Canada: Injunctive Relief As A Remedy For Ongoing Contamination: Ward v. Cariboo Regional District

Written by Heather L. Jones , Steven Evans and Harleen Brar, Miller Thomson LLP
On July 30, 2021, the British Columbia Supreme Court released reasons for judgment in Ward v. Cariboo Regional District, 2021 BCSC 1495, shedding light on the wide breadth of injunctive relief available in circumstances of ongoing environmental contamination.1 The decision shows that a party responsible for depositing a polluting substance on another’s property will bear responsibility to fix the situation, to remove that substance and remediate the property, and the legal consequences it may face if it fails to do so in a reasonable manner.2

Factual Background

The Plaintiffs are the owners of a rural residential property near Williams Lake, British Columbia (the “Property”). The Property is serviced by a gravity sewage system operated by the Defendant, the Cariboo Regional District (the “District”). In 2015, a power outage resulted in an estimated 49,000 gallons of raw sewage flooding the Property, including the Plaintiffs’ basement and pasture, and resulted in contamination of their well (the “2015 Flood”). The 2015 Flood was not only the third sewage spill on the Property by the District but was by far the largest. Following the 2015 Flood, the District paid for the restoration of the Plaintiffs’ basement and chlorinated the Plaintiffs’ well, but took no steps to remove any sewage from the pasture or ponds, in spite of the Plaintiffs’ requests. Instead, the District adopted the approach that sunlight would be sufficient to decontaminate the Property.

In 2017, the Plaintiffs commenced an action against the District in trespass, nuisance, negligence, and the cost recovery provisions of BC’s Environmental Management Act, which entitles property owners to recover their costs of remediation from parties responsible for contamination. The trial was scheduled to commence on September 21, 2020. Approximately six months before trial, the Plaintiffs experienced another sewage backup after creek water flooded the sewer system via a failed manhole on the Property, causing sewage to backup into the Plaintiffs’ basement (the “2020 Flood”) and on to their Property. The District denied liability for the 2020 Flood and the Plaintiffs amended their claim to seek relief in respect of both sewage floods.

The Trial

A week prior to trial the District amended its Response and admitted liability for negligence, continuing trespass and continuing nuisance for the 2015 Flood, but stated that the continuing trespass and nuisance stopped on an arbitrary date some six months later. At trial, the Plaintiffs provided evidence that the Property remained impaired by sewage, including expert evidence about the type of contaminants found in sewage, such as plastics and heavy metals that do not dissipate, by sunlight or otherwise, which remained on the Property. There was also evidence of continuing odours emanating from the Property and of changes to vegetation. The District had tested the site in 2018. The testing was ultimately found to be lacking, however, the results did prove there were exceedances of heavy metals, which were found in the 2015 sewage release. The estimated clean up costs were high and the Plaintiffs were not in a position to afford such costly measures.

The District tendered expert evidence from an environmental consultant. The consultant gave the opinion that while there were exceedances of metals identified on the Property, these exceedances likely related to background conditions or, he hypothesized, other possible reasons such as road salting of the adjacent road.

The Court’s Decision

In its 122-page reasons for judgment, the Court found the District liable in trespass, nuisance and negligence for both the 2015 and 2020 Floods. The Court found that the trespass and nuisance, rather than abating in the summer of 2015 as the District claimed, continued as of the date of trial. The Court found that the Environmental Management Act cost recovery claim was premature as the Plaintiffs had not incurred any costs of remediation to date. The Court awarded the Plaintiffs $35,000 in non-pecuniary damages, $12,000 in special damages and $30,000 for the loss of use and enjoyment of their land assuming the injunctive relief was completed within a year, in addition to the extensive injunctive relief discussed later in this article.

We have summarized some of the Court’s key findings in the following sections.

Continuing Trespass

Trespass is committed by entering upon, remaining upon, or projecting any object upon land in the possession of the plaintiff without lawful justification.3 In support of the finding of a continuing trespass, the Court cited the Saskatchewan Court of Appeal’s decision in Peter Ballantyne Cree Nation v. Canada (Attorney General)4 for the proposition that “. once an object is placed on another’s land, not only the initial intrusion, but also the failure to remove it constitutes an actionable wrong, and there is a ‘continuing trespass’ as long as the object remains.”5 One of the findings of the Court was that the District had not taken the steps set out in its own emergency response plan, which recommended that spilled sewage be vacuumed up where possible. The District’s failure to follow its own protocols was particularly detrimental to its defence of the claim. The Court found that as the District had failed to follow its emergency response plan, it could not argue that it had complied with baseline standards to ensure adequate protection. The District had effectively followed a policy of “inaction.”

