Contaminated Site Issues in Canada by NRTEE

0 National Round Table on the Environment and the Economy, I997 All rights reserved. No part of this work covered by the copyright herein may be reproduced or used in any form or by any means - graphic, electronic or mechanical, including photocopying, recording, taping or information retrieval systems -without written permission of the publisher.

Other publications available from the National Round Table Backgrounder Series: 1. Sustainable Transportation

in Canada

2. Going for Green: Meeting Foreign Demand for Environmentally Preferable Products and Services through Federal Procurement 3. Improving of Land

Site-Specific Data on the Environmental

Condition

Canadian Cataloguing in Publication Data 4. The Financial Services Sector and Brownfield Redevelopment Main entry under title: Contaminated site issues in Canada: backgrounder

5. Removing Barriers: Redeveloping Housing

Contaminated

Sites for

Issued also in French under title: La question des sites contamints au Canada Includes bibliographical references. ISBN l-895643-54-6

Toutes publications de la Table ronde nationale sur l’environnement et l’economie sont disponibles en francais.

1. Soil pollution - Canada. 2. Brownfields - Canada. 3. Soil remediation - Canada - Finance. 4. Liability for environmental damages - Canada. 5. Soil pollution Government policy - Canada. I. National Round Table on the Environment and the Economy (Canada). Task Force on the Financial Services Program.

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:, i.

M andate The National

Round

Table on the Environment

created to “play the role of catalyst in identifying, sectors of Canadian sustainable

identify

explaining

society and in all regions of Canada,

development.”

environmental

and the Economy

Specifically,

and economic

implications,

actions that will balance

economic

prosperity

and environmental

the information

policy development

they need to make reasoned

The agency seeks to carry out its mandate advising

decision

environmental

and overcome analyzing

barriers

in Canada;

using the products

and attempts

with environmental to improve

by providing

meeting

decision

into decision

preservation.

makers with

future for Canada.

making;

with a vested interest ground

in any particular

where they can work to resolve issues

development;

and economic

facts to identify

changes that will enhance

and

of research, analysis and national

consultation

on the state of the debate on the environment

The NRTEE’s state of the debate reports

National Round Table on the Enwonment and the Economy

the quality of

choices on a sustainable

considerations

to sustainable

environmental

sustainability

conclusion

a neutral

leaders on the best way to integrate

actively seeking input from stakeholders issue and providing

and practices

by:

makers and opinion

and economic

in all

issues that have both

explores these implications,

At the heart of the NRTEE’s work is a commitment economic

and promoting,

principles

the agency identifies

(NRTEE) was

synthesize

to come to a

and the economy.

the results of stakeholder

M embers

of the National Round Table on the Environment and the Economy

The NRTEE is composed individuals

are appointed

of a Chair and up to 24 distinguished

by the Prime Minister

variety of regions and sectors of Canadian environmental round

organizations,

as opinion

society including

and First Nations.

Members

leaders representing business,

and initiate

These a

labour, academia,

of the NRTEE meet as a

table four times a year to review and discuss the ongoing

priorities,

Canadians.

work of the agency, set

new activities.

Chair Dr. Stuart Smith Chairman ENSYN Technologies Inc.

Michael Harcourt Senior Associate Sustainable Development Sustainable Development

Vice-Chair Lise Lachapelle President & CEO Canadian Pulp & Paper Association

Cindy Kenny-Gilday Yellowknife, NWT

Vice-Chair Elizabeth May Executive Director Sierra Club of Canada

Research Institute

Dr. Douglas Knott Professor Emeritus University of Saskatchewan Anne Letellier de St- Just Lawyer

Paul G. Antle Chairman, President & CEO SCC Environmental Group Inc.

Ken Ogilvie Executive Director Pollution Probe Foundation

Jean Belanger Ottawa, Ontario

Joseph O’Neill Vice-President Woodlands Division Repap New Brunswick Inc.

Alan D. Bruce Administrator Operating Engineers’ (Local 115) Joint Apprenticeship and Training Plan Patrick Carson Strategic Planning Advisor Loblaw - Weston Companies

Dee Parkinson-Marcoux President CS Resources Limited Carol Phillips Director Education and International Affairs Canadian Automobile Workers

Elizabeth Jane Cracker Co-Owner, P’lovers Johanne GBinas Commissioner Bureau d’audiences publiques sur l’environnement

Angus Ross President SOREMA Management Inc. and CEO, SOREMA Canadian Branch

Sam Hamad Vice-President Roche Construction

John Wiebe president & CEO GLOBE Foundation of Canada and Executive Vice-President Asia Pacific Foundation of Canada

Dr. Arthur J. Hanson President & CEO International Institute for Sustainable Development

Executive Director 6 CEO David McGuinty

Nat~anal Round Table on the EnvironmentandtheEconomy

Table of Contents Preface .............................................. Executive Summary. Introduction..

...................................

.......................................

Information Needs .......

...............

vii

...............

. . ...............

; ..........................................

1 .5

The Allocation of Liability. .......................................... HowCleanisClean?................................................l

Funding Orphan Site Clean-up ................................ Properties and Operations in Bankruptcy

. . . . . 19 . . . . . 25

.......................

Brownfield Sites ............................................

. . . . . 29

SocietalCosts

. . . . . 33

..............................................

TheRoleofInsurance

The Prevention of Future Contamination. Miscellaneous Issues. ...................... Public Involvement.

. . . . . . . 37

........................................

.......................

.....

. . . . . ..................

..................

. . . . . ..................

Appendices Bibliography Interviews

.............................. ................................

National Round Table on th. Env~,onmen+ and the Economy

Sites that have been contaminated land-fill

operations

and the natural development

and radioactive

environment,

of the problem management

manufacturing

wastes,

threat to human

future opportunities

of contamination,

in Canada,

on how liability

for developers,

lenders,

planning

health

for economic

mechanisms

redevelopment. promote

sites is allocated

Work is required

communication

parties, and bridge the information

for ensuring

on initiatives

gap between

has led to uncertainty

clean-up

in criteria for site of â&#x20AC;&#x153;orphanâ&#x20AC;?

protection

sites,

have also

that will support

and understanding

and

set by the provinces

Inconsistencies

in environmental

and size

for the clean-up

in regulations

the public and governments.

about the role of insurance

about the full nature

and budgeting

inconsistency

for contaminated

the lack of appropriate

and confusion

little is known

complicating

of these sites. In addition,

prevention,

pose a significant

and jeopardize

and territories

impeded

material

products,

of those sites.

Despite the dangers

clean-up,

from petroleum

pollution

among the many interested

technical

experts and members

of the

public. Recognizing Round

the need for research and discussion

Table on the Environment

Financial

Services Program.

on brownfield site-specific

The purpose

redevelopment information

and the Economy

(NRTEE) has undertaken

of the Program

and other contaminated

about the environmental

This backgrounder

on this issue, The National

is to consolidate

analyzes broad areas of concern

has produced

three additional

Services Sector and Brownfield Redevelopment, Contaminated

relating

Canadian

stakeholders

Financial

Services -

during including

sites

to this study, the Financial

backgrounder

reports:

The Financial

Removing Barriers: Redeveloping

to stimulate

the subsequent workshops

thought

and discussion

among

phases of the NRTEE Program

and production

of a state of the debate

on the issue. by slmcleod consulting, under

The report was prepared Task Force for the Financial research and consultation, of the issues. The content

Services Program. the authors

the direction

accept full responsibility

interviewed.

Chair

Round

Services Program

Table on the Environment

National Round Table on the Environmen, and lhe Economy

for their interpretation

represent

Angus Ross

Task Force for the Financial

of the NRTEE

While it is the result of substantial

of the report does not necessarily

the NRTEE or the organizations

National

to contaminated

Sites forHousing and Improving Site-Specific Data on the Environmental

Condition ofLand. All are designed

report

data on

of land.

and sets the stage for more detailed work. As a complement Services Program

information

sites, and to improve

condition

and the Economy

Contaminated Site ~sues in Canada - Bockgrounder

the position

National Round Table on the Environment and the Economy Financial Services Task Force Chair

J. Anthony Cassils

Angus Ross

Policy Consultant

President

NRTEE

SOREMA Management Inc. Luc Charbonneau Carol Ann Bartlett

Directeur

Assistant General Counsel

Samson Belair Deloitte Touche

Head Office, Law Royal Bank of Canada

Wayne Proctor

Beth Benson

Lending Services

Project Director for Site Remediation

Credit Union Central of British Columbia

Manager

Toronto Waterfront Regeneration Trust Dick Stephens Douglas M. Bisset

Director

Bisset Engineering Inc.

Legislation & Intergovernmental

Wally Braul Barrister & Solicitor President West Coast Environmental

Law Association

Notional Round Table on the Environmentand the Economy

Affairs

xecu tive Summa~ There are thousands

of contaminated

arisen from private sector industrial activities.

Petroleum,

chemicals ground

activities

petrochemicals,

and radioactive

related threats to human

are common

regulatory

regimes, provides

opportunities

adequate

and the Economy contaminated

barriers

into the barriers

could be overcome

Round

Information Needs -

information

sites are not well known.

their clean-up

or management,

contaminated

of brownfield

properties.

This complicates

of the public. Finally, current

presently

demand

that clean-up

The Allocation of Liability -

Regulatory

approaches, “polluter approach, retroactive uncertainty

the application

inconsistency

respecting

whether

included

in liability

allocation

processes.

md Table on the ,ndthe Economy

or directors

available.

concern.

and

Different

to the use of the “fairness”

or non-application

and how lenders

priorities

money

the provinces

emerges as a significant

and

of a “deep pockets” of prospective net of liability

lenders, the public and governments.

required

or members

this.

among

and the use of an initial broad or narrow

for developers,

to land

or easily

and management

the use of joint and several liability, the application liability,

on these

developers

from the limited

or in some cases a lack of a clear approach,

pays” principles,

of small, residential

compatible

to support

for

resources.

lands is not cross-referenced

among regulators,

data are insufficient

is allocated

and budgeting

is being collected

in use in Canada

of information

Available site characterization

in the way liability

planning

little or no information

budgets

related to

or health significance

be set carefully so that the best effect can be obtained

territories

for the detailed work being

in these times of tight financial

on contaminated

registry systems, nor are databases accessible to allow the sharing

by this Task

and brownfields.

on the environmental

Existing information

sites and how those

of other papers commissioned

particularly

sites. Consequently,

sites and an

and size of Canada’s problems

contaminated

There is no agreement

of two of the more critical

on contaminated

to the redevelopment

The nature

Table on the Environment

ideas for the resolution information

are the subjects

on site-specific

in the present

the broad issues related to

Force. This paper reviews the broad issues and the context undertaken

This, plus the

caused by uncertainties

the task of investigating

of site-specific

Soils and

sites.

sites and of generating

ones. The availability investigation

environment.

Services Task Force of the National has assumed

materials.

reason for a focused effort to resolve the wide

range of issues related to contaminated The Financial

contaminating

farm or forestry

effects, but there are often significant

health and to the natural

to future development

has

or public sector public works or defence

of the immediate

hindrance

The contamination

heavy metals, wood preservatives,

materials

water bear the brunt

sites in Canada.

and have led to

Specific guidance

and officers should be

Much work has been done on developing approaches.

The most important

jurisdictions

in the determination

and exploring

the various

needs are for more uniformity of liability

available

among

the various

and a greater overall commitment

reduce the need for litigation. How Clean is Clean? Resolution of a site, for settjng priorities constitutes common

of this question

for clean-up

among

across theâ&#x20AC;&#x2122;country

for the initial designation

several sites and for determining

a â&#x20AC;&#x153;cleanâ&#x20AC;? site. There is debate on whether

priorities.

clean-up

or should be responsive

in that resolution.

acceptable

approach;

management

should be

to local conditions,

needs and

rapidly as a technically

however, the public lacks comfort

with it at this time. As

and containment

generations.

options

remediation

certificates

remains

environment

has a number

response of orphan

there has been no dependable

in their present

or human

should be issued for properly

degrees, but since the expiry of the National

Program

across the country. contaminated

state with a possible

of contamination mechanism

is not developed,

consequent

for which a responsible

funding

for any fund should reflect the sources of that fund.

Bankruptcy

and Insolvency

A number

Act have been considered

of amendments

liability

a post-appointment

order, and how public funds expended

be recovered

from bankrupt

or governments

These

that a receiver can make to on clean-up

may

properties.

While there is fairly broad support stakeholders

to the

by the House of Commons.

of receivers, responses

parties. The

changes relate to the personal clean-up

of orphan

party cannot

management

Properties and Operations in Bankruptcy -

orphan

threat to the

in the debate is the existence

may involve multiple

in most of the

found. An appropriate structure

sites,

Contaminated

mechanism

occurs. If a mechanism

health. A complication

shares of sites, or elements

special

are not placed on future

parties can be found. These sites need clean-up

to ensure that such clean-up

sites may remain

of compliance

Canada

sites for which no viable responsible to varying

gain in acceptance,

obligations

an issue lacking a uniform

Funding Orphan Site Clean-,up -

Sites Remediation

for site remediation

to ensure that unreasonable

Finally, whether

management

should be

is emerging

efforts will be required

completed

Risk assessment

what

standards

This debate will need to be resolved, and all major interests

involved

country

is important

for the type of changes proposed,

are in accord. Unrelated

passed by the House of Commons

amendments

not all

were proposed

and

and also by the Senate. Bill C-5 was given Royal

Assent during

April 1997. The environmental

early autumn

of 1997.

Nalionol Round Table on the Enwonmenf and the Economy

provisions

are likely to take effect in the

Contaminated S,te lswes in Conodo - Bockgrounder

Brownfield Sites -Many industrial

cities in Canada have abandoned

lands that are contaminated,

are many reasons for returning brownfields

constitutes

“clean” is clean and information

may be initiatives contribute

that could be pursued

can be

allocation,

what

will go a long way toward

easier. While first steps have been taken, there by the financial

services sector that could

to the overall solution.

Societal Costs -

The question

should pay for the clean-up there was relatively governments.

purchase

Several circumstances

of “no-fault

consequence

or become

to advocate a broader

mechanism

for that is the

and to human

The future role of insurance

in contaminated

materials

or fortuitous

occurrences

into soils and ground

seem to be essential

protection.

