216 2012 BCPC 0038 File No: 20460 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ZELLSTOFF CELGAR LIMITED PARTNERSHIP REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MROZINSKI Counsel for the Crown: T. Gerhart Counsel for the Defendant: J. Walton and S. Armstrong Place of Hearing: Nelson, B.C.

Date of Hearing: June 20, 21, 22, 23, 27, 28, 29, 30, 2011 Date of Judgment: February 16, 2012 Introduction [ 1 ] The defendant, Zellstoff Celgar Limited Partnership (“Celgar”), pleads not guilty to six counts of various breaches of the Fisheries Act , R.S.C. 1986, c. F-14 and the Environmental Management Act (“ EMA ”), SBC 2003, c. 53. [ 2 ] Count 1 of the Information alleges that between the 19 th and 25 th days of November, 2008 Celgar unlawfully deposited a deleterious substance in water frequented by fish contrary to s. 36(3) of the Fisheries Act .

Count 2 alleges that between the 22 nd and 25 th days of November, 2008, Celgar unlawfully failed to comply with a requirement of its provincial effluent Permit by depositing effluent into the Columbia River that was acutely lethal to trout and did thereby commit an offence contrary to s. 120(7) of the EMA . Count 3 alleges that between the 19 th and 26 th days of November, 2008, Celgar failed to comply with its Permit by depositing effluent into the Columbia River that exceeded its daily loading limit for total suspended solids contrary to s. 120(7) of the EMA .

Count 4 alleges that between the 19 th and 22 nd days of November, 2008, Celgar failed to comply with its Permit by depositing effluent that exceeded its maximum daily loading limit for biochemical oxygen demand contrary to s. 120(7) of the EMA . Counts 5 and 6 allege that between the 7 th and 25 th days of September, 2008, Celgar failed to comply with a requirement of its Permit to maintain its spill ponds in good working order contrary to ss. 120(6) and 120(7) of the EMA . [ 3 ] Celgar operates a pulp mill alongside the Columbia River in Castlegar, British Columbia.

As with all such operations, the Celgar mill generates a significant amount of waste water. Celgar is permitted to and does discharge its treated effluent into the Columbia River pursuant to Permit # 1272 (the “Permit”) subject to certain terms and conditions. Among those, Celgar’s treated effluent must meet limits for total suspended solids (“TSS”), biochemical oxygen demand (“BOD”), and must be able to pass a 96 hour rainbow trout Single Concentration Rainbow Toxicity Test (the “Rainbow Trout Test”).

[ 4 ] On November 18, 2008, material identified by Celgar as dilute weak black liquor in excess of 1000 m 3 overflowed a tank and spilled into the mill’s general sewer. From there, it made its way directly into Celgar’s effluent treatment system (“ETS”). A much smaller amount, approximately 33 m 3 spilled over a roadway at the mill. Some of that spill material entered the Columbia River.

Celgar reported the spill on November 18, and took the steps necessary to contain the spilled material in the River. [ 5 ] The parties agree that the spilled material had a negative impact on Celgar’s ETS thereby decreasing the effectiveness of the system. As Celgar admitted, its ETS began to negatively respond to the spilled material within days of its release into the mill’s general sewer. [ 6 ] Celgar admits that on November 20, 21, 23, 24 and 25, its treated effluent exceeded its prescribed TSS permit level of 6000 kg/day.

It admits that on November 20 and 21, its treated effluent exceeded its prescribed BOD permit level of 6000 kg/day. On November 23 and 24, Celgar’s treated effluent failed the Rainbow Trout Test. Because of these failures on these two days, Celgar concedes that it deposited a deleterious substance into the Columbia River, a body of water frequented by fish and subject to a First Nations and sports fishery, on November 23 and 24.

It denies having deposited a deleterious substance as charged on November 20, 21, and 22, 2008. [ 7 ] While substantially admitting the actus reas of the charges under counts 1 to 4, Celgar submits that it must be acquitted of these charges on the grounds that it exercised due diligence with respect to the operation of its ETS and took all reasonable steps to avoid exceeding its permitted limits, or depositing a deleterious substance on the days it concedes these acts occurred. [ 8 ] With respect to counts 5 and 6, Celgar submits that the Crown has not proven beyond a reasonable doubt that it failed to maintain its authorized works, viz ., its two spill ponds, in good working order contrary to ss. 120(6) and (7) of the EMA.

Alternatively, Celgar submits that it acted with all due diligence in maintaining its spill ponds such that though the ponds were full between September 7 and November 25, 2008, Celgar could not, despite its best efforts, alter that fact. Celgar’s Effluent Treatment System [ 9 ] The substance of Celgar’s due diligence defence is that since April of 2005, it has taken steps to improve the performance of its ETS. Celgar’s ETS is known as a low rate air activated sludge treatment system.

It is a fairly complex system in which the mill effluent is treated in stages with each successive stage designed to separate out from the effluent which will ultimately be disgorged into the Columbia River the fibres, toxins and various other compounds that travel with the effluent as a consequence of the pulping process. [ 10 ] In the first stage, effluent from various areas at the mill travels into the main sewer line where it is then pumped through several kilometres of pipe to the primary clarifier.

The primary clarifier acts as a settling pond where large solids such as wood fibre will settle out of the effluent. From the primary clarifier the effluent is gravity fed to the cooling pond to ensure consistency of temperature before it flows into the aeration basin. The aeration basin is the beating heart of Celgar’s ETS. It is home to a variety of bacteria. When working properly, the bacteria in the aeration basin will metabolize the contaminants or pollutants in the effluent and convert that into bacterial growth.

That growth is then separated from the effluent following a settling process in the secondary clarifiers. From there, the effluent travels to the foam tank where it is mixed with clean cooling water and then discharged into the Columbia River along a diffuser. When the ETS works properly, the discharged effluent will meet the Permit requirements. [ 11 ] To protect the aeration basin, Celgar has in place two spill ponds with a combined capacity of just over 60,000 m 3 .

The ponds are designed so that materials that may be harmful to the aeration basin can be stored until the ETS can process them in a way that will not harm the bacteria in the basin. The spill ponds are an integral part of Celgar’s ETS.

As the ponds fill, Celgar has in place a reclamation strategy whereby effluent that has been diverted to the spill ponds may be reclaimed to the primary clarifier and from there gravity fed to the cooling pond and subsequently the aeration basin. [ 12 ] Since April, 2005, and particularly throughout 2007 and 2008, Celgar submits that it had been struggling with ETS problems and took numerous steps to try to understand why its ETS was not performing optimally.

By August of 2008, Celgar submits that its ETS problems were such that even though its two spill ponds were full, there was no way to reclaim the effluent in the ponds to the treatment system without risk of damaging the bacteria in the aeration basin. As such, in November 2008, Celgar submits that despite its best efforts, it had no spill pond capacity and continued upset conditions in its ETS. Thus was the state of affairs when on November 18, 2008, 1000 m 3 of a substance Celgar maintains was dilute weak black liquor spilled into the mill’s general sewer.

The Spill on November 18, 2008 [ 13 ] On November 18, 2008, Shawn Browne, utilities shift supervisor at Celgar, arrived at the mill just shortly before 6:00 p.m. to begin his shift. After donning his work clothes, Mr. Browne headed along his usual path to what is known as the recovery room, essentially the starting point for his shift. En route, Mr. Browne was diverted by a flow of what appeared to him to be weak black liquor across his path. He took a different route to the recovery room and there met with the outgoing shift supervisor, Mr.

Jack Smith, a long time pulp mill worker though not with as many years at Celgar as Mr. Browne. The two discussed what Mr. Browne had just seen and Mr. Smith told Mr. Browne that things were coming under control and that he was quite concerned with an upset at the lime kiln at that time. Mr. Smith told Mr. Browne that the material was condensate from the evaporators. [ 14 ] At this point, the material observed by Mr. Browne was, in his estimation, about one foot high.

Photograph number 29 in Exhibit 14 demonstrates clearly that the material was much higher, possibly 3 feet or more, at some point earlier that day. [ 15 ] With the shift change complete, Mr. Browne and his fellow employees set about dealing with the spill. As everyone knew at this point, the spill material was coming from a large tank labelled the “Weak Black Liquor” tank which I accept was not storing weak black liquor at the time but rather was being used as a spill tank to store contaminated condensate diverted from nearby tanks known as flash tanks 3 and 4.

