Remediation and Restoration of Contaminated Lands

• Author: Jamie Benidickson
• Pages: 231-253

231

ch AP ter 11

REMEDIATION AND

RESTOR ATION OF

CONTAMINATED LANDS

A. int roduction

Persistent contamination is now recogni zed as a widespread and challen-

ging problem. Canada faces a cost ly remedial agenda, with environment-

al law helping importantly to e stablish standards and to allocate costs.

In 1990, an inquiry conducted for the Law Reform Commission

of Canada identif‌ied 8,784 waste dispos al sites, many of which were

considered to be sources of contaminat ion. Only Quebec at that time

had prepared a more comprehensive list in which the province iden-

tif‌ied some 11,000 properties known to be contaminated from waste

or otherwise. A subsequent assessment undertaken on beh alf of the

National Round Table on the Environment and the Economy (NRTEE),

resulted in an inventory of 30,000 locations under the general descrip-

tion of “brownf‌ield sites,” and originating in a variety of ways. In addi-

tion to known waste-disposal sites and scrapyards, hundreds of which

may present continuing environment al and human-health risks, num-

erous other locations suffer toxic contamination. These include indus-

trial sites a ssociated with min ing operations, with coal gasif‌ic ation

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

plants, chemical company facilities, electroplating establish ments, and

businesses whose oper ations once involved various forms of solvents,

paints, and seal ants or wood-preserving compounds.

The Sydney Tar Ponds in Nova Scotia, identif‌ied a s problematic in

1982, represent one of the more intractable examples of widespread

ENVIRONMENTAL L AW

232

industrial contamination. The overall site contained 700,000 tonnes

of toxic sludge accumulated over a century from the operations of a

coking plant and steel mill. The condition of the site def‌ied a serie s of

federal-provincial cleanup efforts and continued to alarm nearby resi-

dents over health concerns.1 Pursuant to a Memorandum of Agreement

signed by the governments of Canada and Nova Scotia in May 2004,

signif‌icant additional funding was committed and the provi nce estab-

lished a new organization, the Sydney Tar Ponds Agency (STPA), to

pursue remediation. Some contaminants are to be removed for destruc-

tion elsewhere, while other materia ls will be treated on-site prior to the

implementation of containment measures, re storation and landscaping.

Detailed plans developed by the STPA have now been subject to joint

environmental assessment review under federal and Nova Scotia legis -

lation. In December 2012, Canada and Nova Scotia announced comple-

tion of the process to contain contaminants at the site.2

Even rural lands, t raditionally regarded as essentially pastoral and

subsequently absorbed into suburban residential housing projects,

have been found to contain toxic hazard s. In some cases leaking under-

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

of radioactive contamination in unex pected locations. The Sevidal v

Chop ra and Heighington cases involved liability for radioactive contam-

ination found in residential sett ings nearly half a century after wart ime

experimenta l use of agricultural property.3 The impact on surface and

groundwater quality of asphalt wa ste, which was disposed of in accord-

ance with accepted practices in t he 1960s, recently raised important

questions of liability in O ntario.4

Over and above historic sources of contamination, which are at

least researchable and discoverable in principle, are spill and accident

sites. These are virt ually impossible to locate reliably because of t heir

largely random occurrence and the absence — until quite recently — of

systematic reporting procedure s and obligations.

There is a tendency to distinguish several dimensions of the clean-

up task. Remediation is often understood to centre on the initial chal-

lenges of identifying and eliminating or neutralizing contaminants

through a va riety of mechanical, physic al, chemica l, and biological

1 For information f rom the Sydney Tar Ponds Agency on ongoing developments

see online: w ww.tarpondscleanup.ca.

2 Online: w ww.tpsgc-pwgsc.gc.ca/biens-prope rty/sydney/rspns-feder al-eng.html.

3 Sevidal v Chopra (1987), 64 OR (2d) 169 (HCJ); Heighington v Ontar io (1989), 69

OR (2d) 484 (CA).

4 Berendsen v O ntario (2008), 34 CELR (3d) 223 (Ont Sup Ct J), rev’d 2009 ONCA

845, leave to appeal to SCC g ranted, [2010] SCCA No 24 (QL) [Berendsen].