Ontario (Ministry of the Environment) v. Neilson et al., 2011 ONCJ 853

COURT FILE No.: Provincial Offences Court, City of Ottawa DATE: 2011·09·16 Citation: Ontario (Ministry of the Environment) v. Neilson et al. , 2011 ONCJ 853 ONTARIO COURT OF JUSTICE BETWEEN: Ministry of the Environment of Ontario — AND — George Neilson and Tom Neilson and 349977 Ontario Ltd. operating as Lacombe Waste Services. Before Justice of the Peace B. Mackey Written submissions provided by counsel Written reasons for Judgment released on September 16, 2011. Mr. Jerry Herlihy, Counsel for the Crown, Ministry of the Environment, for the prosecution.

Miss Diane Saxe, Counsel for the defendants, George Neilson and Tom Neilson and 349977 Ontario Ltd., operating as Lacombe Waste Services. Justice of the Peace B. Mackey: 1: INFORMATIONS BEFORE THE COURT 1 . Let me begin by reminding the reader of this written decision that the burden of proof is with the Crown regarding all of these charges. These are strict liability offences. It may be trite to repeat, but each charge must be proven as to the elements of the offence beyond a reasonable doubt. If not, those charges will be dismissed.

It is open to the Defence, on a balance of probabilities, to make out any mistaken set of facts, or on a broader basis, any due diligence. 2 . The defendants stand charged in the Ottawa Information (known as the Fleet or Transportation charges) under counts one (1), two (2), and three (3) , for April 24, 2006 to December 4, 2006, October 25, 2006, and November 29, 2006 respectively, with using, causing, permitting, or arranging the use of equipment, namely waste transportation vehicles, bearing Quebec licence No. L294623 (count one) and No.

L280642 (counts two and three), for the handling, transportation, or disposal of waste that was not part of a waste management system for which a Certificate of Approval (COA) or a provisional certificate of approval had been issued contrary to

Section 41 Environmental Protection Act (EPA), thereby committing an offence under Section 186 (1) of the said Act. 3 . And further, continuing in the Ottawa Information, regarding the sampling of incoming loads, there are eight (8) charges from count five (5) to twelve (12) , failed to comply with condition No. 17 of Provisional Certificate of Approval (COA) Waste Disposal Site No.

A460716, namely by failing to take representative samples of in-coming wastes prior to being received contrary to Section 186 (3) of the EPA, on eight (8) separate dates: September 14, 2005, September 19, 2005, September 21, 2005, October 3, 2005, October 31, 2005, November 14, 2005, December 28, 2005, and, May 30, 2006. 4 .

And further, on count fifteen (15) of the Ottawa Information, on October 12, 2007, failed to comply with condition No. 23 of Provisional Certificate of Approval Waste Disposal Site, namely by storing waste outside of the area designated as F2, which is not approved for waste storage contrary to Section 186 (3) of the EPA. 5 . The defendants are also charged separately on what is known as the Lafleche (Cornwall) Information with counts one (1), (2) and (3) .

Count one (1) , on December 4, 2006, depositing, or causing, permitting or arranging for the deposit of waste, namely hazardous waste, upon land for which a Provisional Certificate of Approval (COA) has been issued other than in accordance with condition 13 of the Provisional Certificate of Approval (COA) no. A420016, namely by depositing hazardous waste at this site contrary to Section 186 (1) of the EPA. 6 . Count two (2) , on December 4, 2006, failing to comply with condition 5(

a) of the Provisional Certificate of Approval (COA), at the Lafleche Environmental Inc. (Lafleche), landfill site, by transporting to a site which was currently operating under a

Provisional Certificate of Approval (COA) subject wastes which were not permitted at said site, contrary to Section 186 (3) of the EPA. 7 . Count three (3) , on December 4, 2006, being a carrier having possession of subject waste failed to have accompanying the waste a manifest in respect of the waste, completed by the generator in accordance with the Manual and Regulation 347, contrary to Section 21 (1) of Regulation 347 of the EPA. 2:

PREAMBLE 8 . It is agreed that 349977 Ontario Ltd., operating as Lacombe Waste Services (LWS) is a provincially incorporated business operating a waste transfer site located at 5555 and 5573 Power Road in the City of Ottawa. 9 . The waste transfer site is operated under the provisions of a Provisional Certificate of Approval (COA) no. A460716 which was issued by the Ministry of the Environment (MOE) under the Environmental Protection Act (EPA). 10 . The transfer site is authorized to receive non-hazardous industrial waste; liquid industrial waste; as well as hazardous waste. 11 .

Additionally, Lacombe Waste Services (LWS) operates a waste management system which permits the transportation of waste under Provisional Certificate of Approval number 860156. 12 . George Neilson and Tom Neilson were at all times officers and directors acting in senior management roles during the time of these charges. 13 . Of the original twenty (20) charges laid by the Ministry (MOE), five (5) have been dismissed or withdrawn leaving, on the Ottawa Information, counts one (1) to three (3), counts five (5) to twelve (12), and count fifteen (15) .

Additionally, all three counts, one (1) to three (3) , of what is known as the Lafleche (Cornwall) Information are remaining. 14 . In regards to the transport of waste, hazardous and liquid industrial waste can only be transported by a licensed operator within a waste management system to a licensed waste disposal site with a manifest. Solid non-hazardous waste similarly is transported by licensed operators within a waste management system with a waybill. 3: CHARGES BEFORE THE COURT 15 .

Regarding the specific charges found in the Ottawa Information, on count number one (1) , between April 24, 2006 and December 4, 2006, Lacombe Waste Services (LWS) received what was identified at source as solid, non-hazardous waste (the generator and shipper was Onyx Industries Inc.) transported in a truck owned by Vacuum Drummond out of the Province of Quebec on thirty-five (35) occasions. LWS directed the truck to the Lafleche landfill site in Moose Creek, Ontario where the waste was subsequently deposited. Vacuum Drummond did not have an Ontario COA for a waste management system.

The court is aware of the fact that Vacuum Drummond and Claude Charette were convicted of operating and establishing a waste management system without an Ontario COA between 2003 and 2007 on September 24, 2009. 16 . On counts two (2) and three (3) , LWS received what was identified at source as solid, non-hazardous waste transported from Quebec in a truck owned by Carlex Inc. A company identified as Newalta was the generator and shipper of the waste.

On both occasions (October 25, 2006 and November 29, 2006), LWS directed the trucks to continue on from the LWS site to the Lafleche landfill site in Moose Creek, Ontario where it was deposited. Carlex did not have an Ontario COA for a waste management system.

17 . Regarding counts five (5) through twelve (12) , LWS is required under their COA to sample and test all waste arriving at their facility prior to accepting the waste. 18 . On count five (5) , LWS received 23,950 kg. of waste, on September 14, 2005 from Recyclex Expert Inc., shipped as solid, non-hazardous waste (work order (WO) #81508 and incoming waste analysis (IWA) #IB9241) using a waybill which was subsequently accepted. 19 .

On count six (6) , LWS received 22,010 kg., of waste, on September 19, 2005 from Recylcex Expert Inc. shipped as solid, non-hazardous waste using a waybill which was subsequently accepted (WO#81509 and IWA#IB9267). 20 . On count seven (7) , LWS received 22,910 kg., of waste, on September 21, 2005 from Recylcex Expert Inc. shipped as solid, non-hazardous waste using a waybill which was subsequently accepted (WO#81789 and IWA#IB92785). 21 .

On count eight (8) , LWS received 21,160 kg., of waste, on October 3, 2005 from ChemTech Environment shipped as solid, non-hazardous waste using a waybill which was subsequently accepted (WO#82096 and IWA#IB9351). 22 . On count nine (9) , LWS received 28,020 kg., of waste, on October 31, 2005 from Recyclex Expert Inc. shipped as solid, non-hazardous waste using a waybill which was subsequently accepted (WO#82817 and IWA#IB9479). 23 .

On count ten (10) , LWS received 23,140 kg., of waste, on November 14, 2005 from Recyclex Expert Inc. shipped as solid, non-hazardous waste using a waybill which was subsequently accepted (WO#83440 and IWA#IB9560). 24 . On count eleven (11) , LWS received 19,520 kg., of waste, on December 28, 2005 from Recyclex Expert Inc. shipped as solid, non-hazardous waste using a waybill which was subsequently accepted (WO#84674 and IWA#IB9771). 25 .