Continuing Nuisance

Nuisance is an interference with the claimant’s use of enjoyment of the land that is both substantial and unreasonable.6 In order to prove a continuing nuisance, a plaintiff needs to show that the harm is suffered on a continuing basis and was not wholly past.7 Here, the Court found that the Plaintiffs were able to show that a continuing nuisance had occurred because of the time that it took to restore the basement and the presence of sewage on the Property up until the commencement of trial. There was also considerable evidence tendered by the Plaintiffs about the significant and detrimental impacts of the ongoing contamination on their use and enjoyment of their Property and on their mental health and well-being.

Expert Evidence

At trial it became evident that the District’s environmental consultant failed to follow the Ministry of Environment’s background sampling protocol when conducting his environmental investigation of the Property. This included taking just a single background sample from one location, rather than 12 samples in total from four locations, and failing to identify in the body of his report that the soil composition of the background sample was different than in the other test samples, as he had identified to counsel in internal emails. As a result of these and other issues, the Court held that portions of the consultant’s reports were seriously flawed, false, misleading and unreliable, and were inadmissible. This included the consultant’s opinions attributing the metals exceedances to other possible background conditions.

Injunctive Relief

The Court found that awarding damages alone would not be sufficient. Given the numerous floods and the District’s history of inaction, the Court found that awarding damages alone would be akin to giving the District a license to pollute and trespass upon, and continue to pollute and trespass upon, the Property. The Court noted that the Plaintiffs wished to remain on the Property for life and it would not be reasonable to force them to live on a Property that was contaminated with sewage. The Court observed that where there is an interference with property rights, injunctive relief is strongly favoured. Consequently, the Court imposed a wide breadth of injunctive relief designed to ensure the removal of the contaminants, the restoration of the land, and the implementation of sufficient repairs and protective measures to minimize the likelihood of a future flooding event at the Property.

Specifically, the District was ordered to retain an engineering firm to create a testing plan to determine the extent of contaminants on the Property and, if contamination was found, a restoration plan to remove the contaminants and ensure the Property is restored to its condition prior to the flood. The Court further ordered the District to, among other things, repair and restore its manholes on the Property, install a gravity overflow system with a 100,000-litre storage capacity connected to the sewer system, install functional backflow preventers inside and outside of the Plaintiffs’ home, repair sinkholes above its sewer line on the Property, inspect and repair any deficiencies along the sewer line of the Property, and inspect and test drainage systems on the Property.

Takeaways

On August 30, 2021, the District appealed the BC Supreme Court’s decision. In October 2021, the District sought a stay of the primary injunctive orders requiring it to create a testing plan to determine the extent of contaminants and a resulting restoration plan, and a stay of the order requiring the District to install the gravity overflow system. The Court of Appeal found that the appeal by the District of the primary injunctive order had no merit and refused a stay.8 However, a stay was granted on the installation of the gravity overflow system. While the appeal has yet to be heard, the lower court’s decision remains a valuable reminder that a party responsible for causing a continuing trespass or nuisance, including a municipality, will be held responsible as long as that trespass or nuisance continues. In the context of environmental contamination, this requires the polluting party to either remediate the contamination on its own initiative, or be subject to a claim for damages and injunctive orders issued by the court.

Footnotes

1. Miller Thomson LLP acted as counsel for the Plaintiffs.

2. Note: The BC Supreme Court’s decision is currently under appeal.

3. Ward at para 49.

4. 2016 SKCA 124.

5. Ward at para 71.

6. Ward at para 179.

7. Ward at para 185.

8. Ward v. Cariboo (Regional District) 2021 BCCA 423.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

This article has been republished with the permission of the authors.  The original posting can be found at Thomson LLP website.

About the Authors

Heather Jones has extensive practical experience in a broad range of litigation with her focus being complex corporate/commercial matters. She has been responsible for the successful resolution of shareholder disputes, officer and director liability matters, international fraud, contract disputes, fiduciary duty issues, governance problems, business purchase and sale conflicts, negligence claims and employee matters.

Steven Evans practises commercial litigation, environmental law, and insurance law. He advises clients on a wide range of matters and assists them in achieving successful resolutions of their disputes.