These include

for insurance

consistent

enforcement,

fund. The

national

for environmental

resulting

sites should

in the release of

or surface waters. A number

environmental to pollution

auditors

standards,

prevention.

strong and

National

and site assessors are now largely in

and others in assessing environmental

as well as insurers,

health.

to assume its full role in environmental

and a commitment

place and will aid insurers professionals,

have led some interests

the issue of who pays societal costs may be unremediated

conditions

processes

that societal costs should be borne by

a threat to the environment

be to cover sudden

certification

about who

shares of sites. A few years ago,

shares” by a range of parties to create any necessary

The Role of Insurance -

contaminating

sites or orphan

for societal costs. One possible

of not resolving

sites that remain

consistent

of societal costs arises in all discussions

of orphan

broad acceptance

of responsibility

probably

the fact that most

and that tax revenues

availability

of brownfields

There

easier to develop than new

sprawl can be avoided. Settling issues of liability

the redevelopment

sharing

from such rejuvenation,

to redevelop.

use, including

are already close to services and are, therefore,

and urban

making

them more difficult

this land to productive

sites, that inner cities benefit restored

making

or idle commercial

risks. These

are well placed to play a role in improving

enforcement. The Prevention of Future Contamination momentum governments.

in Canada,

Pollution

but there are pockets of inertia

prevention

is gaining

both in business

Both the public and private sectors have embarked

and in

on initiatives

supportive

of this goal. However, there is much work to be done in developing

regulatory

regime that accommodates

traditional

command

within

a full-cost

and control

pricing

economic

both an appropriate

elements system.

Notional Round Table on the Enwonment and the Economy

mix of voluntary

and the use of financial

a new and

assurances,

and fits

Miscellaneous Issues -A assessing and cleaning protection

budgets,

critical technical

number

of technical

up contaminated

issues need to be solved to aid in

sites. In this time of declining

a system for setting priorities

questions

Municipalities

is important

to ensure that the most

are addressed.

have often been too distant

from deliberations

contaminated

sites. They should work with provincial

implementing

such policies. Political will is sometimes

limiting

environmental

on policies related to

governments

in developing

lacking in the prevention

and and

of contamination.

Communication a consideration

and understanding

when technical

among

the myriad

interested

experts develop and use terminology

parties should be to describe their

activities. Public Involvement sites. Information

The public is relatively

systems should be supportive

,public. A gap has developed the public.

Bridging

shared ownership

and appears

of openness

to be deepening

this gap will take considerable

of problems

that may help in the bridging

and solutions

other. If this gap is not bridged,

and perspectives difficulties

about contaminated

and easy access for the

between

contaminated

education

approach

and are prepared

in implementing

experts and

Contaminated Stte lrrver Canada - Backgrounder

sites. A technique in which all

to learn from each

solutions

sites can be expected.

National Round Table on the Environment ond the Economy

technical

effort, but will pay dividends

regarding

process is a two-way

parties share their information

contaminated

poorly informed

for specific

A cronyms AECL

Atomic Energy of Canada Limited

AESAC

Association

of Environmental

BIA

Bankruptcy

and Insolvency Act

CCME

Canadian

Council of Ministers of the Environment

CEAA

Canadian

Environmental

CERCLA

Comprehensive

Site Assessors of Canada

Auditing Association

Environmental

Response,

Compensation

and Liability Act

(United States) CMHC

Canada Mortgage and Housing Corporation

EMAS

Eco-Management

ENGO

environmental

IS0

International Organization for Standardization (also from isos, meaning equal)

NCSRP

National

NRTEE

National Round Table on the Environment

PRP

potentially

and Audit Scheme non-governmental

Contaminated

responsible

organization

Sites Remediation

party

Program and the Economy

Contaminated

sites have been with us for longer than we can remember.

them, often unknowingly. lived in significant

We lived in ignorance

ignorance

and the environment

us experienced

the subtle, we became

cause and effect. We are still learning There are thousands,

of them in the same way that we have

of the sensitivities

around

effects grew beyond

of our land and water resources.

of contamination,

will probably expensive.

require

of contaminated

fair to say that every site requires

clean-up

yet unknown,

requirements

prevention

Soil and ground

overnight.

petroleum

refineries

companies

themselves,

leaked petroleum

service stations,

and land-filling

contain

all manner

yielding

undetermined

programs

products.

Such leaks have occurred

at mine sites,

had some history

Current program

Round

synergistic

Limited,

Quebec

from woodformulation

managed

chemical

and

cocktails

effects. A source often left out of

material

from Canadaâ&#x20AC;&#x2122;s experimental

nuclear

and Ontario,

Table on the Environment

of involvement

thermal

power generation

and uranium

mining

and the Economy

in issues related to contaminated to deal with lender and investor

(NRTEE) has

sites. In 1992, a issues arising from

sites. NRTEE member

to examine

and economy.

that have been inadequately

from

and Ontario.

paper was commissioned

contaminated

and by-products

farm or forestry chemical

sites is radioactive

in New Brunswick,

from

by the petroleum

These last can be veritable

and unpredictable

in Saskatchewan

The National

working

operations,

under Atomic Energy of Canada utilities

source of

farms and residences.

operations

of contaminants.

on contaminated

by various activities

and milling

have many sources. The primary

and from the storage of such products

facilities, mining

discussions

while and as

But this has always been

such as heavy metals, and there are wastes and by-products

and application,

improvements.

There are other sources, however. There are raw materials

treating

Most

and long-lasting,

option.

and other facilities owned and operated

facilities,

manufacturing,

clean-up

It will only be corrected

but significant

water contamination

is probably

manufacturing

some management.

are extensive

would have been the cheapest

efforts that yield incremental

contamination

and

and cheaper. Still, it is fair to say that for all sites, both known

an elusive lesson and will not be righted persistent

sites in

complexity

to some degree. Some of the required

Some of the management

others are simpler

slowly learning

and need to learn much more.

maybe even tens of thousands,

It is probably

subtle or not so subtle effects. As the conscious

Canada. We do not know. The sites we know about are of various seriousness.

We created

Angus Ross was recently

some specific issues that hinder

A scoping exercise, which involved

and issues related to contaminated

asked to lead a financial the integration

identifying

of the environment

key issues, was undertaken

land rose to the top of the list.

National Round Table on the Enwonment and th. Economy

services

Realizing

that there is a labyrinth

of its very tight budget,

the Financial

of issues related to contaminated

Services Task Force, with NRTEE agreement,

decided to focus on two issues in which the financial interest:

1) improving

accessibility

site-specific

and describe

the evolution

condition

of brownfield

on each of these issues. In addition,

this paper to identify contaminated

services sector has considerable

data on the environmental

of those data, and 2) the redevelopment

been commissioned

sites and in view

of land and the

sites. Papers have

the Task Force commissioned

of the main national

issues related to

sites and to help set the context for the work on site-specific

data and

brownfields. All three papers were background held in the last quarter meetings

to discussions

at five multistakeholder

of I996 and the first quarter

of 1997. The emphasis

was on solutions

stakeholders

to which the financial

could contribute,

not on solutions

services industry

meetings at these

and other

to serve only the financial

services

industry. What follows in this paper is a broad exploration site issues facing Canadians. )

Information

)

The allocation

)

How clean is clean?

)

Funding

)

Properties

)

Brownfield

Societal costs

)

The role of insurance

The prevention

)

Miscellaneous

)

Public involvement

They are grouped

of the significant

under the following

contaminated

headings:

needs of liability

of orpharisite

clean-up

and operations

in bankruptcy

sites

of future contamination issues

The order of their presentation with one exception.

and thus it should be the concluding then summarized. facing Canadians

is not an indication

Public involvement

An Executive

is essential

of their relative importance,

to addressing

any of the other issues,

issue. In each section, the issues are discussed

Summary

attempts

with regard to contaminated

Nafionol Round Table on fhe Environment and the Economy

sites.

to highlight

the major questions

and

The list of issues before Canadians complex

problem,

comprehensive

However, like any other

this one can be solved by taking logical and incremental

process is required

should bring the correct attitudes priority

may seem daunting.

that involves all the interested to the table, examine

parties. Those parties

the issues, put them in order of

and begin to work on them one or two at a time. The situation

but it is serious,-and

only our best cooperative

NRTEE is, first and foremost,

a cooperative

moderate

interested

a consensus

among

steps. A

is not hopeless,

efforts will resolve the problems.

body and is extremely

well-positioned

The to

parties on the need for next steps and on how

and by whom those next steps should be taken.

National RaundTableonthe Enwonment qndthe Economy

Contaminated S,te Lewes in CanadaBockgrounder

The need for information

on contaminated

sites in Canada

range from basic, such as how many contaminated how mobile

the contaminants

aspen parkland,

for example,

are in a particular

sites there are, to detailed, soil, or what impact

contaminated

sites -

organizations.

Such information

the public,

regulators,

industry,

will be felt in an

and assess liabilities.

non-profit

property,

protect property

assess risks, put possible

Some of this information

as it is dispersed

information

insurers,

is needed to purchase

values, protect health, make investments,

it is readily available

such as

from spilled farm chemicals.

Most sectors of society require, at one time or another,

of priority

is very great. The needs

expenditures

in order

is collected, but much less of

in dozens of databases

across the country,

many

of which do not relate to one another. Proper resolution

of the other issues in this paper almost inevitably

information

than is currently

information

has meant no decision

that, in some instances, interpretations

available

or accessible. In some cases, the lack of

have had to be revised as new information,

and perfect in every way is not possible

ensure that the perfect decision

has been made. In others, choices have been made understandings

emerge. At the same time, it must be acknowledged

that is complete

requires

and

that information

and would, in any event, not

would follow,

Discussion of Issues The need for information a number existence

of reasons.

on contaminated

contamination information

it may arise because we need to know whether

threat posed to human on a site can migrate needs can be triggered

health. Or we need to know whether and cause a problem

by previously

municipal

land use planning

exercises, proposed

proposals

for redevelopment

or re-occupation

government

regulatory

requirements

A first level of information problem.

contaminated

equivalent

have embarked

land, or by changes in

the size of fund required

of the

and territorial political

to develop a rational

for the clean-up

National Round Table on the Environment and the Economy

reporting

across the country

for

are only now emerging.

on full inventories

of major sites. In the absence of this basic information, example,

These

used lands,

the scope and nature

requirements

their respective

make it very difficult

properties.

codes of practice.

by many governments

reporting

municipalities

within

the

sites are there? What kind and degree of

sites, the federal, provincial information

deficiencies

of previously

of abandoned

there is

health problems,

is there? These answers are not known. Voluntary

some urban

contaminated

rezoning

or industry

sites has been encouraged

some time. However, mandatory Although

for adjacent

unexplained

relates to determining

How many contaminated

contamination

of ways and for

First, it arises simply because we do not always know of the

of a site. Subsequently,

any imminent

sites arises in a number

governments boundaries.

of potentially do not have

These data

strategy for progressive it is impossible

of orphan

clean-up

to determine,

sites. Moreover,

for

it will be

difficult

to determine

that a property

is clean or is not adjacent

being considered

to or threatened

for purchase,

loan or insurance

by a dirty site unless a full site assessment

undertaken. In the case of orphan they publicize. reluctance response

sites, it is possible

It may be that when money

that regulators is not available

know about more sites than for clean-up,

to talk widely about sites that may require remediation. to knowledge

of â&#x20AC;&#x153;newâ&#x20AC;? sites is predictable,

especially

there is a

Certainly,

the public

from those whose land

values may be affected or whose health may be impaired. There are other complications example,

in determining

the case of small residential

above ground.

the nature

of the problem.

Take, for

fuel storage tanks. These may be either buried

They are not registered. Yet some U.S. experience

likelihood

of leaks is greater in small tanks than in large. They are made of thinner

materials,

perhaps

Knowledge

less care is taken in their installation,

of this aspect of the problem

and lending

or they are not well monitored.

could greatly affect realty prices, and insurance

risks.

Another

consideration

of what constitutes Contaminant

that affects the nature

contamination:

of the problem

Any contaminant

includes

the definition

levels above natural

background?

levels above generic criteria? Levels only above those criteria that leave us

with a problem

we can afford to clean up. Different

circumstances,

and the stated number

Inconsistency

among

of known

governments

criteria will be used in different

sites may change accordingly.

is also problematic

of data sought and the way in which they are recorded, various

suggests that the

databases

one province

used throughout

the country.

inconsistency

in the types

and the incompatibility

What constitutes

of the

a site or a problem

may not in another.

As noted, many jurisdictions contaminated

are moving

toward required

sites, and this will greatly improve

However, provinces requirement

are not including

and are not convinced

reporting

the information

small (under

500 gallons)

that this is a serious enough

we have to work with. storage tanks in this problem

to warrant

such attention. Many interests referenced purchasers,

would seek to have information

to the land registry/land realtors, lenders

contaminated its effectiveness

sites cross-

titles systems. This would enable property

and insurers

to know immediately

if land is or has been

and, in the case of the latter, to know the details of the remediation and limitations.

This would be a step forward

The second level of information contaminants

on contaminated

of most concern?

is required

the surface and ground

in openness.

for site characterization.

What are the

Where do they exist and in what concentrations?

types of soils are on the site? How mobile are the contaminants water regimes for the site and adjacent

and

What

in these soils? What are or downstream

areas?

Have contaminants

reached the water systems? This information

typically sought in stages through point for this discussion

graduated

can draw no conclusions

defined.

requires

about relative clean-up

to background

children

or animals

pathways

for human

to set priorities

One problem required

among

is that governments

their databases the resources

information

approach,

environment

and

Are there

soils? Are the contaminants be taken up by plants

Again, this is another

and

level of

this is the information

that must be

do not have the money

for the research

sites.

also true that those who maintain

obtaining

levels must be

health and the ecosystem?

approaches

by the local population.

Will the contaminants

currently

to answer fully the question:

harmonizing

policy employed.

or a risk assessment

properties

higher order organisms?

but for risk assessment

that characterization.

of the local biophysical

or adjacent

volatile, such that they can be inhaled?

available

objectives

close by that might ingest contaminated

then eaten by increasingly information,

without

some data and assessors

levels, then background

understanding

the uses made of the subject property What are the exposure

as contaminated,

on the remediation

accepts site-specific

then there must be additional

priorities

is dependent

clean-up

If the regulator

The important

the site are usually lacking. Yet regulators

The last level of information the regulator

levels of site assessment.

is that even for the sites identified

that would aid in characterizing

is costly to obtain and is

what is the size and nature

databases,

while perhaps

with others across the country,

to do so. Therefore,

of the problem?

seeing the benefits

It is

will have difficulty

choices will continue

to be made with less

than desirable.

