West Coast Enviornmental Law
Research Foundation
NewsletterWest Coast Enviornmental Law
Research Foundation
NewsletterA report from a Canadian Council of Ministers of the Environment (CCME) workshop says that the "polluter pays" principle is paramount for any contaminated sites legislation. WCELA assisted in drafting the report after participating in a two day workshop in October in Winnipeg attended by 55 stakeholder representatives. Ministers will consider the report in late November.
CCME set up a Task Force on liability for contaminated sites after approaches from provincial governments and business organizations. All parties want national standards to reduce the unpredictabilities of liability.
The report reproduces the consensus on the principles that should form the basis for the legislation. "Polluter pays" is paramount. Fairness; openness, accessibility and public participation; and the integration of environmental and economic concerns are the other important principles. "Deep pockets" as a determinant of liability was rejected. The workshop participants agreed that there should be a broad net cast to determine responsible parties, while allowing for some way to exclude or limit the liability of specific otherwise responsible parties, such as innocent landowners. No consensus was reached on the questions of strict vs. absolute or joint and several liability .
The provinces have primary jurisdiction over property, but the federal government's obligations are triggered in a number of ways: [[Footnote: (4) -- 4. See Saxe, Dianne; Contaminated Land, an unpublished research paper prepared for the Law Reform Commission of Canada, March 1990 at 20-21.
End of Footnote]] zthe federal government is a major owner and occupier of land;
The National Contaminated Sites Remediation Plan is one of the federal government's responses to the problem. A bilateral cost sharing agreement signed under this program entitles B.C. to $23.4 million in federal funds for remediation of "orphan" sites. [[Footnote: (5) -- 5. Sites for which no responsible parties can be located. CCME, The National Contaminated Sites Remediation Program, 1990-91 Annual Report.
End of Footnote]] zIn 1991, the Ministry of the Environment issued a discussion paper titled " New Directions for Regulating Contaminated Sites" [[Footnote: (6) -- 6. Waldemar Braul prepared this report for the Ministry of the Environment. He was also one of the authors of WCELRF's Toxic Real Estate series along with James Russell and William Andrews.
End of Footnote]] z. Responses to this paper were invited, and the government indicated its intention to draft new legislation soon after the deadline for the receipt of submissions: March 29,1991. The NDP's Environmental Action Plan of August 23, 1992 also promised "careful control" of contaminated sites.No new laws have yet been released. A new law is needed to resolve some of the general, scientific and legal uncertainty surrounding contaminated sites.
WCELRF has a long standing interest in contaminated sites legislation. In 1990, we published a three volume series on "Toxic Real Estate". This law reform project identified the problems presented by contaminated sites, discussed liability for cleanup of these sites according to the present statutes and the common law, and proposed a draft statute. All three volumes are available from WCELRF.
Contaminated sites are a real problem in B.C. For example, the B.C. government may pay up to $60 million to clean up old industrial pollution from the Expo site in Vancouver, according to a Vancouver Sun article.
Uncertainty complicates the issue. No one knows the exact number or location of contaminated sites in B.C. The WCELRF series called for the government to establish a contaminated sites registry combining physical and electronic records.
Information would also be increased by introducing reporting obligations for owners, operators and others who become aware of such sites. In addition, WCELRF recommended that the government start a program to identify and rank sites requiring remediation.
Scientific uncertainty exists. Scientists disagree about the use of toxicity tests and about breakdown rates of contaminants. Industry wants an answer to the question "how clean is clean?" The federal government is coordinating work to try to resolve some of the scientific uncertainty. It issued the Interim National Environmental Quality Criteria establishing numerical limits for assessment and remediation of soil and water.
Legal uncertainty also remains. Liability rules are uncertain in the absence of legislation. Some unresolved issues are: who should pay; what defences, if any, are available; is liability retroactive and is anyone exempt from liability?
WCELRF's draft statute attempts to clear up these uncertainties.
