0 National Round Table on the Environment and the Economy, I997 All rights reserved.

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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

4. The Financial Services Sector and Brownfield Redevelopment Main entry under title: Contaminated site issues in Canada: backgrounder Issued also in French under title: La question des sites contamints au Canada Includes bibliographical references. ISBN l-895643-54-6 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. TD878.4.C2C66 1997 363.73960971 C97-900756-9 Price: C$8.95 plus postage and tax This book is printed on Environmental Choice paper containing over 50 percent recycled content including 10 percent post-consumer fibre, using vegetable inks. The coverboard also has recycled content and is finished with a water-based, wax-free varnish. 5. Removing Barriers: Redeveloping Housing Contaminated Sites for

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:, i.

M andate
The National Round Table on the Environment and the Economy explaining (NRTEE) was in all of created to play the role of catalyst in identifying, sectors of Canadian sustainable environmental identify and promoting, society and in all regions of Canada, Specifically, principles and practices development. the agency identifies issues that have both and attempts preservation. to

and economic

implications, economic

explores these implications, prosperity with environmental to improve

actions that will balance

At the heart of the NRTEEs work is a commitment economic and environmental policy development

the quality of makers with

by providing

decision

the information

they need to make reasoned by:

choices on a sustainable

future for Canada.

The agency seeks to carry out its mandate advising decision makers and opinion

leaders on the best way to integrate into decision making; in any particular

environmental

and economic

considerations

actively seeking input from stakeholders issue and providing and overcome analyzing a neutral meeting

with a vested interest ground

where they can work to resolve issues

barriers

to sustainable

development; facts to identify changes that will enhance

environmental in Canada;

and economic and

sustainability

using the products conclusion

of research, analysis and national

consultation

to come to a

on the state of the debate on the environment synthesize

and the economy.

The NRTEEs state of the debate reports

the results of stakeholder

National Round Table on the Enwonment and the Economy

M embers
individuals environmental round priorities, are appointed

of the National Round Table on the Environment and the Economy

of a Chair and up to 24 distinguished as opinion Members society including business, Canadians. These a by the Prime Minister and First Nations. leaders representing

The NRTEE is composed

variety of regions and sectors of Canadian organizations,

labour, academia,

of the NRTEE meet as a work of the agency, set

table four times a year to review and discuss the ongoing and initiate new activities.

Chair Dr. Stuart Smith Chairman ENSYN Technologies Inc. Vice-Chair Lise Lachapelle President & CEO Canadian Pulp & Paper Association Vice-Chair Elizabeth May Executive Director Sierra Club of Canada Paul G. Antle Chairman, President & CEO SCC Environmental Group Inc. Jean Belanger Ottawa, Ontario Alan D. Bruce Administrator Operating Engineers (Local 115) Joint Apprenticeship and Training Plan Patrick Carson Strategic Planning Advisor Loblaw - Weston Companies Elizabeth Jane Cracker Co-Owner, Plovers Johanne GBinas Commissioner Bureau daudiences publiques sur lenvironnement Sam Hamad Vice-President Roche Construction Dr. Arthur J. Hanson President & CEO International Institute for Sustainable Development

Michael Harcourt Senior Associate Sustainable Development Sustainable Development Cindy Kenny-Gilday Yellowknife, NWT Dr. Douglas Knott Professor Emeritus University of Saskatchewan Anne Letellier de St- Just Lawyer

Research Institute

Ken Ogilvie Executive Director Pollution Probe Foundation Joseph ONeill Vice-President Woodlands Division Repap New Brunswick Inc. Dee Parkinson-Marcoux President CS Resources Limited Carol Phillips Director Education and International Affairs Canadian Automobile Workers Angus Ross President SOREMA Management Inc. and CEO, SOREMA Canadian Branch John Wiebe president & CEO GLOBE Foundation of Canada and Executive Vice-President Asia Pacific Foundation of Canada Executive Director 6 CEO David McGuinty

Nat~anal Round Table on the EnvironmentandtheEconomy

T of Contents able
Preface .............................................. Executive Summary. Introduction.. ................................... ............... ............... . . ............... vii ix xv 1 .5 3 . . . . . 19 . . . . . 25 . . . . . 29 . . . . . 33 . . . . . . . 37 ..... . . . . . .................. .................. ..................
43 47 51

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

Information Needs .......

The Allocation of Liability. .......................................... HowCleanisClean?................................................l Funding Orphan Site Clean-up ................................ Properties and Operations in Bankruptcy Brownfield Sites ............................................ SocietalCosts .............................................. ........................................ .......................

TheRoleofInsurance

The Prevention of Future Contamination. Miscellaneous Issues. ...................... Public Involvement. Appendices Bibliography Interviews .............................. ................................ .......................

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

61 65

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

Sites that have been contaminated land-fill operations and radioactive

from petroleum material

products,

manufacturing

wastes, health

pose a significant

threat to human for economic

and the natural development

environment,

and jeopardize

future opportunities

of those sites. of contamination, complicating little is known planning about the full nature for the clean-up and size and

Despite the dangers of the problem management and territories for developers, clean-up,

in Canada,

and budgeting

of these sites. In addition, on how liability lenders,

inconsistency

in regulations

set by the provinces has led to uncertainty in criteria for site of orphan have also pollution sites,

for contaminated

sites is allocated Inconsistencies

the public and governments. mechanisms

the lack of appropriate

for ensuring

clean-up

and confusion impeded prevention,

about the role of insurance Work is required

in environmental on initiatives

protection

redevelopment. promote

that will support

communication

and understanding gap between technical

among the many interested experts and members of the

parties, and bridge the information public. Recognizing Round Financial

the need for research and discussion and the Economy

on this issue, The National (NRTEE) has undertaken is to consolidate a

Table on the Environment Services Program. redevelopment information

The purpose

of the Program

information data on

on brownfield site-specific

and other contaminated

sites, and to improve of land.

about the environmental

condition

This backgrounder

analyzes broad areas of concern

relating

to contaminated

sites

and sets the stage for more detailed work. As a complement Services Program Contaminated has produced three additional backgrounder Services Sector and Brownfield Redevelopment, Condition ofLand. All are designed Canadian Financial report stakeholders Services during including

to this study, the Financial reports: The Financial

Removing Barriers: Redeveloping

Sites for Housing and Improving Site-Specific Data on the Environmental to stimulate thought and discussion among on

the subsequent workshops

phases of the NRTEE Program

and production

of a state of the debate

on the issue. by slmcleod consulting, under Services Program. the authors the direction of the NRTEE

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

While it is the result of substantial for their interpretation the position of

accept full responsibility

of the report does not necessarily interviewed.

represent

the NRTEE or the organizations

Angus Ross Chair Task Force for the Financial National Round Services Program and the Economy

Table on the Environment

National Round Table on the Environmen, and lhe Economy

Contaminated Site ~sues in Canada - Bockgrounder

National Round Table on the Environment and the Economy Financial Services Task Force
Chair Angus Ross President SOREMA Management Inc. Luc Charbonneau Carol Ann Bartlett Assistant General Counsel Head Office, Law Royal Bank of Canada Beth Benson Project Director for Site Remediation Toronto Waterfront Regeneration Trust Dick Stephens Douglas M. Bisset Bisset Engineering Inc. Wally Braul Barrister & Solicitor President West Coast Environmental Law Association Director Legislation & Intergovernmental Affairs Wayne Proctor Manager Lending Services Credit Union Central of British Columbia Directeur Samson Belair Deloitte Touche J. Anthony Cassils Policy Consultant NRTEE

Notional Round Table on the Environmentand the Economy

xecu tive Summa~

There are thousands of contaminated sites in Canada. The contamination has arisen from private sector industrial activities. chemicals ground Petroleum, petrochemicals, materials activities or public sector public works or defence farm or forestry Soils and

heavy metals, wood preservatives, are common contaminating

and radioactive

materials.

water bear the brunt

of the immediate

effects, but there are often significant environment. This, plus the in the present

related threats to human hindrance regulatory

health and to the natural opportunities

to future development regimes, provides

caused by uncertainties

adequate

reason for a focused effort to resolve the wide sites. Round Table on the Environment

range of issues related to contaminated The Financial and the Economy contaminated

Services Task Force of the National has assumed the task of investigating

the broad issues related to of two of the more critical sites and an sites and how those by this Task

sites and of generating of site-specific

ideas for the resolution information

ones. The availability investigation barriers

on contaminated of brownfield

into the barriers

to the redevelopment

could be overcome

are the subjects

of other papers commissioned

Force. This paper reviews the broad issues and the context undertaken on site-specific information and brownfields.

for the detailed work being

Information Needs contaminated their clean-up

The nature

and size of Canadas problems This complicates planning

related to and budgeting for

sites are not well known. or management,

particularly

in these times of tight financial or health significance

resources.

There is no agreement contaminated properties.

on the environmental

of small, residential on these to land

sites. Consequently, Existing information

little or no information on contaminated presently

is being collected

lands is not cross-referenced compatible developers

registry systems, nor are databases accessible to allow the sharing of the public. Finally, current

in use in Canada

or easily or members priorities available.

of information budgets demand

among regulators, that clean-up

and management money

be set carefully so that the best effect can be obtained Available site characterization The Allocation of Liability territories approaches, polluter approach, retroactive uncertainty required included in the way liability data are insufficient Regulatory is allocated

from the limited this.

to support among

inconsistency

the provinces concern.

and

emerges as a significant

Different and

or in some cases a lack of a clear approach, the application

to the use of the fairness of a deep pockets of prospective net of liability and

pays principles,

or non-application

the use of joint and several liability, the application liability, and the use of an initial broad or narrow

have led to is

for developers, respecting in liability whether

lenders, the public and governments. and how lenders processes. or directors

Specific guidance

and officers should be

allocation

md Table on the ,ndthe Economy

Much work has been done on developing approaches. jurisdictions The most important in the determination

and exploring

the various

available the various to

needs are for more uniformity of liability

among

and a greater overall commitment

reduce the need for litigation. How Clean is Clean? Resolution of a site, for settjng priorities constitutes common priorities. involved acceptable management of this question among is important for the initial designation what

for clean-up

several sites and for determining clean-up standards should be needs and should be

a clean site. There is debate on whether across thecountry or should be responsive

to local conditions,

This debate will need to be resolved, and all major interests in that resolution. approach; Risk assessment is emerging

rapidly as a technically with it at this time. As gain in acceptance, special

however, the public lacks comfort options

and containment

for site remediation

efforts will be required generations. completed

to ensure that unreasonable certificates

obligations

are not placed on future

Finally, whether remediation

of compliance

should be issued for properly response of orphan across the country. contaminated sites, or

remains

an issue lacking a uniform Canada has a number

Funding Orphan Site Clean-,up sites for which no viable responsible management to varying

parties can be found. These sites need clean-up Contaminated in most of the orphan

degrees, but since the expiry of the National there has been no dependable occurs. If a mechanism mechanism

Sites Remediation country

Program

to ensure that such clean-up in their present

is not developed, threat to the

sites may remain environment

state with a possible

consequent

or human

health. A complication of contamination mechanism

in the debate is the existence for which a responsible

of orphan be

shares of sites, or elements found. An appropriate management structure

party cannot

funding

may involve multiple

parties. The

for any fund should reflect the sources of that fund. A number of amendments to the These

Properties and Operations in Bankruptcy Bankruptcy

and Insolvency

Act have been considered

by the House of Commons.

changes relate to the personal a post-appointment be recovered clean-up

liability

of receivers, responses

that a receiver can make to on clean-up may

order, and how public funds expended properties.

from bankrupt

While there is fairly broad support stakeholders or governments

for the type of changes proposed, amendments

not all and

are in accord. Unrelated

were proposed

passed by the House of Commons Assent during early autumn

and also by the Senate. Bill C-5 was given Royal provisions are likely to take effect in the

April 1997. The environmental of 1997.

Nalionol Round Table on the Enwonmenf and the Economy

Contaminated S,te lswes in Conodo - Bockgrounder

Brownfield Sites -Many industrial

cities in Canada have abandoned making

or idle commercial to redevelop.

or There

lands that are contaminated,

them more difficult use, including

are many reasons for returning brownfields

this land to productive

the fact that most

are already close to services and are, therefore, from such rejuvenation,

easier to develop than new can be what

sites, that inner cities benefit restored constitutes making and urban

and that tax revenues

sprawl can be avoided. Settling issues of liability availability

allocation,

clean is clean and information of brownfields

will go a long way toward

the redevelopment

easier. While first steps have been taken, there by the financial services sector that could

may be initiatives contribute

that could be pursued

to the overall solution. The question of societal costs arises in all discussions sites or orphan about who

Societal Costs -

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

of orphan

shares of sites. A few years ago,

broad acceptance

that societal costs should be borne by have led some interests to advocate a broader for that is the fund. The

Several circumstances

of responsibility of no-fault

for societal costs. One possible

mechanism

shares by a range of parties to create any necessary

consequence

of not resolving or become

the issue of who pays societal costs may be unremediated a threat to the environment and to human in contaminated resulting health. sites should

sites that remain

The Role of Insurance probably

The future role of insurance or fortuitous occurrences

be to cover sudden materials

in the release of of

contaminating conditions protection. consistent certification

into soils and ground for insurance national

or surface waters. A number

seem to be essential These include enforcement, processes

to assume its full role in environmental environmental to pollution standards, strong and

consistent

and a commitment for environmental

prevention.