On count twelve (12) , LWS received 25,810 kg., of waste, on May 30, 2006 from Recyclex Expert Inc. shipped as solid, non-hazardous waste using a waybill which was subsequently accepted (WO#89037 and IWA#IB10415). 26 . On count fifteen (15) , on October 12, 2007, a lugger box containing non-hazardous solid waste was discovered by Inspector Heeringa (MOE) outside of an area designated as F2 described in WO#104407 and IWA#IB12405. 27 .

Regarding the Lafleche (Cornwall) Information, on counts one (1) to three (3) , LWS, generated and transported a load of waste to the Lafleche landfill site at 17125 Lafleche Road, Moose Creek, Ontario on waybill ticket number 067663 on December 4, 2006. LWS and the MOE were advised by Lafleche on December 8, 2006 that they were rejecting a load of waste received from LWS. On December 12, 2006, LWS removed the particular load at the Lafleche landfill site under the direction of Lafleche and MOE. The load was transported to Recyclex under a manifest. 4: ISSUES BEFORE THE COURT Ottawa Information : 28 .

Regarding the Ottawa Information, and what is known as the Fleet or Transportation Charges, counts one (1) to three (3) , it is admitted by the defendants that the waste was shipped at the specified times, and that the haulers did not hold COA’s in their own names, at that time. Their defence is that Lacombe Waste Services (LWS) did not know that the two (2) haulers of the waste were not covered by valid system certificates allowing them to ship waste from Quebec to Ontario (Vacuum Drummond by Onyx and Conteneurs Carlex by Newalta). This is a defence of a reasonable belief in a mistaken set of facts.

As well, Defence argues that LWS had training and a system in place to manage and monitor waste management certificates providing a due diligence defence. 29 . The Crown submits that LWS cannot avail themselves of that defence (or the broader defence of due diligence) as they have not produced evidence to support those defences on a balance of probabilities.

30 . Defence notes when Onyx booked the first Vacuum Drummond load that Lacombe stopped it at the gate and refused to receive the load because the hauler did not have a certificate of approval. It was not accepted until Onyx provided written confirmation that they were covering Vacuum Drummond under their waste management system COA. 31 . LWS contends that Onyx provided, in the form of a letter submitted at court, confirmation that the hauler, Vacuum Drummond, was indeed covered by their waste management system certificate of approval.

They disagree with the Crown’s assertion that the letter only authorized a single load countering that nothing in the wording of the letter would have put LWS on notice of a single load approval. Indeed, shipments continued, week after week, for several years under the Onyx COA for Vacuum Drummond, at least until November 6, 2003. Defence argues that the twenty-one (21) loads shipped by Onyx through Vacuum Drummond to LWS were authorized by the July 17, 2003 letter. 32 . They also argue that LWS had no reason to believe that the 2003 arrangement would change without notice.

A further 173 loads were shipped after November 6, 2003 in the belief that nothing had changed. Indeed, Defence argues that Onyx never actually told LWS that the arrangement had changed, although Vacuum Drummond alerted them to the change in 2007. 33 . They also stated that Tom Neilson refused to accept further shipments after discovering that Vacuum Drummond was not covered under Onyx’s COA. It was even suggested that an officer of the Crown, Clint King, advised LWS that they could, in fact, accept waste transported by an unlicensed hauler. 34 .

Defence states that LWS had nothing to gain by committing these types of offences as they could have added the trucks to their own fleet immediately at no cost. 35 . The Crown noted that once the waste arrived at the LWS facility, Lacombe became the owner of the waste, and, at that point, became legally responsible to meet the requirements of the EPA. Instead, LWS selected the Lafleche landfill site as the destination and transported the waste illegally. 36 .

With regard to count one (1) , Defence suggests due diligence was exercised by LWS as they had a system in place to ensure that all haulers had appropriate COA authority. 37 . Counts two (2) and three (3) have similar facts. Both loads were shipped and booked by Newalta which had its own waste management system COA. Defence raised the defence that LWS acted in good faith, reasonably believing that they were covered by the Newalta certificate. 38 .

Regarding the individual defendants, it is argued by the defence that no evidence was offered to prove that either person aided, abetted, or counselled anyone in counts one (1) through three (3) to accept loads from either firm where no COA existed. 39 . It is noted that the onus is on LWS to demonstrate due diligence (or the mistake of fact) on a balance of probabilities. It is to the Crown to prove their guilt beyond all reasonable doubt. 40 . The Quebec companies that transported the waste to Ontario have already pled guilty and have been convicted. 41 .

The Crown notes that for LWS to be successful with a due diligence defence, they must show the Court that they took all reasonable steps to comply with the law. It is argued that that did not happen in counts 1, 2 and 3 . Further, as to whether LWS had any reasonable belief in a mistaken set of facts, which, if true, would render the act innocent, this requires that the belief was subjectively held and objectively reasonable, and that is not the case according to the Crown. 42 . In count 1 , LWS’s defence rests mostly, according to the Crown, on a single letter from Onyx Industries Inc., to LWS.

That letter was faxed to LWS to deal with a single 2003 load that LWS refused to receive without confirmation of a COA. The letter in question was faxed by Onyx (later Veolia ES Canada Services Industries Inc.) as the broker for the waste in Quebec as Onyx had made the arrangements for Vacuum Drummond to transport the waste to LWS. The Crown argues that the letter confirmed a single load under its COA, it was written in the past tense and specified only one load (#60602). Three (3) persons appeared as Crown witnesses to testify to the above. 43 .

Interestingly, there is evidence that certain oral discussions took place, unknown to LWS, whereby the Onyx approval was used by Vacuum Drummond for the transporting of Quebec waste to Ontario from July 17, 2003 to November 6, 2003. This arrangement was terminated November 6, 2003 in a letter dated October 6, 2003 again unknown to LWS. The Crown insists that LWS continued to rely on the letter dated July17, 2003 which was kept in the LWS Environmental Manager’s binder and consulted from time to time by the dispatcher. 44 .

The Crown further notes that LWS failed to meet any reasonable level of diligence in a number of areas regarding this count. The specific loads that comprise this charge (count 1) were transported between April 24, 2006 and December 4, 2006, some three years after the July 17, 2003 letter; there was no attempt over the years to contact Onyx for confirmation; the Vacuum Drummond driver was never asked to produce a copy of the approval which must by law be kept in the truck; and, the MOE number painted on the truck, which did not match Onyx’s approval number, was never confirmed or challenged. 45 .

Dealing with counts 2 and 3 , the Crown submits that the loads were transported illegally by Conteneurs Carlex. It is suggested that LWS didn’t obtain anything in writing regarding this company which was subsequently allowed to transport waste under the Newalta COA. Indeed, Paul Nagy, LWS’s Environmental Manager, asked, after the second load, for a copy of the approval from Conteneurs Carlex whereby the truth was discovered.

The Crown suggests that, in this case, Paul Nagy followed what LWS described as their procedure and that the previous failure to follow procedure caused the transportation of illegal loads for counts 2 and 3 . 46 . There is no objectively reasonable mistake of fact here according to the Crown. In a highly regulated industry a single letter, for a single load, cannot allow years of mistakes contrary to LWS’s own procedures. It is reasonable to expect at least periodic checks as COA’s can expire, be revoked or be suspended and fleets can change.

47 . The Crown referred to the issue raised by Paul Nagy regarding the duty of the generator or carrier to inform LWS of any changes to the status of its COA. In response, the Crown points out that upon acceptance of the waste at its facility, LWS becomes the generator and fully responsible for its safe transport. They further note that the Court has previously ruled that the generator of the waste carries the onus, not the carrier.

The Defence position is that LWS exercised due diligence and that they operated under a mistaken set of facts regarding the lack of and withdrawal of the COA status of the companies involved. 48 . In response to the often mentioned simplicity of adding the Quebec vehicles to the LWS fleet under the LWS Waste management System Approval, the Crown notes that no such change ever happened and questions the notion that it is a simple matter. 49 .