Contaminated sites legislation was prepared for introduction into the Legislature in the Spring Session but it was withdrawn at the last moment following intensive lobbying by industry associations.
An EPA official involved in promoting mediation, one alternative dispute resolution (ADR) technique, was a resource person at the CCME workshop. Lynn Peterson, chief of the Solid Waste and Emergency Response Branch, Office of Regional Counsel, Environmental Protection Agency (EPA) Region V (the rustbelt states), talked about the importance of ADR. Her experience is summarized in a recent article. [[Footnote: (7) -- 7. "Evaluating the Mediation Potential of a Superfund Enforcement Case: The EPA Region V Experience", Resolve, Center for Environmental Dispute Resolution No. 24, 1992.
End of Footnote]] z EPA administrators use ADR to reduce the notoriously high "transaction costs" (primarily legal fees) and extensive delays of the court system.Ten cases have been proposed for the Region V Superfund ADR project. [[Footnote: (8) -- 8. The American Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) is commonly known as Superfund, after the industry financed trust fund it has set up to clean up abandoned hazardous waste sites.
End of Footnote]] z So far, four have resulted in settlement agreements. The project first focused on cases where the estimated cleanup cost was less than $500,000, but has now expanded to include cases ranging up to $40 million in value.Peterson's conclusion that mediation can and should be used to resolve Superfund cases is not just wishful thinking by the government. Her opinion is backed up by a lawyer from the industry side of the bargaining table who wrote a case study demonstrating some of the complex issues involved in dividing responsibility between four parties for a three acre landfill site in Ohio. [[Footnote: (9) -- 9. Hood, William S. " Mediation of Allocation Issues at the E.H. Schilling Landfill in Southern Ohio: A Case Study", Resolve, Center for Environmental Dispute Resolution No. 24, 1992.
End of Footnote]] z Unlike some sites, there was a list of materials that had been dumped in the landfill, but entries varied between gallons and pounds, did not reflect the relative toxicity of the waste, and were imprecise. Nonetheless, mediators developed a discussion document allocating shares of cleanup costs which helped the parties to settle the case themselves. Due to its desire to maintain continuing business relationships with the other parties, even a company which had sent mainly non-toxic broken pipe fragments to the site agreed to pay a share. The company's lawyer stated that he was "very satisfied " with the decision to use ADR and would participate in a similar exercise again.The lessons to be learned from the U.S. experience are that ADR has positive benefits:
1. It costs less and takes less time than traditional adversarial processes like litigation;
2. It helps companies to maintain good working relationships with each other and with the government; and
3. It allows parties to tailor solutions to suit them best: confidentiality can be preserved, the time for payment can be structured differently, materials or expertise for cleanup may be available at reduced cost.
WCELA believes that ADR should be given serious thought by the government in developing its new law and policy.
WCELA responded to the Mariport questionnaire on the carriage of oil products by sea recently. Some of the key points made were:
1. The Brander-Smith report recommended that funds from the Ship-source Oil Pollution Fund (S.O.P.F.) should be used to meet one-fifth of the cost of replacing the Canadian Flag fleet with double hulled ice-strengthened ships.
WCELA agreed with this recommendation from the Brander-Smith report. Double hulled ice-strengthened ships are a high priority for Canada. Tankers with double hulls and bottoms are effective in preventing accidental spills or lessening their severity. [[Footnote: (10) -- 10. Alcock, T.M. "Ecology Tankers and the Oil Pollution Act of 1990: A History of Efforts to Require Double Hulls on Oil Tankers" 19 Ecology L.Q. 97-145, 107 (1992), citing the Committee on Tank Vessel Design, National Research Council, Tanker Spills: Prevention by Design 77 (1991); Office of Technology Assessment, U.S. Congress, Oil Transportation by Tankers: An Analysis of Marine Pollution and Safety Measures 39 (1979) and Card, J.C. "Effectiveness of Double Bottoms in Preventing Oil Outflow from Tanker Bottom Damage Incidents", 12 Marine Tech. 60 (1975).
