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The legality of liability

Polluter pays principle

In the context of brownfield redevelopment, liability generally refers to environmental liability related to contamination.  In theory, Alberta follows the polluter pays principle as the Environmental Protection and Enforcement Act sets out the “responsibility of polluters to pay for the costs of their actions.”

The province most often deals with contaminated land as a “substance release” into the environment, which causes an adverse effect. A person responsible for a “substance release” can include:

  • the owner and previous owner of a substance;
  • any person with charge, management or control of a substance; and
  • any person who acts as a principal or agent of those persons mentioned above.

The province can issue an order to a person responsible for investigating or cleaning up the site. The province can also issue an “administrative penalty” or ticket to a person responsible.

The province can also designate a property as a contaminated site, which then provides a broad scope of liability under EPEA. “Persons responsible” for a contaminated site can include those that owned or controlled a substance present on the property, as noted above, as well as current and past owners of the site where the contamination is present.

Types of liability

Brownfield sites are difficult to redevelop because they often involve various types of liability for the person or persons responsible:

Environmental Liability
The legal and financial responsibility to undertake remediation of contaminated property to Provincial Guidelines relevant to the zoning and usage requirements for the neighbourhood.

Financial Liability
The responsibility to fund remediation and exposure control management costs during property reclamation.

Legal (Civil) Liability
The power of the law to compel a party to remediate property to specific standards and/or compensate injured parties for damages caused by contamination.

Regulatory Liability
The requirement to hold property owners to environmental standards and regulations as set out by the Province of Alberta

Liability issues

In practice, application of the polluter pays principle through these legislative provisions can be difficult, particularly in the case of brownfields with legacy contamination.  The following section draws on an explanation of liability provided in an article published by the Canadian Consulting Engineer magazine.

Legacy contamination

Often, the activity causing the contamination occurred decades ago and the original “polluter” no longer exists, cannot be found, cannot be compelled to cooperate, successfully delays action or has no funds.  For example, many municipalities in Alberta contain former gas stations that were independently owned and where the owner has abandoned the property and cannot be found. 

Liability does not depend on traditional legal concepts of fault or negligence, and diligence (i.e., reasonable care) - is not taken into account. Often the activities that caused the contamination were legal and best practice at the time they took place.  For example, a commonly used substance called trichloroethylene is now known to be a toxic substance that can cause groundwater contamination. Until the 1970s, however, disposal instructions advised pouring spent trichloroethylene on dry ground to allow it to evaporate.  Even if an activity that resulted in contamination was legal at the time it occurred, it does not negate the responsibility for remediating the contamination.

Liability is unlimited

Corporations, individuals and governments can be held joint and severally liable for the full costs of remediation. “Joint and several” liability is a common law principle that those who have combined to cause a loss are each liable to the injured party for the full amount of the damage suffered. A defendant may be only one percent at fault, but might still be obliged to pay for the plaintiff’s entire judgement, particularly in cases where the other defendants are unable to pay their share.  

Liability is indefinite

Even if a party remediates the brownfield to applicable government standards, the same party may be “on the hook” again years later if standards change. Landowners who sell brownfield properties also remain open to liability claims despite the sale of such properties. Brownfield landowners are therefore often hesitant to sell or remediate their properties because the potential liabilities and associated cleanup costs may exceed the potential returns on sale.

Offsite contamination

Compounding these liability issues is the fact that contamination often spreads past property boundaries to other sites, which adds further complexity as it can be difficult to determine the source(s) of contamination in order to determine who is liable.