It was apparent in the evidence and I have no difficulty finding that material was being diverted from the flash tanks to the spill tank from approximately 8:00 a.m. that morning and continued to divert for most of the day. I find also that at approximately 2:00 p.m. the spill tank itself started to overflow and continued to overflow with some breaks up to approximately 7:00 p.m.

[ 16 ] Celgar itself estimates the spill to have amounted to in excess of 1000 m 3 . Mr. Browne testified that it was the largest spill he had seen at Celgar even assuming he intended to mean the largest spill he had seen emanating from the spill tank. There can be no question that this had to have been a significant event for the mill and for those persons on day shift trying to address both the ongoing diversion to the spill tank and the overflow of the spill tank. None of the day shift personnel present on November 18 testified in this case. [ 17 ] As the utilities shift supervisor for Celgar, Mr.

Browne had to decide how to deal with the spilled material. Because he knew of the upset conditions in the ETS and the lack of capacity in the spill ponds, he reasoned that it would be better to allow the spilled material to travel directly into the treatment system via the primary clarifier rather than divert it to either of the spill ponds. In that way, he could avoid any potential contamination of the ETS by the materials already in the spill ponds. He reasoned that as the ETS was routinely fed dilute weak black liquor that was the safest alternative.

The response of the ETS in the days that followed would indicate that Mr. Browne’s calculation was incorrect. On the other hand, given the absence of any capacity in the spill ponds and the state of the ETS at the time, it is probable given the known effect of the spilled material on the health of the ETS that no matter what Mr. Browne did, the ETS would have been adversely affected. It may well have been only a matter of degree. The Cause of the Spill [ 18 ] Mr.

Browne prepared a report on the cause of the spill and, consequently, in his view, the nature of the spill material, which was entered in this trial as Exhibit 5. With respect to the cause, Mr. Browne concluded that the condensate from the evaporator process carried with it more particles of weak black liquor than normal giving rise to a spike in the conductivity meters at the flash tanks and in turn causing the material to be diverted to the spill tank for a prolonged period of time.

This prolonged diversion of the contaminated condensate in turn caused the spill tank to fill and then to overflow into the sewers and onto the road and into the Columbia River. [ 19 ] Mr. Browne was convinced this was a dilute weak black liquor spill because of the conductivity spike recorded by the on-line meter at the flash tanks. He was asked on cross examination whether the material could not have been weak black liquor soap like that which decimated Celgar’s ETS in 2003, and responded that it could not have been as the November incident bore no resemblance to what had occurred in 2003. In particular, Mr.

Browne noted that in the November incident, unlike the case in 2003, the pumps that move the liquor around the evaporator circuit did not jam with the overly viscous soap. [ 20 ] In the normal course of the pulp operation, wood chips are fed into a digester along with a substance known as white liquor. As Mr. Browne described it, white liquor is a caustic substance used to dissolve the wood. In the digester the white liquor works to separate the tannins and lignins from the wood. The fibre is removed from the digester and sent for washing and ultimately bleaching.

The remaining material composed of the tannins, lignins, fatty acids, and inorganic salts is called weak black liquor. Some of that is used for washing the pulp while the remainder is sent to the weak black liquor storage tanks. From there, the weak black liquor is concentrated in the evaporator plant and what emerge are combined condensate, condensate and heavy black liquor.

The combined condensate is used in the pulp washing process and re-circulated back to the evaporator, the bulk of the condensate is diverted to the main sewer and from there makes its way into the ETS, and the heavy black liquor is used as fuel in the recovery boiler. [ 21 ] This digesting process also creates another substance known as weak black liquor soap. As Mr. Browne described it, this soap is a by-product of a chemical reaction when certain softwoods are mixed with white liquor.

The soap, which is composed of, among other things, resin, fatty acids and alkaline chemicals from the liquor, comes out of the bottom of the digester along with the weak black liquor and travels with it to the weak black liquor storage tanks. There, the soap, which is normally lighter than the weak black liquor, will separate and rise to the top of the weak black liquor tank. As a consequence of both its weight relative to the weak black liquor and location at the top of the tank, the soap will be cooler in temperature than the weak black liquor below.

The 2003 Soap Event [ 22 ] From time to time, the mill will experience what mill workers call an “upset”. In 2003, such an upset occurred when the digester shut down yet low-strength liquor was still generated and made its way into the weak black liquor tank. While in the normal course, weak black liquor has a specific gravity (“s.g.”) or density range of 1.06 to 1.07, the dilution of the weak black liquor in the weak black liquor storage tank in 2003 caused the density to drop below 1.04 s.g., the density range for soap.

This caused what was described in this trial as a soap inversion wherein the soap sank to the bottom of the weak black liquor tank and from there travelled into the evaporator. When boiled, the soap became highly viscous, almost like toothpaste. It clogged up the evaporator system such that Celgar workers had to manually drain the soap from the evaporator into the sewer which then drained into the ETS. Unfortunately it was only then that Celgar learned how toxic weak black liquor soap was for the bacteria in its aeration basin.

The introduction of the soap into the ETS was catastrophic for the system and in turn led to the discharge of unlawful substances into the Columbia River. [ 23 ] As a consequence of this soap event Celgar took a number of steps to prevent a future soap inversion. By letter dated December 23, 2003, Fiona Mckay, then and now the Environmental Superintendant for Celgar, advised the Ministry of Water, Lands and Air Protection that Celgar would be incorporating ISO procedures for handling soap. Ms.

Mckay further advised that Celgar would be conducting “Soap School” for its employees. [ 24 ] The document attached to Ms. Mckay’s letter of December 23, 2003, and entered as Exhibit 25 in this trial, contains three ISO procedures. One regards minimizing the risk of a soap inversion. A second is concerned with procedures for recognizing when soap inversions are imminent. The last outlines procedures when soap carryovers occur.

It is this third ISO procedural document that is of most relevance in this case. [ 25 ] One of the critical steps necessary to avoid a soap inversion was for Celgar to cease stockpiling soap in the weak black liquor tank. The evidence in this case indicates that Celgar put into place a process whereby soap was skimmed or decanted off the top of the weak black liquor tank routinely and stored in a small soap storage tank nearby.

From there, the soap is pumped to the tank containing heavy black liquor and both are incinerated in the recovery boiler. [ 26 ] The evidence also indicates that the soap pump, which was intended to pump soap from the small storage tank to the recovery

boiler, was down with mechanical problems for a few weeks prior to the November 18 incident. I accept however that on November 14, 2008, the pump was working and according to Celgar’s records was on for 12 hours. From this evidence I find that I cannot determine with any confidence whether or how much soap had not been decanted from the weak black liquor tank.

I do not and cannot know how much storage capacity remained in the soap storage tank, nor is it possible to determine on the evidence if the 12 hours in which the pump was working on November 14 had the effect of emptying the soap storage tank entirely or whether it merely created some capacity. Assuming the pump was down for weeks due to mechanical failure as Mr. Browne testified, I cannot know how much soap may have been stored in the weak black liquor tank which, as Mr.

Browne also testified, was the only place it could have been if there was no room in the soap storage tank. [ 27 ] Another important step to detect the presence of soap as set out in the ISO procedure is to monitor the on-line meters for signs of a soap carryover into the evaporators. The signs to watch for include conductivity spikes in the combined and contaminated condensate streams.

In respect of soap carryovers, the ISO procedure indicates that these conductivities will not indicate sustained levels of over 2000 umho (expressed in the trial in English as microsiemens - a measurement of conductivity) unless there is soap contamination. [ 28 ] In his report on the cause of the spill, Mr. Browne reported a sighting of a heavy flow of liquor/foam coming from what appeared at the time was the heavy black liquor storage tank.

As I have noted, the evidence is clear that the spilled material came out of the tank labelled heavy black liquor, but that tank was at the time actually the spill tank to which contaminated condensate was to be diverted away from the flash tanks. [ 29 ] Having reviewed the on-line meters, Mr. Browne reported that from 5:00 a.m. to 7:48 a.m., the density measure of the weak black liquor entering the weak black liquor storage tanks was dropping, and that by 8:12 a.m. had dropped to 1.05 s.g.

At 9:12 a.m. the conductivity measurements of flash tanks 3 and 4 spiked to 2000 microsiemens and continued at that level until 6:36 p.m. in the case of flash tank 4 and 7:24 p.m. in the case of flash tank 3. Mr.