 

Ontario-based business pays $300K to the Environmental Damages Fund as part of an agreement related to a hydrocarbon spill

In May 2017, Environment and Climate Change Canada’s (ECCC’s) enforcement officers responded to a report from a member of the public of an oily substance floating on the surface of Schneider Creek, which is a fish-bearing tributary of the Grand River.  Schneider Creek is home to multiple species of minnows such as the longnose dace, creek chub and brook stickleback.

After an investigation, officers determined that the substance had come from demolition activities at a property that Drewlo Holdings Inc. was developing in Kitchener, Ontario. Environment and Climate Change Canada laboratory results revealed that the oily substance contained hydrocarbonsthat are deleterious to fish. Depositing or permitting the deposit of a deleterious substance in water frequented by fish, or in any place where the substance may enter any such water, is a violation of the Fisheries Act.

Environment Canada recently reported that Drewlo Holdings Inc. entered into an alternative measures agreement with the Director of Public Prosecutions acting under and on behalf of the Attorney General of Canada, in response to Environment and Climate Change Canada laying a charge Environmental under the Fisheries Act. As part of the agreement, the company agreed to pay $300,000 to the Government of Canada’s Damages Fund.

In addition, Drewlo Holdings Inc. also agreed to engage a qualified environmental consultant to review the company’s current practices, evaluate the company’s existing compliance with regulations and develop a training program for employees in leadership positions. The charge against the company was dismissed on November 10, 2021, after it was confirmed that all measures outlined in the alternative measures agreement were completed.

Created in 1995, the Environmental Damages Fund is a Government of Canada program administered by Environment and Climate Change Canada. The Fund ensures that fines and court-awarded penalties are used to support projects that will benefit the environment.

 

United States Environmental Penalties: Disparity and Discretion

Written by Jerry Anderson, The American College of Environmental Lawyers (ACOEL)

Environmental law enforcement seeks to achieve greater compliance by punishing intentional violations and ensuring that violators do not achieve a competitive advantage through avoidance of compliance costs.  To achieve that goal, regulators must balance the desire for uniformity with the need for discretion.

Unchecked discretion can lead to excessively high penalties, offending our sense of fundamental fairness and equality.  Aberrational high penalties also suffer from due process concerns as they do not put potential offenders on notice as to the possible consequences of their actions.  Conversely, low penalty amounts fail to promote the goal of deterrence.   Consistent tepid enforcement sends a clear signal to potential violators that the risk is worth it because the repercussions will be minor. Uneven enforcement consequences also lead to the potential for undesirable competition among jurisdictions, as the regulated community seeks to locate in states perceived as “friendly” to business.

My current research focuses on whether environmental penalties are applied with sufficient consistency to promote compliance with environmental law.  I am finding that there are some significant disparities.

One issue is the disparity between state and federal enforcement.  State statutes typically provide much lower penalty authority than the federal statutes.  With respect to civil penalties, EPA generally requires states to have only a $5000 per day penalty authority for state delegation of enforcement even though the federal statutory penalties are much higher.  Moreover, the federal penalties continue to increase due to the inflation adjustment rule, but there is no equivalent inflation adjustment in most states. Thus, the federal-state penalty gap often grows larger every year.

For example, under the Clean Water Act (CWA) Section 309, the statutory penalty maximum of $125,000 for administrative penalties is now $287,632 due to the inflation adjustment.  Meanwhile, in Iowa the maximum administrative penalty is $10,000, a level that has not changed for decades.   Over the last 10 fiscal years (2012-21), state penalties for Clean Water Act violations averaged $12,901.  In comparison, at the federal level, EPA imposed an average CWA penalty of $89,039 during the same period, almost 7 times the state average.

Even at the federal level, there are many disparities.  Although EPA uses a uniform enforcement response policy, the policy contains room for the exercise of significant discretion.  EPA’s penalty data, found on the agency’s Enforcement and Compliance History Online (ECHO), indicates a significant difference in the amount of federal penalties, depending on location.  For example, over the last decade the median CWA penalty imposed in Region I was ten times the national average, while penalties imposed in Region IV were consistently well below the average.

Bar graph: average annual median CWA penalties assessed by region from 2012-2021. Region 1 is the outlier at $34,059. In regions 2 through 10, the median amounts range from a low of $1,146 (region 4) to a high of $12,138 (region 10). The national average is $3,071.

