Water Wells Remain at Risk in Ontario

Written by Theresa McClenaghan, CELA Counsel and Executive Director and Richard Lindgren, CELA Counsel

The December 2019 annual report by the Auditor General of Ontario has focused public and political attention on the need for effective provincial action to reduce greenhouse gas emissions.

However, in another key passage, the report  also raises red flags about drinking water safety in many communities and First Nations across Ontario that are not served by municipal drinking water systems.

For example, the Auditor General concludes that “significant risks remain for Indigenous communities and areas outside of Conservation Authority boundaries, as well as private wells, which in total serve about 18% of Ontario’s population.”

In making this finding, the Auditor General notes that Ontario’s Clean Water Act (CWA)  has helped protect water sources that supply municipal drinking water systems.

Unfortunately, this legislation does not yet apply to non-municipal systems such as private residential wells. Therefore, the CWA does not currently require mandatory protection of groundwater used by well clusters in hamlets, villages and towns, even though such aquifers may supply drinking water for hundreds or even thousands of residents.

It is clear that this risk-laden situation has been allowed to continue under successive provincial governments in Ontario.

However, Premier Ford and his cabinet colleagues now have an opportunity to end decades of inaction by extending the CWA to non-municipal drinking water systems, and substantially improving Ontario’s Regulation 903 (Wells) .

Notably, the Auditor General’s latest report is not the first time that her office has expressed serious concern about threats to the drinking water consumed by some Ontarians.

In 2014, the Auditor General reported  that “over a third of the water samples from private wells tested positive for bacteria including E. coli. If private wells were held to the same safety standard used for public drinking water systems, water from these wells that tested positive for bacteria would be considered unsafe to drink.”

The Auditor General therefore recommended that the Environment Ministry “should consider the feasibility of requiring source protection plans to identify and address threats to sources of water that supply private wells and intakes.” Several years later, this important recommendation still has not been acted upon by the Ontario government.

Similar findings were made by the former Environmental Commissioner of Ontario (ECO) in her final environmental protection report to the Legislative Assembly in 2018.

This ECO report  confirms that the source protection framework under the Clean Water Act “has not been applied to most of northern Ontario, most First Nation communities or to private wells or other non-municipal drinking water sources.  These gaps leave some Ontarians vulnerable to unsafe drinking water.”

Over the years, the ECO  has also been critical of the ongoing inadequacy of Regulation 903, which establishes requirements for water well construction, repair and abandonment across the province.

In addition, the ECO  has described Regulation 903 as “severely flawed,” and rebuked the Ontario government “for neglecting its obligations to those whose drinking water comes from the most vulnerable of sources: small private wells.”

To date, however, only minor changes to Regulation 903 have been passed or proposed. Inexplicably, expert recommendations offered in 2005 by the Ontario Drinking Water Advisory Council on how to strengthen disinfection requirements under the regulation have not been fully implemented by the provincial government.

In these circumstances, further reforms are clearly needed to protect the health of all Ontarians, not just those who are served by municipal drinking water systems.

To expedite such reforms, CELA has recently filed a formal Application for Review of the CWA and its implementing regulation, pursuant to Ontario’s Environmental Bill of Rights (EBR). This EBR Application calls upon the provincial government to revise the CWA in order to extend source water protection requirements to various types of non-municipal drinking water systems that are not currently covered by the Act.

The Environment Ministry must now decide by mid-February 2020 whether it will undertake the review requested by CELA.

However, time is of the essence. As noted by Mr. Justice O’Connor in the Report of the Walkerton Inquiry , “there is no justification for permitting lower public health standards for some residents of Ontario than those enjoyed by others.

This article has been republished with the permission of the authors.  It was originally published in the CELA website.


About the Authors

Theresa McClenaghan was appointed as Executive Director of the Canadian Environmental Law Association (CELA) in November 2007.  Theresa frequently serves on government and NGO advisory panels on water protection.  She has authored various journal papers and book chapters, and is co-author of the three-volume annotated legal publication Ontario Water Law.  She holds an LL.B. from Western University (1984) and an LL.M. in constitutional law from Osgoode Law School at York (1999), with a major paper focused on section 35 of the Charter and indigenous environmental governance.  Theresa also earned a diploma in Environmental Health Science from McMaster University (1999).