Summary of Issues N

There is insufficient in Canada -

information

the number

to determine

of contaminated

the scope and nature

of the problem

sites and the degree and types of

contamination. N

Smaller sites are rarely included planned

to accumulate

small sites constitute P

in contaminated

that information a significant

There is no formal cross-referencing

site listings,

and there is no effort

in the near future or to determine

whether

problem. of information

on contaminated

sites to land

registry systems. )

Money is not available

)

Generally

speaking,

setting of priorities

for comprehensive

site characterization for remediation.

inventory information

work. is insufficient

to allow the

One of the most contentious liability

for individual

various

provinces

aspects of contaminated

sites is allocated.

and territories.

sites in Canada

A variety of approaches

is how

have been employed

Until recently, these approaches

have had too little in

common. The main consequence businesses,

communities,

ratepayers.

These uncertainties

site; whether

human

remediated;

environmental include

of approaches

organizations, whether

is uncertainty

and individual

for

citizens and

anyone will take responsibility

health or the environment

how much remediation

or marketable

for the

are at risk, if and how a site will be

will cost; and whether

the property

will be useable

in the near future and for what use and price.

While eliminating

of this patchwork

uncertainty

by working

through

the various

reasonably

and nationally.

is impossible, allocation

it can be reduced

to reasonable

issues one by one and resolving

levels

them

Discussion of Issues Joint and several liability the allocation

probably

debate. At the extreme, the use of joint and several liability

any party can be held responsible that responsible

for the whole cost of the clean-up

party may recover some portion

action against the remaining The difficulties achievement

stands out as the most controversial

responsible

with this approach

and apparently

The unfairness

element

New Brunswick,

throughout

In turn,

through

court

parties.

The benefit

of the approach

is that it is easy

easy on the public purse.

is that one party must pay all of the costs for a problem

which they were but one of many contributors. the uncertainty

means that

required.

of the costs incurred

are that it is unfair, or at least delays the

of fairness, and it is inefficient.

for the regulator

element

the clean-up

That same party must bear the bulk of

and cost-recovery

selects the most responsible

phases. One jurisdiction,

party, against which it applies joint and

several liability. In some cases this will be a somewhat other cases, it is possible that the regulator

less unfair way to proceed.

may simply go after the easiest responsible

party to find or the one most able to pay. The inefficiency

aspect bears on the question

right place to solve this type of problem.

a joint and several approach

the court system is the

Please note the further

Is the use of joint and several liability of who pays for the clean-up,

of whether

comments

below.

easy on the public purse? In the narrow

yes, it is. But there are broader

questions

create a climate that some businesses

to consider.

the

simple recovery of court costs? One such cost might be the delay of cases for which

justice ministry

solution.

Another

cost is the time spent on such cases by

officials, which might have been spent more productively

tasks.

Nof,onol Round Table on the Environmentondthe Economy

Conado

Bockgrounder

Does

will shun if they have

a choice? Are there costs from the use of the court system that extend beyond

court is the only possible

sense

on other

These last two points require that we answer a question

before we hasten down the

joint and several track. Is the court system the best place for society to resolve such issues? A characteristic their control

over decision

can only influence

making.

the judgment

on the substance tendency

of the court system is that the interested A judge renders

through

argument.

parties give up most of

the decision.

The interested

While much of the argument

of the case, far too often the focus is on legal technicalities.

is not in the public interest

insofar

parties

as resolving

contaminated

bears

This latter

site issues is

concerned.

The public wants a site cleaned up and it would like to see the appropriate

responsible

parties pay. If a legal loophole

anger the public and engender

cynicism

lets a particular

in our system of governance.

is clearly the right place to go when interested control

other processes

that communication.

The court system

parties have no recourse

when they have ceased to communicate

desire to improve

party off, it only serves to

but to give up

one with the other and have no

Before disputes

reach that stage, there are many

that are much more effective and much more economical.

The alternative

to the use of joint and several liability

is a form of allocation

process that avoids the use of the courts as anything

other than a last resort. The

Canadian

(CCME)

documentâ&#x20AC;&#x2122; allocation N

Council

of Ministers

of the Environment

suggests a four-step of clean-up

on cost allocation.

a mediated allocation in which the responsible among

themselves

who is there solely to manage P

an arbitration

parties are given a period of time Should that fail, the second step is parties are assisted in their efforts

with the use of a disinterested

third party

the process. Should that also fail, the third step is

in which a third party hears the arguments

and directs a solution >

and the

costs:

a voluntary allocation in which the responsible

to reach agreement

Principles

process to resolve the issues of responsibility

to reach their own agreement W

Recommended

to the dispute.

of the responsible

parties

Should the first three steps fail, then there is

a default to a court-based joint and several process. This is a use of joint and several that even most of its opponents

can find acceptable.

Effectively, the process gives every opportunity their own way to share the inevitable situation.

Joint and several liability

it is an incentive

unfairness is invoked

for the responsible of a complicated

for all parties to come to the table in the first instance

application,

that small business

actors to look seriously businesses

sees the use of joint and several liability,

as having a levelling

effect at the negotiating

for a solution

and allows seriously.

It is

in a backdrop

table. It forces the bigger

the only circumstance

feel that they can play and not come out losers.

Not~onol Round Table an Ihe Envimnmentandthe Economy

site

as a last resort. Being in the background,

action to be taken against those who will not take their responsibility interesting

parties to find

contaminated

in which small

At present,

the provinces

joint and several liability Brunswick, adhering

are approximately

versus apportioned

the Northwest

Territories

and Ontario

joint and several is retained

Fairness

is a principle

and clean-up

evenly split on the use of

liability. British Columbia, are among

to a largely joint and several regime. Among

approach,

liability

and territories

New

the jurisdictions

still

those that use an apportionment

as a backdrop.

to which most would subscribe.

The trick in the allocation

costs is to find a way to do it that minimizes

unfairness.

Some

party will see as unfair that: a polluter

goes bankrupt

responsible

or leaves the country

parties to face the consequences;

what once seemed a reasonable inadequate

and leaves other potentially

and is corrected

what makes apparent perceptions

practice

is revealed by the evolution

by retroactive

scientific

and that political

application

and economic decisions

of science to be

of a new regulation;

sense is not always in line with public

will often be responsive

to these public

perceptions; certain

companies

are held fully responsible,

money

to effect the remediation;

seemingly

only because they have the

the public purse of today should have to be accessed to clean up a mess created in the past; government

makes the rules but its own Crown corporations

or departments

not play by the rules and, further, may not be held to full account

for their

behaviour. These are a few of the types of situations Unfairness

is frequently

the goal of allocation

impossible processes

means sharing the unfairness responsible

participants

to escape in contaminated

must be to minimize as much as possible

among

others that joint and several liability

because it effectively requires cooperation and mediated

find unfair.

site situations.

the unfairness.

discussions

Some

in such a vein.

may need to be retained

them to be at the table. They may realize that non-

may result in them having to take an even greater responsibility. approaches

remains

Therefore,

This most often

those responsible.

parties are more willing than others to approach

It is for the reluctant

outcome

that various

enhance

fairness because in both cases control

with the responsible

parties

collectively.

Voluntary

of the

The “polluter industry

pays” principle

is widely supported

alike. There have been some disputes

representatives

of environmental

the point that a polluter maintain

offend the polluter

offends the obligation

Recommended recommends concern

liability

demonstrate absolute

Canadian

in 1993, there remains

parties to use a due diligence

costs on a privately

jurisdictions.

defence, to

strict liability

may leave the public purse

favourably

arguments

This issue has

of due diligence

of this occurs in Nova Scotia where recent legislation

so as to allow the application has put restrictions

purse

is that it may

that the public had no hand in creating.

of late as most courts will consider

of an

other than the public

owned site. The disadvantage

of fairness. Conversely,

care. An example

you are liable for it. On the other hand, strict

is that it ensures that somebody

having to pay for contamination

government

supported

or “strict” ? The former means that if there is damage

responsible

approach

offend the principle

written

ministers

process. The CCME

be rejected. Nonetheless,

or from your operation

will pay remediation

or reasonable

and a time

that they are not at fault and so to avoid liability. The benefit

liability

diminished

party most

accept that a deep pockets

that it may be used from time to time in various

allows potentially

costs can sometimes

to be fair in any cost allocation

be “absolute”

or company-specific

in which the responsible

and stakeholders

that a deep pockets approach

Should liability

organizations

and costly in both a financial

Principles,’ which all environment

on your property

have made

for the contamination.

to pay is controversial

sense. For the most part, regulators

(ENGO)

Some

party most able to pay may not be

of the deep pockets approach

able to pay is expected

approach

of clean-up

The responsible

the one that bears the greatest responsibility The application

organizations

on a facility-specific

to the allocation

pays principle.

of “polluter.”

sector, while industry

that the term should be interpreted

basis. A “deep pockets” approach

the public and

about the definition

non-governmental

may be an industry

by government,

of absolute

liability, but, in practice,

on itself to ensure that only responsible

the parties are

pursued. Should liability clean-up

be prospective?

of a site and additional

party retain a responsibility

If a responsible

pollution

for further

jurisdictions

be retroactive?

As legislation

should it have effect on historical

had been in compliance

after the clean-up,

or should the additional is applied prospectively

should that cost be in Canadian

all provinces

or another.

is revamped

contamination

and in many cases and polluters

when they

with the laws of the day? Should earlier owners or operators,

for example, bear the costs associated societal? Virtually situation

liability

completed

in these types of situations.

Should liability toughened,

is discovered

remediation

societal? With only one or two exceptions,

party has correctly

with such clean-up

and territories

or should the costs be seen as

have applied liability

That is not to say that it is done in all cases.

National Round Table on the Environmentondihe Economy

Contominoted S,te lsuei Canada - Bockgrounder

retroactively

in one

It is interesting liability

to note that how these questions

are resolved depends

example,

if legislated

responsibility

of the operator

by the responsibility practised

criteria

responsibility

to practice

of the regulator

from the operator,

Property

is more appropriate.

becomes

known.

Conversely,

then the

behaviour

with no intention

is superseded

If the legislated

of removing

the onus on the operator

from the increase

seem to be rooted in the principle from the clean-up

the contributions

for both future

This does not receive open discussion.

property

when the contamination

of a

values should increase when

in the land value? The resolution

bills is who

of this issue would

of fairness. It makes good sense that benefits

of a property

should be shared in similar proportions

made to the clean-up.

Determining

who the responsible

be very difficult.

The list of potentially

present

the operator,

tenants;

manufacturers

distributors

)

lenders:

directors

regulators.

and previous

parties are for any liability responsible

if different

process can

(PRPs) can include:

from the owner;

of the contaminant; and transporters

of the contaminant;

and officers of any organization

exemptions),

which contributes

to pollution;

PRPs be broad in the first instance

or should it be narrow?

broad net would like to be sure that certain best done by catching

parties

allocation

owners;

Should the net cast in identifying

they meet certain

long-term

lands are cleaned up. An issue with those that pay clean-up

should benefit

subsequent

importance,

to select the right numbers.

then placing

and retroactive

by all parties. For

good environmental

values can be expected to decrease markedly

contaminated

resulting

of prospective

are perceived

are seen as being of utmost

are seen only as guidance

and past practice

property

criteria

on how regulations

Those arguing

PRPs are exempted

in a particular

(allowing

for

in favour of casting a only consciously.

them in the net in the first place and then deciding

criteria, they can be exempted

and

instance.

This is

that because Those arguing

against casting a broad net fear that some PRPs will be kept in the net solely because they have money, not because they are at fault. The broad net with case-by-case exemptions

reduces predictability

and requires

system.

Naf,onol Round Table on Ihe Enwonmentondthe Economy

that PRPs have significant

faith in the

Lenders, like all other PRPs, wish to limit their liability argued that capital must be available for economic that its availability

will be limited

for contaminated

development

sites. It is

and prosperity,

and

if the risks are too high because of unpredictable

liabilities.

Lenders may often be able to argue that they have had no direct influence

operating

decisions

that have caused contamination,

seen as having the financial

resources

The CCME Recommended

required

On the other hand, lenders are

for remediation.

Principles3 dealt with this issue by noting

should be granted

a pre-foreclosure

of the outstanding

debt unless they had actual involvement

of the business exemptions

of the borrower.

exemption

all provinces

rules covering

and territories

ownership

or have exercised control

legislation

enables lenders to be identified

exemptions

from personal

liability

in control

that lenders beyond

the value

or management

Lenders see this as good, but they seek broader

or at least some predictable

well. Virtually

post-foreclosure

target lenders

or contributed

situations

only when they have assumed

to contamination.

as responsible

In many cases,

parties but practice

permits

to be made.

The other category of PRP that engenders

some controversy

officers. While companies

would like to protect

creation

sites, the fact that on occasion

of contaminated

held liable has increased

vigilance

is directors

these people from liability

and efforts directed

directors

and in the

and officers have been

at the prevention

of such

pollution

in the first place. Some have been heard to say that the only reason they are

watching

environmental

performance

seem to be an argument

is to make sure they stay out of jail. This would

for putting

directors

this must be weighed against the consequent people to directorships. the position

increased

Only one or two jurisdictions

that directors

require that the directors contaminating

and officers on the list of PRPs. However,

and officers cannot

difficulty

of attracting

good

(the Yukon is an example)

be held responsible.

and officers must have exercised control

activity before they will be considered

take

However, most or failed to halt a

as responsible

parties.

Summary of Issues N

There is a lack of consistency liability

)

allocation

are handled

is an important

of voluntary principle

in spite of stated adherence N

Polluter

is a source of great uncertainty

participation

particularly

in allocation

that is applied inconsistently

processes. across the country

to it.

pays is a widely accepted principle,

application,

to all PRPs.

of its use reduces trust in the system, and fear of its overuse

can lessen the probability Fairness

in the way in which issues of

across the country.

The role of joint and several liability The unpredictability

and predictability

but it requires

more thoughtful

as it relates to a deep pockets approach.

Notional Round Table on rhe Environmentand the Economy

Contaminated Site ISIWS in Conada - Backgrounder

)

Fear of the use of a deep pockets approach in spite of its tendency

Issues of prospective

Improving

narrow >

and retroactive

liability

continue

in the allocation

choice be made across the country

pays principles.

to yield uncertainty.

of liability

will require that a

on the initial use of either a broad or a

net.

