Will BC’s Next Gov’t Defuse Toxic Time Bombs? by Wally Braul, May 6, 2013, TheTyee.ca
The Ministry of Environment should make more strategic use of its powers. The EMA provides the Ministry of Environment with broad powers to order that sites be remediated. Few would disagree that the MOE’s limited resources should be devoted to high-risk and high-priority sites. The MOE, however, exercises its order powers infrequently — only a small handful of cases in the past decade.
The MOE’s apparent unwillingness to order remediation has several adverse consequences:
It sends a message that it will not proactively apply the principle of polluter-pay.
Many victims of migrating contamination wake up to a nightmare of health risks and loss of any value in their family homes. They often cannot raise funds to remediate, especially if their only asset (their home) has become a liability. It is not uncommon for remediation of a residential property contaminated by a nearby gas station to exceed one million dollars.
Litigation is expensive. For example, plaintiffs can easily incur litigation costs of $100,000, and often much more, in simple civil actions against large companies with ample legal resources. Litigation costs are better spent on remediation. Parties may decide to leave their properties un-remediated. These ‘brownfields’ create significant challenges for effective land-use planning.
B.C. should follow the lead of U.S. regulators. In the U.S., the mere threat of regulatory orders can trigger prompt remediation and settlement of disputes which otherwise would require lengthy and expensive litigation.
The Act should be amended to allow the determination of recoverable remediation costs. Section 47 of the EMA provides that a plaintiff may recover incurred — not prospective — remediation costs from “responsible persons.” Remediation at some sites could take several years however. The potential delay in recovering costs dissuades parties who can invest elsewhere. Amending the law to allow a court to order the recovery of costs from “responsible persons” in advance, would give plaintiffs more confidence that costly and time-consuming remediation is ultimately worthwhile. [Emphasis added]