Browne also reported that steam to the evaporators was minimized at 10:12 a.m. and that the spill tank overflow began at 2:12 p.m., stopped at 2:27 p.m. and then resumed again at 3:24 p.m. and continued until 7:00 p.m. [ 30 ] What occurred then, at least as far as the on-line meters were able to measure, was that in the early morning hours of November 18, low-strength weak black liquor had been entering the weak black liquor storage tank for several hours. Its density range by 8:12 a.m. was 1.05 s.g., just slightly above the density range for soap.

By 9:12 a.m., the on-line meters were reporting a very sudden spike in conductivity of the condensate stream which spike continued for what was obviously a prolonged period of time. [ 31 ] As Mr. Browne agreed in cross examination, his conclusion that the spill was basically contaminated condensate was based on the sudden spike in conductivity at 9:12 a.m. There is no question that the spike would indicate a larger than normal amount of weak black liquor in the condensate; in other words, it met the generally accepted criteria for contaminated condensate. However, as Mr.

Browne also agreed, the on-line meter at the flash tanks only measured up to 2000 microsiemens so he would have no way of knowing, based on that measurement alone, whether the spill was contaminated condensate – a mixture of condensate and abnormal amounts of weak black liquor – or whether the spill mixture contained a percentage of weak black liquor soap. [ 32 ] However, as has been previously noted, Mr.

Browne was sure the spill could not have been weak black liquor soap because in 2003 the introduction of soap into the evaporators, as a consequence of the soap inversion, had caused such blockage that the evaporators had to be manually drained. [ 33 ] The density range of the weak black liquor in the weak black liquor tank, which measured at 1.05 s.g. at 8:12 a.m., would not support a soap inversion. Similarly, Mr. Browne’s observation that the evaporators continued to pump would not support a soap inversion. But as Mr.

Browne agreed on cross examination, there is another way in which soap can enter the evaporators from the weak black liquor tank and that is by melting back into the weak black liquor once it drops to a certain level of density. Mr. Browne agreed that this was possible and were it to occur it could account for the presence of weak black liquor soap in the evaporators. This would not be in the same quantity as the 2003 soap event so that comparisons with that event are not determinative of the possible presence of soap in the evaporator on November 18, 2008.

I find that the 2003 soap event in which the evaporators were so clogged it was necessary to drain them manually did not re-occur in 2008. [ 34 ] The Crown submits that apart from the prolonged period of time during which the conductivity levels of the condensate flows were “off the chart” as Mr. Browne agreed was the case on cross examination, there were other indicators that what was occurring that day in November was a type of soap event, namely, soap carryover into the evaporator. [ 35 ] First, while recognizing that Mr. Smith told Mr.

Browne as he started his shift at 6:00 p.m. on November 18, that the spilled material was condensate from the evaporators, the operator’s log notes from November 18, made by Justin Simon indicate otherwise. Mr. Simon’s notes state firstly that the number 3 and 4 flash tanks were measuring at 2000 microsiemens all day and were diverting to the spill tank all day. Depending on when Mr. Simon’s day started, this is not inconsistent with the evidence in the case. Mr.

Simon then makes reference to “probable soap to spill tanks and evaps” and further writes “purging soap/foam through evaps.” He adds “spill tank is contaminated and beyond use” and finally “soap pump still down...”. [ 36 ] On their face, the notes from the operator that day clearly point to there having been weak black liquor soap in the evaporator and in the spill tank. [ 37 ] The reference in the ISO procedures for soap carryover that conductivity measurements of the condensate streams will not indicate sustained levels of over 2000 microsiemens unless there is soap contamination also suggests the presence of weak black liquor soap in the evaporator. [ 38 ] While the density range of the weak black liquor in the weak black liquor tank suggests against a soap inversion, it does not prove that weak black liquor could not otherwise have entered the evaporator – an outcome Mr.

Browne agreed was possible. [ 39 ] A drop in the temperature of the weak black liquor at the point where it enters the evaporator will suggest the presence of weak black liquor soap as that soap is cooler than the liquor resting below it. The ISO procedures indicating when soap carryover occurs state

that the first indications of soap carryover occur when the temperature of the weak black liquor leaving the weak black liquor tankmeasures in the 65° – 75°C range. The trends produced by Mr. Browne in his report entered as Exhibit 5 show the temperature at weakblack liquor storage tank number 1 to have been at or below 70°C until approximately 4:00 p.m. on November 18.

Again this is notdeterminative but it is not explained either. [40] While soap in the evaporators can be difficult to detect, it is clear on the evidence that one of the ways in which mill workers candetect soap in the evaporators is by monitoring the alarms at the mill’s distribution control system. Mr.

Browne agreed on crossexamination that on November 18, 2008, a number of alarms signalled a possible soap carryover. [41] In the event of a soap carryover, the ISO procedure recommends as follows: “...Since the quantity of soap/foam carried out of the Evaps with the process condensate streams is a function of the vapour flow passingdown through the Effects, stopping the evaporation process will greatly reduce or eliminate the carryover of soap/foam from theEvaporator bodies.” [42] In addition, the ISO procedure mandates that the soap-contaminated liquor must be pumped out of the Effects back into the weakblack liquor tanks.

In other words, what must be done as soon as a soap carryover is discovered is that the evaporator must be shutdown, and its contents returned to the weak black liquor tanks, not diverted into the main sewer line with the attendant risk the materialcould end up in the ETS. [43] In this case there is considerable evidence suggesting that the nature of the material spilt on November 18, 2008, at Celgar was amixture of weak black liquor soap and condensate from the evaporation process. I do not find, as submitted by Celgar, that the report ofMr.

Paul Klopping, an expert in biological waste treatment, regarding the character of samples of effluent taken from the secondaryclarifiers on November 26, 2008, is determinative of the fact that the spill on November 18, 2008, could not have been comprised of amixture of condensate and weak black liquor soap. [44] As I find some evidence on which it could be concluded that weak black liquor soap formed part of the spill material onNovember 18, 2008, I have no hesitation in finding that Celgar should have made every effort to divert that material from the evaporatorEffects back to the weak black liquor tank.

It should not have been allowed to drain into the mill’s main sewer line. [45] Celgar submits that much of the evidence regarding a possible soap carryover is taken out of context or, in the case of Mr.Simon’s day-timer notes, cannot be considered by this court as the Crown did not call Mr. Simon to explain the meaning of his notes. Ultimately, Celgar submits that the Crown bears the onus of proof of its soap theory which onus Celgar submits has not been met. Thisraises the question of the onus of proof generally in regard to the defence of due diligence.

The Defence of Due Diligence [46] As the parties agree, the charged offences herein under ss. 120(6) and (7) of the Fisheries Act, and s. 36(3) of the EMA are strictliability offences for which Celgar has admitted (subject to its exceptions on Count 1) to the actus reas. Because these are strict liabilityoffences, it is open to Celgar to prove that it took all reasonable care to avoid committing the offences as charged: R. v. Sault St.

Marie, (SCC), [1978] 2 S.C.R. 1299. [47] I have already noted that Celgar’s defence is that the cause of the unlawful discharge was the adverse impact of the spilledmaterial on the ETS. Celgar further submits that it used all reasonable care to avoid introducing the spilled material into the ETS butcould not avoid doing so on November 18, 2008, as it had no capacity to divert the material to its spill ponds.

That in turn was caused,despite Celgar’s best efforts, by an inability to create capacity in the months leading up to the spill because the health of the ETS simplywould not allow for any reclamation of the contents of either spill pond. [48] In the result, Celgar focused all of its evidence in this trial on the health of its ETS in the years and months leading up to the spill,and on its efforts to address those health issues in order to demonstrate that it could not have reasonably done more to avoid being in thesituation it found itself in on November 18, 2008.

It did little to address the evidence which suggests the spilled material was made up ofcondensate combined with weak black liquor soap, except to emphasize the distinction between the 2008 and 2003 events. I have alreadyfound that whatever occurred on November 18, 2008, it was not a soap inversion as occurred in 2003. [49] In R. v. Sault Ste.

Marie, the Court held that the defence of due diligence was available either because the accused has shown itdid not know nor could it have known of the hazard, or the accused knew of the hazard but took all reasonable steps to avoid the event. [50] In advancing the defence of due diligence in this case, Celgar has conceded it knew the ETS was compromised and it had nopractical spill capacity. It knew in these circumstances that it had to take great care to avoid spills of liquor, or chemicals or oils into theETS.