Richard Lindgren is a staff lawyer at the Canadian Environmental Law Association.  Since joining CELA in 1986, he has represented individuals, public interest groups and First Nations before tribunals and in the courts, including the Supreme Court of Canada. He was co-counsel for Walkerton residents at the Walkerton Inquiry, and was a member of the Environment Minister’s Task Force on the Environmental Bill of Rights, the Attorney General’s Advisory Committee on Class Action Reform, and the Environment Minister’s Advisory Panel on Environmental Assessment.  He edits the Canadian Environmental Law Reports, and has taught environmental law at Queen’s University Faculty of Law and Trent University School of the Environment.

What Exactly Is Canada Doing About The Protection Of Our Environment?

Written by Paula Lombardi, Siskinds LLP

The Federal Government is required under the Federal Sustainable Development Act, S.C. 2008, c.33 (“Act1) to provide Canadians with a strategy as directed by the precautionary principle.

The precautionary principle is defined in section 2 of the FSDA, for implementing any thing, action or process to develop, improve and protect our environment of threats of “serious” or “irreversible damage”, regardless of lack of full scientific data, or cost-effective measures to prevent “environmental degradation”.

The FSDA was passed in June of 2008, and as statutorily required, the federal government implemented the first written objectives to Canadians in a report known as the “Federal Sustainable Development Strategy” (FSDS) for the years 2010 to 2013. The Act requires that the FSDS be updated every three (3) years by the Minister of the Environment based on the precautionary principle. The federal government’s fourth and most recent update is entitled “Achieving a Sustainable Future. A Federal Sustainable Development Strategy for Canada 2019 to 2022″ and was released on June 19, 20192 (the “2019-2022 FSDS”). Every Canadian including Indigenous organizations, non-governmental organizations, academics, businesses (large or small) are invited before the end of each reporting period to make comments on the draft report prior to its release. While the 2019-2022 FSDS report is complete, comments on the new report or ideas on implementation of its goals can be made on the federal government’s Commitments Board or by sending an email to [email protected].

As we enter a new decade, the re-elected liberal federal government will be working with Canadians to attain the thirteen (13) sustainable development goals by 2022. These goals include: lowering emissions; developing more green operations; preserving healthy coasts and oceans; growing clean technology; improving infrastructure; improving lakes and rivers; maintaining lands and forests; ensuring healthy wildlife; providing clean drinking water; creating sustainable food; connecting Canadians with nature; and, encouraging sustainable communities to live clean.

The question is whether these development changes really affect each Canadian? The answer is yes.

These development goals can only be achieved and sustained through action by individuals, the business sector and provincial governments. For example, in December of 2017, The Minister of the Environment and Climate Change Canada (“ECCC”) the Honourable Catherine McKeena stated: “Sustained action on Great Lakes restoration is key to the health and economic prosperity of citizens in this important region.”3 The ECCC gave close to $45 million in new funding to the Great Lakes Protection Initiative to take action on identified priorities (i.e. 2017 State of the Great Lakes Report). These priorities included reducing toxic and nuisance algae and harmful pollutants to restore water quality, and improving and protecting its ecosystem.

The creation of the Canada-Ontario Lake Erie Action Plan4 set out 120 actions to help reduce phosphorus entering Lake Erie. The City of Hamilton has contributed $14 million5 to the Randle Reef Sediment Project. Although this immense multi-year initiative remains on budget with the goal to be completed by 2022, it could only remain possible by the FSDA and application of the precautionary principle.

The 2019-2022 FSDS report is a free public document that all Canadians can easily access by downloading from the federal government website or visiting http://www.fsds-sfdd.ca/downloads/FSDS_2019-2022.pdf.

Footnotes

1 https://laws-lois.justice.gc.ca/eng/acts/f-8.6/page-1.html#h-240603

2 http://www.fsds-sfdd.ca/index.html#/en/intro/annexes#tabs

3 https://www.canada.ca/en/environment-climate-change/corporate/transparency/priorities-management/departmental-results-report/2017-2018/results.html#toc3

4 https://www.canada.ca/en/environment-climate-change/services/great-lakes-protection/action-plan-reduce-phosphorus-lake-erie.html#toc4

5 https://www.hamilton.ca/city-initiatives/our-harbour/budgets-and-fast-facts

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.


About the Author

Paula Lombardi is a partner of Siskinds LLP, and practices in the areas of environmental, municipal, regulatory and administrative law. Prior to joining Siskinds, Paula worked as an associate at a Bay Street law firm where her practice focused on occupational health and safety, environmental and regulatory matters.  Paula recently spent two years as in-house counsel for a major privately owned US corporation, whose owner is on the Forbes 500 list, and was responsible for all Canadian legal and business issues relating to the import and export of goods, transportation of hazardous materials, remediation of contaminated sites, construction of large infrastructure projects, regulatory compliance, NAFTA matters, and preparation of environmental assessments in the US and Canada.