Certainly there are legitimate reasons for some of these disparities.  For example, federal penalties tend to be higher because EPA enforcement typically focuses on the most significant cases.  Nevertheless, the disparities certainly merit further consideration in order to support the goal of uniformity.

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This article is made available by ACOEL for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice.  It was first published on the ACOEL website.

About the ACOEL

The American College of Environmental Lawyers (ACOEL) is a professional association of distinguished lawyers who practice in the field of environmental law. Membership is by invitation and members are recognized by their peers as preeminent in their field. ACOEL members are dedicated to: maintaining and improving the ethical practice of environmental law; the administration of justice; and the development of environmental law at both the state and federal level.

Superfund Enforcement of PFAS Moves Closer as EPA Submits Proposed Hazardous Substance Designation to OMB

Written by Lathrop GPM LLP

What to Know

On January 10, 2022, the United States Environmental Protection Agency (U.S. EPA) submitted for White House regulatory review its highly anticipated proposal to designate the two most widely studied per- and polyfluoroalkyl substances (PFAS), PFOA and PFOS, as hazardous substances under the federal Comprehensive Environmental Response, Compensation & Liability Act (CERCLA). If finalized as expected, the implications of the rule will be massive, as EPA’s proposal is likely to result in a cascade of EPA investigation and enforcement at impacted sites, as well as private party cost recovery litigation.

Regulatory, Litigation and Due Diligence Outlook

Hazardous substance designations for PFOA and PFOS have the potential to impact many industries, whether users of these PFAS or not. The designations are likely to trigger EPA investigation and enforcement at new Superfund sites, cause EPA to reevaluate remedies at ongoing cleanups, as well as possibly reopen investigation at dormant sites undergoing long term operation and maintenance. Industries with current or legacy use of PFOA or PFOS could also find themselves designated as potentially responsible parties under CERCLA and subject to EPA enforcement.

At what level remediation of PFOA and PFOS is required will be a hotly contested question at impacted sites. EPA guidance currently recommends using a preliminary remediation goal of 70 ppt for PFOA and PFOS for “current or potential” drinking water sources. However, recent EPA evaluation of the potential human health risks may drive certain remedial target levels, particularly those involving drinking water, much lower. CERCLA cleanups would also incorporate any state standards for PFOA and PFOS.

This development is also expected to spur litigation by private parties, who could use CERCLA’s cost recovery and contribution provisions to recover costs expended in the remediation of sites impacted by PFOA or PFOS. The hazardous substance designations have the potential to create significant financial impacts to industries with current or legacy PFOA and PFOS pollution concerns.

Finally, businesses acquiring other businesses or properties will have to ensure their due diligence process adequately considers the potential presence of PFOA and PFOS from historical releases. Failure to sufficiently assess PFOA and PFOS during the due diligence process could waive certain protections to liability afforded under CERCLA, with costly consequences.

What to Expect During the Rulemaking Process

CERCLA authorizes EPA to designate a substance as hazardous if that substance “may present substantial danger to the public health or welfare or the environment” when released in the environment. Whether a “substantial” danger exists, and at what level, is likely to be a focal point of public commentary during rulemaking. Regulation of hazardous chemicals under CERCLA can also occur by virtue of a hazardous designation under a different regulatory program including the Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act (RCRA), or the Toxic Substances Control Act. While EPA plans to designate certain PFAS wastes as hazardous under RCRA, it has not yet initiated that rulemaking process.

Along with the hazardous designation, EPA would also be required to set a Reportable Quantity (RQ) for PFOA and PFOS if released in the environment. Although PFOA and PFOS have largely been phased out of production and manufacture in the United States, newly discovered contamination and other types of discharges from stockpiles of the substances could be subject to the reporting requirements. Commenters are likely to address EPA’s assessment of the substances’ chemical, physical and toxicological properties used to determine the RQ.

By executive order, review by the Office of Management and Budget (OMB) is limited to 90 days but can be shorter or extended an additional 30 days. Once OMB completes its review, EPA will then publish the proposed rule for public comment. This timing is consistent with that proposed in EPA’s PFAS Roadmap, which anticipated proposing a rule by March 2022 and issuing a final rule by the summer of 2023.

Manufacturers and companies that could be affected by the new PFAS regulations should follow the EPA’s rulemaking efforts.

The material has been prepared by Lathrop GPM LLP for informational purposes only. This information should not be construed as legal advice and is not necessarily current or complete. For more information on Lathrop GPM LLP, visit https://www.lathropgpm.com/ .