National

auditors

and site assessors are now largely in risks. These

place and will aid insurers professionals, enforcement.

and others in assessing environmental

as well as insurers,

are well placed to play a role in improving

The Prevention of Future Contamination momentum governments. supportive regulatory traditional within in Canada,

Pollution

prevention

is gaining and in

but there are pockets of inertia

both in business

Both the public and private sectors have embarked

on initiatives a new and and fits

of this goal. However, there is much work to be done in developing regime that accommodates command and control economic both an appropriate mix of voluntary

elements system.

and the use of financial

assurances,

a full-cost

pricing

Notional Round Table on the Enwonment and the Economy

Miscellaneous Issues -A assessing and cleaning protection budgets,

number

of technical

issues need to be solved to aid in environmental

up contaminated

sites. In this time of declining is important

a system for setting priorities are addressed.

to ensure that the most

critical technical Municipalities contaminated implementing limiting

questions

have often been too distant

from deliberations governments

on policies related to in developing and and

sites. They should work with provincial such policies. Political will is sometimes

lacking in the prevention

of contamination. and understanding among the myriad interested parties should be to describe their

Communication a consideration activities. Public Involvement sites. Information

when technical

experts develop and use terminology

The public is relatively

poorly informed of openness

about contaminated

systems should be supportive and appears

and easy access for the technical experts and in

,public. A gap has developed the public. Bridging

to be deepening

between

this gap will take considerable and solutions

effort, but will pay dividends contaminated approach

shared ownership

of problems

regarding

sites. A technique in which all

that may help in the bridging parties share their information

process is a two-way and perspectives difficulties

education

and are prepared

to learn from each for specific

other. If this gap is not bridged, contaminated

in implementing

solutions

sites can be expected.

National Round Table on the Environment ond the Economy

Contaminated Stte lrrver Canada - Backgrounder

to

A cronyms
AECL AESAC BIA CCME CEAA CERCLA CMHC EMAS ENGO IS0 NCSRP NRTEE PRP Atomic Energy of Canada Limited Association
Bankruptcy

of Environmental
and Insolvency Act

Site Assessors of Canada

Canadian Canadian

Council of Ministers of the Environment Environmental Auditing Association

Response, Compensation and Liability Act

Comprehensive

Environmental

(United States) Canada Mortgage and Housing Corporation Eco-Management environmental and Audit Scheme non-governmental organization

International Organization for Standardization (also from isos, meaning equal) National Contaminated Sites Remediation Program and the Economy

National Round Table on the Environment potentially responsible party

Contaminated

sites have been with us for longer than we can remember. We lived in ignorance of the sensitivities us experienced

We created

them, often unknowingly. lived in significant and the environment effects grew beyond

of them in the same way that we have of our land and water resources. We

ignorance around

subtle or not so subtle effects. As the conscious of contamination, slowly learning

the subtle, we became

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

and need to learn much more. of contaminated sites in and Most is while and as

maybe even tens of thousands,

Canada. We do not know. The sites we know about are of various seriousness. will probably expensive. It is probably require fair to say that every site requires

complexity

some management. clean-up

clean-up

to some degree. Some of the required requirements are extensive

Some of the management

and long-lasting,

others are simpler yet unknown,

and cheaper. Still, it is fair to say that for all sites, both known would have been the cheapest overnight. option.

prevention

But this has always been by

an elusive lesson and will not be righted persistent efforts that yield incremental water contamination

It will only be corrected improvements.

but significant

Soil and ground contamination petroleum companies

have many sources. The primary products.

source of from

is probably

leaked petroleum

Such leaks have occurred by the petroleum at mine sites,

refineries themselves,

and other facilities owned and operated and from the storage of such products service stations, farms and residences.

manufacturing

facilities,

There are other sources, however. There are raw materials manufacturing, treating

and by-products

from

such as heavy metals, and there are wastes and by-products and milling operations, farm or forestry chemical

from woodformulation and

facilities, mining

and application, contain yielding

and land-filling

operations

that have been inadequately chemical

managed cocktails

all manner undetermined

of contaminants.

These last can be veritable synergistic

and unpredictable

effects. A source often left out of from Canadas experimental thermal power generation mining

discussions programs by various activities

on contaminated

sites is radioactive

material

under Atomic Energy of Canada utilities in New Brunswick, and Ontario.

Limited,

nuclear

Quebec

and Ontario,

and uranium

in Saskatchewan Round

The National had some history working

Table on the Environment

and the Economy

(NRTEE) has

of involvement

in issues related to contaminated to deal with lender and investor

sites. In 1992, a issues arising from

paper was commissioned sites. NRTEE member

contaminated Current program

Angus Ross was recently

asked to lead a financial the integration

services

to examine

some specific issues that hinder

of the environment

and economy.

A scoping exercise, which involved

identifying

key issues, was undertaken

and issues related to contaminated

land rose to the top of the list.

National Round Table on the Enwonment and th. Economy

Realizing

that there is a labyrinth the Financial

of issues related to contaminated

sites and in view

of its very tight budget,

Services Task Force, with NRTEE agreement, services sector has considerable condition of land and the

decided to focus on two issues in which the financial interest: 1) improving site-specific

data on the environmental

accessibility

of those data, and 2) the redevelopment

of brownfield

sites. Papers have

been commissioned this paper to identify contaminated brownfields.

on each of these issues. In addition, and describe the evolution

the Task Force commissioned issues related to data and

of the main national

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

All three papers were background held in the last quarter meetings

to discussions

at five multistakeholder of 1997. The emphasis and other

meetings at these

of I996 and the first quarter to which the financial not on solutions

was on solutions

services industry

stakeholders industry.

could contribute,

to serve only the financial

services

What follows in this paper is a broad exploration site issues facing Canadians. ) ) ) ) ) ) * ) W ) ) Information The allocation needs of liability They are grouped

of the significant

contaminated

under the following

headings:

How clean is clean? Funding Properties Brownfield of orpharisite and operations sites clean-up in bankruptcy

Societal costs The role of insurance The prevention Miscellaneous of future contamination issues

Public involvement The order of their presentation is not an indication is essential of their relative importance, any of the other issues, and

with one exception.

Public involvement

to addressing

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

issue. In each section, the issues are discussed attempts sites. to highlight the major questions

Summary

with regard to contaminated

Nafionol Round Table on fhe Environment and the Economy

The list of issues before Canadians complex problem,

may seem daunting.

However, like any other steps. A

this one can be solved by taking logical and incremental that involves all the interested to the table, examine

comprehensive

process is required

parties. Those parties

should bring the correct attitudes priority

the issues, put them in order of is not hopeless, The to

and begin to work on them one or two at a time. The situation only our best cooperative a cooperative interested

but it is serious,-and

efforts will resolve the problems. well-positioned

NRTEE is, first and foremost, moderate a consensus among

body and is extremely

parties on the need for next steps and on how

and by whom those next steps should be taken.

National RaundTableonthe Enwonment q ndthe Economy

Contaminated S,te Lewes in CanadaBockgrounder

The need for information

on contaminated

sites in Canada

is very great. The needs such as

range from basic, such as how many contaminated how mobile the contaminants for example, are in a particular

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

will be felt in an

aspen parkland,

from spilled farm chemicals. information non-profit protect property expenditures in order on

Most sectors of society require, at one time or another, contaminated organizations. sites the public, regulators, industry,

insurers, property,

Such information

is needed to purchase

values, protect health, make investments, of priority and assess liabilities.

assess risks, put possible

Some of this information

is collected, but much less of across the country, many

it is readily available

as it is dispersed

in dozens of databases

of which do not relate to one another. Proper resolution information information of the other issues in this paper almost inevitably available requires more

than is currently

or accessible. In some cases, the lack of

has meant no decision

has been made. In others, choices have been made understandings that information and

that, in some instances, interpretations that is complete

have had to be revised as new information,

emerge. At the same time, it must be acknowledged and perfect in every way is not possible would follow,

and would, in any event, not

ensure that the perfect decision

Discussion of Issues
The need for information a number existence of reasons. on contaminated sites arises in a number of ways and for First, it arises simply because we do not always know of the it may arise because we need to know whether health. Or we need to know whether and cause a problem by previously for adjacent the These there is

of a site. Subsequently,

any imminent contamination information municipal proposals government

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

properties.

unexplained rezoning

health problems, used lands,

land use planning for redevelopment regulatory

exercises, proposed or re-occupation or industry

of previously

of abandoned

land, or by changes in

requirements

codes of practice. the scope and nature of the

A first level of information problem.

relates to determining

How many contaminated

sites are there? What kind and degree of reporting of for

contamination contaminated

is there? These answers are not known. Voluntary sites has been encouraged reporting by many governments requirements

across the country

some time. However, mandatory Although some urban

are only now emerging. of potentially do not have These data clean-up for

municipalities

have embarked

on full inventories governments boundaries.

contaminated equivalent deficiencies

sites, the federal, provincial information within

and territorial political

their respective

make it very difficult

to develop a rational

strategy for progressive it is impossible

of major sites. In the absence of this basic information, example, the size of fund required for the clean-up

to determine,

of orphan

sites. Moreover,

it will be

National Round Table on the Environment and the Economy

difficult

to determine

that a property

being considered

for purchase,

loan or insurance is

is clean or is not adjacent undertaken. In the case of orphan they publicize. reluctance response

to or threatened

by a dirty site unless a full site assessment

sites, it is possible

that regulators is not available

know about more sites than for clean-up, there is a the public

It may be that when money

to talk widely about sites that may require remediation. to knowledge of new sites is predictable, especially

Certainly,

from those whose land

values may be affected or whose health may be impaired. There are other complications example, the case of small residential in determining the nature of the problem. Take, for or

fuel storage tanks. These may be either buried suggests that the

above ground. likelihood materials, Knowledge and lending Another

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

of leaks is greater in small tanks than in large. They are made of thinner perhaps less care is taken in their installation, or they are not well monitored.

of this aspect of the problem risks. consideration

could greatly affect realty prices, and insurance

that affects the nature Any contaminant

of the problem

includes

the definition background?

of what constitutes Contaminant with a problem circumstances, Inconsistency

contamination:

levels above natural

levels above generic criteria? Levels only above those criteria that leave us we can afford to clean up. Different and the stated number among governments of known criteria will be used in different

sites may change accordingly. inconsistency in the types of the in

is also problematic

of data sought and the way in which they are recorded, various databases used throughout the country.

and the incompatibility

What constitutes

a site or a problem

one province

may not in another. are moving toward required the information 500 gallons) reporting of

As noted, many jurisdictions contaminated

sites, and this will greatly improve are not including

we have to work with. storage tanks in this problem to warrant

However, provinces requirement such attention. Many interests referenced purchasers, contaminated its effectiveness

small (under

and are not convinced

that this is a serious enough

would seek to have information

on contaminated

sites cross-

to the land registry/land realtors, lenders

titles systems. This would enable property to know immediately if land is or has been and

and insurers

and, in the case of the latter, to know the details of the remediation and limitations. This would be a step forward is required in openness.

The second level of information contaminants of most concern?

for site characterization.

What are the What

Where do they exist and in what concentrations?

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

in these soils? What are or downstream areas?

Have contaminants

reached the water systems? This information graduated

is costly to obtain and is The important some data and assessors

typically sought in stages through point for this discussion

levels of site assessment.

is that even for the sites identified

as contaminated,

that would aid in characterizing can draw no conclusions

the site are usually lacking. Yet regulators priorities without

about relative clean-up is dependent to background

that characterization. policy employed. If

The last level of information the regulator defined. requires clean-up

on the remediation

levels, then background objectives

levels must be approach, and

If the regulator

accepts site-specific understanding

or a risk assessment

then there must be additional

of the local biophysical properties

environment

the uses made of the subject property What are the exposure children or animals pathways

or adjacent

by the local population. Are there

for human

health and the ecosystem?

close by that might ingest contaminated Will the contaminants

soils? Are the contaminants be taken up by plants level of that must be and

volatile, such that they can be inhaled? then eaten by increasingly information, available

higher order organisms? approaches

Again, this is another

but for risk assessment among sites.

this is the information

to set priorities

One problem required

is that governments

currently

do not have the money

for the research It is

to answer fully the question:

what is the size and nature while perhaps

of the problem? of

also true that those who maintain harmonizing obtaining information their databases the resources

databases,

seeing the benefits will have difficulty

with others across the country,

to do so. Therefore,

choices will continue

to be made with less

than desirable.

Summary of Issues
N There is insufficient in Canada contamination. N Smaller sites are rarely included planned to accumulate in contaminated site listings, and there is no effort whether information to determine the scope and nature of the problem the number of contaminated sites and the degree and types of

that information a significant

in the near future or to determine

small sites constitute P

problem. of information on contaminated sites to land

There is no formal cross-referencing registry systems.

