July 2005

Disclaimer: Agrilaw is a syndicated column produced by the full service London law firm of Cohen Highley LLP.  Paul G. Vogel, a partner in the firm, practises in the area of commercial litigation and environmental law.   Agrilaw is intended to provide information to farmers on subjects of interest and importance. The opinions expressed are not intended as legal advice.  Before acting on any information contained in AgriLaw, readers should obtain legal advice with respect to their own particular circumstances.

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Development of historical industrial sites raises the potential for the release of hazardous waste into the environment. What right do area residents have to ensure that such development does not contaminate their drinking water supply?

The Ontario Superior Court recently considered a case where a municipality proposed construction of a multi-use recreational facility on a former foundry site. Despite an environmental report demonstrating the presence of hazardous materials in ground water on the site, the municipality had proceeded without environmental assessment and had begun the removal and disposition of potentially contaminated soils in a nearby municipal landfill. At the time of granting of the Certificate of Approval for the municipal landfill, the Environmental Appeal Board had prohibited placing hazardous waste in the landfill because of potential for leachate from the landfill site to contaminate the nearby lake from which the municipality obtained its municipal water supply.

A municipal resident applied for an injunction restraining the municipality from proceeding with construction pending completion of an environmental assessment and site specific risk assessment and from depositing materials excavated from the site in the municipal landfill. In allowing the application and granting this injunctive relief, the court stated:

“Although a full and complete assessment of the merits of the case before this court is not possible on this application, a preliminary assessment of the merits reveals that an environmental report prepared for the defendant itself found the existence of hazardous materials in the ground water of the “Foundry” site in a concentration many thousands of times more than permitted by the standard set by the MOE. That, coupled with the finding of the tribunal which granted the Certificate of Approval for the landfill site, that there is a potential for leachate from the landfill site into (the nearby lake), the latter being the source of drinking water for the residents of the defendant (municipality), are factors I have considered in arriving at the disposition I have made”.

The court concluded that the resident requesting the injunctive relief might suffer irreparable harm if the relief was not granted and that his right to uncontaminated drinking water outweighed the additional costs or inconvenience to the municipality pending determination of the risk posed by the excavated soils. The court stated:

“The plaintiff is a resident of the defendant (municipality) who, like most other people in the community, receives drinking water from the municipal drinking water supplied by the (municipality). The (municipality) draws this water from (the nearby lake) … Ground and surface water from the landfill site has the potential of flowing directly into (the nearby lake). As a result, the introduction of any contaminants, either through construction activities at the proposed (development) site or through migration of contaminants from the landfill site can directly impact on the municipal drinking water source of supply.

As a result I am satisfied that the circumstances surrounding the landfill site and the specific nature of the contaminants already known to exist at the proposed site raise sufficient concern that a permanent loss of natural resources may result if the challenged activity of dumping the subject soil from the proposed (development) site into the landfill site is not enjoined, or at least closely monitored with a view to easy removal in the future if it is found to breach the provisions of the Environmental Protection Act. …

I am satisfied in the circumstances of this motion that the plaintiff’s right to a fresh uncontaminated drinking water supply could be so seriously impaired that it may be impossible after the damage has been done to afford an adequate remedy at trial. In other words, the question remains open as to whether there is a remedy for the potential disruption to nature if contaminants are allowed to enter the drinking water supply as leachate from the landfill site”.

Area residents have a right to assurance that proposed development will not contaminate their environment. Where proposed development poses such a risk, injunctive relief may be available from the courts to restrain the development from proceeding at least until potential environmental effects are identified, assessed and controlled.