The recent case heard by the Ontario Environmental Review Tribunal (ERT) involving Trichloroethylene (TCE) contamination in groundwater was not about contamination at all. As stated in the July 2015 ruling, “The existence of contamination in, on or under the Property and a plume of groundwater contamination in the immediate vicinity of the Property are not at issue in these proceedings…”
If the issue of environmental contamination wasn’t about environmental contamination, what was it about? In a word, responsibility; in two words, whose responsibility?
TCE Contamination – Who is Responsible?
The specifics of the case are extremely nuanced, and it almost reads like a novel. But, the general issue was whether a person who was making management decisions for a company (and not directly employed by them) was responsible for addressing the orders regarding TCE contamination, in particular, issues of off-site contamination.
It’s also worth noting that, as it relates to this property, there was “an extensive history of requests and orders made by the Ministry (Ministry of Environment and Climate Change [MOECC]) regarding the contamination and the Property.”
According to the ERT document, the individual (the Appellant) who was being named responsible for responding to MOECC orders had previously served for the company in question in various capacities, dating back to the 1990s, when he acted as the account manager for the company while employed at Price Waterhouse Cooper. The ERT document goes on to say that the individual took on more responsibilities, including being the contact person with the MOECC, neighbours, and environmental consultants, and specifically dealing with environment issues associated with the company and the property.
There were two orders relating to addressing the environmental issues associated with the property, specifically, regarding the off-site impact of the contaminants.
The first order required the following: 1) air sampling at residences in the vicinity of the property, 2) delineation of off-site contamination, and 3) submittal of reports on the findings to the MOECC. In this first order, the Appellant was described as someone having management or control in regard to the property.
The second order required the installation, operation, and maintenance of a groundwater well extraction system to prevent discharge of groundwater contaminated with volatile organic compounds (VOCs) from the property, as well as groundwater monitoring and reporting.
These two orders were based on the results of a 2007 and 2008 subsurface investigation that revealed the magnitude and extent of the contamination.
Personally Responsible to Clean Up Contamination
By way of a long-tortured path, what you will discover when you read the ERT document is that the work to address the off-site issues did not take place. But, again, this was not the point of this ERT Review.
In the end, the Ontario ERT upheld both of these orders, and more to the point, the Appellant was held personally responsible to address the contamination.
A Trend of Personal Liability
If this issue of holding individuals personally responsible and not just a corporation sounds vaguely familiar, it should. It was just a couple of years ago when directors and officers of Northstar Aerospace were held personally liable for TCE contamination at the site in Cambridge, Ontario. The Northstar directors paid seven figures to settle this issue.
In our blogs and presentations, we often talk about why it is important to go through painstaking measures to understand environmental issues, whatever they might be, before offering solutions. Ultimately, our role as a consultant or advisor is about understanding environmental exposures and risks at a project site. Then we must inform/educate our clients about the current risks, and most importantly, what the potential future risks/outcomes are.
Our founder, Dr. James Dragun, was fond of saying, “We get you out of trouble, we keep you out of trouble, and we don’t make trouble.” The “you” has become far more personal than Jim could have imagined.
As always, you can reach me (cpare@dragun.com) at 519-979-7300, ext 114.