Remediation and Restoration of Contaminated Lands

• Author: Jamie Benidickson
• Pages: 235-256

235

CH AP TER 11

REMEDIATION AND

R ESTOR ATION OF

CONTAMINATED LANDS

A. INTRODUCTION

Canada faces a cost ly remedial agenda in relation to contamin ated

lands, with env ironmental law helping importantly to e stablish stan-

dards and to allocate costs.

An assess ment undertaken on behalf of the National Round Table on

the Environment and the Economy (NRTEE) resulted in an inventory

of 30,000 locations under the general descr iption of “brownf‌ield sites.”

In addition to known waste-di sposal sites and scrapyard s, hundreds of

which may present continuing environmental and human-health risk s,

numerous other locations suffer toxic contaminat ion. These include

industrial site s associated with mining operations, with coal gasi f‌ica-

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

old coking plants, chemical company facil ities, electroplating establish-

ments, and businesse s whose operations 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

industrial conta mination. 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 series of federal-

provincial cleanup efforts and continued to alarm nearby residents

ENVIRONMENTAL L AW236

over health concerns.1 The governments of Canada and Nova Scotia

committed signif‌icant funding in 2004 and the province established a

new organization, the Sydney Tar Ponds Agency (STPA), to pursue an

extended remediation program. In December 2012, Canada and Nova

Scotia announced completion of the process to contain contam inants at

the site and the remediation program wa s formally evaluated.2

Even rural lands, t raditionally regarded as essentially pastoral

and subsequently absorbed into suburban re sidential housing pro-

jects, have been found to contain toxic hazards. In some cases, leak-

ing underground fuel-storage tanks pose the risk, yet there have been

examples of radioactive contamination in unexpected locations. The

Sevidal v Chopra and Heighington ca ses involved liability for radioactive

contamination found in residentia l settings nearly half a centur y after

wartime experimental use of agricult ural property.3 The impact on sur-

face and groundwater quality of asphalt waste, which was disposed of

in accordance with accepted practices in the 1960s, subsequently gave

rise to important questions of liability in Ontario.4

Over and above historic sources of contami nation, 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 distingu ish several dimensions of the cleanup

task. Remediation is often u nderstood to centre on the initial challenges

of identifying and eliminating or neutraliz ing contaminants through a

variety of mechanica l, physical, chemical, and biolog ical techniques.5

A subsequent step, environmental restoration, may be de scribed as

“measures taken to return a site to previolation conditions”6 or, some-

what 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,

1 For background infor mation from the Sydney Tar Ponds Agency, see online:

www.ta rpondsc leanup.ca.

2 Public Works and Govern ment Services Can ada, “Final Evaluation of the Sydne y

Tar Ponds and Coke Ovens Reme diation Project” (July 2014) online: www.tpsgc-

pwgsc.gc.ca/bve-oae/rapports-report s/2014-2015/documents/2013-602-eng.pdf.

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 SCJ), rev’d 2009 ONCA 845,

leave to appeal to SCC g ranted but not pursued, [2010] SCCA No 24 [Berendsen].

5 Insight Education al Services, Clean-u p of Contaminated Sites: Regulations a nd

State of the Art Technologies (Miss issauga: Insight Pres s, 1991).

6 WA Tilleman , ed, The Dictionary of Environmental L aw and Science (Toronto:

Emond Montgomery, 1994) at 244.