Where a landowner encounters contamination of its landholdings, usually some form of remedial activities will be necessary in order to remove or ameliorate the contamination.
The science of environmental remediation has advanced considerably in the recent past and there are numerous alternate remediation methods that can be employed for similar contamination results or different land compositions. The variation in methods employed or recommended by Engineering Consultants can involve hugely different remediation technologies, results to be obtained, timeframes within which to conduct the remediation and the final result to be obtained.
A careful choice must be made in choosing the appropriate technology. The end result and the cost and methodology employed needs to be reasonable. Landowners will be required to carefully consider and weigh recovery options for different remediation scenarios before they undertake the work, to ensure recovery of remediation costs.
The writer’s precedent setting case in Tridan v. Shell provided very clearly that whatever remediation strategy is employed by an aggrieved person needs to be reasonable, having mind to the costs involved and the value of the land under consideration.
Not only will different strategies impact on remediation costs but the result obtained may differ with different technologies resulting in different levels of residual stigma with respect to any remaining contamination on a contaminated site. It is often extremely difficult to ameliorate all contamination at a contaminated site and the residual level will be an important consideration, potentially impacting values.
Landowners might consider remediation strategies involving other options such as obtaining a remediation to levels in excess of guidelines under a risk assessment but these can have serious value impacts and marketability considerations. While Engineers are skilled at recommending and choosing remediation strategies on a contaminated site, a legal analysis is required to ensure that any monies to be spent for remediation costs will be fully recoverable from the wrongdoer.
The choice of remediation technology often involves “dig and dump” strategy wherein impacted soils are removed from the site at great cost and taken to a landfill. Landowners choosing this scenario need to be mindful of the recent amendments to the Environmental Protection Act allowing for the re-use and remediation on site of contaminated soils. Whereas previously, soils with any level of contamination had to be removed from the site, incurring tipping fees for their disposition, the excess soil regulations recently completed by the MOECP provide for the onsite treatment and transport of some contaminated soils. These provisions were to have come into force in July of 2020 but the recent COVID restrictions resulted in them being delayed with the expected implementation now being January of 2021. Given that this date is not very far off, landowners will need to be extremely careful in employing technologies that do not take advantage of the future excess soil regulation with which we will be dealing with shortly.
In conclusion, the choice of a remedy is not simply an Engineering question where recovery from a polluter is contemplated. The Courts insist and a polluter is entitled to rely on the proviso that remediation costs need to be reasonable bearing in mind all reasonable strategies, the costing involved and the resultant impact to the land under consideration.