Remediation and Restoration of Contaminated Lands

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 194-210

194

CHAPTER 11

REMEDIATION AND

RESTORATION OF

CONTAMINATED LANDS

1 Quoted in P.N. Nemetz, “Federal Environmental Regulation in Canada” (1986)

26 Natural Resources J. 551 at 587.

A. INTRODUCTION

Until recently little attention was devoted to the challenges of restor-

ing environmental functions and rehabilitating contaminated lands.

The comparative familiarity of courts with financial mechanisms for

compensating individual victims may have been one contributing fac-

tor. Moreover, the assumption was widespread that natural regenera-

tive processes would operate satisfactorily or that the extent of

degradation was still quite limited. In one case, for example, a provin-

cial minister of the environment indicated that “[n]o inventory of

existing or abandoned landfills has been conducted as the past history

of industrialization in this province does not lead us to believe any sig-

nificant quantities of toxic wastes have been deposited.”1Yet by the

1980s persistent toxic contamination was recognized as a significantly

more extensive and intractable problem than previously acknowl-

edged.

In that decade, it became clear that contamination was widespread

and that the remedial agenda would be challenging and costly. Today,

in addition to known waste-disposal sites and scrapyards, hundreds of

which may present continuing environmental and human-health risks,

numerous other locations suffer toxic contamination. These include

Remediation and Restoration of Contaminated Lands 195

2Sevidal v. Chopra (1987), 64 O.R. (2d) 169 (H.C.J.); Heighington v. Ontario

(1989), 69 O.R. (2d) 484 (C.A.).

3 Insight Educational Services, Clean-up of Contaminated Sites: Regulations and

State of the Art Technologies (Mississauga: Insight Press, 1991).

4 W.A. Tilleman, ed., The Dictionary of Environmental Law and Science (Toronto:

Emond Montgomery, 1994) at 244.

5 D. Saxe, “Reflections on Environmental Restoration” (1992) 2 J.E.L.P. 77 at 78

[emphasis in original].

industrial sites associated with mining operations, with coal gasifica-

tion plants, or metal and petroleum refineries. As well, there are old

coking plants, chemical company facilities, electroplating establish-

ments, and businesses whose operations once involved various forms

of solvents, paints, and sealants or wood-preserving compounds. The

Sydney tar-ponds in Nova Scotia represent one of the more intractable

examples of widespread industrial contamination. The overall site,

containing 700,000 tonnes of toxic sludge accumulated over a century

from the operations of a coking plant and steel mill, has defied a fed-

eral-provincial cleanup effort and alarmed nearby residents over health

concerns.

Even rural lands, once viewed as essentially pastoral and subse-

quently absorbed into suburban residential housing projects, have also

been found to contain toxic hazards. In some cases leaking under-

ground fuel-storage tanks pose the risk, yet there have been examples

of radioactive contamination in unexpected locations. The Sevidal v.

Chopra and Heighington cases involved liability for radioactive contam-

ination found in residential settings nearly half a century after wartime

experimental use of agricultural property.2

Over and above historic sources of contamination, which are at

least researchable and discoverable in principle, are spill and accident

sites. These are virtually impossible to locate reliably because of their

largely random occurrence and the absence — until quite recently —

of systematic reporting procedures and obligations.

There is a tendency to distinguish several dimensions of the

cleanup task. Remediation is often understood to centre on the initial

challenges of identifying and eliminating or neutralizing contaminants

through a variety of rapidly evolving mechanical, physical, chemical,

and biological techniques.3A subsequent step, environmental restora-

tion, may be described as “measures taken to return a site to previola-

tion conditions”4or, somewhat more elaborately, as “bringing a part of

the natural environment from a state of decay, injury or loss back to its

original self-sustaining condition, so that it will support all the forms of life

which formerly inhabited it.”5When used with reference to the spill of