Remediation and Restoration of Contaminated Lands

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 228-248

228

chA Pter 11

REMEDIATION AND

RESTOR ATION OF

CONTAMINATED LANDS

A. introduction

Until recently Canadians devoted li mited attention to the challenges

of rehabilitating contaminated lands. The comparative familia rity of

courts with f‌inancia l mechanisms for compensating individua l victims

may have been one contr ibuting factor. Moreover, the assumption was

widespread th at natural regenerative proces ses would operate satisfac-

torily or that the extent of degradation was stil l quite limited. In one

case, for example, a provinci al mi nister of the environment indicated

that “[n]o inventory of existing or abandoned l andf‌ills has been con-

ducted as the past history of industri alization in t his province does

not lead us to believe any signif‌icant quantities of toxic wastes have

been deposited.”1 Persistent contami nation is now recognized a s a sig-

nif‌icantly more extensive and challenging problem than prev iously ac-

knowledged. Canada now faces a costly remed ial agenda.

In 1990, an inquiry conducted for the L aw Reform Commis sion

of Ca nada identi f‌ied 8,784 waste disposal sites, many of which were

considered to be sources of contamination. Only Quebec at that time

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

tif‌ied some 11,000 properties known to be contamin ated f rom wa ste

or otherwise. A subsequent assessment undert aken on behalf of the

1 Quoted in P.N. Nemetz, “Federal Envi ronmental Regulation in C anada” (1986)

26 Natural Re sources J. 551 at 587.

Remediation a nd Restoration of Contaminat ed Lands 229

National Round Table on Environment and Economy, resulted in an

inventory of 30,000 locations under the general description of “brown-

f‌ield sites,” and originating in a variety of ways. In addition to known

waste-disposa l sites and scrapyards, hundreds of which may present

continuing environmental and human-health risks, numerous other

locations suffer toxic contam ination. These include indust rial sites as-

sociated with mining operations, with coal gasif‌icat ion plants, or metal

and petroleum ref‌inerie s. As well, there are old coking plants, chem-

ical company facilities, electroplating establishments, and businesses

whose operations once involved various forms of solvents, paint s, and

sealants or wood-preser ving compounds.

The Sydney Tar Ponds in Nova Scotia, identif‌ied as problematic in

1982, represent one of the more intractable examples of widespread

industrial contamination. The overall site contained 700,00 0 tonnes

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

coking plant and steel mill. The condition of t he site def‌ied a series of

federal-provincial cleanup efforts and continued to alar m nearby resi-

dents over health concerns.2 Pursuant to a Memorandum of Agreement

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

signif‌icant additional fund ing was committed and the province estab-

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

implement a program of remediation. Some contaminants are to b e re-

moved for destruction elsewhere, whi le other materials will be treated

on-site prior to the implementation of contain ment measures, restora-

tion and landsc aping. Detailed plans developed by the STPA have now

been subject to joint environmental a ssessment review under federal

and Nova Scotia legislation.3

Even rural land s, traditionally regarded as es sentially pa storal and

subsequently absorbed into suburban residential housing projects,

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

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

of radioactive contamination in unexpected locations. The Sevidal v.

Chop ra and Heighington c ases involved liability for radioactive contam-

ination found in residential settings nearly half a century after wartime

experimenta l use of agricultura l property.4

Over and above historic sources of contamination, which are at

least rese archable and discoverable in principle, are spill and accident

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

see online: w ww.TarPondsCleanup.ca.

3 Online: w ww.pwgsc.gc.ca/greening/te xt/rcjr-e.html.

4 Sevidal v. Chopra (1987), 64 O.R. (2d) 169 (H.C.J.); Heighington v. Ontario (1989),

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