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    Why the presence of fuel oil tanks should cause one to investigate further
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    It is just a fact of life that fuel oil tanks inherently leak. That is why there are standards imposed which govern not only the manufacture and installation of fuel oil tanks but the maintenance and removal. A reasonable person would assume if a fuel oil tank is new or fairly new there is nothing to be concerned about.

    Not so in the opinion of Madam Justice Healey in a decision out of Bracebridge. This decision involves a fuel tank which leaked after less than 5 months of use. The tank was manufactured to be in service for 10 years and even had a five year warranty. The cause it was discovered is a phenomenon known in the industry as microbally induced/influenced corrosion (?MIC?). In lay man?s terms a small hole developed in the bottom of the tank due to internal corrosion. The expert evidence accepted by Justice Healey was that this could have been avoided if the tank were coated inside at an approximate cost of $150.00. Justice Healey stated ?that on a cost benefit analysis it is difficult to justify avoiding such cost for protection of the environment.?

    Justice Healey held the defendants liable for the cleanup costs under the Sale of Goods Act as the tank was warranted by the defendant as being fit for the purpose of storing fuel oil, and that warranty was breached. Having already found the defendants liable under the Sale of Goods Act there was no need to review the claim under negligence, however, Justice Healey did so in the ?hope that this judgment will find its way into the hands of the regulators in this industry given the potential for environmental harm if the specifications for such tanks are not changed to better guard against corrosion by MIC.?

    Justice Healey stated that ?the standard of care to which this defendant and all like manufacturers must be held is to produce a tank which is capable both of containing fuel and withstanding the vagaries of corrosion for at least ten years.? If the legislative standards do not protect against the potential harm and do not require the manufacturers to meet the standard of care required to avoid harm then meeting the legislative requirements cannot be relied upon to answer liability under negligence.

    This decision highlights the inherent dangers of fuel tanks in general and the fact that the age of the tank is not a reliable indicator for potential leaks. To view this decision click on this link http://canlii.ca/t/288qk.This decision was upheld on appeal. To view appeal decision please click on this link. http://www.canlii.org/en/on/onca/doc/2011/2011onca355/2011onca355.html

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