That much is set out in Celgar’s own publication entitled “Pulp Digest” dated October 9, 2008, and entered in this trial as Exhibit33. The ISO procedures and the 2003 event form very clear evidence that Celgar knew it had to take great care to avoid the introductionof weak black liquor soap in the ETS. I have no difficulty concluding that the lack of capacity in the spill ponds at the time placedCelgar in a position where it had to be all the more vigilant to avoid the introduction of toxic substances into the ETS.

It was entirelyforeseeable that the introduction of a toxic substance into the ETS would adversely affect it thereby making it very likely Celgar wouldviolate the terms and conditions of the Permit by introducing an unlawful discharge of effluent into the Columbia River. [51] While not denying forseeability, Celgar’s defence is that it had no real choice on November 18, 2008, to do anything other thanallow the spilled material to flow into the ETS. It was on the horns of a dilemma of its own making, albeit only after exercising allreasonable care.

Even assuming Celgar could not have acting reasonably created more capacity in its spill ponds before November 18,2008, the question remains whether it exercised all due care in preventing the spilled material from entering the main sewer in the firstinstance. That in turn raises the question of the cause of the spill and the nature of the spilled material. [52] As the Ontario Court of Appeal held in R. v.

Petro-Canada at paras. 16 to 20, the law of due diligence does not require adefendant to prove how an offence occurred, or the cause of the offence, only that it took reasonable steps to avoid any foreseeable cause

of the offence. However, as the passages below evidence, where a defendant chooses to prove a cause, that will have the advantage ofnarrowing the range of preventative steps taken: 16 In my view, it is clear from Dickson J.'s reasoning that in a case like this one, "the particular event" which the accused must show ithas taken all reasonable steps to avoid is the discharge of the polluting substance into the particular water system.

There is no suggestionin the language of Dickson J. that the accused must first prove the precise cause of the discharge before it can engage the defence of duediligence. 17 Moreover, such a requirement would be inconsistent with the fairness described by Dickson J. While the accused will know what ithas done to avoid the discharge and can fairly be asked to say so, the accused may well not know precisely how the discharge cameabout.

In my view, to require the accused to prove something that may well be beyond its knowledge to trigger this defence moves thiscategory of offence closer to absolute liability than Dickson J. intended. 18 The same approach is implicit in the language used by Catzman J.A. for this court when he said this about the due diligencedefence in Ontario v. London Excavators & Trucking Ltd. (1998), (ON CA), 40 O.R. (3d) 32 (C.A.) at 36: It is common ground between the parties that the offence with which the appellant was charged is one of strict liability.

Once theactus reus of a strict liability offence is proved, a conviction must follow unless the accused establishes that it exercised due diligence toavoid the commission of the offence. 19 Returning to this case, the offence charged is that the accused discharged or caused to be discharged a contaminant, namelygasoline, into the natural environment that caused, or was likely to cause, an adverse effect. Once the Crown proves this, the accused cansuccessfully defend itself by showing on a balance of probabilities that it took all reasonable steps to avoid or prevent the discharge.

The"particular event" is discharging or causing the discharge of gasoline as described in the charge. 20 For these reasons I do not think that the law requires the accused to prove precisely how the discharge came about - in this caseprecisely why the pipe failed - in order to avail itself of the due diligence defence. On the other hand, in a case where the accused can dothis, it may be able to narrow the range of preventative steps that it must show to establish that it took all reasonable care.

Howeverwhere, as here, the accused cannot prove the precise cause of the pipe failure the due diligence defence is not renderedunavailable as a result. That being said, it must be emphasized that to invoke the defence successfully in such circumstances, theaccused must show that it took all reasonable care to avoid any foreseeable cause. [emphasis added] [53] Though Celgar was not required to prove the cause of the unlawful discharges, it advanced evidence to prove the cause was theunavoidable introduction of the spilled material into the ETS. It advanced evidence, which I accept, that Mr.

Browne decided againstdiverting the spill material that day into the spill ponds as that would create a strong likelihood of adverse impact. I do not doubt thatMr. Browne made the best decision he could in the circumstances of November 18, 2008, given what he thought he knew about thespill. However, the evidence in this case raises a real question as to whether Mr.

Browne’s understanding of the nature of the spilledmaterial was correct and if not, whether Celgar has made out the defence of due diligence. [54] I find that there is compelling evidence in the record to support the Crown’s theory that the spill material was condensate mixedwith weak black liquor soap and that had Celgar followed the ISO procedures, it should have prevented the spill material from enteringthe main sewer system. [55] It was obviously foreseeable and I find that Celgar knew that if weak black liquor soap entered the ETS, it would have severeadverse consequences for the bacteria in the aeration basin and that a permit violation was likely. [56] I cannot find on the evidence that the only probable cause of these offences lay with the state of health of the ETS.

I find there iscompelling evidence to suggest the cause of the offences lay with Celgar’s failure to follow its own procedures regarding a soapcarryover. As I cannot be satisfied that Celgar has proven the cause of the offences at issue, it follows that Celgar must show it actedwith due diligence to prevent any foreseeable cause.

As it was obviously foreseeable that the introduction of weak black liquor soap intothe ETS would cause a failure of the treatment system, I cannot be satisfied that Celgar has met its onus and shown that it exercised allreasonable care to prevent the commission of these offences. [57] As such, it follows that a conviction must be entered on Counts 1 to 4 in regard to those dates on which Celgar has admitted theactus reas of the offences.

The Fisheries Act Charge [58] It remains to be determined whether the Crown has proven beyond a reasonable doubt that Celgar deposited a deleterioussubstance into the Columbia River on the days of November 20, 21 and 22, 2008. [59] It bears noting that count 1 of the Information specifically charges that: Zellstoff Celgar Limited Partnership and Zellstoff Celgar Limited, between the 19th day of November 2008 and the 25th day ofNovember 2008, at or near the Zellstoff Celgar pulp mill...did unlawfully deposit or permit the deposit of a deleterious substance, to wit:pulp mill effluent, in water frequented by fish, to wit: the Columbia River, in violation of section 36(3) of the Fisheries Act, and didthereby commit an offence contrary to section 40(2) of the Fisheries Act. [60] The disputed elements of count 1 raise two issues.

The first is whether the Crown has proven that the pulp mill effluentdeposited by Celgar on November 20, 21, and 22, met the definition of a deleterious substance in s. 34(1)(

a) of the Fisheries Act. Thesecond, alternative question, is whether Celgar is exempt in any event from s. 36(3) pursuant to s. 36(4)(

b) of the Fisheries Act providingit has not failed to comply with effluence deposit limits authorized pursuant to the Pulp and Paper Effluent Regulations (“PPER”). The Legislative Scheme under the Fisheries Act and PPER

[ 61 ] Section 34(1) of the Fisheries Act sets out a definition of deleterious substance for the purpose of ss. 35 to 43 of the Act. Section 34(1)(a), which is the definition relevant to this case, provides that a deleterious substance is: any substance that, if added to any water, would degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water... [ 62 ] Section 36(1) of the Fisheries Act makes it an offence to deposit a deleterious substance in water. Section 36(3) provides as follows:

(3) Subject to subsection (4), no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water. [ 63 ] Section 36(4)(

b) of the Fisheries Act provides for the deposit of certain waste or pollutants by regulation:

(4) No person contravenes subsection (3) by depositing or permitting the deposit in any water or place of (

a) waste or pollutant of a type, in a quantity and under conditions authorized by regulations applicable to that water or place made by the Governor in Council under any Act other than this Act; or (

b) a deleterious substance of a class, in a quantity or concentration and under conditions authorized by or pursuant to regulations applicable to that water or place or to any work or undertaking or class thereof, made by the Governor in Council under subsection (5). [ 64 ] Subsection (5) of s. 36 of the Fisheries Act authorizes the GIC to make regulations prescribing: (

a) the deleterious substances or classes thereof authorized to be deposited notwithstanding subsection (3); and (

b) the persons who may authorize the deposit of any deleterious substances or classes thereof in the absence of any other authority, and the conditions or circumstances under which and requirements subject to which those persons may grant the authorization. [ 65 ] Pursuant to s. 36(5) of the Fisheries Act , the GIC brought into force the PPER , SOR/92-269 .