Lenders are left in uncertainty, instance,

not knowing

under what conditions

conditions N

to offend the fairness and polluter

the level of certainty

common

still exists in some parts of the country

clarity on whether

they are in the net in the first

they could be exempted,

they could be brought

There will be uncertainty

whether

and under what

into it.

about responsibilities

or not directors

in board rooms until there is more

and officers of responsible

parties are included

in the net. )

Expectations

of the regulatory

for reconsideration and ongoing

system are not uniform,

of how standards

are perceived

responsibility.

National Round Table on the Enwanmen~ and the Economy

and the time may be ripe

and what they mean to future

This question second, whether

refers to the assessment

of first, whether

it needs to be cleaned up or managed

in a different

if it is to be cleaned up, to what level it must be cleaned questions

because

of the stigma attached

of the unpredictability the difficulty

technologies

with any clean-up

of assessing risk when one cannot gap between

manner,

contaminated,

because

activity, and because

easily define â&#x20AC;&#x153;clean.â&#x20AC;?

those who use or advocate the use of emerging

and the general public. This is a gap that will only be bridged

and understanding

and third,

up. These are significant

to a site being declared

of the costs associated

There is an increasing

a site is contaminated,

with trust

on all sides.

Discussion of Issues There has always been tension standards

for defining

between

the cleanliness

the idea that there should be national

of a site and the belief that this is a highly local

issue that must be solved using local criteria. Businesses what kind of contamination designation

is going to result in a designation,

is going to affect property

may be incurred. determined

The regulator

values immediately

subject to the unpredictability

of public

plays havoc with their planning

at a particular opinion,

processes.

Canada

and settlements

location-specific for decisions

approach,

specific approach substances

and their sensitivities.

would be predictable

is justified

soil and ground

water characteristics

or desires,

on the geological are sufficiently

and in its surrounding

There is justification

for a

to be able to expect that the basis and broadly

on the basis that background

vary widely depending

that the

to the publicâ&#x20AC;&#x2122;s relationship in its behaviours

and

of its views.

but it is also reasonable

on designation

for businesses

On the other hand, it is appropriate

is diverse in its land forms, in its soil characteristics

environments

and liabilities

will be

time and place, and thus be

The public will not always be predictable

but this does not decrease the legitimacy

such a

and negatively

creates discomfort

(who, frankly, has little choice) be responsive

the government.

because

that holds to the view that designation

on the basis of considerations

regulator

seek some predictability

defensible.

The location-

levels of contaminating

history variable,

of the area. Also, because contaminant

mobility,

which is largely dependent

on these two factors, varies widely from site to site. Finally,

surrounding

and land uses are diverse and can result in significantly

different

environments

exposure

pathways

might receive designation

and receptors.

This in turn affects whether

as being contaminated.

or not a site

Setfing

Priorities

At present, available

resources

Otherwise present

there are more contaminated to complete

Canadians

less-than-optimum

problems.

without

of priorities

among

Classification

1992.4 All jurisdictions

than there are

setting is critical.

addressing

the sites that

Good work will have been done, but with a

effect. There is a need, therefore,

be The National

clean-up

the work. This means that priority

may spend scarce resources

the greatest long-term

determination

sites requiring

contaminated

for a system that aids in the

sites. On a technical

System forContaminated

across the country

level, this could

Sites, published

are familiar

by the CCME in

with this tool and most have

found it helpful. The other part of the puzzle is not technical.

It deals with the public and political

will and thus often hinges on public perceptions. distinct

may be seen as

from reality which often results in their being too quickly dismissed.

perceptions

should be explored through

it may often be difficult

communication

to create the atmosphere

occur. Public perceptions making.

Public perceptions

should neither

and mutual

within

be ignored

learning,

which mutual

although

learning

nor totally dominate

The public needs to be part of the discussion

Public

can

decision

and the solution.

Rendering a Site Clean Many aspects of a site and its condition contamination

on that site is deemed background

can affect the extent to which

to be a problem.

)

natural

levels of the contaminant

the nature

)

the extent to which the contaminants

)

threats to human

These factors include:

in the soils or the ground

water;

of the soils and the contaminants; are mobile;

health and the environment,

of the surrounding

landforms

given the ecological

and the type of the human

characteristics

activity that either does

or may in future take place in the area; and )

the pathways natural

intervene.

for the contaminant

to find its way to sensitive human

have been made to develop clean-up In practice,

Therefore,

that application

various

protocols

criteria that have widespread

is difficult because have been developed

take into account

site characteristics,

the nature

the surroundings

and the sensitivity

of the receptors

publications

receptors.

Attempts application.

available

of the National

CCMEâ&#x20AC;&#x2122; provide

guidance

up criteria. Ontario

Contaminated

for the regulator

circumstances

that allow a regulator

of the contaminants,

human

or developer

Program

document

1996)

(NCSRP)

to develop site-specific

activity in

in the area. Recent (March

Sites Remediation

has also released its guidance

Nof~anal Round Table on fhe Enviionmentond the Economy

site-specific

and

clean-

(July 1996, with editorial

Coniarmnafed Sife iiruer in Canada - Bockgrounder

revisions

in late 1996 and early 1997).” This material

numerical

limits for 135 chemicals

guidance

for site-specific

and the rationale

In the past, some jurisdictions

have sought clean-up

will be noted. This approach

have noted that levels significantly humans

and the local ecosystem

receptors

because

that the costs of such clean-up in completing

to natural

at background

has been criticized

without

measurable

condition,

levels.

and others, who by

effects, due to the lack of sensitive

This criticism

has its roots also in the fact

are often very high, with the bulk of those costs being

the last 10 percent

adage: you can have 80 percent

original

background

can often be tolerated

or 20 percent

of the clean-up.

of the effect with 20 percent

spend the last 80 percent just trying to get at the remaining The question

as well as

levels no incremental

by industry

in excess of background

or an absence of critical pathways.

incurred

for those numbers

for sampling,

risk assessment.

They know that this is the safest solution, impacts

consists of guidance

To repeat an

of the effort but you will 20 percent

of the problem.

that arises is: is it better to clean up five sites to 80 percent or clean up one site to its natural

condition?

of their

While logic suggests

that we would be better off to address five sites, the answer may not always be as simple as that. Our scientific is incomplete.

understanding

If the 80 percent

of contaminants,

solution

that those five sites are now addressed

further

more potent,

or human

than previously

work on it will be more difficult

it all in the first instance. associated

One of the proposed remediated

clean-up criteria,

experienced

solutions

is to do exposure

remediation

To reopen

outcome

a site and undertake

does not take into account

of how clean a site should- be when

pathway analysis and risk assessment,

through

is common

costs

in the interim.

to the level at which risks are “acceptable.”

criteria developed

or a

and will likely cost more than doing

to the question

risk assessment

since there is usually a built-in

stringent

to initiate

to believe

However, we may discover

health is more sensitive,

thought.

Even this statement

with the impacts

and their interactions

is selected, there may be a tendency and can be forgotten.

at some later date that the environment contaminant

receptors

conservatism

but not universal,

The normal

followed by expectation

will be less stringent

is that

than generic

in generic criteria. The less

for there have been instances

in which

the criteria have become tighter as a result of risk assessment. Risk.assessment

practice

and better. It is understood regulatory

community

is evolving well enough

quickly, and techniques now by the scientific,

that some consensus

seem to be that there is still a large amount individual

practitioners,

the public are inclined

on best practices of judgment

are becoming engineering

is emerging.

required

better

and Its drawbacks

on the part of the

and that the public has been left out of the debate. Elements to wonder

is not a risk of their choosing.

how any additional

This concern

which there has been no engagement

risk could be “acceptable”

process.

Nohmol Round Table on the Enwronmenf and Ihe Economy

when it

is most likely to arise in circumstances

of the local public

during

the risk assessment

There is sufficient

judgment

involved

in a risk assessment

process that perhaps

should be seen as an art, not as a science. Then the numbers process would not be seen as an unassailable to be considered

seriously

that emerge from the

basis for a â&#x20AC;&#x153;logicalâ&#x20AC;? decision,

(e.g., the number

extremely

small ones (your risk of getting cancer from this contaminant

of risk assessment,

A risk assessment clean-up

proposals

treatment,

approach,

on-site,

the decision

transport

or containment

an ongoing

commitment

Containment

to monitoring,

and management

obligations

sometimes

contaminant).

periods

cases (e.g., when contaminant options

future generations than history

are not available),

transport

be recommended

collectively

to the emergence

with a response

that aid this response,

the consistency

among

it may leave a legacy for their commitments

they are adopted regulatory

of site cleanliness.

site, and have done so according

to an approved

the site. This would require that regulators The consequence

of not certifying

to invest voluntarily

highly protected based clean-up

of risk assessment,

This does not

regimes. Those who invest in cleaning

issue some type of certificate

cleanliness

may be hesitation

up a for

of cleanliness.

on the part of some

However, the public purse may be more

is not impeded),

fund. This is yet another

non-uniformly.

tools have

plan, wish to avoid future liability

in site clean-up.

(if development

as they would to any

that fits the time and place. Although

Canadian

The final issue is certification

especially

in the absence of a broad-

example of an issue of confidence

and trust in

and system performance.

Most jurisdictions

in Canada

are prepared

were followed in cleaning

of compliance.

or standards

to issue a letter confirming

that

up a site. A few of those will then issue a certificate

However, with only one known

parties would retain responsibility conditions

cannot

may be the right solution

at all.

are adapting

technology,

been prepared

directions

and

suggests is likely. Of course, this also needs to be weighed against the

Regulators

motives

monitoring

that obliges them to be much better at meeting

of no clean-up

developers

management.

largely upon the life of the

option

considered

It is not

today but also may create

(depending

While the containment/management

treatment

improve

and perhaps

may save money

for indefinite

individual

emerging

on-site.

for the future. More and more sites could require

maintenance,

possibility

off-site for storage or

to be left on the site and to require

maintenance

on-site

for that matter, can result in

of contaminants

for at least a part of the contamination

that works

makers and the public together.

and management

uncommon

and

is only 1.0 x 10e6).

process into a perspective

and other approaches

that will include

treatment

large

of jobs that will be created from a new development)

here is to put the risk assessment

for the practitioners

but as input

in a public process. The public has come to distrust

numbers

The challenge

exception

(the Yukon), responsible

for the site under these certificates,

change in future.

Notional Round Table on the inwonmen+ond the Economy

Cantamtnoted Site Canodo - Bockg,

should

Summary of Issues )

The tension

in the designation

A common

approach

remedial

and individual,

local

of sites needs to be resolved. broad support

on clean-up

The long-term

As technologies

on an approach

management and management

obligation

standards

found among

The question

of whether

use of

should be assessed in the context of the

to assume such obligations.

and this increases

requirements

be settled uniformly

clean-up

that may arise from frequent

options

advance, regulatory

across the country,

to determining

actions.

ability of future generations

)

standards

that will lend itself to achieving

The lack of a broad consensus

containment

)

national

is required.

hindering N

predictable

assessment

priorities N

between

systems respond.

Those responses

or at least perpetuates

are uneven

the patchwork

the provinces.

or not certificates

across the country.

of cleanliness

should be issued needs to

How can this best be accomplished?

An orphan

contaminated

found. The responsible unwilling

or unable

available

site is one for which viable responsible

parties may have gone bankrupt,

to accept responsibility,

to clean up a site at a particular

clean up the site, but it certainly the task. How is the clean-up Orphan number

left the country,

but the bottom

cannot

or simply be

line is that they are not

point in time. This does not lessen the need to

reduces the resources

that can be brought

to bear on

to be accomplished?

sites are a major problem

in Canada.

There is no reliable estimate

of the

of such sites, nor of the likely costs of their remediation.

In 1989, the CCME agreed on a 50/50 cost-shared called the National

Contaminated

was to make available sites and $50 million further

parties

$25 million

conducting

Sites Remediation

approximately

$200 million

for the development

Program

(NCSRP).

Canada

and assessments.

program This program

for the actual clean-up

of new technologies.

set aside by Environment

site inventories

federal-provincial

of priority

In addition,

there was a

to assist other federal agencies in

The program

would run for five years,

from April 1990 until March 1995. The program

was successful

across the country. joining

Some provinces,

the program,

program.

specifically

Manitoba

so some projects were not started

Consequently,

1996 on projects

in many ways, fully or partially

some expenditures

approved

spent on site remediation

provincial/territorial

governments.

were late

until the last full year of the until the end of March

1994. In the end, over $85 million

and about $40 million

As noted earlier, this money was obtained

45 sites

and Saskatchewan,

were continued

before September

remediating

was spent on technology

was

development.

equally from the federal and

One of the program’s

greatest legacies, however, is

the tools that were developed: National

Classification

Interim Canadian

System for Contaminated

Environmental

Sites’

Quality Criteria forContaminated

Guidance Manual for Developing Site-specific Soil Quality Remediation Contaminated

Sites” Objectives for

Sites in Canada’

Guidance on Human Health and Ecological Risk Assessment”

A Review of Whole Organism

Bioassays for Assessing the Quality of Soil, Freshwater

Sediment and Freshwater in Canada” >

Evaluation in Canadian

and Distribution

of Master Variables Affecting Solubility of Contaminants

Soils”

Guidance Manual on Sampling, Analysis, and Data Management Sites”

Subsurface Assessment Handbook

fir Contaminated

Sites’”

for Contaminated

A Protocol for the Derivation

of Environmental

and Human Health Soil Quality

Guidelines”

Discussion

of Issues

At the time that the NCSRP was initiated, the full cost of such clean-up

governments

were prepared

work. The public was supportive

such work was seen as a societal cost, and government

to undertake

of such expenditures:

was seen as responsible

for

societal costs. As the NCSRP mandate

drew to a close, a multistakeholder

under the auspices of the CCME on the creation remaining

orphan

a national

workshop

funding

of a new funding

mechanism

sites. The CCME Core Group worked diligently

problem.

ministers

group began work

in January

on this issue, holding

1994 to develop serious proposals

to deal with the

In the end, the Group could not reach consensus

of the environment

disputed

the existence

of orphan

for the

on the solution,

two

sites and discussions

were halted. What was on the table at the time was a fund that would be fractionally supported through

by business

and largely supported

general revenues

multistakeholder

and dedicated

be borne by the various

in rectifying

being reduced

reflected a changing problems

and that environment

question

contamination responsible

of the cost that would

climate for government/public

departments

point of contention

that government

budgets

were

these reductions

representatives

to take a harder line

As the NRTEE put it, in its Working

Sites: Issues for Lenders and Investors,‘6 the of site remediation

shares of sites. The concept

in this funding

of an orphan

owner/operators.

parties may still be solvent and prepared

discussion

was the

share of a site is best

example. A contaminated

arising equally from five different

costs than higher

fund clean-up.”

for the participants

by way of an oversimplified

mismanagement

would experience

the privatization

in services in order to publicly

of orphan

understood

The

groups and some government

is more likely to support

Another

a voice for each contributor.

largely caused by ignorance,

Paper Lender Liability for Contaminated

taxes/reductions

by a

to agree on relative proportions

on the issue of public funds for such clean-ups.

