ENVIRONMENTAL LAW - COST RECOVERY ACTIONS

We act for clients who have ownership interests in, or business relationships involving, land that has been contaminated with hazardous materials.  Since the proclamation of the Contaminated Site Remediation provisions of the Environmental Management Act (formerly the Waste Management Act) in 1997, private land in British Columbia has been subject to

1. Remediation orders made by the government requiring those involving those responsible for the contamination to clean up the land; and/or
   
2. Cost recovery lawsuits by those parties who have either been ordered to clean up the land or who remediated the land voluntarily.

This legislation is important for a number of reasons.  In its attempt to ensure that private persons and businesses rather than government pay for the clean up of land, it imposes an expansive definition of “responsible persons” to include the past and present owners and tenants of contaminated lands and any person who had some operation that involved the hazardous material that contaminated the site.  Therefore for example, at a gas station, any person involved with the ownership, construction, and maintenance of the station or the sale or delivery of gasoline may be potentially liable to contribute financially to the cleanup.

Another reason the legislation is important is because it is not necessary to prove negligence in order to establish some responsibility for the clean up.  The policy rationale for imposing some form of strict liability is that proof of the cause of the contamination is frequently difficult if not impossible, the contaminating party may no longer exist and that the burden for the clean up should not be imposed on the government if there are parties that derived some business benefit from the operations that resulted in the contamination.

We can advise businesses and persons on their potential liabilities and options when they learn that they have some interest in, or operation connected to, a contaminated site. 

In some case, potential avenues exist to avoid or reduce exposure to liability that include applying for exemptions, or alternatively, minor contributor status.

Where it is not possible to avoid significant exposure to financial costs related to the cleanup of a site, for example where a landowner has cleaned up their site, we can advise on the potential advantages of a cost recovery action.

If you expect to be, or have been sued, in one of these cost recovery actions, we can advise on the defences available under the Act what other steps may be taken to eliminate or minimize your potential liability.