Remediation Cost Recover Actions

If I have incurred remediation costs to clean up contamination on my property, can I recover those costs?

The answer is a resounding yes.  Any person, who incurs reasonable costs of remediation of a contaminated site, has the right to sue in court to recover those costs from all ‘responsible persons’.  This is called a remediation cost recovery action under section 47 of the Environmental Management Act (“EMA”).  The EMA lists those persons deemed to be ‘responsible persons’ and these include:

  • A current owner or operator of a site;
  • A previous owner or operator of a site;
  • A producer or transporter of a substance that caused the contamination; and
  • Any of the above, if the site was contaminated by a substance migrating from a neighbouring property.

Reasonable costs of remediation include:

  • All site investigations costs, including the environmental consultants’ costs and fees of preparing a site profile, any Phase I and II Preliminary Site Investigations;
  • Boreholes, sampling and soil and water sample data analysis;
  • Any Detailed Site Investigations and reporting;
  • All actual remediation costs incurred in removing the contamination from the site, including the costs of removing an underground storage tank(s);
  • The costs of preparing all environmental reporting necessary to apply for a risk based or numerical Certificate of Compliance (“CofC”) ; and
  • All government fees associated with the application process to obtain a CofC.

In the cost recovery action between two or more responsible persons, the court will allocate liability among all ‘responsible persons’ and the court will consider the following factors in allocating liability:

  • The price paid for the property by the person seeking to recover the costs;
  • Due diligence of the responsible persons involved in the action;
  • The amount of substances and the toxicity attributable to the persons in the action;
  • Any clean up done and paid for by each person in the action; and
  • Each responsible person’s contribution to the generation, transportation, treatment, storage or disposal of the substances which caused the contamination at the site.

The limitation period for commencing the court action to recover these remediation costs is two years from the date the reasonable costs of remediation were incurred, so if you have incurred these costs, you should seek legal advice.  In addition, an owner my seek damages for the diminution in the property value of the property due to the contamination and the limitation period is likely two years from the date the contamination was discovered.  Again, upon learning of the contamination, you should seek legal advice promptly to ensure that you take action to preserve your legal rights.

 

WHAT WE DO: Lesperance Mendes has been advising and representing owners in all matters relating to remediation and costs.  To find out more about how you can benefit from our advice and expertise contact Robert J. Lesperance at 604-685-8737 or rjl@lmlaw.ca.