Section 3 of the PPER provides as follows: For the purpose of the definition “deleterious substance” in subsection 34(1) of the Act, the following classes of substances from a mill or an off-site treatment facility are prescribed as deleterious substances: (

a) acutely lethal effluent; (

b) BOD matter; and (

c) suspended solids [ 66 ]

Section 6 of the PPER authorizes the deposit of BOD and suspended solids up to a limit prescribed by formula under s. 14 of the PPER but it does not confer any authority to deposit acutely lethal effluent.

Did Celgar deposit a deleterious substance on the disputed days [ 67 ] Celgar submits that it is critical to any charge under s. 36 of the Fisheries Act that the Crown prove the defendant deposited a deleterious substance: viz , a substance that, if added to any water, would degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat.

Celgar submits that there is no evidence on which this court could conclude that the substances deposited in the Columbia River on November 20, 21 and 22, 2008, were deleterious within the meaning of s. 34(1) of the Fisheries Act . [ 68 ] The evidence in this case is that samples of final effluent taken from the ETS on November 20 to 24 were subject to a Daphnia magna 48 hour LC50 toxicity test by Cantest Ltd. in Vancouver. There is no issue in this case with respect to the validity of the tests or the lab itself.

The Crown called Craig Buday, who was qualified in this trial as an expert in aquatic toxicology and the conduct of toxicity and bioassay testing, to give evidence with respect to the tests. Mr. Buday testified that a sample of effluent will fail the 48 hour LC50 test if 60% or more of the test subjects die in 100% concentration of effluent within 48 hours.

Schedule I of the PPER provides that effluent fails the Daphnia magna test when at 100% concentration it kills more than 50% of the Daphnia magna subject to it during a 48-hour period. I accept that Mr. Buday may have misspoken and that he meant his evidence to coincide with the requirements of the PPER . [ 69 ] In this case, the test subjects, the Daphnia magna (a freshwater invertebrate species) all experienced 100% mortality rates at 48 hours in the 100% concentration samples of the final effluent. In some instances, such as the November 20 sample, mortality occurred much sooner at the 24 hour mark. As Mr.

Buday testified, the final effluent taken from Celgar on the days noted failed the Daphnia magna tests. While not denying this, Celgar submits that this alone does not render the effluent deleterious as Mr. Buday did not give an opinion regarding the impact the effluent would have when added to water. Celgar relies on the ruling of Madame Justice Gillese in Fletcher v.

Kingston (City) , [2004] O.R. (3d) 577 at para. 63 where it was held with respect to the meaning of s. 34(1) of the Fisheries Act that: ...a substance is deleterious if, when added to any water, it would alter the quality of the water such that it is likely to render the water deleterious to fish, fish habitat or to the use by man of fish that frequent the water. There is no stipulation in paragraph (

a) that the substance must be proven to be deleterious to the receiving water. There is no reference to the receiving water in paragraph (a). On the contrary, the language makes it clear that the substance is deleterious if, when added to any water, it degrades or alters the quality of the

water to which it has been added. The "any water" referred to in paragraph (

a) is not the receiving water. Rather, it is any water to which the impugned substance is added, after which it can be determined whether the quality of that water is rendered deleterious to fish, fish habitat or the use by man of fish that frequent that water. [ 70 ] However, as the Crown notes, some of the leachate found by the trial judge in Fletcher to have been a deleterious substance had been tested using a variety of concentrations. At para. 43 of the decision, Gillese J.A. held that: The Ministry's acute lethality tests were performed on the Ministry samples at a variety of concentrations.

The diluted concentrations were made by adding the leachate to a proportionate amount of water. Given the trial judge's acceptance of the protocols employed and the test results on the diluted Ministry samples, I see no error in his conclusion that the leachate contained in those samples was a deleterious substance within the meaning of paragraph (

a) of the definition of that term in s. 34(1). [ 71 ] The samples taken from Celgar’s ETS on November 21 and 22 were also tested using a variety of concentrations. The sample taken on November 21 was tested at 100%, 56%, 32% and 18% concentrations. At the 56% and 32% concentration levels, the Daphnia magna experienced 100% mortality at 48 hours. The sample taken on November 22 was also tested at the same varied concentration levels. At 56% concentration, the Daphnia magna experienced 70% mortality at 48 hours while at the 32% concentration level, 30% of the fish died at the 48 hour mark.

I have no difficulty concluding from this that the effluent deposited by Celgar on November 21 and 22 was likely to be rendered deleterious to fish or fish habitat. [ 72 ] The tests on the sample of effluent taken from Celgar’s ETS on November 20, and tested in 100% concentration showed 100% mortality at 48 hours. The test results also note that at the 24 hour mark, the Daphnia magna were immobilized. As Mr. Buday testified, they were still alive but not swimming freely. Mr.

Buday concluded from that that the effluent was either causing harm to the test organisms or acting like a narcotic and possibly eventually leading to the death of the organisms. [ 73 ] There is strong evidence to suggest that the effluent deposited by Celgar on November, 20 was also deleterious to fish or fish habitat. Nevertheless, as the effluent was not tested in water, I cannot conclude beyond a reasonable doubt that had the sample been added to water, it would alter the quality of the water such that it would have been rendered deleterious to fish or fish habitat. Is Celgar protected by s. 36(4)(

b) of the Fisheries Act [ 74 ] Celgar submits that even assuming the effluent deposited on November 20 to 22, fell within the definition of a deleterious substance pursuant to s. 34(1) of the Fisheries Act , it matters little as Celgar’s effluent was well within the prescribed limits for the deposit of deleterious substances under the PPER on those days. While s. 36(3) of the Fisheries Act provides that it is an offence to deposit a deleterious substance, s. 36(4)(

b) provides that no person contravenes s. 36(3) by depositing a deleterious substance of a class, in a quantity or concentration, and under conditions authorized by or pursuant to applicable regulations. [ 75 ] Section 6(1) of the PPER authorizes a pulp mill to deposit BOD matter and suspended solids up to a certain daily maximum. Section 6(5) provides however that subsection (1) does not confer authority on a pulp mill operator to deposit acutely lethal effluent.

Acutely lethal effluent is defined as effluent that fails the 96 hour Rainbow Trout Test. [ 76 ] The evidence in this case is that pursuant to the PPER, Celgar’s authorized daily deposits of TSS in 2008 was 29,644 kg/ day and in the case of BOD, 19,763 kg/day. It is clear that the effluent deposited into the Columbia River from the mill on November 21 and 22, 2008, the days on which I have found Celgar deposited a substance defined as deleterious under s. 34(1) of the Fisheries Act , did not exceed these maximum quantities.

Celgar admits that on November 23 and 24, its effluent was acutely lethal and therefore not authorized by the PPER . In the absence of any evidence its effluent was acutely lethal on November 21 and 22, 2008, Celgar submits that its effluent deposits on these days were authorized by the PPER and therefore not in contravention of s. 36(3) of the Act . [ 77 ] The Crown submits that the definition of a deleterious substance in s. 34(1) is broad and includes those substances prescribed by regulation as being a deleterious substance.

Celgar appears to have understood this and count 1 to mean that even if it could show its deposits were authorized by regulation and thus protected by s. 36(4)(b), if its effluent met the broader definition of deleterious under s. 34(1) of the Fisheries Act , it could still be convicted of the offence of depositing a deleterious substance contrary to s. 36(3). As such, Celgar made extensive written submissions regarding the correct

interpretation of the Fisheries Act and the PPER . [ 78 ] While the Crown did underscore the general and broad nature of the definition of deleterious substance under s. 34(1), it seems to have conceded at para. 85 of its written submissions that if Celgar could show that what was deposited on the days in issue was a deleterious substance of a class, and in a quantity or concentration authorized by the PPER , it could bring itself within the protection of s. 36(4)(

b) of the Fisheries Act . I find that Celgar has proven that its effluent on November 21 and 22, 2008, did not exceed the BOD and TSS limits authorized by the PPER . The question then becomes whether Celgar must also prove its effluent was not acutely lethal on those days in order to bring itself within the protection of s. 36(4)(b). If so, Celgar has not met its onus. [ 79 ] The question of onus in this regard is a matter of statutory

interpretation. In my view it turns on the question whether Celgar is correct in its

interpretation of the statutory scheme under the Fisheries Act and the PPER that pulp mill effluent is governed by the PPER alone. [ 80 ] In advancing this

interpretation, Celgar submits that on any given day its effluent, like that of every other pulp mill in Canada, contains substances that would almost certainly meet the definition of deleterious pursuant to s. 34(1) of the Fisheries Act . Nonetheless, Celgar is authorized by provincial permit to deposit effluent into the Columbia River which may be deleterious provided it meets certain parameters. It is also not an offence under the Fisheries Act to deposit effluent which otherwise meets certain parameters under the PPER except unless it is acutely lethal.