End of Footnote]] z A U.S. Coast Guard study found that up to 60% of the Exxon Valdez spill could have been avoided if the vessel had been designed with a double hull. [[Footnote: (11) -- 11. Cited in Final Report of the States/British Columbia Oil Spill Task Force, July 1990, 54. End of Footnote]] zUltimately pollution prevention depends on conservation measures and reduction in oil use. But given the reality of continued tanker traffic, the highest priority from a new source of funds like an increased S.O.P.F. should be to replace single hulled tankers in the Canadian Flag fleet.
Any industry proposed alternatives to convert the Canadian Flag fleet to double hulled ships without using the S.O.P.F. should be welcomed. Increased funds from the S.O.P.F. could then be dedicated to acquisition of clean-up equipment and to spill response facilitation measures.
2. Ship source oil pollution could be dramatically reduced if only double hulled tankers were used. The problem is one of the few in the environmental field that has a well defined source and a relatively uncomplicated technical solution. Yet government and industry have for years refused to implement the solution. The history of the U.S. law reveals "a system which seems to require a disaster to force change". [[Footnote: (12) -- 12. Alcock, op.cit., 100.
End of Footnote]] z Because of this history, WCELA believes a more stringent timetable than that in the U.S. should be followed. It is possible that another catastrophic spill could shorten the U.S. timetable for implementing the double hull requirement.The Oil Pollution Act of 1990 (OPA 90) was passed by the U.S. Congress after widespread public outrage following the Exxon Valdez oil spill of March 24, 1989. OPA 90 provides that by 2010, all tankers over 5000 gross tons must have double hulls. By 2015, all tankers under that weight must be similarly equipped.
The Brander-Smith report noted that tanker traffic from Valdez, Alaska, poses the greatest threat of spills to the B.C. coast. When the terminal at Valdez was constructed, the U.S. Secretary of the Interior specifically promised that Alaska trade vessels would be equipped with double bottoms. [[Footnote: (13) -- 13. Ibid., 121-125.
End of Footnote]] z Eighteen years after it was made, this promise was finally fulfilled with the passage of OPA 90.Because of the slowness of the U.S. Congress to act, the reluctance of the International Maritime Organization to mandate double hull construction and the clear superiority of the double hulled tankers for pollution prevention, WCELA supports the recommendation that by the year 2000 all tankers entering Canadian waters be double hulled.
3. WCELA supports Brander-Smith's recommendation of increased investment in spill control equipment. It is impossible for technology to adequately control marine pollution under all scenarios. Improved technology can never solve the problem of human negligence or willful disregard for the environment.
The States/B.C. Oil Spill Task Force analyzed a number of ship based improvements to reduce the spill risk including factors such as double hulls, advanced electronic navigation systems, improved training, mandatory tug escorts, assigning tugs and crews to specific barges for extended periods and improved certification procedures and found that the "realistic risk reduction values of these combined improvements were 55 percent for tankers and 61 percent for barges". [[Footnote: (14) -- 14. States/B.C. Task Force Report, 29.
End of Footnote]] z The Task Force also did an environmental risk evaluation for southern B.C. and Washington State which showed the potential to recover up to 40 percent of a 10,000 barrel spill under good conditions and a low probability of recovering any more than 10 percent of a catastrophic spill over 100,000 barrels. [[Footnote: (15) -- 15. Ibid., 30. End of Footnote]] zWCELA's position is that spill prevention is the best solution for ship source oil pollution.
4. WCELA supports a higher levy for the carriage of chemicals by ship. Their increased toxicity and the corresponding increased risk to human health and the environment justifies a higher levy.
WCELRF, 1001 - 207 West Hastings, Vancouver, BC, V6B 1H7, Canada.
Phone (604) 684-7378; fax (604) 684-1312.
Original printed on recycled paper.
