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Judge approves Lemon Creek class-action suit

John Boivin Local Journalism Initiative
By John Boivin Local Journalism Initiative
May 7th, 2017

A B.C. Supreme Court judge has given the go-ahead for a class-action lawsuit for residents of the Slocan Valley affected by the 2013 fuel spill in Lemon Creek.

Justice David Masuhara ruled last week the proposed civil action had met the proper requirements of a class action and had sound enough arguments to go to trial.

In July 2013 thousands of people in the Slocan Valley were forced from their homes for several days, and warned not to use the water for weeks, after a tanker truck fell into Lemon Creek, spilling 35,000 litres of jet fuel into the stream.

The plaintiffs say negligence by the province and the fuel carrier, and mismanagement of the disaster caused millions of dollars in damage and prolonged suffering.

 “Following the Spill, a gas plume of airborne Vapour particles disseminated throughout the vicinity of Lemon Creek, the Slocan Valley and the Kootenay River, coming into contact with individuals, wildlife, livestock, and domestic and agricultural premises,” the plaintiffs maintain.

“[The result] causing physical symptoms in local residents, workers and tourists including burning eyes, sore throats, headaches, respiratory distress and other symptoms of ill health.”

The suit also says residue from the jet fuel has contaminated ground water in the area.

Lawyers for the plaintiffs say it’s the first environmental class action against the Province of British Columbia to be approved.

 “In this time of proposed pipelines and increased transportation of dangerous substances, we should all be concerned when the Province of British Columbia fails in its duty to protect the environment and refuses to take responsibility for its mistakes,” said David Rosenberg, the lawyer representing the affected residents.

The class-action suit stems from when a driver hauling the jet fuel went up the wrong forestry road while attempting to refuel a helicopter station being used for firefighting. When he tried to turn around, the truck slid into Lemon Creek and overturned, spilling  the fuel.

Residents who owned, rented, or lived on properties affected by the evacuation are included in the suit- about 2,500 people in all.

A retired machinist and local farmer, Robert Kirk, who lives on the Slocan River about 10 kilometers from the spill site, launched the suit on behalf of residents.

The province tried to deny the arguments made by the class-action attorneys, saying the accident was not reasonably foreseeable, that government could not be responsible for the condition of a closed road, and was not the carrier of the fuel, among other arguments. However, the judge rejected the government’s position.

The provincial government, fuel carrier and driver are also fighting criminal charges related to the spill. That case is now working its way through a Nelson courtroom. All the parties have pleaded not guilty to charges of depositing a deleterious substance in a water frequented by fish under the Fisheries Act. The penalty on conviction is a minimum of $5,000 for an individual and $100,000 for the government or a company.

There are also six counts of “introducing waste into a stream causing pollution” under the Environmental Management Act. The maximum penalty set out in the Act is a $1-million fine or six months in jail.

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