“public

The fund would be managed

of private sector facilities. Recognition

caused some interest

governments

participants.

The lack of consensus

poor regulation

taxation.

group. This group would include

CCME Core Group was unable

participation

by federal and provincial

site may have Four of those

to assume their share of the

responsibility.

The fifth is bankrupt.

Who should pay that fifth portion

the clean-up?

It may not be fair to ask one or all of the four still present

of the costs of to pay the

extra. It may not be fair to ask the public purse to assume this cost. It is also not useful, or maybe even possible,

to leave 20 percent

Nof~onol RoundTable an the Envimnmentond theEconomy

in its contaminated

state.

It was the view of some of the governments orphan

share would be a circumstance

in other words, a situation

and businesses

show a tendency

calling for sharing

to grow during

in the example

the unfairness.

to support

At present,

the voluntary

the clean-up

negotiation

contaminated

handle

orphan

A number

share would

process, diverting parties to the fifth which increase

in the public

fund and could consequently

unresolved.

make the clean-up

sites, no replacement

There is no fund for the clean-up

for the NCSRP and no consensus

shares of sites. Some jurisdictions

and several liability

and

process than necessary.

these issues remain

orphan

fund,

that the orphan

above, from the four responsible

fund a costlier and longer-lived

of the clean-up

Other governments

could not be at the table. This would result in a proportional funds required

of an

calling for the application

ENGOs did not share that view. They were concerned

responsibility,

that the existence

continue

on how to

to avail themselves

of joint

in the absence of any consensus.

of options

for an orphan

Industry sector fund and would be funded sector members;

site fund are available:

could be administered

by a levy on a particular

either by industry product

or government

or from donations

by all

funds would be used to clean up sites created by the activities

that sector. A variation

of this option

prorated

tied to the frequency

contributions

is a single fund covering of creation

all sectors with

of contaminated

sites from

each sector. Corporate environmental of funding

tax -would

provide

but is not directly related to environmental

Fees/taxes on contaminating transportation,

activities -

use, treatment

Penalties and fines -

revenues

performance,

but the revenue

amotmts

General government revenue legislative/parliamentary

budget

a regular allocation

departments

governments

on such bonds. Indeed,

Voluntary funds and governments Mixed funds -

activities

approved

and

through

standard

from the tax would be earmarked, do not support.

would probably

have to subsidize

this may just be a delayed general revenue

would require a high level of cooperation

and a basic agreement various

to orphan

processes. revenue

Site remediation bonds -

would be diverted

are unpredictable.

Broad-based consumer tax finance

substances.

with polluting

something

government

level

performance.

of hazardous

from prosecutions

There is a strong connection

and consistent

could be levied on the generation,

or disposal

site clean-up.

return

a predictable

combinations

Nmona, RoundTableon the Environment and theEconomy

among

rates of option.

businesses

that they all want to solve the problem. of the above options.

A useful observation

to make at this point is that the costs of clean-up

down the line. Depending property

ratepayers

be individuals

on the option

or consumers.

chosen, the costs are passed on to taxpayers,

There is no big brother

What this really means is that the arguments sites is really an argument

(government)

or ratepayer

An interesting Environmental proposal

Protection

to the clean-up

jurisdictions, something

pays to clean up

or the consumer

(business

or government).

among Alberta Labour, Alberta

and the Canadian

Petroleum

of orphan

such as Ontario,

underground

are watching

similar may have application

Products gasoline

gasoline

this approach

That

sales that would be

storage sites. Other with interest

in their province

with another.

Institute.

or territory

in the hope that -

perhaps

with

There is already a history of its use in the

States.

Two provinces, environmental

Alberta

protection

and New Brunswick, or enhancement.

Trust Fund to fund orphan

site clean-up

that the NCSRP has been terminated. site clean-up

have funds that can be used for

New Brunswick

used the Environmental

under the NCSRP and continues

In 1996-97, New Brunswick

indication

this would be done on any regular basis. Other provinces

Fund for the same purposes,

would have to obtain

by-case basis. The probability the present

economic

No discussion Superfund.

orphan

to the tune of about $600,000. Alberta could access its Environmental and Enhancement

government

to do so now

continued

Protection

separate

there is no and the federal

for remediation

on a caseis low in

climate.

of orphan

However, virtually

criticisms

appropriations

although

that more than the worst sites will be addressed

site funds seems complete no one in Canada

followed here. This paper does not attempt frequent

problem.

is being developed

the same sector or perhaps United

over who, nominally,

news

over who should deliver the bad news to the taxpayer

(government)

option

of wealth to solve this funding

would see a special levy placed on wholesale

dedicated

or sister who can pay. It must

who pay in one or more of the above guises. This is disappointing

to those who hope for a simple redistribution

orphan

are passed

include

much goes into litigation

the process has been extremely

slow.

reference

mechanism

to the U.S.

it as a model that should be

a full analysis of Superfund,

that too little of the money costs; the funding

without

advances

but the most

â&#x20AC;&#x153;goes into the groundâ&#x20AC;? is unfair;

and moving

and too through

Some other U.S. information own separate â&#x20AC;&#x153;superfunds,â&#x20AC;? Superfund

may be instructive.

at least in part because working

has been difficult,

and quicker response

state funds appear to be limited when a certain stipulated

maximum

minimum.

Almost all the states have their

is sometimes

is reached and resuming

matches

they attempt

Environmental

projects,

municipalities

emergency

waste handling

to address, including

response,

response.

appropriations,

state bonds,

fund is drawn from a special tax, all stakeholders

Orphan

to orphan

fees attached

limited

and

to hazardous

If the private sector contributes of the fund. If even part of the

and most citizens will likely wish to

site clean-up.

There are many issues here

focused effort to resolve. They vary with the funding

Summary N

studies, design, grants to

and tines.

directly, it will wish to have a say in the management

that require

and Liability Act (CERCLA)

Other funds are extremely

The final issue is how a fund should be managed.

exclusively

actions, The U.S.

The sources for these funds range from cost

and special taxes, to penalties

see that fund dedicated

while others are not

remedial

site investigations,

compensation.

may be used only for emergency legislative

Most of the

some funds are comprehensive

Response, Compensation

and even victim

recovery, through

required.

it again when the value falls to a

Some funds are as large as $50 million,

in the types of activities

or with the federal

in total size, with some ceasing their fund generating

allowed to exceed $200,000 or $500,000. Consequently, Comprehensive

through

option

selected.

of Issues

sites may simply go unattended

if a solution

to funding

their clean-up

not found. N

The issue of whether requires

)

to include

orphan

shares within

a fund is controversial

resolution.

The fund management

structure

should be appropriate

Nahnai RoundTableon the Environment and theEconomy

to the type of fund.

Contomnated S,telw,es in Canado - Backgrounder

and

An operation management

that becomes

of contaminated

insolvent

can present

sites. First, some contaminated

orphaned

when a receiver has refused an assignment

exposure.

Second, a similar outcome

a clean-up

order by the regulator

are choosing cleaning

site and clean up a healthin recouping

not surprising

outcomes

fighting

the order instead

or environment-threatening

problem,

there have

from the assets of the operation.

the liabilities

This is

exceed the assets in these cases. These

from an economic

Insolvency Act (HA). It is currently

has had to go onto a

as well as an environmental

perspective.

The statute that governs the activity of receivers is the federal Bankruptcy

as recently

liability

when receivers served with

in which government

the expenditures

when, by definition,

are unsatisfactory

of fear of personal

choose to contest the order rather than comply. They

to spend the scarce funds of the bankrupt

been difficulties

in the

sites have been left

because

has also been produced

up the site. Third, in instances

bankrupt

special challenges

going through

a major reworking

and

but was amended

as 1992.

Discussion The present

of Issues of the HA are broad but, for this discussion,

amendments

can be

focused in three areas: N

changes regarding

the personal

possible

to a post-appointment

recovery of public funds spent on clean-up

responses

liability

of receivers; clean-up

order; and

of a bankruptâ&#x20AC;&#x2122;s

property.

Personal Liubilify of Receivers The 1992 amendments trustees

to the HA eliminated

for any contamination

allowed for a due diligence

that occurred

due diligence

leaving the operation contaminated

reluctant

or site without

for receivers and

The amendments

liability

exposure

to take on such assignments. an administrator

site orphaned.

Notional RoundTable on the Environment and theEconomy

also

post-appointment.

The lack of a clear understanding

left too great a risk of personal

They were understandably

liability

pre-appointment.

defence for receiversâ&#x20AC;&#x2122; personal

This very quickly proved problematic. constituted

personal

of what

for the receivers. This had the effect of

and sometimes

left a

Amendments

introduced

then reintroduced

in the past session of Parliament

in March 1996 as Bill C-5) alter the troubling

all possibility

of personal

appointment,

unless the receiver is guilty of gross negligence

Insolvency indicate

liability

practitioners

are much happier

feelings among provincial

remediate

governments.

HA allows receivers two possible of a bankrupt

the property.

remediation

consultations

of the change also. There are mixed

Responses to a Post-appointment administrators

or post-

or willful misconduct.

with this, and pre-amendment

are supportive

1995 and

clauses by eliminating

for receivers, either pre-appointment

that some other interests

The present

(in November

operation,

responses

order or contest it in the appropriate It required

responses

should they, as

be served by the regulator

Those two possible

this to be too inflexible.

Clean-up Order

a decision

with an order to

are to comply with the

court. Insolvency

practitioners

found

on their part, too often in the absence of

critical information. Under the new proposed to assess the economic

amendments,

viability

the receiver, the regulator

abandon orphan

permitted

of the required

clean-up.

could then argue for immediate

health was greatly threatened), final option

the receiver may seek time from the court If such a request were made by clean-up

or could agree to an appropriate

under the proposed

the assets related to the clean-up

amendments

(e.g., if public

time for analysis. The

would allow the receiver to

order. This last option

would effectively

the site.

Recovery of Public funds In the past, the priority assets of a company

to remediate

a contaminated

or to human

health.

The proposed priority

creditors. contiguous

has been recovered

the

where liabilities

exceed

site that is posing an immediate

amendments lien over certain

assets of the operation,

if implicated.

Further,

property,

as an unsecured

has had to step in

threat to the environment

to the HA give environmental

This applies not only to the primary properties

when the government

clean-up

costs a first-

even ahead of secured but also to adjacent

if the cost of site remediation

total value of the assets affected by the lien, the residual recognized

costs in dispersing

has been relatively low. In these situations,

assets, little public money

ranking

given to the recovery of clean-up

clean-up

or exceeds the

costs will be

claim against other assets of the developer.

These potential priority

changes represent

and will probably

conditions reducing

demand

encourage

the likelihood

that lenders

in the operation.

institutions

may become

country,

Another

possible

to changes that include portion

concern

Summary

that this amendment

will provide

April 1997 after a number

provisions,

were proposed

and the Senate. It is expected

the banks

of amendments, and passed by both

that the environmental of 1997, followed by the

of the Bill in the spring of 1998.

of Issues

Will the new environmental problems

businesses.

status with the major banks in the

of the Bill will come into effect in the early autumn

other elements

of their

of the change is that lending

excuse not to lend to them.

the House of Commons

further

implication

do not believe they enjoy a favoured

which did not affect the environmental

support

action when

to invest in small, independent

Bill C-5 received Royal Assent during

provisions

for environmental

to take clean-up

can recover a significant

more reluctant

and they have a genuine

with yet another

governments

step forward

it. Lenders have given grudging

investment

Small businesses

a significant

procedures

arise, such as those of concern changes and uncertainties

in Bill C-5 perform to small businesses,

in the not too distant

as expected

or will

that may necessitate

future?

â&#x20AC;&#x153;Brownfieldsâ&#x20AC;? expansion

are abandoned

or redevelopment

contamination.

are often centrally

They usually have servicing

major transportation

products

of former

industrial

or threatens

located and thus surrounded

adjacent

by the raw materials, operations.

or lack of investment prevents

land. Municipalities

potential,

products

For various

reasons, including

lack of agreement

due to fear of liability,

immediate

or by-

remediation

has

use of the land and often affects

are affected as property

tax payments

are

or eliminated.

The redevelopment

of brownfield

centres, most prominently Calgary, Edmonton, brownfield

sites is an issue in a number

in Montreal

Winnipeg

sites in Canada,

and Toronto

including

should be seen as opportunities N

brownfields,

either urban

the existence

of municipal

makes it generally new suburban

)

a potential

)

property

urban

that there are over 2,900

many in rural areas. should be redeveloped

and why they

rather than as problems: or rural, should

not be left as a source of contamination;

services such as transportation,

sewer, water and utilities

more cost effective to develop a brownfield

site compared

to a

site;

a redevelopment stimulate

of Canadian

but also in other centres such as

and Halifax. It is estimated

There are many reasons why brownfields

)

economic

and the degree of contamination.

or commercial

The contamination

by urban

in place and tend to be close to

parties, lack of funds for clean-up,

clean-up,

not proceeded.

reduced

markets

of responsible

what constitutes

by environmental

infrastructure

sites have been contaminated

the departure

land where reuse,

facilities or routes. These lands have obvious

which will vary with current Brownfield

or commercial

of the land is complicated

Brownfields

development.

or idle industrial

will contribute

other supporting orphaning

to a rejuvenation

of an inner

city and can

initiatives;

of a site is averted;

tax revenues

can be restored

to the benefit

of the municipality

and its

ratepayers; N

the need to expand

the need for energy-intensive

the Canada locations

)

urban

Mortgage

are preferred

is reduced;

transportation

and Housing

of city property,

is a measurable

is reduced;

Corporation

for social housing;

more dense utilization manner,

boundaries

has noted that central

and if done in an environmentally

step toward sustainability.

Notional Roundiableanihe Environmentandthe Economy

(CMHC)

sound

Discussion of Issues The issues that are inhibiting

the redevelopment

those that affect other contaminated major concern. preference

of brownfield

sites. Uncertainty

As in other cases, predictability

in the allocation

is probably

of one particular

approach

over another.