Counts five (5) to twelve (12) involve eight (8) loads and the issue before the court is whether or not they were sampled according to condition 17 of the Provisional COA at a waste disposal site involving loads received on September 14/19/21, October 3/31, November 14, and December 28, all in 2005, and, May 30, 2006. Defence argues that each load was sampled upon arrival and those samples were analyzed prior to the load being received and that this is confirmed by the Incoming Waste Analysis (IWA) sheets recorded by the LWS chemist. 50 .

A dispute evolved between the Defence and Crown over whether the sampling procedure requires an external analysis or not. Defence argues that LWS has a competent internal analytical laboratory and internal testing meets the requirements of the COA. Further, the certificate does not indicate an obligation to send samples from pre-approved incoming waste streams out for external analysis. 51 . The Crown submits that what constitutes “representative sampling” must be determined in accordance with the purposes and objectives of the COA.

This would include the need for the company to determine what sort of wastes it is receiving, especially in the cases where unexpected materials are discovered upon unloading, and that this was not done. 52 . The point is made by Defence that the Design and Operations Plan at Step 4 of page 56 in Book 1, page 11 of

Schedule A, No. 1 notes, “...bulk solid loads are sampled in various areas of the load to ensure that the sample taken is representative.” Mr Guerrero, the former Environmental Manager, testified that sampling at LWS involved at least five (5) locations, basically on the surface of the load. Much time was spent considering the correct procedure regarding the number of samples taken, their location and the depth of penetration into the load.

Sight and smell also were addressed regarding the involvement of receivers, drivers and chemists in the assessment of each load as acceptable ways to establish if additional testing is required. 53 . It was noted by Defence counsel that several witnesses testified that LWS’s sampling procedures met the industry standard for screening incoming loads. Also, there is no direction in the LWS site certificate or any published guidance from the Ministry. 54 .

The Crown noted that the charges of “failing to take representative samples of in-coming wastes prior to being received,” relate to the wording of Condition 17 in LWS’s COA. It reads that, “All in-coming wastes shall be inspected and tested by qualified personnel as detailed in the application and supporting documentation listed in Item 7 of

Schedule “A” of this Certificate, prior to being received, processed, transferred and shipped to ensure wastes are being managed and disposed of in accordance with the Act and Regulation 347. The EPA requires that every COA contains a statement of Reasons for the various conditions. Condition 17 of the Lacombe Certificate ‘Reasons’ reads, “

(6) Condition(s) 17,...is to ensure that all wastes are properly classified, managed, processed and disposed of in accordance with Regulation 347 and in a manner that protects health and safety of people and the public.” The conditions of the certificate are to take precedent when any conflict arises. 55 . The Crown argues that the Conditions, Reasons,

Schedule “A” documents including the Design and Operation Report are to be read as a whole with the overarching touchstone being the protection of health and safety. 56 . Defence takes issue with Crown counsel’s assertion that the eight (8) loads “cried out” for an external TCLP analysis because they contained large amounts of unknown organic liquids that required a TCLP test for identification. 57 . The Crown argues that taking a number of samples from the surface of a load while still in the roll-off bin does not suffice in meeting the requirements of the COA.

Loads can reveal unexpected material once dumped onto the ground. The Crown notes that counts 5 to 12 refer to non-solid materials unexpectedly found in the loads and that the testing required exceeds the basic on-site laboratory. The argument is made that when oil or solvent smells are discovered, that LWS’s lab cannot do analysis for organics as they lack validation for their analytical methods as well as their gas chromatogram is only calibrated for PCB’s and not chlorinated solvents. 58 .

The Crown stated that what should have happened to obtain a true representative sample was to take a representative sample of the unexpected material and send it to a lab that was capable of a proper analysis creating a real example of due diligence regarding any hazardous material entering a non-hazardous pad. 59 . It is argued by Defence counsel that Guerrero testified that any liquid in the eight loads was sampled properly and according to the representative sampling procedures at LWS, as disclosed in cross examination. 60 .

In regards to the individual charges, Guerrero testified that Tom Neilson had refused to allow him to send a sample out for external analysis presumably because of the additional cost. Guerrero raised the issue of Tom Neilson, and occasionally George Neilson, interfering with and instructing him also on other occasions. 61 . Defence raised the point that proof of testing by virtue of sampling and analysis, of liquids in loads, is evident in the reporting of “aqueous phase” in the analysis sheets for the eight incoming loads. Indeed, the evidence of Richard Cronin, who witnessed the same loads as described by Mr.

Guerrero, is that he never saw more than 100 to 150 litres of liquid in any roll-off. 62 . Evidence of suspicious liquid waste in the loads comes from Guerrero who testified that in counts eight (8), nine (9), ten (10), and eleven (11) , he observed liquid waste. Defence counsel argues that his testimony was contradicted by several witnesses directly involved in the sampling procedures.

63 . It is an additional argument that waste oil and grease are common non-hazardous wastes that do not require additional testing. 64 .

Defence arguments regarding the specific counts are: count five (5) from September 14, 2005, there is no proof of liquids in the load; count six (6) from September 19, 2005, has testimony indicating no free liquids in this load; count seven (7) , from September 21, 2005, has testimony that a broken hydraulic hose sprayed oil necessitating a clean-up bill; count eight (8) from October 3, 2005, involves Chemtech drums and further testimony that there were no liquids although Guerrero claimed the liquid was removed, but no such entry is found in the drum record database.

Defence further argues that LWS levied a supplementary fee to Chemtech for removal of liquid that was successfully challenged with the fee being dropped; count nine (9) from October 31, 2005, has defence testimony from an onsite worker that questions the assertion of Guerrero that some 4,000 to 5,000 litres of oil was in the load as opposed to a smaller quantity of water mixed with carbon black; count ten (10) , November 14, 2005, involves a photograph of what the prosecution describe as “free oil” although identified by numerous defence witnesses as carbon black in a few litres of water; count eleven (11) , December 28, 2005, involves a photograph of a truck showing liquid escaping from outside the bag at the rear of the vehicle which defence witnesses argue is about 40 litres water and not the 1,000 litres of oil argued by the Crown; and, count twelve (12) , from May 30, 2006, in which defence argues the organic phase in this load is solid grease (a non-hazardous waste). 65 .

Each of the counts, 5 to 12 , according to the Crown should have raised “red flags” causing LWS to seek external sampling of a true representative sample which would include the specific sampling of any unexpected substance or material associated with certain odours. Of note, the Crown argues that during the execution of the search warrant at LWS premises, no records of external analyses were found, or ever produced, for these loads. 66 . In particular, regarding count 5 , the September 14, 2005 load from Recyclex contained paint in bags that required eight boxes of sawdust to deal with the paint. Mr.

Guerrero indicated this to Tom Neilson as well as noting that he spoke to Recyclex who asked for a sample. The Crown noted the confusion with the testimony on this count, by Paul Nagy who stated that a TCLP was not necessary while the Incoming Waste Analysis (IWA) record for that load records a comment of “TCLP-29” which is otherwise not identified. 67 . Count 6 , September 19, 2005, is a Recyclex load described by Guerrero as, “Debris mix (sic.) with oil and grease.

This load did not pass the slump test.” The Crown notes that this means that the concentration of oil and grease was such that the load did not constitute a solid within the meaning of Regulation 347. No external testing was done. 68 . The September 21, 2005 incident involving a Recyclex load, listed as count 7 , involved oil which was recorded in the Work Order as, “Waste arrives containing large amount of free liquid oil.” Defence has suggested that the oil was hydraulic oil from a burst hose on the customer’s truck.

The Crown notes that the Work Order mentions the cleanup, but also states that the waste arrived with the free liquid oil, nothing is said about a burst hose and, therefore, this unexpected liquid required an outside analysis. 69 . Count 8 , October 3, 2005, deals with a bin full of drums received from Chemtech with lids still on them, uncrushed and some having labels still affixed (Chemtech is one of three companies, plus Recyclex and Onyx, noted by Guerrero as “warning customers).

This is where Guerrero stated that he opened the drums and found them full of liquids with an entry on the Work Order of, “Liquid had to be removed & disposed... 205 L liquid handled as LOS...” Defence argues that they were empty or full of solids. The prosecutor suggested that while some of the drums contained solids, others contained liquids and no representative sample was taken for an outside analysis of those liquids. 70 .

