May 16, 2014

Lessons from Burns Lake: Why charges were not an option

By Dave Rebbitt

Friday, Jan. 20, 2012, was a cold evening. This made the air dry and the Babine Forest Products sawmill in Burns Lake, B.C., had buttoned up for the winter, making the interior heated air even drier. Pine beetle-killed wood was being run through the plant three days per week (Monday through Wednesday) producing very fine and dry sawdust. This sawdust accumulated throughout the mill and, combined with the dry air, created conditions that would make a combustible dust explosion possible.

That evening a fire an explosion destroyed the mill resulting in two fatalities and numerous injuries.

Burns Lake residents were outraged at the incident and a regulatory investigation soon began. There had been a fire the previous year on Feb. 23, 2011. The report identified accumulation of unusually dry sawdust (pine beetle kill) as a cause. The fire resulted in temporary closure of the mill and damage estimated at $500,000.

In January of 2012, the airborne wood dust in the mill was ignited and propagated an explosion throughout the mill. This hazard was known and the possibility of a fire and explosion was very real. WorkSafeBC did make efforts to ensure their personnel knew and understood the additional hazard associated with pine beetle-killed wood by holding a workshop on March 17, 2010 in Richmond, B.C. The dangers of combustible dust and its control were covered. A guideline issued later contained a statement that a layer of dust “as thin as a dime” dispersed through a room could cause an explosion. The investigation report by WorkSafeBC shows dust accumulation several inches deep.

In January 2014 there was notification that no charges would be laid against Babine Forest Products. The lack of charges stirred outrage in the community and elsewhere. B.C. Premier Christy Clark directed there be an inquiry to determine why no charges were laid. The answer she got should not have been a surprise to anyone — but of course it was. It seems the regulator, WorkSafeBC, had done a good job of getting the facts but in doing so had precluded any charges against the company. There are accusations of a botched investigation or failing to heed the warning of in house legal counsel. The reasons why this happened are not new but are complex.

There are Supreme Court decisions from 2002 setting out guidelines for regulatory investigations and the use of inspection powers. These were cases under the income tax act and did not receive a lot of press. Individuals asserted that their charter rights under section 7 (right not to self incriminate) and section 8 (unreasonable search and seizure) had been violated. As this was about a tax audit, it did not get a lot of attention in the health and safety community.

When an audit or inspection crosses into an investigation where charges could result, the person (or company) in question is entitled to the full protection of the charter and of their legal rights regardless of whether it is a civil offence or a criminal one.
A corporation has the similar rights to a person under Canadian law. So a company cannot be subjected to unreasonable search and seizure. Regulatory inspectors exercising their normal powers of search and seizure in an investigation into an offence may be subjecting the company to unreasonable search and seizure since these regulatory inspection powers tend to be broad.

There is a better example in terms of workplace regulatory investigations. A case in Ontario related to an environmental investigation involving Inco near Sudbury in February of 1994. Inco reported discharges above the allowable limits as required. An inspector, using his statutory powers, interviewed employees and gathered evidence. Inco’s counsel made it clear that they took issue with the regulatory inspector’s use of these statutory powers in an investigation. Inco was convicted in September 1999 and immediately appealed. Inco based its appeal, in part, on the violation of the corporation’s charter rights under section 8 — protection against unreasonable search and seizure.

The appeal was heard and the decision released in June of 2001. The appeal court found that the inspector had failed to get warrants for search and so ordered a new trial. The real issue is when the inspector believed an offence had been committed and so when the investigation began as opposed to an inspection. The court took the view, in later cases supported by the Supreme Court, that the statutory powers were for inspection and not investigation. The crown was denied leave to appeal to the Supreme Court.

So what went wrong with the investigation at Burns Lake? Regulatory investigations, they are mostly done to determine why things happened, which is much different from an investigation into a criminal case where the investigation is looking for what happened and what laws were broken. The RCMP only handed the site over to the regulator when they had determined no criminal charges were warranted.

Regulatory inspectors usually rely on their statutory powers under the relevant act, such as the Worker’s Compensation Act. If there has been a serious incident and charges could be laid, investigators are well advised to seek expert assistance and not rely on their statutory powers investigate. It is also important that employers and their representatives understand the difference between inspection and investigation. Once the regulator uses their broad inspection powers in the investigation the evidence collected may become tainted since the means used to gather it may have violated the rights of Babine, the mill owner.

Such events do not occur with regularity and so regulatory agencies may not have the tools, embedded processes, or experience to deal effectively with them. Most regulatory agencies have special teams that investigate major incidents, as did WorkSafeBC. They seemed ill equipped to handle such an investigation that could facilitate a successful prosecution. The report prepared by John Dyble, the deputy minister to the premier, reviewing WorkSafeBC investigative practices pointed to the need for better interaction with prosecuting agencies, improving procedures, training, and internal communication.

In the Burns Lake case, WorkSafeBC has assessed Babine a record $1 million dollar administrative fine. This was one of the limited options available and Babine immediately pledged to appeal. The outcome remains uncertain.

There are questions over the effectiveness in highlighting the hazard posed by this dust. The Burns Lake investigation report contains surprising information. WorkSafeBC was engaged in a program to monitor dust levels to determine assess respiratory hazards and Babine was a voluntary participant. A visit in November 2011 found some dust levels exceeded the exposure limit. Photos, taken at the time, showed large dust accumulations. WorkSafeBC made the mill owner aware of this in December and the proposed fix was to temporarily fit employees with respirators.

Respirators were recommended instead of approaching the problem with the hierarchy of controls starting with elimination or substitution to address dust levels and accumulation. Ventilation inadequacies had been identified and were scheduled to be addressed using engineering controls. Although the purpose of this program and testing was to test for respiratory hazards, it is not clear why dust seemed only to be perceived as a respiratory hazard and not an explosion hazard. This may be an example of “normalization of deviation” as the sawdust is expected and there had not been an explosion of airborne sawdust in recent memory. Prior to the pine beetle, sawdust would have had higher moisture content and larger particles rendering it less combustible.

Higher level controls are often ignored in addressing issues and incidents for many reasons. PPE is an immediate, visible and often quick fix. It is also the final and last level of control. Other controls take time and may cost more. It is important to understand the nature of the hazard and apply an appropriate identification and control methodology. However, with the benefit of hindsight it is easy to second guess past decisions, particularly without all the facts.

The WorkSafeBC inspected 144 locations between November 2013 and January 2014 for combustible dust. They issued 13 stop work orders, 93 orders, and 17 warning letters. Only 58 per cent of locations were found to be in compliance.