) )

Money is not available Generally speaking,

for comprehensive

inventory information

work. is insufficient to allow the

site characterization for remediation.

setting of priorities

One of the most contentious liability various common. The main consequence businesses, ratepayers. site; whether remediated; or marketable communities, for individual provinces

aspects of contaminated

sites in Canada

is how in

sites is allocated.

A variety of approaches

have been employed

and territories.

Until recently, these approaches

have had too little in

of this patchwork environmental include

of approaches

is uncertainty

for

organizations, whether

and individual

citizens and for the

These uncertainties human

anyone will take responsibility

health or the environment

are at risk, if and how a site will be the property will be useable

how much remediation

will cost; and whether

in the near future and for what use and price. uncertainty the various is impossible, allocation it can be reduced to reasonable them levels

While eliminating by working reasonably through

issues one by one and resolving

and nationally.

Discussion of Issues
Joint and several liability the allocation probably stands out as the most controversial element means that In turn, court of debate. At the extreme, the use of joint and several liability for the whole cost of the clean-up of the costs incurred

any party can be held responsible that responsible

required. through

party may recover some portion responsible parties.

action against the remaining The difficulties achievement

with this approach

are that it is unfair, or at least delays the The benefit of the approach is that it is easy

of fairness, and it is inefficient. and apparently element

for the regulator The unfairness

easy on the public purse. to

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

which they were but one of many contributors. the uncertainty New Brunswick, throughout the clean-up

That same party must bear the bulk of phases. One jurisdiction,

and cost-recovery

selects the most responsible

party, against which it applies joint and less unfair way to proceed. In

several liability. In some cases this will be a somewhat other cases, it is possible that the regulator party to find or the one most able to pay. The inefficiency aspect bears on the question

may simply go after the easiest responsible

of whether

the court system is the comments below. sense Does

right place to solve this type of problem. Is the use of joint and several liability of who pays for the clean-up, a joint and several approach

Please note the further

easy on the public purse? In the narrow questions to consider.

yes, it is. But there are broader

create a climate that some businesses

will shun if they have the

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

simple recovery of court costs? One such cost might be the delay of cases for which court is the only possible justice ministry tasks. solution. Another cost is the time spent on such cases by on other

officials, which might have been spent more productively

Nof,onol Round Table on the Environmentondthe Economy

Conado

Bockgrounder

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 of the court system is that the interested making. A judge renders argument. the decision. parties give up most of The interested parties bears

over decision

can only influence on the substance tendency concerned. responsible

the judgment

through

While much of the argument

of the case, far too often the focus is on legal technicalities. insofar as resolving contaminated

This latter

is not in the public interest

site issues is

The public wants a site cleaned up and it would like to see the appropriate parties pay. If a legal loophole cynicism lets a particular party off, it only serves to The court system but to give up

anger the public and engender

in our system of governance. parties have no recourse

is clearly the right place to go when interested control -

when they have ceased to communicate that communication.

one with the other and have no reach that stage, there are many

desire to improve other processes

Before disputes

that are much more effective and much more economical. to the use of joint and several liability is a form of allocation Principles and the

The alternative

process that avoids the use of the courts as anything Canadian document allocation N Council of Ministers of the Environment

other than a last resort. The (CCME) Recommended

suggests a four-step of clean-up costs:

process to resolve the issues of responsibility

a voluntary allocation in which the responsible to reach their own agreement on cost allocation.

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

a mediated allocation in which the responsible to reach agreement among themselves

with the use of a disinterested

who is there solely to manage P an arbitration

the process. Should that also fail, the third step is of the responsible parties

in which a third party hears the arguments to the dispute.

and directs a solution >

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. for the responsible of a complicated parties to find site

Effectively, the process gives every opportunity their own way to share the inevitable situation. Joint and several liability unfairness is invoked

contaminated

as a last resort. Being in the background, and allows seriously. It is

it is an incentive

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

action to be taken against those who will not take their responsibility interesting application, that small business sees the use of joint and several liability, effect at the negotiating -

in a backdrop

as having a levelling

table. It forces the bigger in which small

actors to look seriously businesses

for a solution

the only circumstance

feel that they can play and not come out losers.

Not~onol Round Table an Ihe Envimnmentandthe Economy

At present,

the provinces

and territories

are approximately

evenly split on the use of New still

joint and several liability Brunswick, adhering approach, the Northwest

versus apportioned Territories

liability. British Columbia, are among

and Ontario

the jurisdictions

to a largely joint and several regime. Among joint and several is retained is a principle as a backdrop.

those that use an apportionment

Fairness liability

to which most would subscribe.

The trick in the allocation unfairness. Some

of

and clean-up

costs is to find a way to do it that minimizes

party will see as unfair that: a polluter responsible goes bankrupt or leaves the country and leaves other potentially

parties to face the consequences; practice is revealed by the evolution application of science to be

what once seemed a reasonable inadequate and is corrected

by retroactive

of a new regulation;

what makes apparent perceptions perceptions; certain money companies

scientific

and economic decisions

sense is not always in line with public to these public

and that political

will often be responsive

are held fully responsible,

seemingly

only because they have the

to effect the remediation;

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 for their do

not play by the rules and, further, may not be held to full account behaviour. These are a few of the types of situations Unfairness is frequently impossible processes that various participants

find unfair. Therefore,

to escape in contaminated

site situations.

the goal of allocation

must be to minimize as much as possible

the unfairness.

This most often Some

means sharing the unfairness responsible

among

those responsible. discussions

parties are more willing than others to approach others that joint and several liability

in such a vein.

It is for the reluctant

may need to be retained

because it effectively requires cooperation and mediated outcome

them to be at the table. They may realize that nonVoluntary

may result in them having to take an even greater responsibility. approaches enhance fairness because in both cases control parties collectively.

of the

remains

with the responsible

The polluter industry

pays principle

is widely supported

by government,

the public and of polluter. (ENGO) Some

alike. There have been some disputes of environmental

about the definition organizations

representatives

non-governmental

have made

the point that a polluter maintain

may be an industry

sector, while industry on a facility-specific of clean-up

organizations or company-specific

that the term should be interpreted

basis. A deep pockets approach offend the polluter pays principle.

to the allocation The responsible

costs can sometimes

party most able to pay may not be

the one that bears the greatest responsibility The application

for the contamination. in which the responsible party most and a time

of the deep pockets approach to pay is controversial

able to pay is expected

and costly in both a financial

sense. For the most part, regulators approach offends the obligation

and stakeholders

accept that a deep pockets process. The CCME in 1993, there remains jurisdictions. a

to be fair in any cost allocation ministers

Recommended recommends concern

Principles, which all environment that a deep pockets approach

supported

be rejected. Nonetheless, Canadian

that it may be used from time to time in various be absolute

Should liability on your property liability

or strict ? The former means that if there is damage you are liable for it. On the other hand, strict defence, to of an purse

or from your operation responsible

allows potentially

parties to use a due diligence

demonstrate absolute

that they are not at fault and so to avoid liability. The benefit approach is that it ensures that somebody

liability

other than the public

will pay remediation offend the principle

costs on a privately

owned site. The disadvantage strict liability

is that it may

of fairness. Conversely,

may leave the public purse This issue has

having to pay for contamination diminished or reasonable written

that the public had no hand in creating. favourably arguments

of late as most courts will consider care. An example

of due diligence is

of this occurs in Nova Scotia where recent legislation of absolute liability, but, in practice, the parties are

so as to allow the application has put restrictions

government pursued.

on itself to ensure that only responsible

Should liability clean-up

be prospective?

If a responsible

party has correctly

completed

of a site and additional

pollution

is discovered

after the clean-up,

should that cost be in Canadian

party retain a responsibility

for further

remediation liability

or should the additional is applied prospectively

societal? With only one or two exceptions, jurisdictions in these types of situations. be retroactive?

Should liability toughened,

As legislation

is revamped

and in many cases and polluters when they

should it have effect on historical

contamination

had been in compliance

with the laws of the day? Should earlier owners or operators, with such clean-up or should the costs be seen as retroactively in one

for example, bear the costs associated societal? Virtually situation all provinces

and territories

have applied liability

or another.

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

in

It is interesting liability example,

to note that how these questions on how regulations

of prospective

and retroactive

are resolved depends if legislated criteria

are perceived

by all parties. For then the is superseded or

are seen as being of utmost to practice

importance,

responsibility

of the operator

good environmental

behaviour

by the responsibility practised criteria

of the regulator

to select the right numbers. with no intention

If the legislated

are seen only as guidance

of removing

long-term

responsibility

from the operator,

then placing

the onus on the operator

for both future

and past practice Property property

is more appropriate.

This does not receive open discussion. when the contamination of a

values can be expected to decrease markedly known. Conversely, property

becomes

values should increase when bills is who

contaminated should benefit

lands are cleaned up. An issue with those that pay clean-up from the increase in the land value? The resolution

of this issue would

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

of fairness. It makes good sense that benefits should be shared in similar proportions to

of a property

the contributions Determining be very difficult. N N * * N ) N l present

made to the clean-up. who the responsible The list of potentially and previous owners; from the owner; parties are for any liability responsible parties allocation process can

(PRPs) can include:

the operator, tenants; manufacturers distributors lenders: directors regulators.

if different

of the contaminant; and transporters of the contaminant;

and officers of any organization

which contributes

to pollution;

and

Should the net cast in identifying subsequent exemptions),

PRPs be broad in the first instance Those arguing

(allowing

for

or should it be narrow?

in favour of casting a only consciously. This is

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

PRPs are exempted

them in the net in the first place and then deciding in a particular instance.

that because Those arguing

criteria, they can be exempted

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 system. reduces predictability and requires that PRPs have significant faith in the

Naf,onol Round Table on Ihe Enwonmentondthe Economy

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

for contaminated

sites. It is and

development

and prosperity,

if the risks are too high because of unpredictable on

Lenders may often be able to argue that they have had no direct influence decisions that have caused contamination, resources required On the other hand, lenders are

seen as having the financial

for remediation. that lenders beyond the value

The CCME Recommended should be granted of the outstanding of the business exemptions well. Virtually ownership legislation exemptions

Principles3 dealt with this issue by noting exemption from personal liability

a pre-foreclosure

debt unless they had actual involvement

in control

or management

of the borrower.

Lenders see this as good, but they seek broader rules covering post-foreclosure situations as

or at least some predictable all provinces and territories

target lenders

only when they have assumed In many cases, permits

or have exercised control

or contributed

to contamination.

enables lenders to be identified to be made.

as responsible

parties but practice

The other category of PRP that engenders officers. While companies creation of contaminated would like to protect

some controversy

is directors

and in the

these people from liability directors

sites, the fact that on occasion vigilance and efforts directed

and officers have been of such

held liable has increased pollution watching

at the prevention

in the first place. Some have been heard to say that the only reason they are environmental performance for putting is to make sure they stay out of jail. This would directors and officers on the list of PRPs. However, increased difficulty of attracting good take

seem to be an argument

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

Only one or two jurisdictions and officers cannot

(the Yukon is an example) However, most

that directors

be held responsible.

require that the directors contaminating

and officers must have exercised control as responsible

or failed to halt a parties.

activity before they will be considered

Summary of Issues
N There is a lack of consistency liability ) allocation are handled and predictability in the way in which issues of across the country. is a source of great uncertainty to all PRPs.

The role of joint and several liability The unpredictability

of its use reduces trust in the system, and fear of its overuse of voluntary principle to it. but it requires more thoughtful participation in allocation processes. across the country

can lessen the probability N Fairness is an important

that is applied inconsistently

in spite of stated adherence N Polluter

pays is a widely accepted principle, particularly

application,

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

still exists in some parts of the country pays principles.

to offend the fairness and polluter and retroactive liability continue

+ N

Issues of prospective Improving common narrow

to yield uncertainty. will require that a

the level of certainty

in the allocation

of liability

choice be made across the country net. not knowing

on the initial use of either a broad or a

>

Lenders are left in uncertainty, instance, conditions under what conditions

whether

they are in the net in the first and under what

they could be exempted, into it.

they could be brought

There will be uncertainty clarity on whether in the net.

about responsibilities

in board rooms until there is more parties are included

or not directors

and officers of responsible

Expectations

of the regulatory

system are not uniform, are perceived

and the time may be ripe

for reconsideration and ongoing

of how standards

and what they mean to future

responsibility.

National Round Table on the Enwanmen~ and the Economy

This question second, whether

refers to the assessment

of first, whether

a site is contaminated, manner, and third,

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

up. These are significant contaminated, because of

to a site being declared with any clean-up

of the unpredictability the difficulty

of the costs associated

activity, and because

of assessing risk when one cannot gap between

easily define clean.

There is an increasing technologies

those who use or advocate the use of emerging with trust

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

and understanding

Discussion of Issues
There has always been tension standards for defining between the idea that there should be national

the cleanliness

of a site and the belief that this is a highly local seek some predictability because such a and liabilities in

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

is going to result in a designation, values immediately

is going to affect property The regulator

and negatively

may be incurred. determined

that holds to the view that designation at a particular opinion,

will be

on the basis of considerations of public processes.

time and place, and thus be for businesses and

subject to the unpredictability plays havoc with their planning regulator

creates discomfort

On the other hand, it is appropriate

that the to

(who, frankly, has little choice) be responsive

to the publics relationship in its behaviours

the government.

