A local road construction company has been found not guilty of charges related to the decommissioning of a land treatment facility.

Cobalt Construction Inc. and its owner, Shaun Rudolph, 34, were both facing a charge under the Yukon Environment Act for contravening an environmental protection order (EPO).

The charges each carry a maximum fine of $300,000, imprisonment up to six months, or both.

Prosecutor Julie DesBrisay had argued that Cobalt and Rudolph failed to submit a decommissioning plan for the land treatment facility (LTF) in accordance with its licence and the guidelines under the EPO. This included not adhering to deadlines.

Defence lawyer Meagan Hannam, however, argued that the company had done its best to comply. It could not meet the deadlines because the soil samples needed for a final plan could not be taken until June, Hannam said.

Rudolph testified that the frozen ground prevented him from using an excavator to till the soil, a requirement for taking proper samples.

While a ripper could have been used to break up the ground, he said, this would have destroyed the configuration of the piles in the LTF.

Meanwhile, Heather Mills, the territory’s contaminated sites co-ordinator, testified that other operators have been able to comply with similar conditions.

The case ultimately came down to whether Cobalt could have reasonably completed the sampling within the time frame given.

Cobalt began operating the Nines Creek LTF near Destruction Bay to remediate a fuel spill during the 2013 road construction season.

The facility was operated without issue until its permit expired on Dec. 31, 2015.

On Feb. 2, 2016, the then-deputy minister of Environment, Joe MacGillivray, advised Cobalt that an EPO would be issued with requirements for decommissioning the LTF.

These included a detailed schedule, samples indicating the level of soil contamination, and receiving locations for the contaminated soil.

Colbalt was also given the opportunity to raise any issues or concerns it had with the requirements, but it did not respond.

The EPO was issued on Feb. 18 by Wade Istchenko, then the Yukon Party minister of Environment, requiring a detailed decommissioning plan to be submitted to Mills within 30 days.

Mills testified that she received a letter from Cobalt on March 10 indicating that it intended to clean up the site “towards the end of the summer”.

Ryan Hennings, the manager of enforcement and compliance with the conservation officer services branch, testified that he then reminded Cobalt it was required to submit a completed decommissioning plan by March 21.

On March 17, Cobalt sent Hennings its initial decommissioning plan.

The plan stated the company intended to take soil samples in June to develop an “accurate decommission plan” in the summer.

Mills testified that this initial plan was insufficient, as it did not contain sample results, a detailed timeline, nor receiving locations for contaminated soil.

The Department of Environment, however, did not advise Cobalt that the plan did not meet the requirements of the EPO.

Hannam argued that Cobalt should have been advised and given an opportunity to correct any deficiencies.

DesBrisay, however, said the requirements for a decommissioning plan had already been made clear to Cobalt.

Judge Karen Ruddy noted that had Cobalt been notified, the need for charges could have been avoided.

But she found that the department was not obligated to do so as “the plan provided (was) so clearly and objectively deficient on its face.”

In June 2016, Cobalt hired a Yukon environmental assessment company. It took samples and completed a detailed final decommissioning plan on Aug. 5.

Ruddy found that Cobalt had not taken all reasonable steps to comply with the EPO.

She noted that Rudolph was aware well before the deadline that soil samples could not be before the summer, but did not convey this to the department.

She added that Cobalt also made no efforts to contact potential receiving facilities for contaminated soil.

“The tone and content of Cobalt’s correspondence suggest that they did not expect to be held to the timelines or required content set out in the EPO,” she said.

“Overall, Cobalt responded to the EPO with a casualness that suggests that they did not appreciate the nature and consequences of non-compliance.”

But Ruddy did find that it was “factually impossible” for Cobalt to comply with the EPO within the specified deadline. And she noted that there was no harm to the environment and that the EPO was ultimately complied with. She found that the delay in compliance was “caused by the conditions of a Yukon winter, conditions well beyond the control of Cobalt.”

Ultimately, she found that in the circumstances a conviction would result in a “legal absurdity” that would “be repugnant to the rule of law”.

In her closing remarks, Ruddy noted that the case was difficult and unusual.

She told Rudolph that his takeaway should be that being more proactive in communications with the government could have avoided many of the issues in the case.