Count 9 , October 31, 2005, another Recyclex load, with photographs, has notes from Guerrero of, “free oil” and “free running oil & open carbon bags.” Here the prosecution questions again the Defence witnesses who testified that, after the fact, it looked like carbon black and water to them as opposed to Guerrero who actually saw the discharging material, photographed it, and brought it to the attention of both George Neilson and Tom Neilson. 71 . Guerrero testified, in respect to count 10 , November 14, 2005, regarding another photograph, taken by him, that it shows free oil coming out of the load.

He said it was “a couple (of) 100’s (of) litres.” His notation on the Incoming Waste Analysis describes the material as “carbon oil.” Defence witnesses called it innocuous carbon black and water. 72 . Count 11 , December 28, 2005, is all about a truck leaving a building on the LWS site and supposedly discharging oil or an oil and water mix. Guerrero testified that there was oil in the material from the truck which concerned him enough for him to take pictures. He stated that these types of photographs would go with the paperwork to Tom Neilson although on some occasions they were given directly to him.

He estimated the volume at 1,000 litres. 73 . Count 12 , May 30, 2005, involved another Recyclex load with what the Crown describes as so much oil that it took 3,500 kilograms of sawdust to absorb that amount of liquid. The Work Order has a note from Guerrero reading, “Tom: a lot of oil present.” The prosecutor questions the Chemist, Mr. Zhang’s position that the material was grease given the Incoming Waste Analysis sheet, signed by Mr.

Zhang, showing 80% solids and 20% phase separation of the rest of the material which, it is argued, is more consistent with Guerrero’s position that the load contained, “a lot of oil.” 74 . The Defence position is that the only actus reus that could support an offence would be actually failing to take a sample in various areas of the load. Defence witnesses testified that at LWS incoming bulk solid loads were sampled in at least six areas and that this testing meets all know standards for representative testing. 75 .

The Crown argues that LWS should have ordered external analysis of unexpected and unknown substances and the failure to do so indicates that those loads were not representatively sampled. The documentation from the customer that the loads were solid and non-hazardous is meaningless if an unexpected substance is discovered. This, the Crown argues, is why certain loads cried out for an external analysis to confirm the characteristics of those substances. 76 .

The Crown highlighted the concern Guerrero had with the three companies, Recyclex being one of them, and that they were known to be involved in reclaiming solvent wastes like ‘perc.’ The other two companies were known, especially to Guerrero, as

businesses to be watched for exactly these outcomes. 77 . The Crown did not accept the Defence argument that there would be no incentive for a company to fail to recover oil as it can be sold (27.5 cents per litre was mentioned). It was noted that even if not intentional, such outcomes do happen. 78 . Much time was spent by Defence and the Crown with Guerrero as he was the former Environmental Manager of LWS and the chief witness for the Crown against his former employer.

Defence disputes the testimony of Guerrero that Tom Neilson was not just an impediment to external sampling, due to the cost, but that he prevented him directly, as the senior manager, from sending samples for external TCLP testing. This is a serious allegation and places Tom Neilson in jeopardy regarding his duties as a senior manager regarding the EPA. 79 . Defence further notes that this is the word of a disgruntled employee who exaggerated the cost of TCLP’s (up to $600) when a Fisher invoice indicates a cost of $250 which is an amount within the Environmental Manager’s prerogative.

The testimony of a number of employees, including the current Environmental Manager, indicates that there was no limit on his ability to send out samples for analyses. An internal laboratory spreadsheet was used to confirm that external analyses were regularly performed while he was Environmental Manager. 80 . The Crown argues that LWS took inadequate steps to assure themselves that the substances they encountered could lawfully be accepted under the COA. 81 . Defence states that Mr.

Herlihy’s position, regarding a representative sample including off-site analysis, has no basis in the COA, which does not include any such obligation. Indeed, counsel points out that the only reference to representative sampling in the COA appears in the Design & Operations Plan as, “...Bulk solid loads are sampled in various areas of the load to ensure that the sample taken is representative.” 82 .

Regarding, count fifteen (15) , this count relates to a charge from October 12, 2007, during an inspection by Inspector Heeringa, for failing to comply with condition No. 23 of the COA, by storing waste outside area F2. This area is not approved for waste storage. 83 . It is not in question that the inspector found a roll-off box in the area outside of the area designated F2. Defence notes that waste stored in roll-off boxes is kept tarped in the bermed storage area and only untarped to perform a visual inspection, take samples, or to unload the waste.

The only reasonable conclusion drawn by the Defence for the box being at the F2 location was to have sufficient space for sampling on all sides while uncovered. 84 . Defence counsel presented a myriad of storage synonyms and meanings referencing storage and its variations in the EPA. The conclusion is that, in the COA, waste receiving is different from waste storage and that count fifteen (15) relates to a roll-off box that was being received, not stored, and the waste in it did not yet belong to LWS. 85 .

The Crown notes that the roll-off box in question was sitting in an unbermed area which defies the safe waste handling objectives of the COA. This box was not in an area set out in their Design and Operations (D&

O) Report as an area where the storage or processing of waste was to be carried out. Additionally, all waste at a transfer station is being stored temporarily, for longer or shorter periods, regardless of where it is located on the transfer site. 86 . LWS indicated that the roll-off box was stored there for the sake of convenience as the receiving pad was full and there would not be enough room to access the lugger box (Box 540) for sampling. Of note, that area did not have any containment in case of a spill or a leak that could potentially send contaminants offsite into a drainage ditch. 87 .

The Crown notes that the only issue to be decided is, whether the lugger box was being stored or not? This is a question of interpreting Condition 23 of the COA which prohibits the storing or processing of waste in any area that is not approved. 88 . Interestingly, the two MOE inspectors, Heeringa and Strasberger both testified that waste is not required to be entered into the database, maintained by LWS, until it has been received. The argument then is if the waste has not yet been received, it is still in transit, and ipso facto not stored on the site within the meaning of Condition 22. 89 .

Among various cases presented by the Defence, reference was made to a court’s adoption of the Oxford Dictionary definition of storage as, “Storing of goods. Method of doing this...” and “...place where things are kept for future use, lay up for future use, hold, keep or contain.” 90 . The Crown contends that the COA and D&O (Design & Operation) report provide the context by which to interpret Condition 23.

That condition reads: “No storage or processing areas, other than those approved under this Certificate shall be used for waste storage or processing...” The Reasons for the terms and conditions are stated as: “...to ensure that the Site is operated in a manner which does not result in a nuisance or a hazard to the health and safety of people and the environment.” This speaks to the containment of any spillage. 91 .

It is noted by the prosecutor that LWS’s own D&O report uses “storage” in a general way referring to storage and processing areas and that the three main storage areas, including the solid waste processing pad, all have containment measures in place. Since there is no designation of “temporary placement area(s),” all waste is being stored at their site which necessitates safeguards to prevent leakage or spilling. The “Waste Receiving Area” for LWS is Area F1, not F2.

Lafleche (Cornwall) Information : 92 . In regards to the Cornwall Information known as the Lafleche charges, this relates to a single load of waste deposited at the Lafleche landfill site on December 4, 2006, at 3:20 P.M. The three (3) counts involve depositing at a site not authorized to receive the waste, transporting hazardous waste, and not having a manifest while transporting. 93 . A key question is, was this load leachate toxic for perchloroethlene and therefore hazardous?

The Defence presented two witnesses, James Bishop and Hardy Wong, to question the quality standards for reliable data in respect of the Crown’s evidence. 94 . The Crown notes that the Lafleche Environmental Inc. landfill site was authorized to accept only solid, non-hazardous waste. The leachate toxicity criteria, in

Schedule 4 of Regulation 347 is used to establish what is hazardous and non-hazardous waste. In the case of tetrachloroethylene, also known as perc, the applicable number is 3 ppm (parts per million). 95 . The argument by Defence is that the rejected waste did not match the waste delivered to the site by LWS, in odour, appearance, weight and chemistry. The load in question from LWS to Lafleche was designated by LWS as way ticket #067663. 96 . It is further argued that the waste deposited at Lafleche by driver, Tim Claude, did not have a solvent odour as opposed to the waste sampled by Daryl Miller.

