Lake Superior is the largest freshwater lake in the world. It holds ten percent of the world’s surface freshwater. Photo: Petri Bailey
Guest Blog: posted by Petri Bailey, CELA pro bono student, Bora Laskin Law School in Thunder Bay
The northernmost shore of Lake Superior near Rossport is rugged and exposed. Tall hills give way to weathered beaches, and – beyond a few small communities – the area remains largely undeveloped. Even today, a paddle through the Rossport Islands is essentially a wilderness experience.
On January 21, 2008, a Canadian Pacific train was traveling along Lake Superior. As the train passed through Cavers Cove, near Rossport, fourteen cars derailed. Among the cargo were plastic pellets, also known as “nurdles.” From water bottles to children’s toys, nurdles are the building blocks of most plastic materials. These lentil-sized pellets are melted down into many of the plastic products that we use every day. Nurdles were swept into Lake Superior and carried along by wind, waves and currents.
“What was the area like before the beads? I guess we had a real nice half-mile sand beach. You know, it was fairly clean and pristine.”
– Chuck Hutterli, resident of Mountain Bay on Lake Superior
Canadian Pacific says that 650+ person-days were dedicated to clean-up in 2008, and efforts continued for several years after the derailment. The nurdles continue to remain heavily concentrated near the site of the spill. They have also dispersed across much of eastern Lake Superior in Canada and the United States.
Small plastic pellets – or “nurdles” – dot the shore of Healey Island near the site of the 2008 derailment. Photo: Petri Bailey.
How do plastic nurdles affect the aquatic and terrestrial environment?
CP retained an environmental consulting firm to comment on the nurdles’ potential harm. In its report, the firm noted that the polyethylene pellets are “toxicologically inert”. In other words, they do not have a direct toxic effect on humans or the environment. However, the report noted that “there is a potential for biota to ingest the pellets (intentionally or unintentionally), leading to gastrointestinal impaction and/or starvation.” Regardless, the consulting firm was not convinced that the pellets pose a significant risk to humans or living organisms.
In reaching its conclusion, the report highlighted the inert nature of the plastic pellets. Yet there was no mention on the growing body of research surrounding plastic pellets as a transport vessel for toxic chemicals. A 2001 Japanese study investigated how plastic pellets retain pollutants from seawater. The study found that toxic chemicals like PCBs and DDE can accumulate in plastic pellets in concentrations thousands of times higher than surrounding seawater.
How has the nurdle spill at Cavers Cove impacted local wildlife? Unfortunately, a robust, scientific study has yet to be conducted. However, a 2015 Tasmanian study might offer some perspective. Researchers examined the bodies of 171 short-tailed shearwater chicks and found that almost all had ingested plastic debris. Nearly one third of the fragments collected were industrial plastic nurdles. While that study may not be based in the freshwater North Shore of Lake Superior, its findings do serve as a reminder that nurdles have a real and significant impact on wildlife.
The derailment took place at Cavers Cove on Lake Superior, about 189 km east of Thunder Bay, Ontario.
What environmental laws apply to spills in Canada?
While the Constitution of Canada grants powers relating to national interests (like shipping and railways) to Parliament and matters of a local nature (such as natural resources) to provincial legislatures, the environment isn’t expressly listed as either provincial or federal. However, the Supreme Court of Canada has affirmed that both the provincial legislatures and Parliament can make laws relating to environmental protection, so long as they relate to their respective powers granted under the Constitution. Therefore, rail spills into waterways like Lake Superior touch on both provincial and federal environmental laws.
Which legislation governs spills in Ontario?
The Canadian Pacific spill on Lake Superior brought together a melting pot of legal considerations. Legislation governing railways, fisheries and the environment all come into play. For the purposes of this post, let’s consider Ontario’s Environmental Protection Act (EPA):
Section 14 (1) of the EPA provides that no person shall “permit the discharge of a contaminant into the natural environment, if the discharge causes or may cause an adverse effect”.
The key term here is “adverse effect”, which can include:
- Injury or damage to property or to plant or animal life
- Loss of enjoyment of normal use of property
Proving damage to plant or animal life may be challenging. Nurdles, which on their own are non-toxic, may not meet this threshold without further scientific study. However, demonstrating loss of enjoyment and damage to property might be more realistic. Beachfront properties near the site of the derailment continue to be impacted by heavy concentrations of nurdles. Many community members and organizations have resorted to holding shoreline cleanups during the summer months. Of course, these cleanups only make a dent in the overall problem. After storms, nurdles often wash ashore once again.
Like other provincial and federal laws with punitive “teeth,” the EPA has a limitation period of two years. Since the events occurred over a decade ago, the limitation period has long since expired.
Over a decade after the spill, community members are left to pick up the pieces. Shoreline cleanups – like this one at Mountain Bay – are as much about raising awareness as they are for combing the beaches for nurdles.
What other legal recourse is available to private individuals?
Filing a civil claim is one way for individuals to seek a remedy for industrial pollution. The tort (or civil wrong) of “nuisance” has previously been used to hold companies like Canadian Pacific to account. Nuisance centers on harm suffered, rather than on prohibited behaviour. A claim of private nuisance requires:
1) Substantial (non-trivial) interference with the owner’s use or enjoyment of land
2) An interference which is unreasonable considering all of the circumstances.
In Windsor v Canadian Pacific Railway Ltd, a class action in nuisance was brought against Canadian Pacific. The leak of a degreasing solvent contaminated groundwater flowing under a residential community. The plaintiffs claimed a loss in property value and rental incomes. The Alberta Court of Appeal allowed the class action to proceed to trial in part.
Like the Environmental Protection Act, civil claims typically have a basic limitation period of two years. However, limitation periods are complicated. As the Supreme Court established in Kamloops v. Nielson, the clock does not start until the date of “discoverability” of the damage. For residents near the site the plastics spill, the damage was discovered in 2008 – over ten years ago. Therefore, he limitation period for residents in the direct vicinity of the spill on Lake Superior has likely expired.
Nurdles are continuing to wash ashore at other locations throughout eastern Lake Superior. Is the door still open to those who are newly-impacted by this decade-old spill? It’s hard to say for sure. Ontario’s Limitations Act provides that civil actions have an ultimate limitation period of 15 years since the date the act or omission itself took place. Once the 15-year window closes, the door for civil action inevitably closes too (with some exceptions). Within their claim, a claimant would need to prove that they suffered bona fide damage as a result of the spill, and that the damage was discovered within the last two years.
Of course, legal recourse is not the only solution. Communities can place sustained pressure on polluters, their elected officials and local government to commit to ongoing spill clean-up. Communities can also work with stakeholders, like CP Rail, so that local voices are part of decisions related to prevention, management and oversight.
Clearing beaches of nurdles is tedious work. At this shoreline cleanup in Rossport – organized by Parks Canada – nurdles are collected in hand strainers.
How can Canadians help prevent plastics from reaching our lakes and waterways?
Prior to law school, I lived in the small community of Nipigon, along the northernmost waters of the Great Lakes. Seeing beaches on Lake Superior impacted by nurdles drove me to make changes to my own plastic habits. I hope it may also encourage others to rethink plastic use as well. Across Canada, awareness of plastic pollution continues to grow.
To prevent future spills and plastic pollution in the Great Lakes, we must rethink how we consume everyday products.
Solutions exist, and everyone can play a part. Together, let’s keep plastic out of our waters.