 

A Review of the Emerging Treatment Technologies for PFAS Contaminated Soils

Two researchers from Charles Sturt University in New South Wales, Australia recently published a review of emerging treatment technologies for PFAS contaminated soils in the Journal of Environmental Management (255:109896[2020]). The article provides a comprehensive evaluation of existing and emerging technologies for remediating PFAS-contaminated soils and provides guidance on which approach to use in different contexts. The functions of all remediation technologies, their suitability, limitations, and the scale applied from laboratory to the field are also presented in the article as a baseline for understanding the research need for treatment in soil environments.

Perfluoroalkyl substances (PFAS) are very stable manmade chemicals that have properties that allow them to repel both water and oil.  Chemicals in this class of more than 5,000 substances are found in products like nonstick pans (e.g. “Teflon”), waterproof jackets, and carpets to repel water, grease, and stains.  PFAS don’t easily break down, and they can persist in your body and in the environment for decades. As a result of their pervasiveness, more than 95 percent of the U.S. population has PFAS in their bodies, according to the Centers for Disease Control and Prevention (CDC).

The article states that remediation of soil contaminated with PFAS is extremely challenging.  The most widely used method to manage PFAS contaminated soil is the immobilization method.   Immobilization methods that are generally less expensive and disruptive to the natural landscape, hydrology, and ecosystems than are conventional excavation, treatment, and disposal methods. The article concludes that PFAS immobilization methods need further study to assess their long-term efficiency.

The article also examines the use of soil washing methods for the remediation of PFAS in soil.  Soil washing is an ex-situ remediation technique that removes contaminants from soil by washing the soil with a liquid (often with a chemical additive), scrubbing the soil, and then separating the clean soils from contaminated soil and washwater.  The article concludes that further work to determine the efficacy of the washing solvents.

The article also discusses other soil remediation methods that have been tested effectively in lab trials including thermal treatment techniques, chemical oxidation, ball milling, and electron beams.

 

 

Excess Soil Management Guideline in Ontario – Berkley Canada’s White Paper

The Ontario Ministry of the Environment, Conservation and Parks (MECP) has finalized the Excess Soils Management Framework, bringing comprehensive change to how excess soils are managed in Ontario. The Environmental Team at Berkley Canada (a Berkley Company) recently released a White Paper which helps summarize key parts of the Framework, discusses emerging liabilities for various stakeholders, and highlights potential mitigation tools.

The MECP’s Framework appears to have two strategic goals”

  1. Protect human health and the environment from inappropriate use of excess soils; and
  2. Encourage the beneficial reuse of excess soils.

The White Paper provides readers with a summary of the Framework (from an insurer’s perspective) along with easy access to the relevant supporting documents and helps readers identify new risks and potential risk transfer solutions associated with the Framework.

The White Paper would be of interest to Environmental Consultants, Remediation and Construction Contractors, Real Estate Developers, and Land Owners.

 

Manitoba Government releases independent risk analysis report of lead in soil

In response to residents expressing concerns about lead in soil found in ten Winnipeg neighbourhoods, the province released a report prepared by an independent third party.  The 323-page report, prepared by Intrinsik Corp., reconfirms that there is a low heath risk for Manitobans when it comes to lead in soil.

Manitoba Health Seniors and Active Living (MHSAL) and Manitoba Conservation and Climate (MCC) commissioned a third-party review to determine if there are any potential risks to human health, and how best to identify and manage areas with elevated lead concentrations in soil.

The report was presented to government in December 2019, and the province has moved quickly to review its findings and prioritize the recommendations.

As recommended, the province will work towards making blood lead levels in excess of established guidelines reportable under The Public Health Act.  This move will assist the province to track and better understand where lead exposure may continue to pose a problem.  This new information will help focus future public health and environmental efforts where they are needed and will have the greatest impact.

MHSAL and MCC will also move forward with the recommendation to develop a communications and outreach plan that delivers a single, clear and effective message to the public and key stakeholders about how to mitigate potential risks.  This could include a public webpage or social media platform with regular updates for information sharing, and training for parents and caregivers of young children, as well as child care centres, community centres and preschools.

MHSAL and MCC will continue to work with Manitoba Education and school divisions to develop a plan to address recommendations for Weston School.