The subject of clean-up

standards

is critical. Clean-up

increase

as clean-up

standards

become

more stringent.

levels have often been applied as clean-up have argued strongly criteria

depending

analysis. In other words, clean-up to commercial

Standards humans

standards

owner who is otherwise

liability

not responsible

change or other contamination

if the land was use.

a low exposure

institutions

environment

as possible

will have difficulty brownfields.

for the pollution)

party (or even a new

who remediates

for further

be discovered?

a site

clean-up

Will an insurer

should that insured

find itself liable for some of the environmental

want to see these questions for investment.

obtaining

financing

Some regulators

concerns

Municipal

governments

Tax payments

to municipal

of such certainty

for the rehabilitation

understanding

of financial

about human

institutions to respond

are to

or environmental

health.

be reconciled? are also anxious governments

and taxes on adjacent

to see the issues of brownfields

are often reduced

or eliminated,

lands may likewise be decreased.

resolved. and

New industrial

will tend to locate on new, clean land. This land is often on the outskirts

city in question.

means developers

and redevelopment

will always have to retain flexibility

and evolving

Can these two perspectives

Absence

resolved to create as certain

argue that the expectations

too high and that governments

depopulation

of that activity?

Financial

activities

sites. Developers

expense and that clean-up

demonstrated

plan still bear responsibility

activity at the site suddenly

assessments

for brownfield

also apply. Will a responsible

standards

emerging

criteria or background

to the contamination.

to an approved

consequences

Generic

uses than if it was going to a residential

according

than the

costs disproportionately

could be less stringent

could also be lowered if risk assessment

Issues of prospective

is a

on future land use and on a risk assessment

or industrial

and the environment

of liability

more important

that this often results in unnecessary

should be variable,

returned

objectives

sites are the same as

Such development,

therefore,

of city cores and attendant

contributes

social issues.

to urban

sprawl, the

of the

Few parties with an interest

in brownfield

sites do not want to see them

redeveloped.

The challenge

is to find the common

can happen.

It is important

to get sites clean enough

local governments that developers

and of local residents. will consider

invest in redevelopments

acquiring

and insurers

ground

A sufficiently

predictable

these properties, will be prepared

threat to human

or environmental

Insurance

Bureau of Canada liabilities

has recommended

for environmental

with a range of products

the uncertainty

faced by insurers

of liability

of reducing

the uncertainty

allows for agreements to liability improve questions

is evolving

assumed

of limits to first- and companies

to address these needs. This puts a limit on

faced by developers.

to be reached between

sufficient?

the

of a few provinces

and regulators

by the lender. This reduces the uncertainty in brownfield

respecting

This usually has the effect

The legislation

lenders

to offer appropriate

need? Legislation

quickly in many provinces.

Are these responses

if a

parties to address these issues. The

and makes it easier for companies

the climate for investment remain:

are able to respond

At least three insurance

coverage. But, will it be the coverage that developers allocation

to insure them. A sufficiently

the application

impacts.

have responded

regime is needed so

health arises.

Efforts are being made by a few of the interested

third-party

so that it

of senior and

lenders will be prepared

flexible regime should be created such that governments significant

among the interests

to allay the concerns

on the limitations

for lenders

redevelopments.

and should

Nevertheless,

the

What else is required?

Summary of Issues )

The uncertainty

in liability

allocation

regimes is detrimental

to the investment

climate. )

The issue of clean-up

standards,

to reduce the uncertainty

both generic and site-specific,

for investors.

Many interests

needs to be resolved

have valuable

input

to offer

toward this resolution. )

Sufficient

predictability

hands of government

in the regulatory

regime is required

in such a way as to prevent

without

tying the

it from acting in the public

interest. >

Are present

initiatives

to address these problems

sufficient,

or is more effort

required? )

If more effort is required, that would help overcome

what initiatives inertia

could the financial

in the redevelopment

Nchonal Round Table on Ihe Environment and the Economy

services sector take

of brownfields?

Contaminated Site IWXS Canodo - Backgrounder

Part of the ongoing

discussion

who pays for the clean-up

among

stakeholders

of a contaminated

site centres on the question:

societal cost? The idea is that there are certain because society has benefited For instance,

equally broadly

the property

and the site is deemed

discusses its clean-up, therefore,

costs that broadly

to resolve what is a

accrue to society

from the activity that caused these costs.

upon which an abandoned

located has been left in a contaminated found,

when they attempt

manufacturing

facility was

state. The owners and operators

to be orphaned.

A group of concerned

and some note that the cost of clean-up

society should pay to clean it up. What is meant,

cannot

stakeholders

is a societal cost and,

usually, is that governments

should pay. The thinking benefited

behind

this is that a lot of people, either individually

from the building

wages and benefits building

permits,

and operation

while building the employees

of the facility. Construction

the plant, the local government of the operation

either the life of the facility or for the duration received property received income

taxes from the operators, taxes from employees

operation

itself. The economic

operation

with its raw materials

argument

is that the benefits

should be borne

received money

of their employment,

and provincial

of the operation

during

local governments

taxes from the

were even wider, with those supplying

or services benefiting

for

and federal governments

also. The important

to this is that some benefited

the

point to this

were felt widely and, therefore,

equally widely. This is one aspect of the “beneficiary

Of course, the counterpoint

workers received

received wages and benefits

and owners and corporate

impacts

or collectively,

the costs

pays” principle.

more than others.

Discussion of Issues There is no real dispute activities.

that society at large benefits

However, some take the view that the economic

disproportionately society, through

by the owners and shareholders its government,

facility into that neighbourhood during

from individual

the start-up

of the operation;

made many concessions

that perhaps

in the first place to get the

and that a major part of the societal cost has been paid

occurred

in spite of following

the instructions

precisely. In other words, “we did what society asked us to do.”

As recently as five years ago, there was fairly broad acceptance should

are experienced

and active life of the facility. On the other side of the ledger, some

would argue that the contamination the regulator

benefits

economic

step in and pay for the clean-up

of orphan

sites and thereby absorb the societal

cost. This is now less true, and several reasons are emerging

Notional Round Table on the EnvironmentandtheEconomy

that government

for this shift.

First, the financial priorities

situation

have changed.

different

within

governments

at all levels has deteriorated,

Public officials, both elected and appointed,

view of how public money

available

environment

budgets

have been significantly

to politicians

that the environment

Consequently, purposes

governments

generally,

reduced.

and

Polls have suggested

issue with the Canadian

are less apt to approve expenditures direct loss of spending

public.

for environmental

power in some other

are changing

both within

government

and among

the public.

a few years ago (e.g., in 1989 and 1990 as the NCSRP was getting under way),

governments clean-up

budgets

area.

Second, attitudes Whereas

as government

is a lower priority

when there is a consequent

demanding

have a vastly

should be spent than was the case a few years ago.

There is much less public money specifically,

and

and the public were more willing and able to provide

of orphan

sites; today, an increasingly

predominant

are enjoying

significantly

for the

view is that the public

purse should not have to pay for what might be the mistakes Third, some businesses

funding

of industry.

increased

profits. Some members

of the public believe that with these profits may go some responsibility

for societal

costs. These emerging present

views are only that. They are not conclusions

lay of the land. They do not represent

exactly, benefits

or is hurt by a particular

Nor do they apportion

responsibilities

The background

taxation

and the present

and in what proportions?

An idea has emerged

provincial

of orphan

through

â&#x20AC;&#x153;no-fault

shares.â&#x20AC;? For example,

from taxing the incomes

itself; local governments

benefited

from the collection

their banking;

suppliers

charges on the operationâ&#x20AC;&#x2122;s benefited

etc. Each of these beneficiaries the clean-up

as the operation

would purchase

that arises

exercise in

is one of a fund created by

benefited

from interest

performance.

sites. Who should fund such clean-up

governments

benefited

regime in government.

in a recent consultative

that might be helpful. The concept who contribute

and spending

about who,

views lead to much the same question

the clean-up

beneficiaries

of concerns

for poor environmental

in the section on funding

Saskatchewan

a resolution

but, rather, are the

the federal and

of employees

of property

and the firm

taxes; banks

debt and from handling was an important

a certain number

fund. This idea is only at the conceptual

charges on

market for them,

of no-fault

stage, but certain

shares in

conditions

for

this to work would likely include: )

knowing

the size of the problem

so that the total contribution

to the fund by each party is known )

a clear acknowledgment having benefited contributed

or, alternatively,

that the purchase

from the activities

of these no-fault

encompassed

in any direct way to the contamination

Nobnal Round Table on the Env,ronmentandthe Economy

funding

(through

purchase)

on a case-by-case shares is based on

by the fund, not from having problem;

basis;

)

an understanding

that the purchase

purchaser

occupies

substance;

and

arranging

for participation

of these shares may, in part, be because the

a role in the cradle-to-grave

in the management

management

of the contaminating

of the fund in proportion

to the

shares purchased. At the time of writing, this concept

formally

Management.

to the Saskatchewan

However, there remain

by their governments, participate

the Saskatchewan

Minister

or would citizen representatives

without

way that legal advisors

Committee

and Resource

would the public be represented have an opportunity

Will all beneficiaries

assuming

was about to present

of Environment

some unknowns:

in the fund management?

share the unfairness

Advisory

see this positively

any fault? Can the fund be established

are satisfied that contributions

do not attract liability

to as a way to in such a to their

clients?

Summary of Issues )

The issue of who pays societal costs should be resolved soon so that other related issues can be addressed. unremediated

)

Preliminary

The consequence

sites that remain to resolving

this issue may be

a threat to the environment

and human

the societal costs issue, it should be determined

â&#x20AC;&#x153;the beneficiary

paysâ&#x20AC;? is a valid principle

Does the notion

of no-fault

sites or orphan

of not resolving

health. whether

and, if so, how it should be applied.

shares offer some hope as a way to clean up orphan

shares of sites?

Not,onal Round Table on the Environmentandthe Economy

contaminated Site Issues in CanadaBockgrounder

Insurance adjectives

has always been intended

such as “sudden”

this has meant intended

that property

activities

insurance,

and not to cover ongoing Insurance

should

contaminated

indirectly,

occurrences

in ongoing

to cover sudden

activities.

is caused by ongoing

can be expected

that result in contamination

pollutant

release.

site should rest with the polluter

if there has been improper

insurance

polluting

occurrences

not be seen as a way in which to cover the liability

the regulator

such as

to begin the use of exclusion

explicit the intent

for that type of contaminated

What environmental

although

polluting

incidents

in the courts resulted

sites where the contamination

The responsibility

for example, while not explicitly

This led insurers

clauses, which were aimed at making

with

to the policies. In the past,

has covered environmental

Some interpretations

being seen as accidental.

or occurrences

having application

and auto insurance,

as environmental

spills of contaminants.

to cover accidents

or “abrupt”

advice, direction

or enforcement.

to cover are the sudden

of soil, ground

and,

or fortuitous

or surface waters and,

not the subject of this paper, air.

Discussion of Issues Environmental preconditions N

insurance

is not fully a fact of life in Canada,

seem to be necessary

not been resolved, but the insurance release standards

are unlikely

industry

believes that they must address standards

performance

to be implemented

and the perennial

standards,

in the sense of numerical

any time soon in Canada.

Judging by the

or lack of progress

Canada,

the most that can be hoped for in the next several years would be among

environmental

Canada’s environment

protection.

will not give industry considered

contaminants

standards

among

on a common

The insurance

but that without

are of limited

industry

consistent

situation,

believes that national

enforcement

departments

is manifested

for environmental

enforcement

provided

offered many the hope that environment

regulations.

standards

across the country,

such

enforcement

can be expected to be very

in local decisions

development

Notional Round Tableon the Environmentondthe Economy

about

will, and so on.

and some time in the offing. The strong need for regional Canada’s governments

but

to regional

to new information

or even negative value. Delivery of consistent 13 environment

that would be

These would still be highly sensitive

local political

regulation

level of

to the present

about exact concentrations

or the environment,

on the part of Canada’s difficult

ministers

and would have to be flexible to respond

Consistent enforcement. are important,

of environmental

This would be preferable

certainty

contaminating,

considerations

on the harmonization

question

progress

agreement

standards. The details of this term have

as well as clean-up

of “how clean is clean?” National standards,

before it will be widely offered:

The existence of national environmental

pollutant

and a number

expression

such as the level of

The concept

of sustainable

and the economy

Contaminated Site Issues in Conodo - Backgrounder

need not

always be in conflict, that there could be win-win environmental

performance

level of competitiveness. believers,

A few developers

in opposition

to the economy.

governments

are pressured

Certainly,

enforcement.

standard

management

system standards.

role in identifying

Both internal

regulatory

compliance).

then private sector involvement auditors

auditors

will

the

If the North American Eco-Management

which do require

in enforcement

may be drawn into this role. Insurers insurers

and regulatory

will be a reality.

as potential

they would have a very strong interest

in the regulatory

compliance

would be likely to reinforce

Insurers

the role of

(even though

may also have a part to play. Certainly,

of that operation.

the IS0 14001

and external

non-compliance

years.

involvement

to contemplate

of IS0 14001 evolves toward the European

Not only environmental

in the coming

regime. Take, for example,

Audit Scheme (EMAS) or the British BS 7750 standards, compliance,

behave and the way

continued

However, it is interesting

itself does not require regulatory

implementation

as the enforcers

can be made for governmentsâ&#x20AC;&#x2122;

the private sector in the future enforcement environmental

is still often seen

to enforce.

This will be essential.

play a significant

and a high

have become

of the environment

This affects the way companies

to think of government

strong arguments

that good performance

and other stakeholders

but many have not, and protection

It may be incorrect

solutions,

could lead to good economic

of a particular

compliance

themselves operation,

and best practices pollution

prevention

as well. )

A consistent approach to the allocation of liability for the clean-up of a contaminated business

site. All industries

as possible.

seek predictability

This may be particularly

often must compensate of a company

responsible

party for the costs of clean-up.

condition,

available.

Insurers

costs, since the insurer

have attempted

situations.

Lack of predictability

companies

being insured

which

In many circumstances, site becomes

a potentially

has deep pockets or is, at least,

to address this through the possibility

in the allocation

for accidental

industry,

If the company is not in good financial . or the courts will look to the insurer to bear

clauses, but this will not totally eliminate

be an appropriate

damages.

that has created a contaminated

it may be that the regulator

most of the clean-up

true of the insurance

a party for unpredictable

the insurer

in as many aspects of their

their use of exclusion of being caught up in such

of liability

and sudden

may result in fewer

releases where insurance

would

way to cover the costs of clean-up.

