As we wind down the year, we wanted to share just a couple of recent news items relating to fines/penalties/litigation associated with environmental releases.
$1.3 Million for PHC Contamination
Proving who is responsible for contaminated soil/groundwater has been one of the mainstays for Dragun since 1988 (working directly with lawyers). The recent case regarding a site in Toronto was not so much of a who-is-responsible mystery as much as a case of neglect.
The site from where the contamination was emanating stored large volumes of waste petroleum hydrocarbons (PHC) on its property for several decades. In describing the site, a provincial officer’s report noted that, “…storage practices at (the property) were probably some of the worst I have seen.” According to the court documents, the company was, “…in almost constant breach of its license and/or compliance orders issued by the Ontario government…”
The neglect at this site resulted in impact to the soil and groundwater on the property and, subsequently, onto the adjacent property (which was the focus of the litigation). Specifically at issue in this case was an appeal regarding the impact from this property on the appellant’s adjacent property. The trial judge had originally held that the respondents were not liable under any of the causes of action. The judge also said that the appellant, “…failed to prove that it had suffered damages, in particular because it had not proven that the PHC contamination lowered the value of its property.”
This case focused on interpretation and application of the Environmental Protection Act. However, what was interesting from an environmental assessment standpoint was that, in spite of decades of chemical use and the apparent documented checkered environmental past of this property, when the original Phase I Environmental Site Assessment (ESA) was conducted in 2007 for the appellant, the consultant did not recommend a Phase II ESA. Further, when a Phase II ESA was eventually conducted (by another consultant), not surprisingly, separate phase product was discovered on their property.
In the end, the appeals court ruled in the appellant’s favour. While we don’t know the specifics of this case intimately, it would certainly seem that, in 2007, when the Phase I ESA was conducted for the buyer, there were more than enough reasons to conduct a Phase II ESA. The Phase II may have helped avoid some of the resulting headaches and litigation.
This is a reminder of the age-old caution, “buyer beware” … and, we’ll add, buyer be wary if the advice you are receiving doesn’t make sense.
$80,000 fine for discharge of smoke from fire
The other environmental enforcement related story we wanted to share was regarding a fire and subsequent smoke from a fire at an asphalt plant which resulted in a fine from the Ministry of Environment and Climate Change (MOECC). According to the MOECC, the company, “…was fined $80,000 for permitting the discharge of a contaminant, namely smoke, into the natural environment that caused an adverse effect, contrary to the EPA.”
The fire required several fire trucks from the community and an adjoining community to extinguish. Local evacuations were also ordered as the source of the fire was “asphalt products” in aboveground storage tanks.
The most likely cause of the fire, according to a fire investigation report, was improperly installed and improperly maintained metal halide lights.
So, presumably, not all smoke from fires will result in a discharge fine. However, depending on the nature of the discharge, and if negligence leads to the fire, well, you may have insult piled on top of injury.
Perhaps the take away from this enforcement action is to make sure your various maintenance programs are up-to-date and well documented.
As we look into the New Year, we’ll do our best to keep you informed about environmental regulatory changes and associated news. If you need assistance with litigation support, a Phase I/II ESA, an Environmental Compliance Approval, or any other environmental issue, please feel free to contact me (cpare@dragun.com) at 519-979-7300, ext 114.