The public will not always be predictable of its views.

or desires,

but this does not decrease the legitimacy Canada environments location-specific for decisions

is diverse in its land forms, in its soil characteristics and settlements approach, on designation is justified and their sensitivities.

and in its surrounding for a

There is justification

but it is also reasonable would be predictable

to be able to expect that the basis and broadly defensible. The location-

specific approach substances

on the basis that background on the geological are sufficiently history

levels of contaminating of the area. Also, because contaminant mobility,

vary widely depending water characteristics

soil and ground

variable,

which is largely dependent surrounding different environments pathways

on these two factors, varies widely from site to site. Finally, and land uses are diverse and can result in significantly and receptors. This in turn affects whether or not a site

exposure

might receive designation

as being contaminated.

Setfing
available Otherwise present

Priorities
there are more contaminated to complete sites requiring clean-up than there are resources the work. This means that priority without setting is critical. the sites that

At present,

Canadians

may spend scarce resources problems.

addressing

the greatest long-term

Good work will have been done, but with a for a system that aids in the level, this could by the CCME in Sites, published

less-than-optimum determination be The National

effect. There is a need, therefore, of priorities among contaminated Classification System forContaminated are familiar

sites. On a technical

1992.4 All jurisdictions found it helpful.

across the country

with this tool and most have

The other part of the puzzle is not technical. will and thus often hinges on public perceptions. distinct

It deals with the public and political Public perceptions may be seen as Public although can

from reality which often results in their being too quickly dismissed. should be explored through communication within and mutual which mutual learning,

perceptions

it may often be difficult occur. Public perceptions making.

to create the atmosphere should neither

learning

be ignored

nor totally dominate and the solution.

decision

The public needs to be part of the discussion

Rendering a Site Clean

Many aspects of a site and its condition contamination ) l ) ) natural on that site is deemed background can affect the extent to which These factors include: water; to be a problem.

levels of the contaminant

in the soils or the ground

the nature

of the soils and the contaminants; are mobile; given the ecological characteristics

the extent to which the contaminants threats to human of the surrounding

health and the environment, landforms

and the type of the human

activity that either does

or may in future take place in the area; and ) the pathways natural Attempts application. intervene. available for the contaminant to find its way to sensitive human or

receptors. have been made to develop clean-up In practice, Therefore, that application protocols criteria that have widespread site-specific circumstances to

is difficult because have been developed

various

that allow a regulator human

take into account the surroundings publications

site characteristics, and the sensitivity

the nature

of the contaminants,

activity in 1996) and

of the receptors

in the area. Recent (March Program (NCSRP)

of the National guidance

Contaminated

Sites Remediation or developer

CCME provide

for the regulator

to develop site-specific

clean-

up criteria. Ontario

has also released its guidance

document

(July 1996, with editorial

Nof~anal Round Table on fhe Enviionmentond the Economy

Coniarmnafed Sife iiruer in Canada - Bockgrounder

revisions numerical guidance

in late 1996 and early 1997). This material limits for 135 chemicals for site-specific and the rationale

consists of guidance for those numbers

for sampling, as well as

risk assessment. have sought clean-up because to natural background levels.

In the past, some jurisdictions

They know that this is the safest solution, impacts will be noted. This approach

at background

levels no incremental and others, who by

has been criticized

by industry

have noted that levels significantly humans receptors and the local ecosystem

in excess of background without measurable

can often be tolerated

effects, due to the lack of sensitive has its roots also in the fact

or an absence of critical pathways.

This criticism

that the costs of such clean-up incurred in completing

are often very high, with the bulk of those costs being or 20 percent of the clean-up. To repeat an

the last 10 percent

adage: you can have 80 percent

of the effect with 20 percent

of the effort but you will 20 percent of the problem. of their

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

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

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 of contaminants, receptors and their interactions to believe

If the 80 percent

solution

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

that those five sites are now addressed at some later date that the environment contaminant further more potent,

However, we may discover or a

health is more sensitive, To reopen

than previously

a site and undertake

work on it will be more difficult

to initiate

and will likely cost more than doing costs

it all in the first instance. associated

Even this statement experienced

does not take into account

with the impacts

in the interim. of how clean a site should- be when followed by expectation is that

One of the proposed remediated remediation clean-up criteria, stringent

solutions

to the question

is to do exposure

pathway analysis and risk assessment, The normal

to the level at which risks are acceptable. through risk assessment conservatism

criteria developed

will be less stringent

than generic

since there is usually a built-in outcome is common

in generic criteria. The less in which

but not universal,

for there have been instances

the criteria have become tighter as a result of risk assessment. Risk.assessment practice is evolving well enough quickly, and techniques now by the scientific, on best practices of judgment are becoming engineering is emerging. and Its drawbacks better

and better. It is understood regulatory community

that some consensus

seem to be that there is still a large amount individual practitioners,

required

on the part of the of

and that the public has been left out of the debate. Elements to wonder how any additional risk could be acceptable

the public are inclined

when it in

is not a risk of their choosing.

This concern

is most likely to arise in circumstances during the risk assessment

which there has been no engagement process.

of the local public

Nohmol Round Table on the Enwronmenf and Ihe Economy

There is sufficient

judgment

involved

in a risk assessment

process that perhaps that emerge from the

it

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

basis for a logical decision,

but as input large and

in a public process. The public has come to distrust of jobs that will be created from a new development)

(e.g., the number

small ones (your risk of getting cancer from this contaminant here is to put the risk assessment of risk assessment, approach,

is only 1.0 x 10e6). that works

The challenge

process into a perspective

for the practitioners A risk assessment clean-up treatment, uncommon an ongoing Containment obligations maintenance, contaminant). individual treatment proposals treatment

the decision

makers and the public together. for that matter, can result in off-site for storage or on-site. It is not

and other approaches transport

that will include on-site,

of contaminants and management

or containment

for at least a part of the contamination commitment to monitoring, on-site maintenance

to be left on the site and to require and perhaps management.

and management

may save money

today but also may create monitoring and

for the future. More and more sites could require sometimes for indefinite periods (depending option cannot

largely upon the life of the may be the right solution be recommended or in

While the containment/management transport

cases (e.g., when contaminant options are not available),

considered

collectively

it may leave a legacy for their commitments

future generations than history possibility

that obliges them to be much better at meeting

suggests is likely. Of course, this also needs to be weighed against the of no clean-up are adapting at all. to the emergence of risk assessment, as they would to any tools have

Regulators emerging

technology,

with a response

that fits the time and place. Although they are adopted regulatory non-uniformly. regimes.

been prepared improve

that aid this response, among

This does not

the consistency

Canadian

The final issue is certification site, and have done so according

of site cleanliness. to an approved

Those who invest in cleaning

up a for

plan, wish to avoid future liability

the site. This would require that regulators The consequence developers of not certifying

issue some type of certificate may be hesitation

of cleanliness.

cleanliness

on the part of some

to invest voluntarily (if development

in site clean-up. is not impeded),

However, the public purse may be more especially in the absence of a broadand trust in

highly protected based clean-up motives

fund. This is yet another

example of an issue of confidence

and system performance. in Canada are prepared to issue a letter confirming that

Most jurisdictions directions

were followed in cleaning

up a site. A few of those will then issue a certificate exception (the Yukon), responsible should

of compliance.

However, with only one known

parties would retain responsibility conditions or standards

for the site under these certificates,

change in future.

Notional Round Table on the inwonmen+ond the Economy

Cantamtnoted Site Canodo - Bockg,

Summary of Issues
) The tension assessment N A common priorities N between predictable national standards and individual, local in the designation approach is required. on an approach to determining clean-up standards is of sites needs to be resolved. broad support on clean-up

that will lend itself to achieving

The lack of a broad consensus hindering remedial actions.

The long-term containment

management and management

obligation options

that may arise from frequent

use of

should be assessed in the context of the

ability of future generations ) As technologies

to assume such obligations. systems respond. Those responses are uneven of

advance, regulatory and this increases

across the country, requirements ) The question

or at least perpetuates

the patchwork

found among of whether

the provinces. of cleanliness should be issued needs to

or not certificates

be settled uniformly

across the country.

How can this best be accomplished?

An orphan

contaminated

site is one for which viable responsible

parties

cannot

be

found. The responsible unwilling available or unable

parties may have gone bankrupt,

left the country,

or simply be

to accept responsibility,

but the bottom

line is that they are not

to clean up a site at a particular

point in time. This does not lessen the need to that can be brought to bear on

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

reduces the resources

to be accomplished? in Canada. There is no reliable estimate of the

sites are a major problem

of such sites, nor of the likely costs of their remediation. federal-provincial Program (NCSRP). program This program of priority there was a

In 1989, the CCME agreed on a 50/50 cost-shared called the National Contaminated approximately Sites Remediation $200 million

was to make available sites and $50 million further $25 million

for the actual clean-up In addition,

for the development set aside by Environment and assessments.

of new technologies. Canada

to assist other federal agencies in would run for five years,

conducting

site inventories

The program

from April 1990 until March 1995. The program across the country. joining program. the program, Consequently, was successful in many ways, fully or partially specifically Manitoba remediating 45 sites were late

Some provinces,

and Saskatchewan,

so some projects were not started some expenditures before September

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

were continued

1996 on projects

approved

1994. In the end, over $85 million was spent on technology

spent on site remediation

and about $40 million

development.

As noted earlier, this money was obtained provincial/territorial governments.

equally from the federal and greatest legacies, however, is

One of the programs

the tools that were developed: National Classification System for Contaminated Sites Sites Objectives for

Interim Canadian

Environmental

Quality Criteria for Contaminated

Guidance Manual for Developing Site-specific Soil Quality Remediation Contaminated l l 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 l and Distribution Soils for Contaminated
of Master Variables Affecting Solubility of Contaminants

Guidance Manual on Sampling, Analysis, and Data Management Sites

Subsurface Assessment Handbook

fir Contaminated

Sites

A Protocol for the Derivation Guidelines

of Environmental

and Human Health Soil Quality

Discussion

of Issues
governments were prepared to undertake work. The public was supportive of such expenditures: for

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

such work was seen as a societal cost, and government societal costs. As the NCSRP mandate

was seen as responsible

drew to a close, a multistakeholder

group began work mechanism for the

under the auspices of the CCME on the creation remaining a national funding ministers orphan workshop problem.

of a new funding

sites. The CCME Core Group worked diligently in January 1994 to develop serious proposals

on this issue, holding to deal with the on the solution, two

In the end, the Group could not reach consensus disputed the existence of orphan

of the environment

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 and dedicated by federal and provincial governments by a The

general revenues

taxation.

The fund would be managed a voice for each contributor.

multistakeholder

group. This group would include

CCME Core Group was unable be borne by the various The lack of consensus participation poor regulation being reduced in rectifying

to agree on relative proportions

of the cost that would

participants. reflected a changing problems climate for government/public mismanagement budgets or were

largely caused by ignorance,

of private sector facilities. Recognition and that environment departments

that government

would experience representatives

these reductions to take a harder line

caused some interest

groups and some government

on the issue of public funds for such clean-ups. Paper Lender Liability for Contaminated public is more likely to support

As the NRTEE put it, in its Working

Sites: Issues for Lenders and Investors,6 the of site remediation fund clean-up. in this funding discussion was the costs than higher

the privatization

taxes/reductions Another question understood contamination responsible responsibility. the clean-up?

in services in order to publicly point of contention

for the participants

of orphan

shares of sites. The concept

of an orphan

share of a site is best site may have Four of those

by way of an oversimplified

example. A contaminated owner/operators.

arising equally from five different

parties may still be solvent and prepared The fifth is bankrupt.

to assume their share of the of the costs of to pay the

Who should pay that fifth portion

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

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 in its contaminated state.

Nof~onol RoundTable the an Envimnmentond Economy the

It was the view of some of the governments orphan share would be a circumstance

and businesses

that the existence of the clean-up

of an fund, and

calling for the application the unfairness.

in other words, a situation

calling for sharing

Other governments

ENGOs did not share that view. They were concerned show a tendency responsibility, to grow during the voluntary

that the orphan

share would

negotiation

process, diverting parties to the fifth which increase in the public make the clean-up

in the example

above, from the four responsible

could not be at the table. This would result in a proportional funds required to support the clean-up

fund and could consequently

fund a costlier and longer-lived At present, orphan handle

process than necessary. unresolved. There is no fund for the clean-up of

these issues remain

contaminated orphan

sites, no replacement

for the NCSRP and no consensus continue to avail themselves

on how to of joint

shares of sites. Some jurisdictions

and several liability A number

in the absence of any consensus. for an orphan site fund are available: either by industry product or government by all of

of options

Industry sector fund and would be funded sector members;

could be administered

by a levy on a particular

or from donations

funds would be used to clean up sites created by the activities of this option is a single fund covering of creation all sectors with

that sector. A variation prorated contributions

tied to the frequency

of contaminated

sites from

each sector. Corporate environmental of funding tax -would provide a predictable and consistent level

but is not directly related to environmental activities or disposal

performance.

