Contaminated Site Liability: The Need for a Remediation Fund

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With increasing frequency, contaminated sites are being discovered across Canada. The Canadian Council of Ministers of the Environment (CCME) has attempted to take a lead role in directing how liability for the clean up costs of these sites will be allocated among polluters. In this respect, in 1993 the Council endorsed the Guidelines in the Contaminated Site Liability Report. This Report outlines both underlying principles such as "fairness" and "polluter pays", as well as specific principles such as "joint and several liability". The CCME Report recommends that these principles form the basis of provincial and territorial environmental laws. The specific principles have been developed with the understanding that no external funding will be available to contribute to contaminated site clean up efforts. That is, only persons responsible for the contamination who can be located and who are in a position to pay will be available to finance decommissioning efforts. This will unfortunately result in identifiable responsible persons paying more than their fair share of site remediation in some instances, because they may be forced to cover the costs that would otherwise be allotted to bankrupt or deceased polluters. In this way, the specific principles are inconsistent with, and unable to implement, the underlying principles. A remediation fund is needed to pay for the clean up costs attributable to non-existent or insolvent polluters.


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