Given the primary source of lead emissions in Winnipeg are no longer present, the health risk of lead for Manitobans is low.  The report stressed that soil remediation was not recommended as a course of action.

To view the independent report’s findings and recommendations, visit

Lead Contamination of Soil in Winnipeg kept secret

As reported by the CBC in 2018, testing performed on soil in several other Winnipeg neighbourhoods more than 10 years ago showed potentially dangerous levels of lead — but residents were never told about the results because the government at the time withheld the information, according to documents obtained by CBC News.

Documents obtained by CBC through government sources reveal an extensive round of soil testing was conducted by the provincial government in 2007 and 2008 around Point Douglas, Wolseley, Minto and South Osborne.  Residential boulevards were targeted, as were playgrounds, schools and sports fields.

Canada-based, Cleantech-Focused Arctern Ventures Fund reaches $200 million

Canada-based and Cleantech-focused venture capital firm ArcTern Ventures recently announced it has raised an additional $35 million for its second fund, bringing the fund’s total commitments to $200 million.

The fund is targeting early-stage ventures in six sectors in the cleantech space: clean energy, energy use and storage, mobility, advanced manufacturing and materials, resource use and efficiency, and AgTech and foodtech. ArcTern has stated that it will lead first investments at a minimum of $500,000 and can fund ventures through their growth stages.

The company is one of a few Canadian venture capital firms that invest in early stage cleantech startups.  Murray McCaig, Managing Partner at ArcTern stated, “We are at the dawn of a multi-decade overhaul of the global economy where clean technology will enable economic growth and sustainability to co-exist.”

ArcTern Ventures has deployed capital into several Canadian tech startups, including Kitchener-Waterloo’s Smarter Alloys, which recently received $4.8 million from Sustainable Development Technology Canada, as well as Toronto-based carbon emissions reducer, Parity. ArcTern Fund II was the sole investor in Parity’s $5 million Series A.

The second close of Fund II, totalling $165 million, was announced in September, exceeding the firm’s original target of $100 million. New limited partners (LPs) participating in the $35 million raise include Norway-based Nysnø and Investissement Québec. These new investors join existing LPs OMERS, Equinor, TD Bank Group, Suncor, and the Business Development Bank of Canada. The Canadian government’s Venture Capital Catalyst Initiative (VCCI) has committed $10 million.

 

 

How hands-on scenarios can enhance radiological survey training

Written by Steven Pike, Argon Electronics

Radiological surveying is an integral task in maintaining safety wherever quantities of ionizing radiation are in use, or where they are suspected to be present.

Whether it is in the context of a military operation, emergency first response or an industrial setting, radiation safety personnel need to be equipped with the right tools to ensure they can accurately assess their environment and determine the best course of action.

Most radiological survey instruments have been designed to be easy to deploy, but it is important to be competent not just in the hands-on operation of the equipment but in being able to interpret the readings that are obtained and decide upon the appropriate recommendations to ensure safety is not compromised.

Once it has been established that the radiation hazard originates from a sealed source – meaning that there is no contamination risk – the principles of time, distance and shielding are vital.

Whenever possible, trainees should be provided with the opportunity to explore and test these principles in hands-on training scenarios that replicate real-life situations.

By adding the use of simulator detector equipment, there is also an opportunity for trainees to fully experience the characteristics, the behaviour and the risks of ionizing radiation – and to do so in a learning environment that is safe, immersive and highly realistic.

The flexible and high-fidelity nature of well-designed simulator detectors makes it possible for trainers to create a virtually unlimited range of realistic training scenarios for their students.

In this blog post we explore how the key principles of radiation safety can be put to the test in a range of hands-on scenarios.

1. Time

Radiation safety hinges on the understanding of the correlation between dose (or exposure) and dose rate (or the radiation present in the atmosphere) is directly related to time.

When the time (or the duration of exposure) is reduced by half, for example, the dose received will also be halved.

Once the trainee has been able to assess the dose rate present in the atmosphere, this information can be used to calculate their incident stay time in the hot zone (calculated as Exposure Limit divided by Dose Rate), which will allow them to carry out their activities as quickly and as safely as possible.

2. Distance

Distance – or how close an individual is to a radiological point source – is a key factor in enabling trainees to control exposure.

When the distance between the individual and the point source is doubled, this will reduce personal exposure by 75%, according to the rules of the Inverse Square Law.

How close it will be possible to get to a source of radiation without high exposure will depend on the energy of the radiation and the activity of the source.