Fees/taxes on contaminating transportation, use, treatment

could be levied on the generation, of hazardous substances. to orphan

Penalties and fines site clean-up. performance,

revenues

from prosecutions

would be diverted activities

There is a strong connection but the revenue amotmts

with polluting

and

are unpredictable. approved through standard

General government revenue legislative/parliamentary budget

a regular allocation processes. revenue

Broad-based consumer tax something government finance

from the tax would be earmarked, do not support. have to subsidize rates of option.

departments

Site remediation bonds return

governments

would probably

on such bonds. Indeed,

this may just be a delayed general revenue among

Voluntary funds and governments Mixed funds -

would require a high level of cooperation

businesses

and a basic agreement various combinations

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

Nmona, RoundTable the on Environment theEconomy and

A useful observation down the line. Depending property ratepayers

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

are passed

chosen, the costs are passed on to taxpayers, or sister who can pay. It must news

or consumers.

There is no big brother

be individuals

who pay in one or more of the above guises. This is disappointing of wealth to solve this funding over who, nominally,

to those who hope for a simple redistribution What this really means is that the arguments orphan sites is really an argument or ratepayer option

problem.

pays to clean up

over who should deliver the bad news to the taxpayer or the consumer (business or government).

(government)

(government)

An interesting Environmental proposal dedicated

is being developed and the Canadian

among Alberta Labour, Alberta Petroleum Products gasoline Institute. That

Protection

would see a special levy placed on wholesale to the clean-up of orphan underground

sales that would be

gasoline

storage sites. Other with interest or territory in the hope that perhaps with

jurisdictions, something

such as Ontario,

are watching

this approach

similar may have application with another.

in their province

the same sector or perhaps United States. Alberta

There is already a history of its use in the

Two provinces, environmental

and New Brunswick, or enhancement. site clean-up

have funds that can be used for used the Environmental to do so now orphan

protection

New Brunswick

Trust Fund to fund orphan

under the NCSRP and continues continued

that the NCSRP has been terminated. site clean-up Protection indication government

In 1996-97, New Brunswick

to the tune of about $600,000. Alberta could access its Environmental and Enhancement Fund for the same purposes, although there is no and the federal on a caseis low in

this would be done on any regular basis. Other provinces would have to obtain separate appropriations

for remediation

by-case basis. The probability the present economic climate.

that more than the worst sites will be addressed

No discussion Superfund.

of orphan

site funds seems complete no one in Canada

without

reference

to the U.S.

However, virtually

advances

it as a model that should be but the most and too through

followed here. This paper does not attempt frequent criticisms include

a full analysis of Superfund,

that too little of the money costs; the funding slow. mechanism

goes into the ground is unfair; and moving

much goes into litigation

the process has been extremely

Some other U.S. information own separate superfunds, Superfund has been difficult,

may be instructive.

Almost all the states have their through or with the federal Most of the

at least in part because working and quicker response

is sometimes

required.

state funds appear to be limited when a certain stipulated maximum

in total size, with some ceasing their fund generating it again when the value falls to a while others are not

is reached and resuming

minimum.

Some funds are as large as $50 million,

allowed to exceed $200,000 or $500,000. Consequently, in the types of activities Comprehensive matches they attempt Environmental emergency Response, Compensation response, site investigations,

some funds are comprehensive remedial actions, The U.S. and Liability Act (CERCLA) studies, design, grants to limited and

to address, including

projects,

municipalities

and even victim

compensation. response.

Other funds are extremely

may be used only for emergency recovery, through waste handling legislative

The sources for these funds range from cost state bonds, and tines. If the private sector contributes of the fund. If even part of the fees attached to hazardous

appropriations,

and special taxes, to penalties

The final issue is how a fund should be managed. directly, it will wish to have a say in the management fund is drawn from a special tax, all stakeholders see that fund dedicated that require exclusively to orphan

and most citizens will likely wish to There are many issues here option selected.

site clean-up.

focused effort to resolve. They vary with the funding

Summary
N Orphan not found. N

of Issues
if a solution to funding their clean-up is

sites may simply go unattended

The issue of whether requires resolution.

to include

orphan

shares within

a fund is controversial

and

The fund management

structure

should be appropriate

to the type of fund.

Nahnai RoundTable the on Environment theEconomy and

Contomnated S,te lw,es in Canado - Backgrounder

An operation management orphaned exposure. a clean-up are choosing cleaning bankrupt

that becomes

insolvent

can present

special challenges

in the

of contaminated

sites. First, some contaminated because

sites have been left of fear of personal liability

when a receiver has refused an assignment Second, a similar outcome order by the regulator

has also been produced

when receivers served with

choose to contest the order rather than comply. They fighting the order instead of

to spend the scarce funds of the bankrupt

up the site. Third, in instances site and clean up a healthin recouping

in which government

has had to go onto a problem, there have This is

or environment-threatening

been difficulties not surprising

the expenditures the liabilities

from the assets of the operation.

when, by definition, outcomes

exceed the assets in these cases. These as well as an environmental perspective. and

are unsatisfactory

from an economic

The statute that governs the activity of receivers is the federal Bankruptcy Insolvency Act (HA). It is currently as recently as 1992. going through a major reworking

but was amended

Discussion
The present

of Issues
amendments of the HA are broad but, for this discussion, can be

focused in three areas: N W N changes regarding possible responses the personal liability of receivers; clean-up order; and property.

to a post-appointment

recovery of public funds spent on clean-up

of a bankrupts

Personal Liubilify of Receivers

The 1992 amendments trustees for any contamination to the HA eliminated that occurred personal liability for receivers and also pre-appointment. The amendments post-appointment. of what

allowed for a due diligence

defence for receivers personal

liability

This very quickly proved problematic. constituted due diligence

The lack of a clear understanding exposure

left too great a risk of personal reluctant

for the receivers. This had the effect of left a

They were understandably leaving the operation contaminated

to take on such assignments. an administrator

or site without

and sometimes

site orphaned.

Notional RoundTable the on Environment theEconomy and

Amendments then reintroduced all possibility appointment, Insolvency indicate

introduced

in the past session of Parliament

(in November

1995 and

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

clauses by eliminating or post-

of personal

for receivers, either pre-appointment

unless the receiver is guilty of gross negligence practitioners are much happier

or willful misconduct. consultations

with this, and pre-amendment

that some other interests

are supportive

of the change also. There are mixed

feelings among provincial

governments.

Responses to a Post-appointment
The present administrators remediate remediation HA allows receivers two possible of a bankrupt operation,

Clean-up Order
responses should they, as with an order to

be served by the regulator responses

the property.

Those two possible

are to comply with the practitioners found

order or contest it in the appropriate It required a decision

court. Insolvency

this to be too inflexible. critical information.

on their part, too often in the absence of

Under the new proposed to assess the economic viability

amendments,

the receiver may seek time from the court clean-up. If such a request were made by clean-up (e.g., if public

of the required

the receiver, the regulator

could then argue for immediate

health was greatly threatened), final option abandon orphan permitted

or could agree to an appropriate amendments

time for analysis. The

under the proposed

would allow the receiver to would effectively

the assets related to the clean-up the site.

order. This last option

Recovery of Public funds

In the past, the priority assets of a company given to the recovery of clean-up costs in dispersing where liabilities the exceed has been relatively low. In these situations, has been recovered

assets, little public money to remediate or to human a contaminated health.

when the government

has had to step in

site that is posing an immediate

threat to the environment

The proposed ranking creditors. contiguous priority

amendments lien over certain

to the HA give environmental assets of the operation, property,

clean-up

costs a first-

even ahead of secured but also to adjacent or exceeds the

This applies not only to the primary properties if implicated. Further,

if the cost of site remediation clean-up

total value of the assets affected by the lien, the residual recognized as an unsecured

costs will be

claim against other assets of the developer.

These potential priority conditions reducing investment institutions

changes represent encourage

a significant governments

step forward

for environmental action when

and will probably demand

to take clean-up support

it. Lenders have given grudging that lenders Another

to changes that include portion of their

the likelihood

can recover a significant possible implication

in the operation. may become

of the change is that lending businesses.

more reluctant

to invest in small, independent

Small businesses country,

do not believe they enjoy a favoured concern

status with the major banks in the will provide the banks

and they have a genuine

that this amendment

with yet another

excuse not to lend to them. April 1997 after a number were proposed of amendments, and passed by both

Bill C-5 received Royal Assent during which did not affect the environmental the House of Commons provisions

provisions,

and the Senate. It is expected

that the environmental of 1997, followed by the

of the Bill will come into effect in the early autumn of the Bill in the spring of 1998.

other elements

Summary
> problems further

of Issues
procedures in Bill C-5 perform to small businesses, as expected or will arise, such as those of concern that may necessitate

Will the new environmental

changes and uncertainties

in the not too distant

future?

Brownfields expansion

are abandoned

or idle industrial

or commercial

land where reuse,

or redevelopment Brownfields

of the land is complicated are often centrally

by environmental by urban

contamination. development.

located and thus surrounded

They usually have servicing

infrastructure

in place and tend to be close to economic potential,

major transportation

facilities or routes. These lands have obvious markets

which will vary with current Brownfield products

and the degree of contamination. by the raw materials, operations. For various products or by-

sites have been contaminated industrial or commercial

of former

reasons, including on has

the departure what constitutes not proceeded. or threatens reduced

of responsible clean-up,

parties, lack of funds for clean-up, or lack of investment prevents

lack of agreement remediation

due to fear of liability,

The contamination

immediate

use of the land and often affects tax payments are

adjacent

land. Municipalities

are affected as property

or eliminated. of brownfield in Montreal sites is an issue in a number and Toronto of Canadian urban

The redevelopment centres, most prominently Calgary, Edmonton, brownfield

but also in other centres such as that there are over 2,900

Winnipeg

and Halifax. It is estimated many in rural areas.

sites in Canada,

including

There are many reasons why brownfields should be seen as opportunities N N brownfields, the existence either urban of municipal

should be redeveloped

and why they

rather than as problems: or rural, should not be left as a source of contamination; sewer, water and utilities site compared to a

services such as transportation,

makes it generally new suburban ) a redevelopment stimulate ) ) a potential property ratepayers; N + N the need to expand site;

more cost effective to develop a brownfield

will contribute

to a rejuvenation

of an inner

city and can

other supporting orphaning tax revenues

initiatives;

of a site is averted; can be restored to the benefit of the municipality and its

urban

boundaries

is reduced; is reduced; (CMHC) has noted that central

the need for energy-intensive the Canada locations Mortgage

transportation

and Housing

Corporation and

are preferred

for social housing; of city property,

more dense utilization manner, is a measurable

if done in an environmentally

sound

step toward sustainability.

Notional Roundiablean ihe Environmentandthe Economy

Discussion of Issues
The issues that are inhibiting those that affect other contaminated major concern. preference the redevelopment sites. Uncertainty of brownfield sites are the same as of liability is a in the allocation

As in other cases, predictability approach standards become

is probably

more important

than the

of one particular

over another. is critical. Clean-up more stringent. objectives costs disproportionately criteria or background sites. Developers

The subject of clean-up increase as clean-up standards

Generic

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

for brownfield

that this often results in unnecessary depending

expense and that clean-up

should be variable,

on future land use and on a risk assessment could be less stringent if the land was use. of

analysis. In other words, clean-up returned Standards humans to commercial

standards

or industrial

uses than if it was going to a residential demonstrated

could also be lowered if risk assessment and the environment to the contamination.

a low exposure

Issues of prospective owner who is otherwise according standards previous to an approved

liability

also apply. Will a responsible for the pollution)

party (or even a new a site should that insured a

not responsible

who remediates clean-up

plan still bear responsibility

for further

change or other contamination activity at the site suddenly of that activity? institutions as possible

be discovered?

Will an insurer

find itself liable for some of the environmental

consequences Financial environment

want to see these questions for investment. financing Absence

resolved to create as certain

an

of such certainty

means developers of are to health.

will have difficulty brownfields.

obtaining

for the rehabilitation

and redevelopment of financial institutions to respond

Some regulators

argue that the expectations

too high and that governments emerging concerns and evolving

will always have to retain flexibility understanding about human

or environmental

Can these two perspectives Municipal Tax payments assessments activities governments to municipal

be reconciled? are also anxious governments to see the issues of brownfields or eliminated, resolved. and

are often reduced

and taxes on adjacent

lands may likewise be decreased.

New industrial of the

will tend to locate on new, clean land. This land is often on the outskirts Such development, therefore, contributes to urban sprawl, the

city in question. depopulation

of city cores and attendant

social issues.