An improvement in insurersâ&#x20AC;&#x2122; knowledge of the environmental

area. Underwriters

do not always have sufficient

risks with

experience

to assess environmental

confidence.

National Round Table on the Enwonment and the Economy

Contaminated Site limes Conada - Bockgrounder

)

Certification,processes many practitioners,

for environmental professionals. The competence

particularly

assessors, has been unknown experience.

environmental

That experience

(CEAA) has developed

has occasionally

Environmental

were under way, and additional

shortly. The system will likely be presented and, if it is approved, certification

systems in other countries

received certification.

respecting

certifications

the first group of

should be announced

to the Standards

there will be an opportunity

auditors

under the system were

60 applicants

(April 1997), final considerations

Help is on the

Association

for environmental

on who was â&#x20AC;&#x153;grandfatheredâ&#x20AC;?

made in the fall of 1996, and approximately

new applicants

Auditing

site

through

been costly and painful.

a system of certification

Final determinations

the time of writing

and environmental

to clients and could only be discovered

way on the audit side, as the Canadian

Canada.

auditors

Council

of Canada,

for parity with auditor

where IS0 14000 series standards

are being

adopted. On the site assessment Canada

side, the Association

(AESAC) has also embarked

of Environmental

on a certification

AESAC will accredit site assessors for site screening assessments.

Phase III (remediation

effort, given the multiple initiative

activities)

disciplines

involved

program

development

by some high-volume

process.

and Phase I and Phase II

will have to await a broader in good remediation

arose in 1992, at least in part because site assessment

downward

Site Assessors of

users, thus lowering

certification

work. The AESAC

costs were being driven

the quality of many Phase I site

assessments. There is another

side to this question.

important

for environmental

auditors

insurance.

This will be facilitated

In our increasingly

litigious

society, it will be

and site assessors to be able to obtain

by credible

certification

processes

assessors seem to have this issue in hand. It may yet remain

liability

for them. Site

an issue for environmental

auditors. N

A stronger commitment Bureau of Canada substitution

in 1994lâ&#x20AC;&#x2122; notes that pollution

of non-hazardous

processes, adoption

to pollution prevention. A paper done for the Insurance

materials

prevention,

for hazardous

is the best way to reduce the future creation of such practices

by individual

businesses

easier and cheaper to insure. The encouragement governments Insurance encouraging

will improve premium pollution

consistency

reductions

Notional Round Table on the Enwonment and the Economy

materials

the

in manufacturing

of contaminated

sites. The

yields an activity that is much of pollution

and predictability

for certain measures

prevention.

meaning

prevention

as well as performance.

could also be helpful in

A further

question

environmental

arises regarding

insurance.

Who will be the purchasers?

high-risk

businesses?

problems

in the past and cannot

Will it be primarily

there be classes of activities insurance becomes

be purchased

application

Will it be only those who operate

those who have had contaminated

site

afford to have them again in the future? Or should

for which government

to ensure that a particular

requires

that environmental

type of contaminated

site never

orphaned?

Environmental reducing

the extent of possible

insurance

or cleaning

sites. Regulators purchasers

would appear to be an essential

up future contamination

and preventing

will have to work with the insurance

of such products

to provide

piece of the puzzle in the orphaning

industry

the right regulatory

and potential

of some future

climate so that insurance

can fulfil1 its role in this domain.

Summary of Issues N

Inconsistency

of environmental

the role of environmental N

Enforcement

insurance

of environmental

relative roles of government N

There is a need for insurance interaction

standards

between

various

across Canada

needs to be addressed

is to be fulfilled.

standards

is inconsistent

across the country,

and the

and the private sector are undetermined. underwriters

to have a better knowledge

wealth-generating

activities

of the

and the natural

environment. l

Certification

processes

better environmental insurable

professionals.

for environmental work, consistent

professionals returns

How will processes

are essential

for good environmental

for auditors

to ensure work and

and site assessors relate to

each other? )

Should environmental

insurance

regulatory

in Canadian

be mandatory

for certain

activities?

systems should be resolved.

National Round Table on the Environment and the Economy

The role of

The difficulties

noted in all the earlier sections

need to avoid contaminated

,of cure, or the more recent oil

and, very often, those left to pay are not those who created the

in the first instance.

contaminated

is worth a pound

of the

that notes, “you can pay me now, or you can pay me later.” Later is

always more expensive problem

to the

sites in the first place. They are a clear manifestation

old saw that an ounce of prevention filter advertisement

of this report are testimony

It may be the second or the third purchaser

of the car. For

sites, it may be future generations.

Discussion of Issues Pollution

prevention

initiatives

couple of specific programs.

are gaining

momentum

across the country, A National

In 1993, the CCME published

Pollution Prevention.‘* This document

made clear the CCME members’

much better to anticipate

pollution

and prevent

occurred.

The CCME defined

materials

and energy that avoid or minimize

This definition

pollution

is consistent

elements prevention

belief that it is

as “the use of processes, practices,

the creation the creation

of pollutants

and wastes.“”

of contaminated

sites. However,

made at the CCME table, each government

of this commitment by environment

or not. Consequently, departments

already doing it” to developing

implementation

is free to use of pollution

has ranged from rationalizations

a significant

than to clean it up after it has

prevention

with avoiding

as with other commitments

led by a

Commitment

of “we’re

new focus in programming

such as in

British Columbia. The typical approach collect or treat pollution thrust

intended

materials,

under

to environmental

after it has been produced a pollution

change industrial

support

supportive

prevention

pricing

the support

approach,

saver, if not a money

some companies

the use of market-based approaches

style of regulation.

Command

less hazardous

raw

and the general

or restrictive

would bring to a pollution pollution

prevention

into a money

and The Body Shop are cases in point,

incentives reliance

individual

not always exercised)

the public and government

Naf,onal Round Table an the Environment and the Economy

approach

to pollution

through

for more innovative on a command

often results in government

in a way that inhibits

prevention

film processors.

a preventive

that provide

and control

is its ability (admittedly, business,

The

that have made a success of pollution

but not eliminating,

its strength something

have turned

can support

prescriptive -

pricing

and photographic

instruments

and by reducing,

processes.

to invest on the part of

on the part of regulators

maker. The 3M Company

departments

industrial

and reuse other wastes in closed-

and a willingness

that full-cost

them dry cleaners

Government

by various

regime.

but there are other, smaller businesses as well, among

in the past has been to limit,

regime is to substitute

and capture

initiative

policies and practices

of a full-cost

Even without

prevention

processes,

loop systems, etc. This requires businesses,

regulation

and innovative

and control

being solutions.

Yet

to take the bad actors to task

all wish to see.

Pollution

prevention

the Responsible

Care program

was developed Ministry

is gaining

Evidence

of the Canadian

and Energy published

and Workbook to provide

pollution

prevention

produced

A National

Commons

Standing

published

its report

gave the report

Commitment Committee

Ministers

to the concepts

and implementation.“”

prevention

and implementing

environmental Environment

activities.

and Sustainable

prevention

pilot projects

The International for environmental is voluntary

Protection Act and

it It’s About Our Health!

required

supports

Organization

management

to commit

to the prevention

of pollution

(ISO) has developed known

prevention

must be stressed, and registrants

improvement.

The adoption

better environmental

such an outcome,

a standard

as the IS0 14000 series,

1996. It calls for each registrant

to have an are

of an environmental performance.

However, it

and thus can be expected

of future contamination.

are not unhappy

prevention

to Pollution Prevention

in October

and makes more probable

pollution

An Introduction

Ministry

in British Columbia.23 A number

systems. This standard,

to continual

Most regulators

this strategy, the

was at the top of the hierarchy

for Standardization

system does not guarantee

contribute

In approving

a strategy

are under way in British Columbia.

policy. Pollution

management

approved

In June 1996, British Columbia’s

Operations

and was published

environmental

regime.

with their rate of progress

However,

many acknowledge

toward

a strong

that there is a long way

to go in: N

designing

the future regulatory

command

and control

developing

)

making

)

developing Another

detection important

roles of

treatment

future contamination

National Round Table on the Enwonment and the Economy

system for contamination

contaminating

and immediate

and

pricing.

and reaction

of potentially

incentives;

and insurance;

or internalized

need is an early warning

of leaks or improper in reducing

market-based

assurances

full-cost

when it does occur. Better enforcement

the respective

approaches;

appropriate

use of financial

and implementing apparent

regime and determining

and voluntary

and implementing

appropriate

Development

Environmental

prevention.

prevention

Lands and Parks published

Planning for Major Industrial

and principles

Later that year, the CCME

focus, entitling

pollution

that pollution

protection

which

to Pollution Prevention.‘l Then, in 1995, the House of

on the future of the Canadian

emphasized

Association,

In 1993, the Ontario

Towards Pollution Prevention.22 In May 1996, the CCME Ministers for encouraging

circles is

Pollution Prevention Planning, Guidance

on Environment

a clear pollution

Producers’

internationally.

an introduction

and its planning

of this in business

Chemical

in Canada but has been adopted

of Environment

Document

momentum.

corrective

activities, actions

of lands and water resources.

early

are all

Stakeholders,

as much as regulators,

has only scratched

the surface of market-based

flexibility

in response

voluntary

approaches.

that such instruments Environmental

the reasons why market-based worried

about loss of public

goals of pollution It is urgent various

and voluntary control.

approaches

interact

to produce

for Canadians

want the for

are skeptical of

are being pursued

regime be defined

and are

of the broad

the environment,

soon. How should the

a system? Who will be accountable

for which

skeptics, and understandably

to give all the interests

reassure them that the regulatory

performance

organizations

However, they too are supportive

Until this is resolved, skeptics will remain

approaches,

Businesses

allow. They want more opportunity

non-governmental

that the future regulatory

This is a priority

protecting

instruments.

prevention.

components

elements?

believe that there is much left to do. Canada

the comfort

so.

they need and to

regime will be open to the public, effective in

predictable

and that it will identify

and flexible in embracing

and punish

innovative

those whose environmental

is poor.

Summary of Issues *

How can better enforcement, appropriate

improved

and timely corrective

early detection

of contaminant

releases and

actions when releases have been discovered

attained? l

In order to set the stage fully for pollution

prevention,

and implement

instruments,

financial l

appropriate

assurances

It would be difficult

market-based

and full-cost

voluntary

approaches,

pricing.

to develop and implement

in the absence of a broad national

there is a need to develop

consensus.

National Round Table on the Environment and the Economy

a successful

new regulatory

regime

A number

of issues do not fit well or exclusively

These issues include municipalities follow-up

specific technical

in planning

broader

challenges,

within

headings.

the need for more involvement

and site-specific

on what is already known

the previous

regulatory

and the difficulties

approaches,

the need for

caused by technical

jargon.

Discussian of Issues Knowledge environmental

about specific contaminants, impacts

seems to outstrip

continues

to grow. The demand

total petroleum

hydrocarbons

economic

can meet environment

however,

how might guidelines

be set for

change from case to case? How that do not stay in the soil

their impact? What kinds of management

and health protection

needs and still be sensitive

requirements?

example, while thermal soil contaminant

in restoring

contaminants.

certain

phase separation

combinations,

clay soils. Bioremediation

soils, particularly

contaminants,

Municipalities contaminated

However, its limitations

challenges

protection,

or near-background

that ought to be addressed

municipal

reductions

government

among

orders of governments,

implicated

and have a right to a voice in such issues as liability

governments,

is pushed

is the final stop, and

legislation

would be helpful. Municipal

and practice, brownfields

of the â&#x20AC;&#x153;how clean is cleanâ&#x20AC;? debate. Integration sites is critical in setting clean-up

uses. Remediation

while municipal

on implicated

especially between

and municipal

safely support

In short, basis.

discussions

will be increasingly

provincial

contaminated

technology.

can end up being its responsibility.

Better communication

and insolvency

levels. For some

on a priority

from policy-level

of federal budget

In most cases,

lower orders of government. implementation

as the impact

are still being revealed. On occasion,

due to a lack of the appropriate

have often been too distant

certain

chemicals

for both in situ and ex situ treatment

sites. However, that order of government

in environmental

clays. As an

has proved very effective in treating

has held great promise

this is not possible,

there are many technical

fine-grained

it failed in recent tests on wood-treating

sites will need to be cleaned up to background

particular

health and

for this information,

effects of volatile compounds

for existing tests to measure

There are challenges

of certain

For example,

when the constituents

does one assess the ecological

solutions

and associated

the rate of such growth. There is much to learn about the behaviour

and toxicity of specific contaminants.

long enough

their mobility

residential

consistent

governments

criteria

with industrial

uses or zoning. do zoning.

Provincial

It is important

bankruptcy

actions

for land being returned or commercial

governments

are

and the resolution

and municipal

land uses cannot

direct remediation

that these actions be mutually

supportive.

Nat,onal Round Table on the Erwronmentond fhe Economy

allocation,

redevelopment

of provincial

governments

Canrominated Site Issues in Canada - Backgrounder

Some ongoing the problem corrective

contaminated

site problems

result, not from a lack of knowledge

or how to correct or avoid it, but from a lack of political

action. The example that most easily springs to mind is that of underground

storage tanks of service stations

in the Prairie provinces.

communities

A government

are family-owned.

storage tanks with new double-walled owners’ financing a hamlet

Many service stations

tanks with leak detection

abilities to the breaking

capability

could stretch

point. In turn, the loss of a service station

“solution”

has often been to “grandfather”

additional

10 or 15 years to comply. Thus, contaminants

continue

the small operators,

and expensive

another

example

to clean up? Another

price. The

giving them an

generation

inaction?

of orphan

Sites more

sites? Perhaps it is

of “You can pay me now, or you can pay me later.”

Finally, the creation

and use of awkward,

to communication

this report

will think

as a synonym

of remediation

has come to include

This can be confusing

ambiguous

and understanding.

A word used throughout

remediation

are allowed to begin or

to leak. What are the future costs of this sanctioned

difficult

in small

order to replace their underground

in decline could hasten that decline and thus carries a high political

harmful

will to require

This is illustrated

is “remediation.”

and frustrating

that many readers

or rehabilitation.

and management

terms is

by three examples.