Ontario: Hazardous and Special Products Producers Reporting Deadline is January 31st

Producers and producer responsibility organizations (PROs) of category A (oil filters and non-refillable pressurized containers), category B (oil containers, antifreeze, pesticides, refillable pressurized containers, solvents, paints and coatings) and category C (mercury-containing barometers, thermometers and thermostats) are required to submit a 2022 Interim Report to the Ontario Resource Productivity & Recovery Authority (RPRA) by January 31, 2022.

What information must be submitted in the 2022 Interim Report?

Category A and B producers

Producers of oil filters, oil containers, antifreeze, pesticides, refillable pressurized containers, non-refillable pressurized containers, solvents, paints and coatings are required to report the following information:

  • a list of all collection services provided, including collection sites, collection events, call-in collection services (call-in collection is only applicable to Large producers, see FAQ below to confirm if you are considered a large producer) and curbside pickup for the transitional period of October 1, 2021, to December 31, 2022
  • the name and contact information of each processor, hauler and disposal facility that is part of the collection and management system

Category C producers

All producers of mercury-containing barometers, thermometers and thermostats are required to report the following information:

  • a list of call-in collection services, and if applicable, collection sites and collection events that began as of October 1, 2021
  • the name and contact information of each processor, hauler and disposal facility that is part of the collection and management system

Working with PROs

Producers can enlist the services of a PRO to file this reporting (e.g. establishing and operating a collection and management system) on their behalf. The RPRA recommends that producers who have signed up with a PRO confirm with them directly that they will be submitting the 2022 Interim Report on their behalf. If you have not engaged the services of a PRO and wish to do so, you can find a list of PROs here.

Producers can also choose to establish and operate their own collection system. If you are establishing and operating your own collection and management system, you are required to send an email to [email protected] and a Compliance Officer will send you a template for completion. If you retained the services of a PRO after registering with the RPRA, you need to send an email to [email protected] indicating which PRO will be reporting on your behalf.

PROs submitting reports on behalf of producers

PROs who are reporting on behalf of their producer clients must use the 2022 Interim Reporting form that was sent to them by the Compliance and Registry Team.

About the Regulation

The Hazardous and Special Products (HSP) Regulation under the Resource Recovery and Circular Economy Act, 2016 (RRCEA) designates automotive materials (oil filters, oil containers and antifreeze), solvents, paints and coatings, pesticides, fertilizers, mercury-containing devices (barometers, thermometers and thermostats) and pressurized containers (non-refillable pressurized containers, refillable pressurized containers, refillable propane containers), under Ontario’s individual producer responsibility (IPR) regulatory framework.

As of October 1, 2021, following the wind up of the Municipal Hazardous or Special Waste (MHSW) Program operated by Stewardship Ontario on September 30, 2021, HSP producers are individually accountable and financially responsible for requirements set out under the HSP Regulation.

Ontario: Testing, tracking and registration of Excess Soil now required under Excess Soil Regulation

On January 1, 2022,the testing, tracking and filing obligations of the Excess Soil Regulation came into effect, requiring construction and development Project Leaders and Operators/Owners of soil Reuse Sites, and Residential Development Soil Depot sites to file notices about how they reuse and dispose of Excess Soil in Ontario.

Notices must be filed through the Excess Soil Registry. The Ontario Resource Productivity and Recovery Authority  (RPRA) established and maintains the Registry, and supports Registry users.

About the Excess Soil Regulation

Rules related to the reuse of Excess Soil in Ontario are detailed in the Excess Soil Regulation. The Ministry of the Environment, Conservation and Parks is responsible for policy and programs related to Excess Soil and, for conducting compliance and enforcement activities under the Excess Soil Regulation.

About the Excess Soil Registry

The three portals that can be used to access the Excess Soil Registry as follows:

  • The Registry Portal enables regulated persons to comply with registration and notice filing requirements outlined in the regulation. As part of the notice filing process, Registry users may be required to pay a fee upon completion of a notice filing to cover RPRA’s costs for building, maintaining, and operating the Registry and supporting Registry users. The 2022 Excess Soil Registry Fee Schedule can be viewed here.
  • The Public Portal enables transparency by allowing the public to access publicly available information contained in notice filings.
  • The Internal Database is available to designated ministry staff and facilitates compliance with the regulation by enabling the ministry to access notice filings and associated data.

The RPRA has provided a suite of training materials to help Registry users with accessing and navigating the Registry portals.