The question is, if Celgar’s effluent meets those federal and provincial parameters can it nonetheless still be found to have violated the Fisheries Act if its effluent falls within the broad definition of a deleterious substance under s. 34(1)? Celgar submits that if this is the case, it and every other pulp mill in Canada is likely in daily violation of the Fisheries Act . It seeks a determination that as far as federal law is concerned, the Celgar mill is governed solely by the PPER concerning the deposit of effluent and provided it complies with the PPER , it is not in violation of the Fisheries Act .

Celgar submits that this is the only

reasonable

interpretation of the Act. [81] As the Supreme Court of Canada stated in Re Rizzo & Rizzo Shoes Ltd., (SCC), [1998] 1 S.C.R. 27 at para. 40,when interpreting legislation, the words of a provision must be interpreted by giving them their ordinary and grammatical meaning whenread in harmony with the scheme, intent and object of the legislation. [82] In determining legislative intent in this case I have considered the Regulatory Impact Analysis Statement appended to the PPER,though explicitly not itself part of the PPER. Nonetheless, in R. v.

Boutcher, [2001] NFCA 33 at para. 76, the Newfoundland Court ofAppeal was satisfied that Regulatory Impact Statements are recognized as authoritative sources for the purpose of construing federallegislation. Though not binding on the courts in this province, it is a well considered judgement and persuasive authority. [83] The Statement begins by identifying certain pollutants of concern associated with pulp and paper industry, those being suspendedsolids, biochemical oxygen-demanding matter, and effluent that is acutely lethal to fish.

Prior to the coming into force of the PPER, theStatement indicates that regulation of the pulp mill industry was scattered and in some cases, inapplicable to certain mills. The PPERwas an attempt to streamline the regulatory framework and improve the protection of fish habitat. The pulp mill industry saw in thePPER a chance to eliminate legislative distortions that may have negatively impacted the industry, while environmental groups favouredincreasing regulations on the discharge of those common pulp mill pollutants and better monitoring requirements.

These comments formthe backdrop of the PPER. [84] Section 34(1) of the Fisheries Act provides a broad definition of a deleterious substance. The breadth of that definition has beenconfirmed in R. v. MacMillian Bloedel (Alberni) Limited, [1997] B.C.J. No. 1498 (Q.

L) and in the Fletcher decision noted above. Whiles. 36(3) of the Fisheries Act makes it an offence to deposit a deleterious substance in water frequented by fish, the Act also authorizesCabinet to make regulations prescribing certain deleterious substances that may be deposited despite s. 36(3). I have already noted thatin the case of pulp mills, s. 6 of the PPER authorizes the deposit in any water of BOD matter or suspended solids provided the matter orthe quantity of the solids does not exceed an authorized load limit.

Section 6 expressly states that it does not authorize the deposit ofacutely lethal substances. [85] Acute lethality is determined by the 96 hour Rainbow Trout Test. If effluent tested at 100% concentrations kills more than 50%of the rainbow trout subjected to it during a 96 hour period, the effluent is determined to be acutely lethal.

Section 3 of

Schedule II ofthe PPER provides for a scheduling of testing to monitor for the presence of acutely lethal effluent and the effect of the effluent onDaphnia magna. Section 5(2) provides that if a sample of effluent from an outfall structure, here Celgar’s foam tank outlet, fails theDaphnia magna test, a grab sample from the outfall shall be collected without delay and subject, in effect, to an acute lethality test. AsCelgar submits, for the purposes of the PPER, a Daphnia magna test is an indicator test for acute lethality.

Effluent that fails a Daphniamagna test is not itself defined as a deleterious substance under the PPER. [86] If a mill operator does not commit an offence under s. 36(3) unless its effluent is acutely lethal (provided it is also not in excessof prescribed TSS and BOD load limits), it cannot be that this same operator can be convicted of depositing a substance that is less thanacutely lethal. Effluent that fails the Daphnia magna test may well be deleterious to fish or fish habitat, but it is not by definition acutelylethal.

I do not see how in the scheme of the Fisheries Act and the PPER, a mill operator can be subject to the definition of deleterioussubstances in both the Act and the regulations: the two clearly cannot coexist in this context. In my view the clear intent of the legislativescheme is to subject pulp mill operators to the PPER. [87] It follows that if Celgar is to be found to have contravened the Fisheries Act, the Crown must prove Celgar deposited adeleterious substance as that is defined in the PPER.

To avail itself of the protection under s. 36(4)(b), Celgar must prove it deposited adeleterious substance of a class and in a quantity or concentration approved. In this case, that is that it deposited no more than theauthorized amounts of TSS and BODs. As Celgar never had approval under the PPER to deposit acutely lethal substances, it need notprove it deposited any amounts of that substance to warrant the protection of s. 36(4)(b).

It is for the Crown to prove Celgar contravenedthe Fisheries Act by depositing a deleterious substance, viz., acutely lethal effluent, and in this case that has not been proven forNovember 20, 21 or 22, 2008. [88] Given the foregoing, I find that even though Celgar’s effluent deposited on November 21 and 22, 2008, was a deleterioussubstance as evidenced by its failure of the Daphnia magna tests, Celgar cannot be convicted on count 1 for those days as the Crown hasnot shown the deposits were acutely lethal and Celgar has otherwise brought itself within the protection of s. 36(4)(

b) of the PPER. [89] However, as Celgar concedes it contravened the PPER on November 23 and 24, 2008, when it deposited acutely lethal effluentinto the Columbia River, and given my findings with regard to due diligence, Celgar must be convicted on the charge in count 1 that onNovember 23 and 24, 2008, it contravened s. 36(3) of the Fisheries Act. Kienapple on Counts 1 to 4 [90] Celgar submits that the principles set out in Kienapple v. The Queen, (SCC), [1974] 15 C.C.C. (2d) 524 (SCC)must apply as counts 1 and 2 are duplicitous and a conviction on only one may be entered.

Celgar also submits that counts 2 to 4 areduplicitous so that a conviction on only one of these counts may be entered if Celgar is found guilty on all four. [91] The Crown submits that as all the charges relate to different days and different conditions of the Permit, and in the case of count1 to federal rather than provincial legislation, it is appropriate to enter convictions on all four counts. [92] In considering whether to apply Kienapple to stay any of the above four counts, I have been referred to a number of decisions. InR. v. Deslisle, 2003 BCCA 196, the Court of Appeal set out a convenient

summary of the Kienapple test at para. 12 as follows: 12 The application of the Kienapple principle, which is designed to prevent multiple convictions arising from the same "matter","cause" or "delict", was described by the Supreme Court of Canada in the following passage of Wigman v. The Queen (1987), (SCC), 33 C.C.C. (3d) 97, at p. 103:

... it is sufficient to simply reiterate that a two-part test must be met for the Kienapple rule to apply: there must be both a factual and legal nexus between the several charges. Multiple convictions are only precluded under the Kienapple principle if they arise from the same "cause", "matter", or "delict", and if there is sufficient proximity between the offences charged.

This requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element contained in the offence for which a conviction is sought to be precluded by the Kienapple principle. [emphasis added] [ 93 ] I do not think there is any doubt in this case that the cause or delict of these offences is the deposit of a toxic substance in Celgar’s ETS which I have found Celgar ought to have been able to avoid.

The question is whether given this single cause there are any distinguishing elements of the offences contained in counts 1 and 2, firstly, and secondly, between counts 2 to 4. [ 94 ] To prove Count 1 of the Information, the Crown had to establish that Celgar deposited a deleterious substance, as defined by the PPER , into water frequented by fish. Effectively the Crown had to prove Celgar deposited acutely lethal effluent which is defined as effluent that failed the Rainbow Trout Test.