Few parties with an interest redeveloped. can happen. The challenge It is important

in brownfield

sites do not want to see them ground among the interests so that it

is to find the common

to get sites clean enough A sufficiently

to allay the concerns predictable

of senior and

local governments that developers

and of local residents. will consider acquiring

regime is needed so to

these properties, will be prepared

lenders will be prepared

invest in redevelopments

and insurers

to insure them. A sufficiently are able to respond if a

flexible regime should be created such that governments significant threat to human or environmental

health arises. parties to address these issues. The of limits to first- and companies

Efforts are being made by a few of the interested Insurance third-party Bureau of Canada liabilities has recommended impacts.

the application

for environmental

At least three insurance

have responded the uncertainty

with a range of products faced by insurers

to address these needs. This puts a limit on to offer appropriate respecting the

and makes it easier for companies

coverage. But, will it be the coverage that developers allocation of reducing of liability is evolving

need? Legislation

quickly in many provinces.

This usually has the effect of a few provinces on the limitations and should the

the uncertainty

faced by developers.

The legislation

allows for agreements to liability improve questions assumed

to be reached between

lenders

and regulators

by the lender. This reduces the uncertainty in brownfield sufficient? redevelopments.

for lenders

the climate for investment remain:

Nevertheless,

Are these responses

What else is required?

Summary of Issues
) The uncertainty climate. ) The issue of clean-up standards, both generic and site-specific, Many interests needs to be resolved input to offer in liability allocation regimes is detrimental to the investment

to reduce the uncertainty toward this resolution. ) Sufficient predictability

for investors.

have valuable

in the regulatory

regime is required

without

tying the

hands of government interest. > Are present required? ) initiatives

in such a way as to prevent

it from acting in the public

to address these problems

sufficient,

or is more effort

If more effort is required, that would help overcome

what initiatives inertia

could the financial

services sector take

in the redevelopment

of brownfields?

Nchonal Round Table on Ihe Environment and the Economy

Contaminated Site IWXS Canodo - Backgrounder

tn

Part of the ongoing who pays for the clean-up

discussion

among

stakeholders

when they attempt

to resolve what is a

of a contaminated

site centres on the question: costs that broadly

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

accrue to society

from the activity that caused these costs. manufacturing facility was cannot be

upon which an abandoned

located has been left in a contaminated found, and the site is deemed

state. The owners and operators A group of concerned

to be orphaned.

stakeholders

discusses its clean-up, therefore,

and some note that the cost of clean-up

is a societal cost and,

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

usually, is that governments

should pay. The thinking benefited behind this is that a lot of people, either individually and operation of the facility. Construction or collectively, workers received for

from the building

wages and benefits building permits,

while building the employees

the plant, the local government of the operation

received money

received wages and benefits of their employment,

during

either the life of the facility or for the duration received property received income operation operation argument taxes from the operators, taxes from employees impacts

local governments

and provincial

and federal governments taxes from the the

and owners and corporate

itself. The economic with its raw materials is that the benefits

were even wider, with those supplying also. The important

or services benefiting

point to this the costs

of the operation

were felt widely and, therefore,

should be borne

equally widely. This is one aspect of the beneficiary to this is that some benefited

pays principle.

Of course, the counterpoint

more than others.

Discussion of Issues
There is no real dispute activities. that society at large benefits from individual benefits economic However, some take the view that the economic by the owners and shareholders its government, are experienced that perhaps

disproportionately society, through

of the operation;

made many concessions

in the first place to get the

facility into that neighbourhood during the start-up

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

and active life of the facility. On the other side of the ledger, some occurred in spite of following the instructions of

would argue that the contamination the regulator

precisely. In other words, we did what society asked us to do. that government

As recently as five years ago, there was fairly broad acceptance should step in and pay for the clean-up of orphan

sites and thereby absorb the societal for this shift.

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

Notional Round Table on the EnvironmentandtheEconomy

First, the financial priorities different have changed.

situation

within

governments

at all levels has deteriorated, have a vastly

and

Public officials, both elected and appointed,

view of how public money

should be spent than was the case a few years ago. as government budgets reduced. generally, and

There is much less public money environment to politicians Consequently, purposes demanding budgets specifically,

available

have been significantly is a lower priority

Polls have suggested public.

that the environment governments

issue with the Canadian

are less apt to approve expenditures direct loss of spending

for environmental

when there is a consequent area. are changing

power in some other

Second, attitudes Whereas

both within

government

and among

the public.

a few years ago (e.g., in 1989 and 1990 as the NCSRP was getting under way), and the public were more willing and able to provide sites; today, an increasingly predominant funding for the

governments clean-up

of orphan

view is that the public of industry. profits. Some members for societal

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

increased

of the public believe that with these profits may go some responsibility costs. These emerging present views are only that. They are not conclusions a resolution

but, rather, are the about who,

lay of the land. They do not represent or is hurt by a particular responsibilities and the present the clean-up

of concerns

exactly, benefits

taxation

and spending

regime in government. performance. that arises

Nor do they apportion The background

for poor environmental

views lead to much the same question of orphan

in the section on funding and in what proportions? Saskatchewan beneficiaries provincial

sites. Who should fund such clean-up exercise in

An idea has emerged

in a recent consultative

that might be helpful. The concept who contribute through no-fault

is one of a fund created by the federal and and the firm

shares. For example,

governments

benefited benefited

from taxing the incomes from the collection

of employees

itself; local governments benefited from interest suppliers

of property

taxes; banks charges on

charges on the operations benefited as the operation

debt and from handling was an important

their banking;

market for them, shares in for

etc. Each of these beneficiaries the clean-up

would purchase

a certain number

of no-fault

fund. This idea is only at the conceptual

stage, but certain

conditions

this to work would likely include: ) knowing the size of the problem so that the total contribution or, alternatively, funding (through purchase) basis;

to the fund by each party is known ) a clear acknowledgment having benefited contributed

on a case-by-case shares is based on

that the purchase

of these no-fault

from the activities

encompassed

by the fund, not from having problem;

in any direct way to the contamination

Nobnal Round Table on the Env,ronmentandthe Economy

an understanding purchaser substance; occupies and

that the purchase

of these shares may, in part, be because the management of the contaminating

a role in the cradle-to-grave

arranging

for participation

in the management

of the fund in proportion

to the

shares purchased. At the time of writing, this concept Management. formally the Saskatchewan Advisory Committee was about to present and Resource

to the Saskatchewan

Minister

of Environment

However, there remain

some unknowns:

would the public be represented have an opportunity see this positively to as a way to in such a to their

by their governments, participate

or would citizen representatives

in the fund management? without assuming

Will all beneficiaries

share the unfairness

any fault? Can the fund be established do not attract liability

way that legal advisors clients?

are satisfied that contributions

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 of not resolving this issue may be and human health. whether

sites that remain to resolving

a threat to the environment

the societal costs issue, it should be determined

the beneficiary ) Does the notion sites or orphan

pays is a valid principle of no-fault

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 or abrupt

to cover accidents having application

or occurrences

with

such as sudden that property

to the policies. In the past,

this has meant intended

and auto insurance, insurance,

for example, while not explicitly incidents such as polluting

as environmental

has covered environmental in the courts resulted

spills of contaminants. activities

Some interpretations

in ongoing

being seen as accidental.

This led insurers

to begin the use of exclusion to cover sudden occurrences

clauses, which were aimed at making and not to cover ongoing Insurance contaminated should polluting

explicit the intent activities.

not be seen as a way in which to cover the liability is caused by ongoing

of release. and,

sites where the contamination

pollutant

The responsibility indirectly,

for that type of contaminated if there has been improper can be expected

site should rest with the polluter advice, direction or enforcement.

the regulator

What environmental occurrences although

insurance

to cover are the sudden

or fortuitous

that result in contamination

of soil, ground

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, and a number of seem to be necessary before it will be widely offered: standards. The details of this term have believes that they must address standards standards, and the perennial question

The existence of national environmental not been resolved, but the insurance pollutant release standards

industry

as well as clean-up performance

of how clean is clean? National standards, progress Canada, agreement are unlikely

in the sense of numerical Judging by the regulation in

to be implemented

any time soon in Canada. of environmental

or lack of progress

on the harmonization

the most that can be hoped for in the next several years would be among Canadas environment ministers on a common to the present level of situation, but

environmental

protection.

This would be preferable

will not give industry considered

certainty

about exact concentrations

that would be to regional about

contaminating,

These would still be highly sensitive

considerations contaminants N

and would have to be flexible to respond or the environment, local political industry

to new information

will, and so on. believes that national standards such

Consistent enforcement. are important, standards

The insurance consistent

but that without

enforcement

across the country,

are of limited

or even negative value. Delivery of consistent 13 environment departments

enforcement

on the part of Canadas difficult among

can be expected to be very expression

and some time in the offing. The strong need for regional Canadas governments provided is manifested in local decisions regulations.

such as the level of of sustainable need not

enforcement development

for environmental

The concept

offered many the hope that environment

Notional Round Tableon the Environmentondthe Economy

and the economy

Contaminated Site Issues in Conodo - Backgrounder

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

solutions,

that good performance and a high

could lead to good economic

level of competitiveness. believers,

A few developers

and other stakeholders of the environment

have become is still often seen

but many have not, and protection to the economy. are pressured

in opposition governments

This affects the way companies

behave and the way

to enforce. as the enforcers in the coming years. in

It may be incorrect Certainly,

to think of government

strong arguments

can be made for governments However, it is interesting

continued

involvement

enforcement.

This will be essential.

to contemplate

the role of

the private sector in the future enforcement environmental play a significant standard management

regime. Take, for example, Both internal non-compliance

the IS0 14001 auditors the will

system standards. regulatory

and external

role in identifying

(even though

itself does not require regulatory

compliance).

If the North American Eco-Management and regulatory

implementation

of IS0 14001 evolves toward the European

Audit Scheme (EMAS) or the British BS 7750 standards, compliance, then private sector involvement auditors

which do require

in enforcement

will be a reality. themselves operation,

Not only environmental

may be drawn into this role. Insurers as potential insurers of a particular

may also have a part to play. Certainly, they would have a very strong interest compliance as well. ) of that operation. Insurers

in the regulatory

compliance

and best practices pollution prevention

would be likely to reinforce

A consistent approach to the allocation of liability for the clean-up of a contaminated business site. All industries seek predictability in as many aspects of their industry, which

as possible.

This may be particularly

true of the insurance damages.

often must compensate the insurer responsible condition, of a company

a party for unpredictable

In many circumstances, site becomes a potentially

that has created a contaminated

party for the costs of clean-up. it may be that the regulator

If the company is not in good financial . or the courts will look to the insurer to bear has deep pockets or is, at least, their use of exclusion of being caught up in such may result in fewer would

most of the clean-up available. Insurers

costs, since the insurer

have attempted

to address this through the possibility

clauses, but this will not totally eliminate situations. companies Lack of predictability being insured

in the allocation

of liability

for accidental

and sudden

releases where insurance

be an appropriate N

way to cover the costs of clean-up. area. Underwriters risks with

An improvement in insurers knowledge of the environmental do not always have sufficient confidence. experience to assess environmental

National Round Table on the Enwonment and the Economy

Contaminated Site limes Conada - Bockgrounder

in

Certification,processes many practitioners,

for environmental professionals. The competence environmental auditors and environmental through

of site

particularly

assessors, has been unknown experience. That experience

to clients and could only be discovered has occasionally been costly and painful. Auditing

Help is on the

way on the audit side, as the Canadian (CEAA) has developed Canada.

Environmental

Association auditors in

a system of certification

for environmental

Final determinations

on who was grandfathered 60 applicants

under the system were received certification. At

made in the fall of 1996, and approximately the time of writing new applicants

(April 1997), final considerations

respecting

the first group of

were under way, and additional

certifications

should be announced Council of Canada,

shortly. The system will likely be presented and, if it is approved, certification adopted. On the site assessment Canada side, the Association

to the Standards

there will be an opportunity

for parity with auditor are being

systems in other countries

where IS0 14000 series standards

of Environmental program

Site Assessors of development process.

(AESAC) has also embarked

on a certification

AESAC will accredit site assessors for site screening assessments. Phase III (remediation disciplines activities) involved

and Phase I and Phase II certification

will have to await a broader in good remediation

effort, given the multiple initiative downward assessments. There is another important insurance.

work. The AESAC

arose in 1992, at least in part because site assessment by some high-volume users, thus lowering

costs were being driven

the quality of many Phase I site

side to this question. auditors

In our increasingly

litigious

society, it will be liability

for environmental

and site assessors to be able to obtain certification processes

This will be facilitated

by credible

for them. Site

assessors seem to have this issue in hand. It may yet remain auditors. N A stronger commitment Bureau of Canada substitution processes, adoption

an issue for environmental

to pollution prevention. A paper done for the Insurance prevention, meaning the

in 1994l notes that pollution materials

of non-hazardous

for hazardous

materials

in manufacturing sites. The

is the best way to reduce the future creation of such practices by individual businesses

of contaminated

yields an activity that is much of pollution prevention by

easier and cheaper to insure. The encouragement governments Insurance encouraging will improve premium pollution consistency

and predictability

as well as performance.

reductions

for certain measures

could also be helpful in

prevention.

Notional Round Table on the Enwonment and the Economy

A further environmental high-risk problems

question insurance.

arises regarding

the extent of possible

application

of

Who will be the purchasers?

Will it be only those who operate site

businesses?

