Every so often, a court decision changes the rules. Everyone interested in contaminated sites needs to understand what Berendsen v. Ontario has changed.At first glance, there is nothing unusual about the facts. Farmer buys land for dream dairy farm. The cows become sick; he loses money. He blames contamination, from waste asphalt buried on the site. He sues the government; the government investigates, but refuses to pay.
But the first glance is deceptive. Berendsen and his legal counsel, Rick Lindgren of the Canadian Environmental Law Association and Donald Good, faced huge obstacles and yet won an enormous victory. Among other things:1. The ground and surface water on Berendsen’s farm all met Ontario Water Quality Objectives, so the MOE concluded it was no more contaminated than every other farm;2. Berendsen bought the farm when it already contained the waste (waste asphalt, concrete etc. from road reconstruction), so, if there was a tort, he came to it;3. He saw some of the waste, above ground, before the purchase, so faced defences of caveat emptor, volenti and contributory negligence;4. The waste was buried in clay, so MOE hydrogeologists said it couldn’t possibly affect his well water;5. The waste had been buried by an unknown person, so whom could he sue?6. The waste had been buried with the then owner’s consent, so what tort could there be?7. It all happened decades ago, in accordance with the standards of the day; and8. The waste caused no damages to the two previous owners.Judge Seppi’s ruling carved through these obstacles, setting several new and important precedents for all common law provinces. Of these, the most original and far reaching is her ruling that the farm was contaminated, even though each individual parameter measured on the property met the ODWO. At least for a dairy farm, she ruled, the additive effect of multiple trace contaminants is sufficient to constitute pollution. The strongest proof: the cows got sick when offered only this farm’s water, but thrived when provided with clean water.In making this ruling, Judge Seppi had harsh words for the MOE and its staff. In accordance with its normal practice, the MOE had closed its file once satisfied that the farm met generic criteria (the ODWO) and that the waste was buried in clay. Judge Seppi found this outrageous, given the Berendsen’s evidence that there was no other source for their problems. Judge Seppi gave “very little weight” to the MOE’s expert opinions on hydrogeology “due to its administratively imposed limitations, absence of a full hydrogeological investigation, and biased approach”, and its “decision to overlook supporting evidence and abandon the Berendsens”. But it was Dr. Brendan Birmingham, one of the MOE’s top staffers on standards, risk assessment and health, who came in for particularly withering criticism:
On his evidence, the MOE’s ultimate approach was to ignore the reality of the serious adverse effects… His evidence was glaringly devoid of any explanation or consideration of cumulative, additive or long term effects of toxic chemicals in the water, even at trace levels. He did not clarify whether or not these were taken into account in setting the ODWO. The only inference on the evidence is that they were not…. [He was] dismissive… sarcastic and somewhat belligerent… Dr. Birmingham was as a result not credible… [h]is opinion is completely rejected…
Whether or not Ontario appeals the legal findings in the case, no appeal court will overturn these findings of fact and credibility.The biggest impact of this ruling may therefore be its effect on standard setting and risk assessment in Ontario and elsewhere. Remember: every contaminated site that undergoes risk assessment is more contaminated than the Berendsen’s farm. Brownfields developers already complain that regulators are too risk averse, and require too much to be spent to investigate and manage improbable risks, making the process of risk assessment punishingly slow and expensive? Will Berendsen make them even more so? Ontario is about to update its generic clean up standards – will it now decide to make them even more stringent, to allow a margin for “cumulative, additive or long term effects of toxic chemicals … at trace levels”? And what will be the significance of this ruling for biosolids and other mixed materials that are now spread on agricultural lands? It may take years to find out.