Order No. P.951101
IN THE MATTER of Section 46 of the Petroleum Products Act, R.S.P.E.I. 1988, Cap. P-5.1
- and -
IN THE MATTER of alleged non-compliance by WILLIAMS FUELS (RICK BURT, GENERAL MANAGER) with Regulation No. 18 made under the Petroleum Products Act, supra, in respect of the operation of the Ultramar Canada Inc. bulk storage plant located at 231 MacEwen Road, Summerside, Prince Edward Island.
Wednesday, the 1st day of November, A.D., 1995
BEFORE
John L. Blakney, Vice-Chairman
Anne McPhee, Commissioner
Debbie MacLellan, Commissioner
Decision and Order
APPEARANCES AND WITNESSES
Participants in the hearing and the parties for whom they appeared were as follows:
FOR WILLIAMS FUELS (RICK BURT) - RESPONDENT:
Witnesses:
Mr. Rick Burt
Mr. Michael Hennessey
FOR THE COMMISSION:
(Mrs.) H. Doris Pursey, Director - Petroleum Division
Mr. Harry MacDonald (Witness) - Assistant to Director -Petroleum Division
RECORDING SECRETARY: (Mrs.) Faye Weeks
Decision
I. INTRODUCTION
On the 29th day of September, 1995, the Director of the Petroleum Division of the Island Regulatory and Appeals Commission ("the Commission") issued a Notice of Hearing concerning alleged non-compliance with Regulation No. 18 made pursuant to the Petroleum Products Act, supra by Williams Fuels (Rick Burt, General Manager) in respect of the operation of the Ultramar Canada Inc. bulk storage plant located at 231 MacEwen Road, Summerside, Prince Edward Island. The alleged non-compliance involved the dispensing of motor fuel into the fuel supply system of a vehicle from the loading rack of the above-mentioned Ultramar bulk plant operated by Williams Fuels (Rick Burt, General Manager) at Summerside under Petroleum Products License No. R5011-00 (Retail-Distributor - Bulk Storage) issued under the Petroleum Products Act, supra. This Notice (Exhibit 7) indicated that a show cause hearing was to commence on Thursday, the 26th day of October, 1995 at the hour of 11:00 a.m. in the Hearing Room of the Commission. The Notice also indicated that in lieu of attending at the above-noted hearing, the Commission would accept the payment of Two Thousand Dollars ($2,000.00) in acknowledgment of the incident of alleged non-compliance, providing payment was made to the Commission within fifteen days from the date of receipt of this Notice. This Notice of the hearing was served on Rick Burt of Williams Fuels by Mr. Harry MacDonald, Commission Staff Member, on 4 October 1995, and copies of this same Notice were served by Mr. MacDonald on Michael Hennessey of Island Petroleum Products Limited and on William McQuillan of Ultramar Canada Inc. on 5 October 1995. Such payment was not made within the allowable fifteen days, and a show cause hearing into the matter was commenced at 11:00 a.m. on 26 October 1995.
II. EVIDENCE
Seven documents were identified by the Director of the Petroleum Division with regard to the matters before the Commission, and no objection was raised by the Respondent with respect to their admission as Exhibits. Mr. Harry MacDonald, Assistant to the Director of the Petroleum Division, gave evidence that on 28 September 1995 at approximately 12:45 p.m., the fuel supply system of a bulk potato truck bearing P.E.I. License Plate No. FA 568, Tag No. 291938, was being fueled at the loading rack of the Ultramar Canada Inc. bulk storage plant located at Summerside, P.E.I. (as set out in Exhibit 2), and that he took several pictures (two of which were entered into evidence as Exhibit 3), and investigated the matter further. Mr. MacDonald testified that this investigation included reviewing the invoice resulting from this product sale. He further testified that he spoke to Mr. Burt at the outlet later on 28 September 1995, and alleged non-compliance of Regulation 18 during their discussion. He testified that Mr. Burt seemed fully aware that he was in fact in non-compliance and that he might be subject to a fine of $2,000.00 as a result.
Mr. Burt acknowledged in principle the testimony given by Mr. MacDonald in respect of the alleged violation, and indicated to the Commission that there had been other incidents of similar non-compliance with Regulation 18 at this location, and that he was aware of the Regulation. When questioned, he indicated that to his knowledge there had been no similar instances carried on at the bulk plant under his control since the Notice of Hearing had been served.
Mr. Burt gave a statement to the Commission concerning his views of the Regulation which was violated, and also spoke to the matter of penalty, which he stated was, in his opinion, excessive. He noted that the 1993-1994 Annual Report of the Commission makes reference to fines ranging from $50.00 to $1,500.00 relating to violations of the Petroleum Products Act dealt with during that fiscal period. He did agree, however, that he was unaware as to the circumstances which led to these fines, and also that he was aware that there had been fines higher than $1,500.00 levied by the Commission under the Act. On further questioning, he was unable to cite instances of similar violations where the penalty levied by the Commission was less.
Mr. Michael Hennessey was present at the hearing and offered some clarification of inquiries made by the Commission with regard to this matter.
No representative of Ultramar Canada Inc., owner and supplier of the bulk plant operated by Williams Fuels, appeared at the hearing, nor was the Commission contacted by any representative of the Company with regard to the above-noted alleged non-compliance. The receipt of the Notice of Hearing, however, was acknowledged by a Company representative by signature on a copy of the Notice on 5 October 1995.
III. FINDINGS
The Commission has considered the evidence given and it is satisfied that a breach of Regulation 18 made pursuant to the Petroleum Products Act has occurred in this instance.
Mr. Burt admitted that he was well aware of the Regulation. Although there have been slight changes in the wording of Regulations over the years, the basic restriction of not permitting the fueling of vehicles at bulk plants has been in place for at least fourteen years. It is therefore of great concern to the Commission that this type of fueling has taken place at the bulk plant owned by Ultramar Canada Inc. and operated by Williams Fuels. This firm is not only unlicensed to perform this type of service at this outlet, but Mr. Burt, as General Manager of Williams Fuels, permitted this type of fueling to be conducted at the bulk plant under his control while fully aware that it was in contravention of the legislation under which he operates.
The Commission reviewed the penalties imposed for similar and other matters of non-compliance, and are in agreement that a financial penalty of Two Thousand Dollars ($2,000.00) is appropriate in this matter.
Order
THE COMMISSION HEREBY ORDERS AS FOLLOWS:
1. THAT a financial penalty of Two Thousand Dollars ($2,000.00) be paid by Williams Fuels (Rick Burt, General Manager) to the Commission within fifteen days of the issuance of this Order with regard to the above-noted breach; and
2 THAT further non-compliance with the Petroleum Products Act and/or Regulations by Williams Fuels may involve suspension or cancellation of a license or licenses in addition to any other penalties available under the Petroleum Products Act.
DATED at CHARLOTTETOWN this 1st day of NOVEMBER, A.D., 1995.
BY THE COMMISSION:
Vice-Chairman
Commissioner
Commissioner