Additionally, the rejected waste contained elements that LWS argues did not originate with them such as construction waste, milk carton and rock identified in an exhibit. 97 . One critical dispute revolves around where the waste load was deposited with the LWS driver arguing that he dropped the load on the active face of the site while Lafleche states that it was immediately sent to a segregation area. Needless to say, any load actually sent to the active face of the non-hazardous site may encounter contaminants. 98 .

The relationship between Martin Zimmer, the General Manager at Lafleche, and Jairo Guerrero, the LWS Environmental Manager (formerly of Drain-All), was highlighted by the Crown regarding the matter of trust in dealing with others in the waste disposal business. It is that issue, given the departure of Guerrero from LWS, which prompted Zimmer to order a LWS load to be segregated and tested. Zimmer learned that a load was arriving on December 4, 2006 and the Lafleche Operations Manager, Don MacDonnell, decided to ask Daryl Miller, of Golder Associates, who happened to be onsite, to perform the test. Mr.

MacDonnell stayed with the load until Mr. Miller, who testified that once the LWS load arrived, he directed the driver to dump it in the segregation area. He said the vehicle went directly to the segregation site with him following it. 99 . The Crown similarly noted that Tom Neilson and Paul Nagy came to the Lafleche site, recognized the load as their own, and arranged for it to be removed and taken back to LWS. Further, the weight difference is explainable due to the requirement to dig approximately six (6) inches below the pile to ensure that no residual waste is left behind. 100 .

The Crown argues that a LWS delivery truck was directed to the segregation area at the Lafleche landfill site on December, 4, 2006, and not to the active face as argued by Defence. The load was subsequently deposited, sampled and analyzed showing the load to contain a substance to be leachate toxic for tetrachoroethylene and that, beyond the actual testing, three witnesses testified to smelling a solvent odour (Zimmer, Forrester, Miller) from the LWS load in question. 101 .

The Defence position is that LWS had a program to manage waste, at that time, that met or exceeded industry standards, in compliance with the COA, which included: prior TCLP test of a sales sample, periodic TCLP’s of ongoing waste streams, customer (generator) certification that loads were non-hazardous, screening samples from incoming loads in the roll-offs, and an inspection post- unloading. Further, that LWS had an extensive program of due diligence regarding the transportation of waste to the Lafleche landfill

site, in place at the time. 102 . Mr. Miller photographed the load and took twelve (12) spot samples from various heights in the pile. There was no shredder fluff cover material on the pile when sampled. Mr. Miller followed the instructions from a Golder & Associates engineer (Don Plenderleith) who told him to get a composite sample to test for an unknown substance. Mr. Miller testified that he took a sample of a “black oozy” material with granular material and that the “black oozy” material made up about 95% of the sample.

He testified also that he thought the black oozy material was about 30 kilograms whereas the granular material was about 50 kilograms (visible on the surface of the pile). He used a pale that he carried his clipboard and conductivity metre in and said it wasn’t new, but it was clean and never used to sample chemicals or waste. He mixed the twelve (12) samples together in the pail and transferred the composite into three (3) sample jars obtained from Lafleche.

Those jars were supplied by Accutest for sampling, the box was open, but the jars had their lids on and three (3) were opened and used by Miller for the samples. The Crown further argues that the sampling was best done immediately rather than wait another day since daily cover material could compromise the pile. 103 .

An issue arose regarding the absence of “blanks”, in particular, field blanks or background blanks, with Miller noting that Golder & Associates do not take blank samples for soil sampling on a landfill site because there is too much variation due to airborne material and various contamination for a representative sample. 104 . The Crown notes that when the samples from Miller arrived at Golder’s, on December 4 th , they were left overnight, in a cooler, in the refrigerator. On December 5 th , they were taken to the Accutest Laboratory by a Mr.

Ireland who signed the samples in to the custody of Accutest correcting a mistake on the Chain of Custody form from December 6 th to 5 th (confirmed by Ireland’s agenda and travel expense form). 105 . Defence argues that Exhibit #68 (Accutest test results) is meaningless as it is based on poor quality data from a single, inadequate, non-representative sample and that one small sample cannot categorize a 30 tonne heterogeneous waste.

It is further argued that Daryl Miller took 95% of his sample from only 80 kg of the total pile using no control/background samples, trip blanks, field blanks, unique sample numbers, no seal over the lids, the bag was not sealed, samples left overnight in an open container, and that small amounts of third party contamination would produce the ultimate results.

Additionally, ‘perc’ in his original sample could have come from the active face of the landfill site, the heavy equipment used to move the waste to the isolation pile, the segregation area, equipment maintenance, other waste, passing trucks, and Daryl Miller’s own sampling equipment (trowel, pail, cooler, and non-certified jars. 106 .

A dispute arose regarding Exhibit 68 and the analysis performed on the sample as Defence notes that no unique number was used as part of a chain of custody, the Golder number does not appear on the report, and no exhibit bears both the lab sample number and the chain of custody number. 107 . There were no legal seals placed on the samples while in the Golder refrigerator, although the jars were labelled. The Crown dismissed the issue of a travel blank noting through the Crown expert witness, Dr.

Ruffolo, that any contamination would be minimal particularly given the very high leachate toxic value for the tetrachloroethylene number as determined by the laboratory analysis (the leachate sample produced a 60,000 ppb (parts per billion) result which had been diluted twenty (20) times for a real concentration of 1,200,000 ppb reading). 108 .

Crown witness, Mina Nasirai, from Accutest/Exova Laboratory noted that the Laboratory Information Management System (LIMS) data shows the sample was received on December 5 th and that the entry of December 6 th (by the Lab’s Scott Clark) was an error as previously indicated. She noted that the samples are tracked in the laboratory by their sample ID number and Work Order number and not the Certificate of Custody number.

She noted the linkages from the Golder sample at Lafleche to Accutest as the Chain of Custody record, the LIMS data, and the Report of Analysis which confirms the continuity of the sample tested. 109 . This particular analytical firm was challenged by Defence as “not sufficiently trustworthy” with a history of unreliable results. The Crown disputed this challenge. 110 . Defence argues that in regards to the Lafleche charges, the Crown was obligated to base their decision to lay charges on legal, representative samples with a proper chain of custody and they did not.

Note was made by Defence that such serious charges based on a single and dubious sample were scandalous. 111 . The Crown accepts that the sampling may not be perfect, but argues that perfect evidence is not required in court proceedings. It is suggested that evidence is required upon which a realistic appraisal satisfies a court beyond a reasonable doubt. 112 . It is also noted by Defence that several LWS employees testified to the care they took to keep hazardous and non hazardous waste separate as well as the instructions they received from Tom and George Neilson regarding compliance with the COA. 113 .

It is argued, by Defence counsel, that Zimmer’s (Lafleche) evidence regarding the particular load in question (identified as 067663) being chosen randomly for sampling and unloaded directly to the segregation area is not consistent with his previous discussions. Questions were raised over the discrepancy between December 4 th and 5 th as the date of receiving the offending load. Similarly, there are questions regarding why Zimmer waited until 4 P.M. when it was starting to get dark and the LWS truck had departed to have Daryl Miller take a random sample? 114 .

Defence argues that the Crown cannot establish the continuity necessary between the Accutest report and the specific sample(

s) relevant to the charge. In other words, defence notes that there is no proof that the waste sampled from December 4, 2006 is related to a LWS load and not from some extraneous substance. The argument continues that gaps in the chain of custody must be accounted for to address the issue of doubt. 115 . In that regard, Defence argues that since the Crown did not call Scott Clark as a witness, they cannot ask the court to “correct” or ignore the December 6 th date of receipt of the chain of custody (Exhibit #61). Defence argues that the Crown cannot ask the

Court to guess or assume that a mistake was made regarding the date and simply correct it or use inferences to paper over defects. 116 . Defence counsel further argues that the Crown has failed to prove that a representative sample was taken at the Lafleche landfill site given Daryl Miller’s (Golder and Associates) evidence that 95% of his sample was taken from two, distinctive portions of the pile (80 kg out of 30,000 kg pile). 117 . The rejected waste is noted by Defence as being almost four (4) tons heavier than the load delivered by LWS. 5: KIENAPPLE PRINCIPLE 118 .

