What to do if Someone has Contaminated your Site
by Michael Geraghty, P.Geo.
Senior Technical Manager
You have just received a Notification of Likely or Actual Migration from your neighbor saying that they have off-site migration – contamination from their property has or may have migrated onto your property. What do you do?
First we recommend you contact a qualified environmental professional to help you interpret the information provided by your neighbour. The contaminated sites regulatory regime in BC is structured such that the “polluter pays”. Your neighbour would be a Responsible Person (RP) under the BC Environmental Management Act (EMA) and Contaminated Sites Regulation (CSR). They are, therefore, responsible for investigating and remediation the contamination on your site. To do this they must investigate soil, groundwater and or vapour contamination that may have migrated to your property. The RP will likely make a request for access to your property to do this investigation. Do you grant such access? Generally, we would say that yes it would be in your best interest to do so but first we recommend you seek professional legal and environmental advice. You may want to craft an access agreement that stipulates what limitations you may want to place on such access (areas, time of access, restoration of damage property, etc.).
The RP is legally required to share the findings of any investigation work completed on your property and is required to consult with you on their proposed approach to remediation of your property. However, you should note that a right to consultation does not grant you a veto over how they choose to remediate the contamination. You will likely want the RP to obtain a Certificate of Compliance from the BC Ministry of Environment and Climate Change Strategy (BC ENV) confirming your property has been properly remediated. The RP must share their reports and other data with you as well as provide you with a draft copy of the Certificate of Compliance (CofC) they intend to get for your property. It is important that you review the CofC as there may be conditions in the CofC that limit the future use and/or the type of building that can be constructed on your property in order for the CofC to remain valid. You have the right to provide feedback on these conditions and the RP should take steps to mitigate your concerns and not make any unreasonable restrictions on use. The RP will need to demonstrate to BC ENV that you either agree to the remedial approach and CofC conditions or if you don’t they need to demonstrate that they have taken steps to accommodate your concerns and that the conditions imposed are not unreasonable. If you do not agree, you should expect to be contacted by the BC ENV Director signing the CofC in order to discuss your concerns with him/her prior to the CofC being issued. However, he/she may still choose to issue the CofC if he/she believes that the RP has followed all the requirements of the CSR and any conditions are reasonable.
You may also want to investigate and remediate the contamination on your site yourself. However you should remember that you may have limited success in recovering the costs of that work from the RP.
Additional information on this topic is also available from the following BC ENV documents; Requirements for Responding to Contaminant Migration, Remediation Liability and Combining Parcels with Different Owners, Expectations and Requirements for Contaminant Migration, Remediation Liability Overview.