Will it be primarily

those who have had contaminated

in the past and cannot

afford to have them again in the future? Or should requires that environmental site never

there be classes of activities insurance becomes be purchased orphaned? insurance

for which government

to ensure that a particular

type of contaminated

Environmental reducing or cleaning

would appear to be an essential and preventing industry

piece of the puzzle in the orphaning and potential of some future

up future contamination

sites. Regulators purchasers

will have to work with the insurance to provide

of such products

the right regulatory

climate so that insurance

can fulfil1 its role in this domain.

Summary of Issues
N Inconsistency of environmental standards across Canada needs to be addressed if the role of environmental N Enforcement insurance is to be fulfilled. is inconsistent across the country, and the

of environmental

standards

relative roles of government N There is a need for insurance interaction environment. l Certification processes between various

and the private sector are undetermined. underwriters wealth-generating to have a better knowledge activities and the natural of the

for environmental work, consistent

professionals returns

are essential

to ensure work and

better environmental insurable professionals.

for good environmental

How will processes

for auditors

and site assessors relate to

each other? ) Should environmental insurance in Canadian insurance regulatory be mandatory for certain activities? The role of

systems should be resolved.

National Round Table on the Environment and the Economy

The difficulties

noted in all the earlier sections

of this report are testimony

to the of the

need to avoid contaminated

sites in the first place. They are a clear manifestation is worth a pound

old saw that an ounce of prevention filter advertisement

,of cure, or the more recent oil

that notes, you can pay me now, or you can pay me later. Later is and, very often, those left to pay are not those who created the It may be the second or the third purchaser of the car. For

always more expensive problem

in the first instance.

contaminated

sites, it may be future generations.

Discussion of Issues
Pollution prevention initiatives are gaining momentum across the country, A National led by a to couple of specific programs. In 1993, the CCME published Commitment

Pollution Prevention.* This document much better to anticipate occurred. materials and prevent pollution

made clear the CCME members pollution

belief that it is

than to clean it up after it has as the use of processes, practices, of pollutants and wastes. sites. However, is free to use of pollution of were such as in

The CCME defined

prevention

and energy that avoid or minimize is consistent with avoiding

the creation the creation

This definition

of contaminated

as with other commitments elements prevention of this commitment by environment

made at the CCME table, each government or not. Consequently, departments implementation

has ranged from rationalizations new focus in programming

already doing it to developing British Columbia. The typical approach collect or treat pollution thrust intended under

a significant

to environmental

regulation

in the past has been to limit, industrial processes. The raw

after it has been produced a pollution prevention

by various

regime is to substitute

less hazardous

materials,

change industrial

processes, initiative

and capture

and reuse other wastes in closedto invest on the part of and the general

loop systems, etc. This requires businesses, support supportive

and a willingness

policies and practices pricing regime. that full-cost

on the part of regulators

of a full-cost

Even without prevention

the support

pricing

would bring to a pollution pollution prevention into a money

approach,

some companies

have turned

saver, if not a money

maker. The 3M Company

and The Body Shop are cases in point, prevention

but there are other, smaller businesses as well, among Government them dry cleaners departments

that have made a success of pollution film processors. approach to pollution

and photographic

can support

a preventive

through

the use of market-based approaches

instruments

that provide

incentives reliance

for more innovative on a command and control

and by reducing, Command

but not eliminating, and control

style of regulation. prescriptive its strength something

often results in government individual and innovative

being solutions. Yet

or restrictive

in a way that inhibits

is its ability (admittedly, business,

not always exercised)

to take the bad actors to task

the public and government

all wish to see.

Naf,onal Round Table an the Environment and the Economy

Pollution the Responsible was developed Ministry Document pollution produced Commons published

prevention

is gaining

momentum.

Evidence Chemical

of this in business Producers

circles is which

Care program

of the Canadian

Association,

in Canada but has been adopted and Energy published

internationally.

In 1993, the Ontario

of Environment

Pollution Prevention Planning, Guidance to the concepts and principles of

and Workbook to provide prevention A National Standing its report and its planning Commitment Committee

an introduction

and implementation.

Later that year, the CCME

to Pollution Prevention.l Then, in 1995, the House of and Sustainable Environmental Development Protection Act and

on Environment

on the future of the Canadian prevention

gave the report

a clear pollution

focus, entitling

it Its About Our Health! approved a strategy

Towards Pollution Prevention.22 In May 1996, the CCME Ministers for encouraging Ministers and implementing that pollution activities. pollution prevention prevention.

In approving

this strategy, the of of

emphasized

was at the top of the hierarchy Ministry to Pollution Prevention

environmental Environment

protection

In June 1996, British Columbias An Introduction

Lands and Parks published Operations

Planning for Major Industrial prevention pilot projects

in British Columbia.23 A number

of pollution

are under way in British Columbia. for Standardization (ISO) has developed known a standard

The International for environmental is voluntary environmental required

Organization

management

systems. This standard, in October prevention

as the IS0 14000 series, to have an are

and was published policy. Pollution to continual

1996. It calls for each registrant must be stressed, and registrants The adoption

to commit

improvement.

of an environmental performance. However, it to

management supports contribute

system does not guarantee

better environmental

and makes more probable to the prevention

such an outcome,

and thus can be expected

of future contamination. with their rate of progress many acknowledge toward a strong

Most regulators pollution to go in: N designing command N ) ) developing making prevention

are not unhappy regime. However,

that there is a long way

the future regulatory and control

regime and determining approaches; market-based

the respective

roles of

and voluntary

and implementing

appropriate

incentives; and

appropriate

use of financial

assurances

and insurance; pricing.

developing Another

and implementing apparent

full-cost

or internalized and reaction

need is an early warning

system for contamination activities, actions early

when it does occur. Better enforcement detection important of leaks or improper in reducing treatment

of potentially

contaminating corrective

and immediate

are all

future contamination

of lands and water resources.

National Round Table on the Enwonment and the Economy

Stakeholders, has only scratched flexibility voluntary

as much as regulators,

believe that there is much left to do. Canada instruments. Businesses want the for

the surface of market-based that such instruments Environmental

in response approaches.

allow. They want more opportunity organizations

non-governmental approaches

are skeptical of and are

the reasons why market-based worried about loss of public prevention.

and voluntary control.

are being pursued

However, they too are supportive

of the broad

goals of pollution It is urgent various elements?

that the future regulatory interact to produce

regime be defined

soon. How should the for which so.

components

a system? Who will be accountable

Until this is resolved, skeptics will remain for Canadians -

skeptics, and understandably the comfort

This is a priority

to give all the interests

they need and to

reassure them that the regulatory protecting approaches, performance the environment,

regime will be open to the public, effective in and flexible in embracing innovative

predictable

and that it will identify is poor.

and punish

those whose environmental

Summary of Issues
* How can better enforcement, appropriate attained? l In order to set the stage fully for pollution and implement financial l appropriate market-based pricing. a successful new regulatory regime prevention, instruments, there is a need to develop voluntary approaches, improved early detection of contaminant releases and be and timely corrective actions when releases have been discovered

assurances

and full-cost

It would be difficult

to develop and implement consensus.

in the absence of a broad national

National Round Table on the Environment and the Economy

A number

of issues do not fit well or exclusively specific technical broader challenges,

within

the previous

headings. of

These issues include municipalities follow-up

the need for more involvement regulatory approaches,

in planning

and site-specific

the need for jargon.

on what is already known

and the difficulties

caused by technical

Discussian of Issues
Knowledge environmental about specific contaminants, impacts continues their mobility and associated health and however, to grow. The demand for this information,

seems to outstrip

the rate of such growth. There is much to learn about the behaviour For example, how might guidelines be set for

and toxicity of specific contaminants. total petroleum hydrocarbons

when the constituents

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

does one assess the ecological long enough solutions economic

effects of volatile compounds

for existing tests to measure

their impact? What kinds of management needs and still be sensitive to

can meet environment requirements?

and health protection

There are challenges example, while thermal soil contaminant

in restoring

certain

soils, particularly

fine-grained

clays. As an certain in

phase separation

has proved very effective in treating

combinations,

it failed in recent tests on wood-treating

chemicals

clay soils. Bioremediation of certain contaminants.

has held great promise However, its limitations

for both in situ and ex situ treatment are still being revealed. On occasion,

sites will need to be cleaned up to background contaminants, this is not possible, challenges

or near-background

levels. For some technology. In short, basis. on implicated to

due to a lack of the appropriate that ought to be addressed from policy-level

there are many technical Municipalities contaminated in environmental

on a priority discussions

have often been too distant

sites. However, that order of government protection, as the impact

In most cases,

will be increasingly reductions

of federal budget municipal

is pushed

lower orders of government. implementation

government

is the final stop, and

can end up being its responsibility. among orders of governments, especially between governments are

Better communication provincial implicated and municipal

governments,

would be helpful. Municipal

and have a right to a voice in such issues as liability legislation and practice, brownfields

allocation,

bankruptcy

and insolvency

redevelopment

and the resolution actions to on

of the how clean is clean debate. Integration contaminated particular sites is critical in setting clean-up consistent

of provincial criteria

and municipal

for land being returned or commercial

uses. Remediation residential

with industrial Provincial

land uses cannot

safely support while municipal supportive.

uses or zoning. do zoning.

governments

direct remediation

governments

It is important

that these actions be mutually

Nat,onal Round Table on the Erwronmentond fhe Economy

Canrominated Site Issues in Canada - Backgrounder

Some ongoing the problem corrective

contaminated

site problems

result, not from a lack of knowledge will to require

of

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 in the Prairie provinces. A government Many service stations in small

storage tanks of service stations communities are family-owned.

order to replace their underground capability could stretch in

storage tanks with new double-walled owners financing a hamlet solution additional continue difficult another

tanks with leak detection

abilities to the breaking

point. In turn, the loss of a service station

in decline could hasten that decline and thus carries a high political has often been to grandfather the small operators,
10 or 15 years to comply. Thus, contaminants

price. The

giving them an

are allowed to begin or inaction? Sites more

to leak. What are the future costs of this sanctioned and expensive example to clean up? Another generation

of orphan

sites? Perhaps it is

of You can pay me now, or you can pay me later. and use of awkward, and understanding. this report ambiguous or even misleading terms is

Finally, the creation harmful to communication

This is illustrated It is possible

by three examples. that many readers However,

A word used throughout will think remediation of remediation

is remediation. for restoration

as a synonym

or rehabilitation.

has come to include

containment

and management

of contaminants. on the part of

This can be confusing the public. Another example

and frustrating

and can lead to more cynicism

of a term that can cause discomfort purity

is the use of halo, not to

denote something contaminant connotations

related to spiritual

or life after death, but to mean an area of This is a term with positive

concentrations used to describe

in excess of background. something negative.

Of course, sustainable inconsistently because

development

seems destined

to be one of the most attempts to be misleading, communities but

used terms in history. Not because anyone of meanings

the term has a number

that are accepted by various initiatives after that.

of interest. economic

Thus, the term is used to justify environmental initiatives the next and social policies the minute

one minute,

Summary of Issues
W There is a need to address technical Setting priorities ) among challenges even during this time of cutbacks. those challenges will be critical. policy and practice in regard to

The lack of municipal contaminated

involvement

in developing

sites is problematic

and should be rectified. or limiting of site

Political will is sometimes contamination.

lacking in the prevention

Communication development

and understanding and use of terminology.

have rarely been an objective

in the

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

Contaminated Site Issues in Canada - Backgrounder

Public understanding

of contaminated

sites is often relatively poor. This is not the on the existence complete; of sites

fault of the public, but simply reflects the fact that information is incomplete; learning that site characterization is often only partially environment,

that we are still

about contaminants,

the receiving

human

health and the are

interactions advancing

among them; and that the technologies and distancing themselves from the public.

of analysis and remediation

The consequence be fearful, imperfectly developers

of this is that public informed

input to contaminated and self-serving.

site discussions This wrongly interest

may leads

and very cautious

and governments

to be hesitant

to involve citizens fully. Instead, unsanctioned.

groups speak for the public, though

this may be entirely

Discussion of Issues
When the quality of citizens input to contaminated causes: on contaminated sites is not widely available. in Canada. Public registries This makes it If people do about it. They site discussions is poor, there are at least four possible W First, information

are only now being established extremely difficult for members

in a few jurisdictions

of the public to inform ask intelligent

themselves. questions

not know that the site exists, they cannot cannot W seek involvement in its remediation

or management. of no

Second, the public is becoming measurable acceptable

skeptical of experts and their assurances is virtually immobile

effect, the contamination

or the risk is at represent

levels. The public has correctly which means that different equal credibility.

discerned

that expert opinions

best judgment, approximately sometimes N

experts will give different

answers of on a site is

This means that valid information discounted

assumed

to be biased and is accordingly of the impacts of various

by the public. it is

Third, our knowledge not absolute significant

pollutants

is always evolving; today can become

or complete. tomorrow

What is considered

insignificant

or vice versa. the knowledge levels of scientists, regulators and

Fourth,

the gap between

developers

on the one hand and the general public on the other will be translated in the ability of individuals to participate in decision making.

into a difference

Thus, those in the know may be heard to say, yes, but the public wont understand, exacerbated or this is too technical; itll be misunderstood, development etc. This tendency is

by the fact that technological are being introduced

is proceeding validated

quickly and before

new techniques

and, seemingly,

scientifically

they have any credibility

with the public

(e.g., risk assessment).

