Ask an Environmental Lawyer:  TOP THREE Questions of 2024

I remember reading dusty chemistry books in the old stone library at UBC. It was the early 90s and I was researching my first environmental law problem, which was really a chemistry problem. Since then, a lot has changed. The Waste Management Act of 1997, now the Environmental Management Act (EMA), sent shockwaves through many industries by significantly expanding the list of those who could be held responsible for historical contamination in BC. Back in the day, the most pressing questions surrounding this new legislation were largely the same as they are today.

In no particular order, below are three of the questions I get the most from those involved with contaminated sites in BC:

1. Environmental regulations and standards keep changing. How do I comply with a moving target?

Environmental standards and the regulatory framework are always changing and expanding. Generally, you have to follow the rules that are current. And yes, if you are cleaning up contamination, the standards can change as you do the work. The way you force the target to hold still is by getting your cleanup done to a point where you can apply for a Ministry of Environment instrument, like a ‘certificate of compliance’. Generally, when you ‘apply’, the target stops moving. However, if it takes ten years to cleanup, you will likely face new hurdles along the way. And if you ignore contamination entirely, the hurdles (and cost) will mount as time passes.

2. My neighbour polluted me. Am I still responsible as the ‘owner’ of a contaminated site?

‘Current owners’ are ‘responsible persons’ under the EMA, and often primary targets for regulators and impacted neighbours. However, you are exempt from responsibility if your property is contaminated only because of migration from neighbouring land. That’s the good news. The bad news is that, if you want to make a claim against the polluter of your land, under the EMA’s cost recovery action you have to cleanup your property first and then make your claim to recoup your cleanup costs. This can be hard on victims of migration, if shouldering the costs upfront is difficult or not feasible at all.

3. I’m a director of the company that owns contaminated land. Can I be responsible?

Yes, directors are potentially responsible where their company is a ‘responsible person.’ However, there is language in the EMA which clarifies this risk, by protecting directors who didn’t cause or permit the activity which caused the contamination. While this provides some protection, many directors have bad things happen on their watch, so whether they in fact played a role in causing or permitting an impugned activity will always be a highly fact-specific question. If you have your own burning question, just ask.

Click here to get in touch with Richard Bereti or Adam Way.