It is possible

for restoration

containment

or even misleading

However,

of contaminants.

and can lead to more cynicism

on the part of

the public. Another

example

denote something

of a term that can cause discomfort

related to spiritual

contaminant

concentrations

connotations

used to describe

Of course, “sustainable inconsistently because

economic

or life after death, but to mean an area of

in excess of background. something

This is a term with positive

negative.

development”

seems destined

used terms in history. Not because anyone

the term has a number

of interest.

purity

is the use of “halo,” not to

of meanings

to be one of the most attempts

that are accepted by various

Thus, the term is used to justify environmental initiatives

to be misleading,

the next and social policies the minute

initiatives after that.

communities

one minute,

but

Summary of Issues W

There is a need to address technical Setting priorities

)

The lack of municipal contaminated

among

challenges

those challenges

involvement

sites is problematic

Political will is sometimes

even during

this time of cutbacks.

will be critical.

in developing

policy and practice in regard to

and should be rectified.

lacking in the prevention

or limiting

of site

contamination. )

Communication development

and understanding

have rarely been an objective

and use of terminology.

Nobmol Round Table on the ~nv,ronmen+ and the Economy

Contaminated Site Issues in Canada - Backgrounder

in the

Public understanding

of contaminated

sites is often relatively poor. This is not the

fault of the public, but simply reflects the fact that information is incomplete; learning

that site characterization

about contaminants,

interactions advancing

The consequence

the receiving

environment,

themselves

informed

and governments

complete;

human

of sites

that we are still

health and the

of analysis and remediation

are

from the public.

of this is that public

be fearful, imperfectly developers

is often only partially

among them; and that the technologies and distancing

on the existence

input to contaminated

and very cautious

to be hesitant

groups speak “for the public,” though

site discussions

and self-serving.

to involve citizens fully. Instead,

this may be entirely

may

This wrongly

leads

interest

unsanctioned.

Discussion of Issues When the quality

of citizens’ input to contaminated

are at least four possible W

First, information

on contaminated

difficult

for members

sites is not widely available.

in a few jurisdictions

seek involvement

Second, the public is becoming measurable acceptable

levels.” The public has correctly

approximately

equal credibility.

Third, our knowledge

significant Fourth,

tomorrow

discerned

that expert opinions

experts will give different

of various

What is considered

of “no

or “the risk is at

This means that valid information

of the impacts

discounted

represent

answers of on a site is

by the public.

pollutants

is always evolving;

insignificant

today can become

it is

or vice versa.

the gap between

developers

immobile”

to be biased and is accordingly

or complete.

about it. They

or management.

is virtually

which means that different

not absolute

)

effect,” “the contamination

assumed

questions

If people do

skeptical of experts and their assurances

best judgment,

sometimes

This makes it

themselves.

ask intelligent

in its remediation

Public registries

in Canada.

of the public to inform

not know that the site exists, they cannot cannot

is poor, there

causes:

are only now being established extremely

site discussions

the knowledge

levels of scientists,

regulators

and

on the one hand and the general public on the other will be translated

into a difference

in the ability of individuals

to participate

in decision

making.

Thus, those in the know may be heard to say, “yes, but the public won’t understand,” exacerbated

or “this is too technical;

it’ll be misunderstood,”

by the fact that technological

new techniques

are being introduced

they have any credibility

development

and, seemingly,

with the public

etc. This tendency

is proceeding validated

(e.g., risk assessment).

quickly and

scientifically

before

Why might the public want to get involved sites? There are elements broader

environment.

health -

in discussions

of the public that are motivated

However, the prime motivation

its own health, the health of its children

motivation, property

but nonetheless

a very important

for the public seems to be public

or of future generations.

of a particular

There is a broader

clean-up

underlying

A secondary

one, is the effect of contamination

values. This aspect can bring a community

acceptance

related to contaminated

to do the right thing for the

or management

together

in opposition

on the

to or

plan.

reason why the public may want to be involved,

and

that is that it wishes to be master of its own destiny, or at least to have some measure control

over what happens

government

to it. At one time, the public was content

speak for it, but that trust has diminished.

governmentsâ&#x20AC;&#x2122;

increasing

public instead governmentsâ&#x20AC;&#x2122;

tendency

of involving reduced

the broader

This could be due to groups as representatives

of the

public, or it may stem from a recognition

capacity to make a difference.

The desire for involvement views held variously

to listen to interest

to have

on the part of the public runs up against the following

by responsible

parties, developers

and regulators:

we should talk to the public about this but they will not understand;

the public will perceive problems

the media will blow those problems

)

the public is too emotional;

it will take too much time;

they will never be happy;

it will cost too much;

local politicians

will use the opportunity

it is too difficult

to identify

Of course, not everyone

where none exist; out of all proportion;

for grandstanding;

the legitimate

representatives

and to whom we should talk.

holds these views: there are people in every organization

who

want to see proper, effective participation. Experience substantive

has shown time and again that involvement

to be meaningful.

Too often, good plans have been derailed

who had the ability to derail a solution solution. ownership.

A good solution

should be early and

for a contaminated

This is not accomplished

because people

were not engaged in the development

site is one that achieves broad community

by holding

process.

Nol,onal RoundTable on the Environmentandthe Economy

of that

one meeting

at the end of a technical

Some will argue that involvement public must be educated” important

is a public relations

is heard. Indeed,

to remember

that education

job. Or the phrase “the

there is a place for education.

But it is

is a two-way process. Good educators

learn as

much as they teach. There is no one party in possession

of the whole truth. If one party

believes it is, the process of imparting

ceases to be education

instead becomes and becomes between

indoctrination.

propaganda.

technical

Propaganda

in Alberta

has found that the public as risk assessment

involvement National

may be instructive.

is more accepting

as long as it is involved

approach.

from the beginning.

interest

groups do this also, excusing

interested

though,

more open so that interactions

)

Many

it because they do not have the resources are in the

parties are cynical about the value of

untrue

listens too much to the other

in general, but has some truth in individual

the attitude

reflects the reality that processes

could be

at the root of public involvement

in resolving

issues

respect for all interested

parties involved

in decision

where the results may affect them.

There should be an assumption serious intent

)

the value of public involvement.

sites, they might be that:

There should be mutual making

and regulators

are visible and shared as much as possible.

If there are a few principles

)

sites. The

and so on.

parties. This is probably

related to contaminated

public and stakeholder

parties, developers

because they believe the government

cases. More importantly

On a specific

hold all the cards,” or “the regulators

A final issue is that many interested involvement

such

attention.

that it is not only responsible

pockets of the proponents,”

of techniques

to issues of contaminated

may warrant

to “fight cleanly,” or “the developers

Protection

the public before the choice is made to use a

who are, from time to time, guilty of discounting “public”

Environmental

There are other models for combined

Code approach

It is noteworthy

Alberta

value.

of specific applications

that may have some application

Building

and

ceases to be knowledge

has a lesser and even negative value. A dialogue

project, this means involving

risk assessment

thus imparted

experts and the public would have significant

Recent experience

remediation

that information

The information

that people come to the table with good and

in any shared decision-making

There should be a belief that the public

process.

cannot

only learn from involvement

but

can also teach. )

Involvement

opportunities

should be shared among

all interested

parties to be most

positive and useful. W

Some groundwork

is required

to aid in the establishment

of mutual

trust. It does not just happen.

Not,onol RoundTable on the Environmentandthe Economy

ContaminatedS,te1sue1 in Conodo - Bockgrounder

respect and

Summary of Issues l

How can the public be better informed the nature

of contaminants,

about contaminated

the ways in which contaminants

or lack of effects of particular

contaminants

sites -

their existence,

move and the effects

on the environment

and human

health? l

Information

systems to support

easier public involvement

either do not yet exist or

are only in the early stages of development. >

General

information

about the existence

of contaminated

sites has not been readily

available. l

How can the growing New technologies

* Public involvement and solutions

gap between

the public and technical

are being validated

scientifically

experts be bridged?

but not publicly.

and the value the public brings to deliberations

seems to be unrecognized

by many decision

Education

What efforts can be made to begin building

is a two-way process, but is too often thought

National RoundTableon the Environmentond theEconomy

trust among

on problems

makers. to be one way. all interested

parties?

Canadian

Council

Contaminated

of Ministers

of the Environment

Contaminated

Site Liability,

(CCME)

Core Group on

Site Liability Report, Recommended

Principles for a Consistent Approach Across Canada (Winnipeg,

1993).

Ibid. Ibid. National Council

Contaminated of Ministers

Sites Remediation of the Environment

System for Contaminated

Program (CCME),

Sites (Winnipeg,

(NCSRP)

and Canadian

The National

Classification

1992).

Ibid. Ontario

Ministry

Sites in Ontario (Toronto, Op cit., endnote Canadian

Council

of Ministers

Council

of the Environment

of the Environment,

Contaminated of Ministers

Canadian

Interim subcommittee

Sites. Ottawa, Canadian

1991.

Sites Remediation of the Environment

Site-specific Soil Quality Remediation (Winnipeg,

(CCME).

Quality Criteria for Contaminated

of Ministers

National

1996).

on Environmental Council

and Energy, Guideline for Use at Contaminated

of Environment

Program (CCME),

(NCSRP)

and Canadian

Guidance Manual for Developing

Objectives for Contaminated

Sites in Canada

1996). Council

Contaminated

of Ministers

of the Environment

Sites Remediation

(CCME).

National

Program Framework for Ecological Risk Assessment:

General Guidance. Ottawa, Canadian

Council

of Ministers

of the Environment,

1996. Environment

Canada,

Environmental

Conservation

Service. A Review of Whole

Organism Bioassays for Assessing the Quality of Soil, Freshwater Sediment and Freshwater in Canada. Ottawa, Envronment Op cit., endnote Canadian

1994.

Council

of Ministers

of the Environment

Sampling, Analysis, and Data Management Report. Ottawa, Canadian Canadian

Council

Handbook

for Contaminated

Environment,

Canada,

Council

of Ministers

(CCME).

for Contaminated

of Ministers

Sites, Vol. 1: Main

of the Environment,

of the Environment

Sites. Ottawa, Canadian

(CCME). Council

1994. Nolimo,RoundTable on the Environmentondthe Economy

Guidance Manual on

Con+am,notedSiteIssue. in Conoda - Backgrounder

1993.

Subsurface Assessment of Ministers

of the

Canadian

Council

Derivation Ministers

of Ministers

of Environmental

of the Environment

Round

Liability for Contaminated

Insurance

and the Economy

(NRTEE), Lender

Sites: Issues for Lenders and Investors, Working Paper

Report of the Environmental

Improving the Climate for Insuring Environmental

Canadian

Council

1992).

Bureau of Canada,

of Canada,

the

1996.

Table on the Environment

Number 3 (Ottawa,

Protocol@

and Human Health. Ottawa, Canadian

of the Environment,

National

(CCME).

Liability Committee:

Risks. Toronto.

Insurance

Bureau

1994. Council

Commitment

of Ministers

(CCME), A National

of the Environment

to Pollution Prevention (Winnipeg,

1993).

Ibid., at p. 3. Ontario

Ministry

of Environment

Guidance Document Op cit., endnote

Standing

Committee

on Environment

and Sustainable

Itâ&#x20AC;&#x2122;s About Our Health! Towards Pollution Prevention

British Columbia

Ministry

of Environment,

Pollution Prevention Planningfor (Victoria,

1993).

11.

House of Commons Development,

and Energy, Pollution Prevention Planning,

and Workbook (Toronto,

National RoundTableon the Environment and theEconomy

1995).

Lands and Parks, An Introduction

Major Industrial Operations

1996).

(Ottawa,

in British Columbia

Bibliography Alberta

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Minister. Edmonton: Braul, Waldemar. Education

“Liability

Conference,

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“Review of Financing

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Consensus for a Sustainable Future: Guiding Principles. Ottawa: NRTEE, 1993. National

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1997.

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for Ontario,

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1993. and Resource Management.

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A Discussion Paper on

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Swaigen, John. Toxic Time Bombs, The Regulation of Canada’s Leaking Underground Storage Tanks. Toronto:

Emond

Montgomery

Nat~onol Round Table an fhe Enwonmen~and the Economy

Sites

1996.

Pollution Prevention Planning, Guidance Document

Queen’s Printer

(NRTEE) and Canada

Removing Barriers: Redeveloping

(CMHC).

Sites for Housing. Ottawa,

in Ontario. Toronto: -.

Corporation

and the Economy

Publications

Limited,

Contominafed S,fe issues in Canada - Backgrounder

1995.

b 9 ppendix B

Interviews Bartlett, Carol Ann Baxter, Brent -

Royal Bank of Canada

Nova Scotia Environment

2; Benson, Beth -Waterfront Regeneration Trust ,%; Ft. $ Botting, Dale - Canadian Federation of Independent 2;: “il p Camplong, Craig - RM Solutions Cassils, Tony -

Business

Strategy and Environment

Ceroici, Walter -

Alberta Environmental

Protection

and Resource Management >, Chang, Victor - Saskatchewan Environment i; zq &; Clapp, Bob - Canadian Petroleum Products Institute &; 2 Creeber, Catherine - Dow Chemical Company Limited 2 $

Delaquis,

Sylvie -

Federation

of Canadian

Ferris, Sam -

Saskatchewan

Environment

Foote, Tom -

Environment

Canada

Municipalities and Resource Management

i Gaudet, Connie - Environment Canada 2 $ Goffin, David - Canadian Chemical Producers’ Association ;.& ?$$ Hains, Jacques - Industry Canada $*7 5 : Hanley, Terry - Saskatchewan Environment and Resource Management Henderson,

John -

Harries, Jim -

Nova Scotia Environment

Insurance

Bureau of Canada

5 Hubbard, Lanny - British Columbia Environment, Lands and Parks 1-a 4, $5, Krahe-Solomon, Monica - Saskatchewan Environment and Resource Management g&$ $2 Lauzon, Robert - Minis&e de l’environnement et de la faune du Quebec 0 ;zs :g and Energy .d Marsh, Marius - Ontario Ministry of Environment $ ”

McKernan,

John -

Dale Intermediaries

McLeod, Glen -

Manitoba

Mitchell, Anne -

Canadian

Mundy, Dean Power, Rob Richards,

Association Ontario

Schikaze, Kim -

Stephens,

Canadian

R.A. (Dick) -

Wilson,

Robert Don -

for Environmental

Environment

Ministry

of Environment

Environmental

Auditing

Environment

New Brunswick

Environment

Environment Council

Canada of Canada

~ationo, Round Table on the Environment and the Economy

and Energy Association

and Resource Management

Manitoba

Standards

Law and Policy

of Site Assessors of Canada

Saskatchewan

Steward, Louise Therrien,

Institute

New Brunswick

Ken -

Smith, Bruce -

Environment

Contaminated Site issues in Canada

National Round Table on the Environment and the Economy

Tel.

iii&a

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