Why might the public want to get involved sites? There are elements broader health motivation, property acceptance environment.

in discussions

related to contaminated

of the public that are motivated

to do the right thing for the

However, the prime motivation

for the public seems to be public A secondary on the

its own health, the health of its children but nonetheless a very important

or of future generations.

one, is the effect of contamination together plan. in opposition to or

values. This aspect can bring a community of a particular clean-up or management

There is a broader

underlying

reason why the public may want to be involved,

and of

that is that it wishes to be master of its own destiny, or at least to have some measure control over what happens to it. At one time, the public was content to have

government governments public instead governments

speak for it, but that trust has diminished. increasing tendency to listen to interest

This could be due to groups as representatives of the of

of involving reduced

the broader

public, or it may stem from a recognition

capacity to make a difference. on the part of the public runs up against the following parties, developers and regulators:

The desire for involvement views held variously l N N ) & N N N N

by responsible

we should talk to the public about this but they will not understand; the public will perceive problems where none exist; out of all proportion;

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 it is too difficult

will use the opportunity to identify the legitimate

for grandstanding; representatives

and to whom we should talk. who

Of course, not everyone

holds these views: there are people in every organization

want to see proper, effective participation. Experience substantive has shown time and again that involvement should be early and because people of that

to be meaningful.

Too often, good plans have been derailed

who had the ability to derail a solution solution. ownership. process. A good solution

were not engaged in the development

for a contaminated

site is one that achieves broad community one meeting at the end of a technical

This is not accomplished

by holding

Nol,onal RoundTable the on Environmentandthe Economy

Some will argue that involvement public must be educated important to remember

is a public relations

job. Or the phrase the But it is learn as

is heard. Indeed, that education

there is a place for education.

is a two-way process. Good educators

much as they teach. There is no one party in possession believes it is, the process of imparting instead becomes and becomes between indoctrination. that information

of the whole truth. If one party ceases to be education and

The information

thus imparted

ceases to be knowledge

propaganda.

Propaganda

has a lesser and even negative value. A dialogue value. Protection such

technical

experts and the public would have significant in Alberta may be instructive. Alberta

Recent experience

Environmental

has found that the public as risk assessment remediation

is more accepting

of specific applications from the beginning.

of techniques

as long as it is involved

On a specific

project, this means involving approach.

the public before the choice is made to use a public and stakeholder sites. The

risk assessment involvement National

There are other models for combined

that may have some application Code approach

to issues of contaminated attention. parties, developers

Building

may warrant

It is noteworthy

that it is not only responsible

and regulators Many

who are, from time to time, guilty of discounting public interest groups do this also, excusing

the value of public involvement.

it because they do not have the resources are in the

to fight cleanly, or the developers pockets of the proponents,

hold all the cards, or the regulators

and so on. parties are cynical about the value of listens too much to the other

A final issue is that many interested involvement interested

because they believe the government parties. This is probably though, untrue

in general, but has some truth in individual reflects the reality that processes could be

cases. More importantly

the attitude

more open so that interactions If there are a few principles related to contaminated )

are visible and shared as much as possible. at the root of public involvement in resolving issues

sites, they might be that: respect for all interested parties involved in decision

There should be mutual making

where the results may affect them. that people come to the table with good and process. only learn from involvement but

There should be an assumption serious intent

in any shared decision-making cannot

There should be a belief that the public 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 respect and

trust. It does not just happen.

Not,onol RoundTable the on Environmentandthe Economy

ContaminatedS,te 1sue1 in Conodo - Bockgrounder

Summary of Issues
l How can the public be better informed the nature of contaminants, about contaminated sites their existence, the ways in which contaminants contaminants move and the effects and human

or lack of effects of particular health? l Information systems to support

on the environment

easier public involvement

either do not yet exist or

are only in the early stages of development. > General available. l How can the growing New technologies * Public involvement and solutions l l Education gap between the public and technical scientifically experts be bridged? information about the existence of contaminated sites has not been readily

are being validated

but not publicly. on problems

and the value the public brings to deliberations by many decision makers.

seems to be unrecognized

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

to be one way. all interested parties?

What efforts can be made to begin building

National RoundTable the on Environmentond Economy the

Canadian

Council

of Ministers

of the Environment

(CCME)

Core Group on

Contaminated

Site Liability,

Contaminated

Site Liability Report, Recommended 1993).

Principles for a Consistent Approach Across Canada (Winnipeg, Ibid. Ibid. National Council Contaminated of Ministers Sites Remediation of the Environment Sites (Winnipeg, Program (CCME), 1992). (NCSRP)

and Canadian Classification

The National

System for Contaminated Ibid. Ontario Ministry

of Environment 1996).

and Energy, Guideline for Use at Contaminated

Sites in Ontario (Toronto, Op cit., endnote Canadian Council 4.

of Ministers

of the Environment

(CCME).

Interim subcommittee

on Environmental Council National Council

Quality Criteria for Contaminated of the Environment, Sites Remediation of the Environment 1991. Program (CCME),

Sites. Ottawa, Canadian

of Ministers Contaminated of Ministers

(NCSRP)

and Canadian Sites in Canada

Guidance Manual for Developing

Site-specific Soil Quality Remediation (Winnipeg, Canadian 1996). Council of Ministers

Objectives for Contaminated

of the Environment

(CCME).

National

Contaminated 1996. Environment

Sites Remediation

Program Framework for Ecological Risk Assessment: Council of Ministers of the Environment,

General Guidance. Ottawa, Canadian

Canada,

Environmental

Conservation

Service. A Review of Whole 1994.

Organism Bioassays for Assessing the Quality of Soil, Freshwater Sediment and Freshwater in Canada. Ottawa, Envronment Op cit., endnote Canadian Council 9. of Ministers of the Environment (CCME). Guidance Manual on Sites, Vol. 1: Main 1993. Canada,

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

for Contaminated

of Ministers

of the Environment, (CCME). Council

of Ministers

of the Environment

Subsurface Assessment of Ministers of the

for Contaminated 1994.

Sites. Ottawa, Canadian

Environment,

Nolimo,RoundTable the on Environmentondthe Economy

Con+am,notedSite Issue. in Conoda - Backgrounder

Canadian Derivation Ministers National

Council

of Ministers

of the Environment

(CCME).

Protocol@ Council

the of

of Environmental of the Environment, Round

and Human Health. Ottawa, Canadian 1996. and the Economy

Table on the Environment

(NRTEE), Lender

Liability for Contaminated Number 3 (Ottawa, Insurance 1992).

Sites: Issues for Lenders and Investors, Working Paper

Bureau of Canada,

Report of the Environmental

Liability Committee: Insurance Bureau

Improving the Climate for Insuring Environmental of Canada, Canadian 1994. Council of Ministers of the Environment

Risks. Toronto.

(CCME), A National 1993).

Commitment Ibid., at p. 3. Ontario

to Pollution Prevention (Winnipeg,

Ministry

of Environment

and Energy, Pollution Prevention Planning, 1993).

Guidance Document Op cit., endnote 11.

and Workbook (Toronto,

House of Commons Development,

Standing

Committee

on Environment

and Sustainable (Ottawa, 1995). to

Its About Our Health! Towards Pollution Prevention Ministry of Environment,

British Columbia

Lands and Parks, An Introduction

Pollution Prevention Planningfor (Victoria, 1996).

Major Industrial Operations

in British Columbia

National RoundTable the on Environment theEconomy and

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Alberta Environment. Contaminated Alberta Sites Liability Issues Task Force, Final Report to 1992. Legal Minister. Edmonton: Braul, Waldemar. Education ---. Canadian Environment,

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National Round Tableonthe Enwonment ondthe Economy

Cantominated S,te Iswes in CanodaBackgrounder

Domtar Proposed 1996.

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Transcona

Wood Preserving

Facility:

Summary

of

Plan. Report prepared

for a public meeting.

Winnipeg,

June 26,

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 Federal/Provincial/Territorial Contaminated (CMHC), Canada, Subcommittee 1994. on Contaminated Mortgage Lands and Housing. and Housing Corporation

Lands and Housing. Ottawa: Canada

1994. Council of British Columbia HOCBC, 1994. on Environment and Sustainable (HOCBC). Chemicals in Soil: A Public

Health Officers

Health Perspective. Victoria: House of Commons Development. Communication 1995. Insurance Environment Contaminated Environment -.

Standing

Committee

Its About Our Health! Towards Pollution Prevention. Ottawa: Canada Group Publishing, Public Works and Government Services Canada,

Bureau of Canada. Comments on Funding

to the Canadian Options

Council

of Ministers

of the

and Administrative

for the Remediation Council of Ministers 1994.

of Orphan of the

Sites. Paper prepared

for the Canadian

Core Group on Contaminated

Site Liability. Toronto,

Proceedings from an Industry Symposium: Risk. Toronto: Insurance

Improving the Climate for Insuring 1995. Improving the Climate for 1994.

Environmental -.

Bureau of Canada,

Report of the Environmental Risks. Toronto: Contaminated 1994.

Liability Committee: Insurance

Insuring Environmental Manitoba Manitoba -. Environment. Environment, Contaminated 1995.

Bureau of Canada,

Sites Liability Discussion Document. Winnipeg:

Sites Remediation

Act Discussion Document.

Winnipeg:

Manitoba

Environment, National Ministers

Contaminated

Sites Remediation

Program

(NCSRP)

and Canadian

Council

of

of the Environment

(CCME). A Framework for Ecological Risk Assessment: CCME, 1996. CCME, 1996. and Human Health Soil Quality

General Guidance. Winnipeg: -. ---.

Annual Report 1994-95. Winnipeg: A Protocol for the Derivation CCME, 1996.

of Environmental

Guidelines. Winnipeg: -. National

Classification

System for Contaminated

Sites. Winnipeg:

CCME, 1992.

Nobnal Round Table on the Enwonment and the Economy

Contaminated Site Issues in Canado - Bockgrounder

-.

Guidance Manual for Developing Site-specific Soil Quality Remediation Sites in Canada. Winnipeg: CCME, 1996. (NRTEE). Building

Objectives for Contaminated National Round

Table on the Environment

and the Economy

Consensus for a Sustainable Future: Guiding Principles. Ottawa: NRTEE, 1993. National Round Table on the Environment and the Economy (NRTEE) Financial Contaminated Sites,

Services Industry Brownfields, ---.

Task Force. Survey of Other Work Performed: Information. Ottawa, 1996.

Site-specific

Lender Liability for Contaminated

Sites: Issues for Lenders and Investors, Working

Paper Number 3. Ottawa: NRTEE, 1992. National Mortgage Round Table on the Environment Corporation Sites for Housing. Ottawa, of Environment and the Economy (NRTEE) and Canada

and Housing

(CMHC). 1997.

Removing Barriers: Redeveloping

Contaminated Ontario

Ministry

and Energy. Guideline for Use at Contaminated for Ontario, 1996.

Sites

in Ontario. Toronto: -.

Queens Printer

Pollution Prevention Planning, Guidance Document for Ontario, Environment 1993. and Resource Management.

and Workbook. Toronto:

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A Discussion Paper on and Resource

Site Liability. Regina: Saskatchewan 1994.

Environment

Swaigen, John. Toxic Time Bombs, The Regulation of Canadas Leaking Underground Storage Tanks. Toronto: Emond Montgomery Publications Limited, 1995.

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

Contominafed S,fe issues in Canada - Backgrounder

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 Ceroici, Walter Strategy and Environment Alberta Environmental Protection

Business

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 Environment Canada Municipalities and Resource Management

Ferris, Sam Foote, Tom -

Saskatchewan Environment

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 Nova Scotia Environment Bureau of Canada

Harries, Jim -

Insurance

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 lenvironnement et de la faune du Quebec 0 ;zs :g Marsh, Marius - Ontario Ministry of Environment and Energy .d $ McKernan, John Dale Intermediaries

McLeod, Glen Mitchell, Anne Mundy, Dean Power, Rob Richards,

Manitoba Canadian

Environment Institute for Environmental Law and Policy

New Brunswick Association Ontario Canadian

Environment

of Site Assessors of Canada Ministry of Environment Auditing and Energy Association

Ken -

Schikaze, Kim Smith, Bruce Stephens,

Environmental Environment

Saskatchewan

and Resource Management

R.A. (Dick) -

Manitoba

Environment Environment Canada of Canada

Steward, Louise Therrien, Wilson, Robert Don -

New Brunswick Environment Council

Standards

~ationo, Round Table on the Environment and the Economy

Contaminated Site issues in Canada

National Round Table on the Environment and the Economy

iii&a

Table ronde nation& sur lenvironnemsnt et Iiconomie

Tel.

Canada Yuilding, 344 Slater Street, 2C0, Ottawa, Ontono, Canada Kl R N3 Suite [613] 992-7189 l Fax (613) 992-7385 l E-ma.1adminbnrieetrnee co l Web- hitp //kwv

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