To prove Count 2 of the Information, the Crown was required to prove that on November 23 and 24, Celgar violated s. 120(7) of the EMA by depositing effluent that failed to meet the Rainbow Trout Test contrary to the requirements of its Permit. [ 95 ] The Crown relies on the decision of Hutchison J. in R. v. Chung , 1999 Can LII 6419 (BCSC) , as authority for the proposition that charges under federal and provincial legislation even though similar are not duplicitous. The accused Chung was charged with possession of cigarettes on which federal and provincial taxes had not been paid.

In holding that the charges were not duplicitous, Hutchison J. noted that in a federal system such as ours, persons must expect to be subject to both federal and provincial regulation and, in that case, to pay federal and provincial taxes even on the same product albeit at different rates.

Also notable is Justice Hutchison’s comment at para. 16 of the reasons that “(I)t is also a principle of law that each government may enforce their respective taxes by charges under the relevant acts and even though they involve the same transactions they create different and separate delicts within the meaning of the Kienapple principle.” [ 96 ] Despite the principle that in our federal system both levels of government must have authority to regulate within their sphere and to enforce their laws, I find that the Kienapple principle must apply to counts 1 and 2.

In both counts the actus reas is the deposit of acutely lethal effluent into the Columbia River. In count 1, that act constitutes a violation of the Fisheries Act , while in count 2, that act constitutes a violation of the EMA . Were I to convict on both counts, Celgar would be punished twice for the identical delict. As I find the Kienapple principle to apply in this case, I enter a stay on count 1 of the Information. [ 97 ] In my view, however, the elements necessary to establish the offences charged in counts 3 and 4 are not duplicitous of those in count 2.

Counts 2, 3 and 4 allege violations of Celgar’s Permit on different days and in regard to different terms of its Permit. I find that the Kienapple principle does not apply to these counts. [ 98 ] Given these findings, Celgar stands convicted on counts 2, 3 and 4 of the Information. I now turn to consider the charges in counts 5 and 6. The Spill Ponds [ 99 ] As previously noted, when the spill occurred at Celgar’s mill site on November 18, 2008, a decision was made not to divert the spilled material to the spill ponds because they were full.

It is not disputed by Celgar that the ponds were full for some time before November, 2008. Celgar submits that despite its best efforts it was unable to engage its reclamation strategy because of overall poor health problems with its ETS. [ 100 ] The Crown charges that Celgar’s failure to ensure its spill ponds had capacity constitutes an offence under the EMA . Celgar is charged with two counts of failing to comply with its Permit requirement to maintain its authorized works, viz ., its spill ponds, in good working order between September 7 and November 25, 2008.

Count 5 charges a failure to maintain the ponds in good working order contrary to s. 120(7) of the EMA and Count 6 charges a failure contrary to s. 120(6) of the Act . [ 101 ] Celgar maintains that though the spill ponds had no spill retention capacity, they were nonetheless in good working order. [ 102 ]

Section 2.1 of the Celgar’s waste Permit requires Celgar to regularly inspect its authorized works and maintain them in good working order.

The authorized works are defined in s. 1.1.3 of the Permit as follows: The authorized works are low rate activated sludge effluent treatment system which includes spill ponds, primary and secondary clarifiers, cooling ponds, leachate collection system associated with PR-01768, aerated biological pond and sludge handling/dewatering system, foam tank, cooling water heat exchangers and related appurtenances approximately shown on attached Site Plans A and B. [ 103 ] As the above definition evidences, the spill ponds are an integral part of Celgar’s ETS.

The spill ponds cannot operate in isolation of the remainder of the authorized works, and their proper operation is somewhat dependent on the health of the other component parts of the ETS just as the function of the ponds are to assist in the health of the ETS, particularly the aeration basin. [ 104 ] The question with respect to counts 5 and 6 is whether the Crown has proven beyond a reasonable doubt that at the material times, the ponds were not maintained in good working order.

The Crown submits that the very fact the ponds had no spill capacity between September 7 and November 25, 2008, is sufficient evidence of the charges. [ 105 ] Celgar submits that the phrase in good working order must be interpreted as meaning in functioning order. Celgar maintains the spill ponds were functioning at the material times and thus were in good working order. [ 106 ] In support of its submission, Celgar relies on the definition of the word “working” as that is found in the Oxford English Dictionary (“OED”). The OED defines the word “working” as functioning or able to function.

By way of example, Celgar submitted the case of R. v. Seraphim (18 January 1993), Rossland File No. 4745 (BCPC) as a example wherein a works, in that case an effluent pond, was held not to have been in good working order because the pond’s liners had been breached. Clearly, if the purpose or function of the

pond was to contain effluent, it would follow from a breach of the liner allowing an escape of effluent, that the pond was not in good working order. [ 107 ] In this case, as Celgar submits, there is no evidence the ponds were not in good working order in the sense they could not hold effluent. The problem in this case however, is that the ponds had no capacity to accept effluent. Whatever the purpose of the pond in R. v. Seraphim , the evidence is clear that in this case the purpose of the spill ponds is to protect the biology in the aeration basin.

This is accomplished by receiving effluent that may otherwise be harmful to the bacteria in the aeration basin. Once there, one would obviously expect the ponds to be able to hold the effluent but it does not follow from the fact the ponds could hold the effluent that they were in good working order when they had no spill capacity over a period of several months.

At that point, the spill ponds are really functioning only as storage ponds. [ 108 ] I find that the function of the spill ponds is to accept effluent which could endanger the bacteria in the aeration basin and to store that effluent for so long as may be necessary to ensure it can be received into the ETS without harming the bacteria.

In this regard, the ponds serve two functions: on the one hand, the ponds offer spill capacity which is essential when the mill is running; on the other hand, the ponds offer storage capacity which is essential both when the mill is running and when it is in shut down mode. [ 109 ] In order to preserve the proper functioning of the ETS, of which the ponds are a component part, Celgar must maintain the ponds in such a manner as to keep them in good working order.

I find that when the mill is operating, it is essential to the proper functioning of the ETS as a whole that the ponds be maintained in such a manner that they have both spill and storage capacity. In this context, when the ponds have no spill capacity, they cannot be said to be in good working order.

The question why they were not in good working order, or what steps were taken to avoid such an occurrence is a matter for the defence of due diligence. [ 110 ] As there was no spill capacity in the two spill ponds at Celgar mill from September 7 to November 25, 2008, a time when the mill was fully operational, I find the Crown has proven the actus reas of counts 5 and 6. It remains to be determined whether Celgar exercised reasonable care in attempting to avoid committing these offences.

Due Diligence in regard to the Spill Ponds [ 111 ] The substance of Celgar’s case with respect to the lack of capacity of its two spill ponds in the fall of 2008 was that it was unable to reclaim the materials in them because of the condition of the bacteria in the ETS. Specifically, during those brief instances when Celgar attempted reclamation in September, October and November of 2008, on-line monitoring showed a direct correlation between these attempts and high TSS levels at the secondary clarifiers.

In other words, Celgar concluded that its reclaiming efforts were adversely affecting the biology of the ETS – the very outcome the spill ponds were intended to protect against. [ 112 ] Celgar led evidence of efforts it made dating from April, 2005, to address its ETS performance. Ms. Mckay provided details of various efforts made as outlined in a list of actions and activities over those years.

While all of these were not necessarily relevant to the health of the ETS in 2008, I accept that for much of 2007 and 2008, Celgar was making considerable effort to understand and address various ETS issues. [ 113 ] In October 2008, Ms. Mckay and her colleagues began to see elevated spikes in TSS levels at the foam tank. Those levels were charted on a graph entered in this trial as Exhibit 42 which among other things indicates that high TSS levels had been an ongoing concern for Celgar since 2006. Upon noting these levels, Ms.

Mckay and others decided to seek the assistance and advice of Paul Klopping, an acknowledged expert in pulp waste management systems. Up to that point, Celgar had been using the services of an effluent treatment specialist who it had retained in 2007 but concluded that it needed a new approach. [ 114 ] In the trial of this matter, Mr. Klopping was tendered as an expert in pulp and paper effluent treatment systems able to give an opinion on the health of Celgar’s ETS in the fall of 2008. Mr.

Klopping’s opinion, which was based on his consulting work done both before and after the November 18 spill, was that the suspected source of the high TSS levels at the secondary clarifier rested with the biology of the ETS. Among the several possible causes of the biological unrest in the ETS, Mr. Klopping testified that he quickly identified a flocculation issue with the effluent in the secondary clarifiers. In layman’s terms, Mr.