Capital Regional District, October 1992. In recognition of local air quality problems and the seriousness of global atmospheric change, the Capital Regional District appointed a Task Group on Atmospheric Change in May 1991 to develop recommendations for all levels of government. The report of the Task Group recommends various goals and actions to reduce greenhouse gases, local air pollution, and the use of ozone depleting chemicals. These actions are based upon the Group's two main recommendations: a 20% reduction in total 1990 local carbon dioxide emissions by the year 2000; and a 60% reduction of 1990 levels by the year 2020.
by Joan Helson, Kelly Green, David Nitkin, Amy Stein and the Staff of EthicScan Canada, Broadview Press, ON, 1992. Just how good are the companies that make the products we buy? This book is the first comprehensive Canadian guide to examine the companies who make the thousands of products available in Canadian supermarkets. It evaluates 83 Canadian manufacturers of grocery products on a variety of ethical issues including: environmental management and performance; advancement of women; progressive staff policies; community relations; consumer practices; and percentage of Canadian ownership.
by Donella Meadows, Dennis Meadows, and Jorgen Randers, Chelsea Green Publishing Co., Covelo, CA, 1992. In an impressive sequel to The Limits of Growth the authors starkly illustrate the state of the world as it is today. They show that human society has gone beyond some of its limits, and that if present trends remain unchanged, we face the prospect of global collapse in the next century. Beyond the Limits challenges readers to mobilize human and technical resources in an effort to "ease down" the global economy's enormous demands on the Earth. More than an ecological handbook on saving our planet, this book makes us acknowledge the Earth's limits, and envision a future that can sustain our children and future generations.
by John Swaigen, Carswell Thomson Professional Publishing, Scarborough, ON, 1992. This text fills a gap in legal publications by addressing the modern creature of the statute-created offence. Since the Supreme Court of Canada's decision in the Sault Ste. Marie case in 1978, most regulatory, or public welfare offences, have been interpreted as strict liability offences. Reasonable care is one widely used defence for this class of offences, which includes environmental offences. One branch of this defence is due diligence, a concept which has entered the lexicon of many corporate officials. Since the majority of environmental offences are created by statute, environmental lawyers will appreciate the discussion of categorization of offences and available defences for offenders.
by Virginia Maclaren, a research report prepared for the Intergovernmental Committee on Urban and Regional Research, August 1992. This three volume report examines how some of the larger municipalities in Canada interpret and operationalize the concept of sustainable urban development. It surveys department heads in 23 municipalities across Canada and asks them to specifically describe policies and initiatives that directly contribute to sustainable urban development. The reports are available for $35 from ICURR Press, Suite 301, 150 Eglinton Ave. East, Toronto ON M4P 1E8, Tel: (416) 973-5629, Fax: (416) 973-1395.
by Banyen Books, Vancouver, 1992. This book is a comprehensive listing of environmental resources from Banyen Books and worldwide. This book was published with the hope of widening the circle of information regarding the greening and preservation of the planet. It is a listing, and a review, of over 500 books from a wide range of topics. This guide works as a superb research tool for environmental policymakers, lawyers, resource managers, students and teachers. Free from Banyen Books, 2671 West Broadway, Vancouver BC, V6K 2G2; phone: (604) 732-7912, fax: (604) 737-1636.
WCELRF Newsletter, copyright 1992, is published by the West Coast Environmental Law Research Foundation. This issue was produced by Bill Andrews, Morgan Ashbridge, Benita Bellrichard, Ann Hillyer, Kelly Lamorie, Catherine Ludgate, Linda Nowlan and Denice Regnier. Subscription information is on page 3. The cartoons on pages 1 and 2 of the original are copyright of Don Monet. WCELRF does research and education and maintains an environmental law library. The West Coast Environmental Law Association provides legal representation and promotes law reform. The mission of WCELRF and WCELA is to provide legal services to protect the environment and to foster public participation in environmental decision-making. We are grateful to the Law Foundation of British Columbia for core funding of the West Coast Environmental Law Association and West Coast Environmental Law Research Foundation. Donations to WCELRF are tax creditable.