The Kienapple principle was raised in this incident. The Crown argues that the offences set out in each of the three counts are separate and distinct, have different essential elements and are not the same delict. The Court is aware that there must be both a legal nexus and a factual nexus before the rule would apply. The Kienapple rule should only apply if there is no additional and distinguishing element that goes to guilt contained in the other offences. 6: KEY WITNESSES 119 . The Court is compelled to deal with three key witnesses at this time.

Firstly, the former Environmental Manager at Lacombe Waste Services, Jairo Guerrero. Guerrero must be seen as a disgruntled former employee who clearly had issues with both George Neilson and Tom Neilson. This does not mean that all of his evidence is suspect, but it does raise a number of issues regarding certain inconsistencies and possible exaggerations that the Court has taken into account. His evidence has been weighted by the Court with certain exceptions where issues were raised and documented, in some fashion, and are discussed elsewhere in this decision. Secondly, with Defence expert witness Dr.

Bishop the Court is well aware of previous concerns over accusations of his enthusiasm for bolstering his employer’s position. This is a difficult line that consultants walk with certain clients. Nevertheless, although accepted as an expert witness due to his education, experience and expertise, the Court was at all times able to understand the issues at hand without relying on this expert witness. His opinions and comments were weighted accordingly. Thirdly, with the Crown’s Ministry expert witness, Dr. Ruffolo, although no controversial issues existed such as with Dr.

Bishop, the Court was similarly capable of comprehending and untangling the issues and concepts before it without the benefit of his education, experience and expertise and his opinions and comments were weighted accordingly. The fact that both experts discussed sampling and analysis, quality control, environmental chemistry and

interpretation of data, did not in and of itself assist the Court other than in the general sense of adding to the plethora of evidence. 7: OFFICERS AND DIRECTORS 120 . In the case of the officers and directors of corporations, the Crown notes that such persons have a special position in an organization and that failure to perform the duties imposed on them by law may attract liability for their actions. George Neilson and Tom Neilson are officers and directors of 349977 Ontario Ltd. The Crown states that both were “hands on” managers in day-to-day attendance and control of the corporation. 121 . It was noted by the Crown that the EPA imposes special duties on officers and directors under

section 194. (1), to, “take all reasonable care to prevent the corporation from (contravening the act).” Both officers and directors are charged with direct responsibility for the offences committed by the corporation. The Business Corporation Act,

section 134. (1), was also noted regarding standards of care for directors. The Court is well aware of the enhanced liability of officers and directors of corporations, particularly in environmental matters, concerning the health and safety of workers and the general public.

122 . The Crown submits that nothing happened at LWS without the knowledge and approval of George Neilson and Tom Neilson. Further, the evidence of Jairo Guerrero implicated the two directors. Specifically, the Crown notes that Guerrero was told by Tom Neilson not to reject loads of waste because customers would be unhappy and that he refused to discuss the issue of unacceptable loads which Guerrero believed had gone to the Lafleche site.

Additionally, Guerrero gave evidence that Tom Neilson did not want to listen to any information regarding negative analytical results, but expected Guerrero to handle the situation. He further testified that George Neilson and Tom Neilson directed loads to Lafleche rather than allow their site to be out of compliance with its capacity limits. 123 . The Crown further noted that the evidence indicated that George Neilson and Tom Neilson made decisions based on the cost involved. In that regard, they didn’t want samples sent out to private labs because of the cost.

This would become a central theme in certain charges. 124 . And, Tom Neilson, in particular, did not act on the photographs taken by Guerrero of the liquid contents of certain loads. Tom Neilson also received Guerrero’s memorandum (Exhibit #8) indicating that a tetrachloroethylene sample was the “third failure this year” for allowable standards on waste going to the Lafleche site. 125 . Guerrero further stated that his advice was not always followed and they did not want to know about problems.

One of the most concerning pieces of evidence is that Tom Neilson encouraged Guerrero to lie to MOE Inspector Clint King that MOE Inspector Heeringa had approved the company to receive grease trap waste pending the processing of an amendment to their COA. Guerrero also indicated that George Nielson asked him to conceal in a report to the Ministry via Inspector Heeringa that the site was out of compliance for volumes and weight on site. 126 .

The Crown also looks to the lack of communication with employees about compliance, written policies, discipline of employees for transgressions, safety or environmental meetings, or employee training on the COA, to demonstrate the absence of due diligence by these directors. 8: DECISION OF THE COURT 127 . It is trite to say that the heart and soul of a judicial officer’s role is fact finding and credibility assessment. In that process, it is the Court’s responsibility to follow the logic of truth towards preferring some evidence over others. The Court never loses sight of the

presumption of innocence or the principle of reasonable doubt regarding the elements of the offence. 128 . A good deal of time and effort was utilized in the qualification of experts on both sides. The value of an expert is in bringing clarification, understanding and insight into matters that would otherwise elude the Court’s scope and comprehension, by virtue of their education, training, skill or experience in a particular subject, beyond that of the average person. Their expertise is such that the fact finder may rely upon the witness's specialized opinion about evidence or facts at issue.

Although witnesses were qualified during the trial as experts, the specific expertise of those individuals, regarding the issues dealt with, never reached the level that their opinions were relied on by the Court more than any other witness. As such, the Court gives no special weight to their evidence. 129 . In these public welfare defences, the defence of a mistaken set of facts will be available if the accused can show a reasonable belief in those facts, and, if true, would render the act or omission innocent. It must be an honest and reasonable mistake.

Due diligence will also be available if the defendant took all reasonable steps to avoid the particular event. These are strict liability offences. Ottawa Information : 130 . Count Number One (1): Defence argues that Lacombe Waste Services (LWS) did the right thing when the first Vacuum Drummond load arrived at their gate on July 17, 2003, and the load was refused because the hauler did not have a Certificate of Approval (COA). In doing this, it is argued that LWS showed more diligence than the generator, Onyx.

Only when they provided a written confirmation that they were covering Vacuum Drummond, under their waste management system Certificate of Approval (COA), was the load accepted. Indeed, Vacuum Drummond shipped 21 loads, up to November 6, 2003, with the permission of Onyx. The Defence notes that nothing happened on November 6, 2003 to alert LWS of the change and, at any rate, Onyx continued to book and ship a further 173 loads (total of 194) to LWS. It is, therefore, the defence argument that LWS had no reason to believe that the arrangement had been changed without notice.

It was pointed out that neither Onyx nor Vacuum Drummond gave LWS the October 3, 2003 letter, which ended the arrangement, and, at any rate, did not tell them until 2007. LWS immediately refused to accept further shipments at that point. 131 . It is asserted by Defence that LWS reasonably believed that Onyx was covering Vacuum Drummond under its COA when they forwarded 35 loads to the Lafleche Environmental landfill site near Cornwall at Moose Creek, Ontario. This defence is one of a reasonable belief in a mistaken set of facts which would render the defendant innocent of the charge.

The defendants also assert the defence of due diligence stating that LWS had a careful system to ensure that haulers had appropriate certificates. In that regard, the dispatcher was trained and had a binder containing the certificates that governed each trucker and always checked, in the case of any unfamiliar truck. 132 .

The Crown’s arguments are that LWS has admitted to shipping the particular 35 loads using Vacuum Drummond, on behalf of Onyx, when the vehicles were not authorized to carry waste without being part of a certified Waste Management System and that, on a balance of probabilities, the defence has not produced evidence to support either a mistaken set of facts or due diligence. LWS admits that the actus reus of these offences occurred between April 24, 2006 and December 4, 2006. Vacuum Drummond did not have a COA issued under the EPA authorizing it to transport waste in Ontario. 133 .

The Quebec companies have already pled guilty and were convicted. The Crown notes that once the waste arrived at LWS’s Ottawa facility, LWS became the owner of the waste and fully responsible in law. 134 . The actus reus of this offence has been acknowledged. It is also accepted by the Court that in this highly regulated industry, Certificates of Approval (COA) are fundamental to the legal operation of a business regulated by the Environmental Protection Act (EPA). The obligation on any business, in that regard, is both serious and fundamental to public welfare. 135 .