Distance is a prime concern with gamma rays as they travel at the speed of light. Alpha particles, meanwhile, travel just a few inches in air, while beta particles can travel several feet – meaning that once an operator backs out of the affected area (and assuming that the material is not being spread by wind, rain or other forces) the trainee is no longer at risk.

3. Shielding

Radiation shielding is another vital skill that be put to the test during radiation training exercises.

Shielding is based on the principle of attenuation – or the extent to which a barrier can be used to block or bounce a radio wave.

Which radioactive shielding material will be best suited to the task, will depend on the penetration of the dose.

Alpha particles, for example, can be stopped by shielding that is as thin as a sheet of paper – while beta radiation requires something much heavier, such as an inch of wood or a thick piece of aluminum.

The highly penetrating nature of gamma radiation requires far denser shielding – ideally several inches of concrete or lead.

4. Establishing hazard perimeters

The readings obtained from portable survey meters provide essential information to enable personnel to establish operational control zones or hazard perimeters.

The ability to control (and operate within) a hazard perimeter will rely on a trainee’s proficiency in the following skills:

  • Understanding the physical considerations of the scene – for example, being able to assess the nature and severity of the radiation incident, identifying the presence of other co-existing threats, and protecting critical infrastructure.
  • Using existing topography (roads, structures etc) to enforce the perimeter and to aid in the protection and gathering of forensic evidence

 

Portable radiological survey meters provide radiation protection officers, first responders and CBRNe teams with the vital information they need to detect and measure external ionizing radiation fields.

Understanding the principles of time, distance and shielding, and having the opportunity to put this knowledge to the test in realistic training scenarios, will be vital in ensuring that radiation safety personnel are able to carry out their duties safely, efficiently and effectively.


About the Author

Steven Pike is the Founder and Managing Director of Argon Electronics, a leader in the development and manufacture of Chemical, Biological, Radiological and Nuclear (CBRN) and hazardous material (HazMat) detector simulators. He is interested in liaising with CBRN professionals and detector manufacturers to develop training simulators as well as CBRN trainers and exercise planners to enhance their capability and improve the quality of CBRN and Hazmat training.

 

Forecast for U.S. Federal and International Chemical Regulatory Policy 2020

Bergeson & Campbell, P.C. (B&C®) and its consulting affiliate, The Acta Group (Acta®), recently released their Forecast for U.S. Federal and International Chemical Regulatory Policy 2020. In this detailed and comprehensive document, the legal, scientific, and regulatory professionals of B&C and Acta distill key trends in U.S. and global chemical law and policy, and provide our best informed judgment as to the shape of key developments we are likely to see in the New Year.

The forecast was prepared by the global team of professionals from the two firms. The core business of the firms are the law, science, regulation, and policy of chemicals of all varieties — industrial, agricultural, intermediate, specialty, and biocidal, whether manufactured at the bulk or nano scale, or using conventional or innovative technologies, including biotechnology, synthetic biology, or biobased.

The team that put together the forecast was comprised of scientists (seven Ph.D.s), including toxicologists, chemists, exposure experts, and geneticists; regulatory and policy experts; and lawyers is deeply versed in chemical law, science, and policy and our unique business platform seamlessly leverages and ensures the integration of law and science to achieve success at every level, and in all parts of the globe.

The table of contents for the forecast can be found below.

TABLE OF CONTENTS

I. UNITED STATES: CHEMICAL FORECAST

  1. INTRODUCTION
  2. TSCA
  3. FIFRA
  4. U.S. NANOTECHNOLOGY
  5. BIOTECHNOLOGY
  6. BRAG
  7. HAZARDOUS MATERIALS TRANSPORTATION
  8. TRADE
  9. PROP 65
  10. INGREDIENT DISCLOSURE
  11. FDA FOOD AND COSMETICS REGULATION
  12. OSHA, WHMIS, AND GHS

II. KEY GLOBAL CHEMICAL MANAGEMENT PREDICTIONS

  1. OECD
  2. SAICM
  3. EU
  4. UK/BREXIT
  5. BIOCIDES
  6. ASIA
  7. MIDDLE EAST
  8. UN GHS

APPENDIX A: B&C SPEECHES AND WRITINGS

APPENDIX B: B&C WEBINARS AND PODCASTS AVAILABLE ON DEMAND

APPENDIX C: GLOSSARY

 