Klopping observed that the bacteria in the secondary clarifiers was not coalescing in a manner that allowed it to settle properly in the secondary clarifier which in turn made it difficult for Celgar to capture the biological matter before it travelled to the foam tank from where it would be released into the Columbia River. [ 115 ] Among the several recommendations Mr.

Klopping made to address this problem was for Celgar to take care with respect to in- mill spill control so as to avoid depositing into the ETS any material that would further exacerbate the flocculation problem. [ 116 ] At this point, the value of spill capacity in the spill ponds is obvious. However, I accept on the evidence that Celgar’s attempts at reclamation of the spill ponds in September, October and November leading up to the spill at issue tended to result in an elevation of the TSS levels at the secondary clarifier.

In effect, Celgar found itself in a sort of catch-22 situation: if it reclaimed, it risked the health of the ETS; if it did not reclaim, it risked the health of the ETS. It’s only way out, short of finding other mechanisms for draining the spill ponds was, as Mr. Klopping put it, to take care with its in-mill spill practices. [ 117 ] I have no difficulty finding on the evidence that throughout the fall of 2008 it was not prudent for Celgar to reclaim from the spill ponds to the ETS. As Mr.

Klopping put it, it was not only reasonable for Celgar to have used the spill ponds for longer term storage in the fall of 2008 pending resolution of the problems with the ETS, it was Celgar’s only option. [ 118 ] The Crown submitted that Celgar had several options by which it could have addressed its lack of spill capacity short of reclaiming to the primary clarifier.

The first, a short term solution noted by Celgar in a document sent to the Ministry of Environment outlining options for dealing with the November 18 spill and entered as Exhibit 59 in the trial, was to use a surface pump to direct liquid from spill pond number 1 directly into the aeration basin. When asked about this option on cross examination, Ms. Mckay agreed that while this would resolve the problem of reclaiming fibre from the bottom of the spill ponds into the primary clarifier, it would not necessarily avoid impacting the bacteria in the aeration basin.

[ 119 ] Given Mr. Klopping’s finding about the state of the health of the ETS in October 2008, and what I accept to have been Ms. Mckay’s observations regarding TSS levels at the foam tank as well as dissolved oxygen levels in the aeration basin after reclamation attempts in September, October and November, I cannot accept that it was imprudent for Celgar not to have redirected spill pond material to the aeration basin in the circumstances. [ 120 ] In reaching this conclusion on the evidence it follows that I accept the evidence of Ms.

Mckay regarding the apparent impact on the ETS by reclamation attempts in the fall of 2008. The Crown submits that her evidence and that of Mr. Browne must be rejected in its entirety as neither were credible witnesses. Both Ms. Mckay and Mr. Browne gave lengthy evidence in direct and on cross. I am satisfied that both gave their evidence honestly, directly and without any hesitation. There was nothing in the demeanour of either witness that would suggest they lacked credibility, or that they were attempting to mislead the court. [ 121 ] It is the case that Ms.

Mckay wrongly testified in direct that she sent the document entered in this trial as Exhibit 56 to the Ministry of Environment when in fact she had sent a similar document (entered in this trial as Exhibit 59) to the Ministry. The two are nearly identical but for the omission of a reference in the document entered as Exhibit 59 to the possibility of pumping liquid from spill pond number 1 to the aeration basin in Exhibit 59. I have no hesitation in accepting that Ms. Mckay was confused about the documents. [ 122 ] The Crown also points to Ms. Mckay’s testimony regarding spill pond capacity.

Throughout the trial, the court was told that the spill ponds were full for most of September and all of October and November 2008, up to the time of the spill at the least. On cross examination Ms. Mckay agreed Celgar distinguished between spill pond capacity and what Celgar considered to be a full spill pond for operational purposes. Technically, the spill ponds had some 4,500 m 3 of capacity from September to November, 2008. Operationally they were regarded as having no capacity. [ 123 ] The Crown asks this court to infer from Ms.

Mckay’s evidence that the reports may be inaccurate or misleading as they suggest spill capacity while Ms. Mckay maintains the ponds were full. I find that I cannot draw such an inference. I accept Ms. Mckay’s distinction between what is operationally considered a full pond and what technical capacity the ponds may have. I can in no way conclude from this that Ms. Mckay fabricated reports to or otherwise attempted to mislead the Ministry. [ 124 ] The Crown submits that contrary to the testimony of Ms. Mckay and Mr.

Browne regarding Celgar’s attempts to reclaim from September through to November 25, 2008, Celgar’s own reclaim flow graph for 2008, entered as Exhibit 54 in the trial, demonstrates that Celgar made no attempts to reclaim during the time period charged. Ms. Mckay’s evidence is that the chart does show attempts to reclaim, albeit for short periods of time.

For the remainder of the time, given the TSS levels, and other indicators pointing to the ill health of the biology in the aeration basin, decisions were made not to attempt a reclaim. [ 125 ] Tab D of Exhibit 1 contains Celgar’s effluent and emissions data for the months in issue as well as for August, 2008. Included are reports showing spill pond capacity. In September, 2008, it is noted that due to primary clarifier torque, spill pond reclaim was limited.

For October and November, it is noted that a decision was made not to reclaim the spill ponds due to upset or unstable conditions in the ETS and, in the case of November, also due to high primary clarifier torque. [ 126 ] The notes at Tab D of Exhibit 1 correspond with Ms. Mckay’s testimony and that of Mr. Browne. Their reasoning was supported by Mr. Klopping who opined that Celgar had no other choice.

Given this evidence, I cannot draw the inference that Celgar acted imprudently in failing to reclaim the ponds over the material times. [ 127 ] With respect to the TSS, the Crown asks the court to conclude based on the graph entered as Exhibit 42 that in fact Celgar was not having TSS problems in September 2008, despite the testimony of Ms. Mckay. I find that I cannot conclude from Exhibit 42, which is based on a monthly average of TSS and BOD, that Celgar had no TSS problems in September.

It is obvious that Celgar’s TSS problems in September were less serious relative to October and November but they bear close similarity to TSS measurements in December when TSS levels were still problematic. [ 128 ] Finally, it is implicit in the Crown’s submissions that another option open to Celgar in September to November 2008, was to shut down operations until it resolved its ETS problems. I find it clear on the evidence that this was not a realistic option. Rather, I am satisfied that had the mill shut down without undertaking the requisite long term planning for a shut down which Ms.

Mckay measured in three months or more, the effect would have been to starve and thereby destroy the bacteria in the aeration basin. Celgar cannot be faulted for failing to take such a dramatic and potentially harmful step. [ 129 ] On all of the evidence, I find that Celgar had no realistic option but to limit or cease altogether its reclamation attempts during the months charged while it attempted to resolve its ETS problems.

In my view, the central question on due diligence in regard to counts 5 and 6 is whether Celgar acted reasonably in attempting to address its ETS problems knowing that it was unable to reclaim the spill ponds and knowing of the risk of a permit failure created by that fact. [ 130 ] In terms of assessing due diligence, I have found it helpful to consider the factors referred to by counsel for Celgar and taken from the cases R. v. Commander Business Furniture Inc. , [1992] O.J. No. 2904 and R. v.

Placer Developments Ltd ., [1985] B.C.W.C.D. 581 (Q.L.) (Y.T.C.). [ 131 ] I have already noted that due diligence at this juncture must be considered bearing in mind that Celgar knew its ETS was in a fragile state and that it had no realistic option other than to keep operating even though it had limited or no reclamation ability.

In these circumstances, it knew that a Permit failure was likely particularly if great care was not taken at the operational end to ensure against unnecessary spills of toxic material into the main sewer line. [ 132 ] In these circumstances, it would be expected that Celgar would make all reasonable efforts to resolve its ETS problems as quickly as possible. I note also by way of background that though Celgar had been wrestling with ETS issues since 2005, as evidenced by records and viva voce evidence in this trial, these were not continuing problems of the same kind.

Rather, there appears to have been a litany of problems with the ETS both mechanical and biological and from time to time Celgar worked on those problems and at the same time attempted to engineer the ETS such that it would work optimally and there would be no Permit violations.

[ 133 ] As Mr. Klopping testified, problems with the ETS, particularly biological problems, can arise with little or no notice. It is clear from the evidence tha

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