In reviewing the July 17, 2003 Onyx letter, the Court finds that the wording is indeed somewhat misleading, although it does refer to an entry no. 60602. Defence argued that the entry no. 60602 was not used by LWS with Onyx, although there is a work order no. 60602, for an unrelated company. By noting that it is misleading, the court is also sending a signal that a misleading document that indicates an unknown number, and is assumed to be open ended, should have initiated a query, a follow-up and concrete documentation.

Even if one could argue that a COA was still in effect until November 6, 2003 (a termination that LWS was unaware of), the court is left with the formidable time travel forward to April 24, 2006. 136 . Indicating some form of training, and the availability of a COA binder, is useless if no one ever reviews a matter that carries over year-after-year, as well as the discrepancy of an MOE identification number painted on the truck in question, that did not match the Onyx approval number. The court is also aware of the legal requirement for a copy of the COA to be kept in each truck for inspection purposes. 137 .

Whether or not these trucks could have been added easily to the LWS fleet list (there are arguments for and against that position), is irrelevant. If it were so easy, then it should have been done. 138 . The court does not find the defendant successful, on a balance of probabilities, in the use of either a mistaken set of facts (relying on the Onyx letter of 2003) or of due diligence. It is patently not reasonable to rely on a questionable document continuously for years on end.

The defence of due diligence revolves around supposedly a careful system to ensure that all haulers had appropriate COA’s and the training of the dispatcher using a COA binder that was apparently always checked, although it appears only in the case of an unfamiliar truck. The cold reality is that nothing was done to support a defence of due diligence even given the substantial passage of time. These defences are not objectively reasonable. 139 . On count number one (1) the Court finds LWS guilty beyond a reasonable doubt. 140 .

Count Number Two (2): Is a similar offence to count one (1), this time regarding a truck owned by Conteneurs Carlex with Newalta identified as the generator and shipper of the waste. The carrier (Quebec licence #L280642) also deposited waste at an Ontario

landsite, Lafleche, without having an Ontario COA for a waste management system on October 25, 2006. 141 . Count Number Three (3): On a separate date, November 29, 2006, the same Carlex truck as noted in count two (2) (Quebec licence #L280642) deposited waste at the same Ontario landfill site without having an Ontario COA. 142 . These two counts are troubling as there is not even a letter, misleading or not to indicate any COA connection other that a belief that someone checked it out.

The problem with this scenario is that it lacks even a smidgen of due diligence, never mind the concept of a mistaken set of facts. Indeed, only when the current Environmental Manager, Paul Nagy followed the LWS procedure, after the second load, and asked for a copy of the approval, was it established that no such approval existed. 143 . The Court finds that LWS is therefore guilty of the charges, beyond a reasonable doubt, of illegally transporting, in counts two and three , those loads without proper statutory authority. 144 .

The Court will now address the series of eight (8) similar charges alleging that LWS did not sample and test (failing to take representative samples of) incoming waste prior to being received. The Crown contends that where the defendants found themselves in possession of unknown substances, they should have taken steps to ensure that the substances could be lawfully accepted. Defence argues that a representative sample was taken of each load and tested according to standard industry procedures.

At the core of these disagreements is the issue of what constitutes a representative sample for testing including the issue of unexpected substances. 145 . Count Number Five (5) involves a waste load received on September 14, 2005 from Recyclex containing paint in bags. There is evidence that eight (8) boxes of sawdust were used (Work Order #81508) and that Guerrero informed Tom Neilson and Recyclex, who requested a sample of the paint. The Crown alleges that the sawdust was required because of the paint. There is no photographic evidence.

The concern is regarding organic liquids that may have required the use of sawdust and was not properly tested. 146 . There was no evidence of a secondary analysis. Guerrero did not testify that there were free liquids in this load. 147 . Defence argues that, consistent with each of the loads, the proof of samples taken and analyzed prior to being received is found in the Incoming Waste Analysis (IWA) sheets, as recorded by the responsible chemist.

Further, a number of LWS employees testified in court that samples were taken from various locations accessible from the top of each load in accordance with the only available benchmark, the ASTM standard for sampling unconsolidated waste from trucks. Note was made that the Ministry publishes no guidance in this matter and that the LWS COA is silent on the matter. 148 . Defence even noted the Prosecutor’s comments (page 2559, transcript) to confirm that “the best you can do is sample the surface” in reference to material sitting in the back of a truck or in a lugger box. 149 .

It was argued that LWS had a “careful process for secondary inspection of debris during and after unloading,” and that “(T)his is better than industry standard, and was not expressly required by the Lacombe site certificate of approval.” 150 . Defence suggested that, after the Crown’s main witness, Jairo Guerrero stated that any liquid in all eight loads was properly sampled, the Crown prosecutor changed his theory to some unspecified provision in the LWS COA which required them to send samples to an external laboratory. 151 .

The defence offered various witnesses to advance the argument that LWS sampled representatively and tested each load. 152 . The Court did not find the wording of Condition 17 definitive regarding a pathway to a decision, nor were the Reasons or General Terms and Conditions overly helpful in reaching a conclusion. They appear to be general in nature although broad in reach. To suggest that they are to be read and interpreted in a particular manner (with the overarching touchstone being the protection of health and safety of people and the public) is to deem the words to be obvious and somewhat absolute.

If that were true, this decision would be very easy. It is not, because these conditions, reasons and terms do not establish, on their own, sampling and testing precision, but merely the requirement. 153 . What is important is what happened in each case? What was discovered? What was done about it? Sampling and testing are both part of a scientific and a dynamic process – not a static event. If one is to sample, and there was a surplus of agreement on this, it must be representative to meet the EPA requirement, and the industry standard.

Representativeness is established by sampling in various areas, of various components, to various depths that are particular to the load in question. It is a normal practice to follow a sampling procedure and the court accepts that LWS did sample the incoming waste prior to it being received. Each composite sample was tested by LWS chemists using their own equipment. Indeed, the Incoming Waste Analysis sheets confirmed when an aqueous phase was present, and to what degree, with other common tests administered. 154 .

The Court accepts that the LWS laboratory cannot do analysis for organics based on the evidence before the Court. The Court is aware that the lab did not have the necessary validation for its analytical methods. The Court further accepts the evidence indicating that the LWS lab equipment (gas chromatogram) is calibrated for PCB’s and not chlorinated solvents. 155 .

The Court further accepts the argument that a true representative sample must include any unexpected findings including substances and material that should properly raise concerns given the environmental concerns within this industry and the intent of the EPA. 156 . Nevertheless, the documentation regarding the finding of paint in bags is sparse, the connection to what is otherwise a large quantity of sawdust is unproven, and the conversation with Recyclex also lacks demonstrable evidence. 157 .

On count number five (5) , the Court does not find the evidence, including the Work Order (#81508), Exhibit 12, convincing enough to prove the Crown’s case beyond a reasonable doubt. The Court has some doubt based on the lack of evidence regarding the presence of organic liquids and the fact that sawdust has other uses relating to the composition of various loads, not to mention the linkage to volume.

158 . Count number five (5) is dismissed. 159 . Count Number Six (6): This count involves a load received on September 19, 2005 from Recyclex described in a Work Order (WO) in Exhibit 13. There is no photographic evidence in this count. 160 . The WO (#81509), Exhibit 14, noted “Debris mix (sic.) with oil and grease. This load did not pass the slump test.” The Crown argued that this did not constitute a “solid” given that failure and required an external analysis. 161 . There was no evidence of a secondary analysis. 162 .

The Court finds that the clear notation of an unexpected finding of a liquid along with the failure to pass the slump test should have triggered an external testing of the material. The evidence has clearly indicated that only then would LWS have known precisely the chemistry of the substance and have met the obligation for representative sampling. Sampling is not representative when an unexpected material is not properly sampled and tested. Such testing was only available at an external laboratory with appropriate equipment that was correctly calibrated.

If the notation was incorrect, it should have been dealt with at the time in concert with the Environmental Manager. One cannot accept a situation and then years later contend that it is not true. There is evidence to prove the charge. 163 . On count number six the Court finds LWS guilty of the charge. 164 . Count Number Seven (7): This count involves a load received on September 21, 2005 from Recyclex. There is no photographic evidence. 165 . The Defence argument is that the oil was hydraulic and came from a burst hose on a customer’s truck.