Thermally enhanced bioremediation for DNAPLs

In the fall of 2019, a group of researchers from CDM Smith, the U.S. Army Core of Engineers, TRS Group, and the U.S. EPA presented a paper on the implementation and performance of thermally-enhanced bioremdiation for targeted dense non-aqueous phase liquid (NDAPL) source treatment at the Northwest Remediation Conference in Tacoma, Washington.
In the paper, they describe a multi-component remedy, including in situ thermal remediation (ISTR) and enhanced anaerobic biodegradation (EAB), was implemented at a Superfund site in Tacoma, Washington. The goal of ISTR and EAB was to reduce mass discharge from the source areas by 90%.
EAB was implemented over a large area of the site containing a thin silt unit with residual chlorinated solvent mass and two localized areas above containing DNAPL (predominantly 1,1,2,2-PCA and TCE). Following implementation, dissolved-phase concentrations increased in the DNAPL areas due to enhanced dissolution. Reductive dechlorination products increased, but at a slower rate than desired.
Thermal enhancement by electrical resistance heating (ERH) was designed to increase the rate of dissolution of the DNAPL and to increase the biodegradation kinetics. The ERH treatment zone was created using an array of electrodes around each DNAPL area, with temperature monitoring in the center of each array.
The ERH system was maintained at a target temperature between 45-50°C throughout most of the 12-month operation. Monitoring data indicated that the smaller DNAPL source was substantially depleted during the first six months of operation, while the larger DNAPL source exhibited declining concentrations after 12 months of operation.
Monitoring indicated only minimal biodegradation occurred at the DNAPL-impacted locations. Rapid reductive dechlorination occurred in areas immediately surrounding the electrode array, where temperatures were slightly lower and more favorable for enhanced biological degradation. Since the implementation of ERH, PCA and TCE concentrations in the DNAPL source wells have declined between 80 and 99%.

In the Sale of Property, Responsibility for Removal and Remediation of Underground Storage Tanks needs to be clear

Written by Stan Berger, Fogler Rubinoff LLP

On January 9, 2020, the British Columbia Supreme Court in Walton v. Warren 2020 BCSC 19 found in favour of the Purchaser when an undiscovered underground storage tank required removal and site remediation following closing. This ruling was given despite the Purchaser having signed off on an inspection report prior to closing. The purchase and sale agreement provided that the Seller had to ensure that any underground storage tank (UST) located on the property be removed and the surrounding soil remediated. The Seller was responsible for all costs. The Seller had to provide written confirmation before the Completion Date from the tank removal contractor and relevant provincial and local authorities that the remediation complied with provincial or local government laws. The Purchaser had to obtain and approve an inspection report 6 weeks before the completion date. The report recommended that a specialist company survey and sweep the property to determine the presence of buried oil tanks. The Purchaser’s realtor arranged for a scan of the property free of charge. This was followed by a scanning company’s report stating there was no evidence of any UST. The contract closed on schedule and almost 3 years later the basement of the property flooded. During a necessary drain replacement a UST was discovered requiring its removal and remediation at a cost of $42,000. The Purchaser sued the sellers.

The Judge found that the existence of the UST was unknown to the Seller at the time of the sale. The Seller argued that their obligation with respect to responsibility for any underground storage tank ended upon the closing. The Purchaser completed the purchase being satisfied with the condition of the property. The judge disagreed finding in the Purchaser’s favour.

“[62] There is no language in the Addendum which could be interpreted as limiting the defendants’ obligations only to those USTs that were discovered prior to the Completion Date or to those USTs of which they were aware. [63] The Addendum does not include any conditional language. For example, it does not say that the defendants are to remove and remediate “any oil tank that is discovered prior to the Completion Date” or “any oil tank that they are aware of prior to the Completion Date”.

Moreover the survival clause in the agreement contained no exceptions.

The lesson here is that courts are disinclined to infer any limit on the responsibility of a party when the language in the contract isn’t clear.

This publication is intended for general information purposes only and should not be relied upon as legal advice.


About the Author

Mr. Berger has practiced regulatory law for 37 years. He represents nuclear operators and suppliers, waste management operators, renewable energy operators, receivers-in-bankruptcy, municipalities and First Nations. He was an Assistant Crown Attorney in Toronto for 8 years, Senior counsel and Deputy Director for Legal Services/Prosecutions at the Ministry of the Environment for 9 years and Assistant General Counsel at Ontario Power Generation Inc for 14 years.
He is the author of a quarterly loose-leaf service published by Thomson Reuters entitled the Prosecution and Defence of Environmental Offences and the editor of an annual review of environmental law.
Mr. Berger was the President of the International Nuclear Law Association (2008-2009) and the founder, and President of the Canadian Nuclear Law Organization.