The Crown notes the truck cleanup, but also notes that the Incoming Waste Analysis sheet indicates, “Waste arrived containing large amount of free liquid oil.” 166 . There was no evidence of a secondary analysis. Guerrero did not testify that there were free liquids in this load. 167 . Although the Work Order (#81789) indicates the truck arriving with “free liquid oil,” it is unclear, based on the evidence as to what affect the burst hose and hydraulic oil had on that condition. This issue was never dealt with to the satisfaction of the Court. The Crown has not proven its case beyond a reasonable doubt. 168 .

Count number seven (7) is dismissed. 169 . Count Number Eight (8): This count involves a load received on October 3, 2005 from Chemtech. Exhibit 7 shows the bin full of drums with lids on them. They were not crushed and some drums had their labels still affixed. Guerrero testified that he opened the drums and found them full of liquids.

The Crown notes the Work Order (WO) in Exhibit 7 as reading, “Liquid had to be removed & disposed (?). 205 L liquid handled as LOS (?).” Defence argues that there were no liquids in the drums and that no such entry can be found in the drum record database although a supplementary fee charged to Chemtech based on Guerrero’s assertions was subsequently withdrawn voluntarily by LWS. 170 . Once again, LWS has allowed an official document to stand with no evidence of a proper, representative sample being taken of the unexpected substance.

The Court accepts that LWS did not have the laboratory equipment to properly analyze for unexpected organics. There was no evidence of a secondary analysis. 171 . This notation is importantly from the then Environmental Manager of the company who was clearly a member of the management team with commensurate responsibilities and obligations. Notwithstanding other issues mentioned elsewhere, the Court finds no lack of credibility in his record of the event, or any reason for him to fabricate the scenario.

Accordingly, LWS should have sought an external assessment, given their internal laboratory limitations, to establish the chemistry of the unknown liquid. 172 . The Court finds, regarding count number eight (8) , LWS guilty of this charge. 173 . Count Number Nine (9): This count involves a load received on October 31, 2005 from Recyclex. Photographs in Exhibit 14 show Guerrero’s notations of “free oil” and “free running oil & open carbon-black bags.” 174 .

The Crown argues that Guerrero photographed the oil to bring it to the attention of George Neilson and Tom Neilson and that the Defence witnesses never actually saw the liquid. 175 . Defence stated that Guerrero’s claim that there was some 4,000 to 5,000 litres of free oil in the load is preposterous. Defence witnesses pointed out that such a quantity of liquid would have come out of the box when the truck was tilted. Additionally, a witness who stood in the load stated that he could not have missed such a quantity of liquid. 176 .

The Crown has not been successful at convincing the Court that the evidence with notations from Guerrero regarding “free oil” and “free running oil and open carbon black,” as shown on his photographs, combined with Guerrero’s viva voce evidence, is sufficient to register guilt. The Work Order (#82817) refers only to sawdust (a normal occurrence in this business). The Defence position that the quantity suggested by Guerrero of 4,000 to 5,000 litres of free oil would have run out when the box was tilted to pick up the roll- off raises some reasonable doubt.

Even the photographs, as poor as they are, show only a limited amount of black liquid that was contested as simply carbon water. 177 . The charge in count number nine (9) is dismissed. 178 . Count Number Ten (10): This count involves a load received on November 14, 2005 and involves photographic evidence from Guerrero. According to him, the photo shows free oil coming out of the load with a notation from Guerrero of “a couple (of) 100s

(of) litres on the Incoming Waste Analysis sheet describing it as “carbon oil.” Several Defence witnesses identified what they saw in the photograph as innocuous carbon black in a few litres of water and not oil. Defence argued that this would not have raised any concern from knowledgeable persons in the waste management industry. 179 . The Court faces a similar dilemma in this count given the photographic evidence and the comment by Guerrero that the substance was “free oil” representing “a couple (of) 100’s (of) litres” given the contradictory evidence presented by the Defence.

The position that this was only a few litres of water identified as carbon black rather than oil raises, in this case, a sufficient doubt. The Crown has not proven this charge beyond a reasonable doubt. 180 . This charge in count number ten (10) is dismissed. 181 . Count Number Eleven (11): This count involves a load received on December 28, 2005. A photograph shows a truck with a large amount of liquid escaping from the rear as it leaves a building location at the LWS site. The Crown argues that it shows an oil/water mix as confirmed in testimony by Guerrero and estimated by him at 1,000 litres. 182 .

Guerrero indicated that he took the pictures because of his concern, and that the photographs went to Tom Neilson with the paperwork. The Crown argues that with such a large quantity of an oil/water mix that a representative sample should have been taken for external analysis. 183 . Defence countered with a number of witnesses that stated the photo shows water from outside the bag and referred to heavy rainfall in the autumn of 2005 and the worn condition of the Recyclex tarps.

The Defence indicates that the liquid is relatively clear which allows the taillights of the truck to actually shine through the liquid and that there was no smell or oil sheen. Defence estimated that there were some 40 litres in the photo and not the 1,000 indicated by Guerrero and that he had labelled the liquid as water at the time, but later changed to oil. 184 . The photographic evidence is not conclusive and the debate over water from outside the bag, worn Recyclex tarps and a heavy rainfall only added to the issue of credibility and preference.

The Crown has not proven this charge beyond a reasonable doubt. 185 . This charge in count number eleven (11) is dismissed. 186 . Count Number Twelve (12): This count involves a load received on May 30, 2006. There is no photographic evidence. This is concerning another Recyclex load that this time required 3,500 kilograms of sawdust to absorb the liquid according to the Incoming Waste Analysis (IWA) sheet.

Guerrero’s notation in the Work order (WO) reads: “Tom: a lot of oil present.” The Crown notes that the chemist, Yi Zhang, said it was grease and yet he signed the IWA sheet which indicated “80% solids and 20% phases” separation of the rest of the material. 187 . Defence argues that the chemist, Zhang, identified the organic phase in this load as solid grease which is a common non- hazardous waste although his IWA sheet notation is more consistent with Guerrero’s identification. 188 . There was no evidence of a secondary analysis. 189 . The evidence against LWS is clear in this charge.

Management was made aware of the presence of oil and a large amount of sawdust was used (to deal with the oil). This documentation went unchallenged until this matter surfaced. Such a notation from the Environmental Manager should have demanded a response which would include appropriate and representative sampling of the unexpected material for testing prior to acceptance. The Court does not accept, based on the evidence, that appropriate testing was available internally at that time in the LWS laboratory. 190 . The Court finds LWS guilty regarding count number twelve (12). 191 .

Count Number Fifteen (15): MOE Inspector Heeringa visited the LWS Ottawa site on October 12, 2007 and sometime later in the morning or early afternoon, he saw an uncovered roll-off box (#540) in the yard (photographs 34 and 35). The box was in a separate location from all other lugger boxes on the LWS site and specifically located outside area F2. This area is not approved for waste storage. 192 . Heeringa recorded in his notebook, “Sampling completed,” as the reason for unloading at the solid non-hazardous waste pad.

Defence noted, in that regard, that there are only three reasons to untarp such boxes: to perform a visual inspection of the waste, to take samples of the waste, or to unload the waste. It is therefore argued that the only reasonable conclusion from Heeringa’s evidence for the box in that location is that it provided sufficient space for sampling on all sides. 193 .

Defence further argues that the box was, in fact, not stored and refers to the EPA and Regulations where storage is separated from other actions such as in the following: “storage, handling, treatment, collection, transportation, processing or disposal. The COA also distinguishes between storage and other activities. It is argued that waste not yet accepted is not stored, but in transit. Specifically, Condition 36(

a) distinguishes amongst loading, unloading, processing, and storage areas. 194 . It is argued by Defence that waste receiving is different from waste storage. In particular, it is noted that storage is not defined in the EPA and is but one of many actions that may take place at a waste transfer site such as handling, treatment and transportation. Much emphasis is put on waste still in transit versus being stored noting that while in transit it does not belong to LWS and may be returned to the original generator.

Defence introduced case law regarding the storage of firearms and the issues courts have faced dealing with the natural meaning of a word. 195 . The prosecution noted that the LWS Environmental Manager acknowledged that the box was at that location for the sake of convenience as the receiving pad was full and there would not be enough room to easily access the lugger box for sampling. The Crown issue is t

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