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Consumers and businesses frequently purchase or accept “clean fill” for use on their properties, without requiring environmental testing. But if the fill is contaminated, the ultimate costs can be very high.

Clean fill or slag?

Consider, for example, the allegations in Edwards v. Rebound Resources Inc..

The Edwards own a campground in Dunnville. In 2001, they purchased 940 tonnes of “slag stone” from Rebound for their driveway and as pipe bedding. The “slag stone” was advertised as “an affordable and environmentally friendly stone alternative”, and cost about $4000, less than regular stone.

Unfortunately, the slag soon created a milky leachate that ran off into a municipal drainage ditch. The regional government cleaned up the leachate and added the $8300 cleanup costs to the Edwards’ municipal tax bill. The Edwards sued Rebound in Small Claims Court for the $8300, and added thousands of tonnes of clean stone on top of the slag.

Soon afterwards, however, new leachate appeared. Ministry of the Environment (MOE) staff threatened to issue a cleanup order against the Edwards, allegedly telling the Edwards that full cleanup would likely bankrupt them. The Edwards transferred their case to the Superior Court of Justice, seeking damages from Rebound for breach of contract and for the regional cleanup, as well as for future costs associated with removal of the slag, anticipated loss of property value and business and reputational losses. The Edwards estimated that it would cost over $500,000 to remove all the slag (and everything it had contaminated) and truck it to a hazardous waste site.

By this time, Rebound appeared to be out of business and without assets. The Edwards tried to sue the province of Ontario for allowing Rebound to sell the “slag stone”, while claiming it to be environmentally friendly. However, the province does not have a duty to protect individuals against fraudsters, and this claim was thrown out. Thus, the Edwards were left holding the entire bag for the contamination.

In another case, fraudsters persuaded a church cemetery board to accept huge amounts of arsenic-laden glass slag as “clean fill”. By the time the fraud was discovered, the arsenic had been spread far and wide through the cemetery, and mixed with hundreds of truckloads of soil. The litigation involved more than a dozen parties and went on for years. Meanwhile, most of the cemetery was tied up in disputes over whether and how to do the cleanup, while available space for burials quickly disappeared.The case was eventually settled, costing all the innocent parties a great deal of money.

In yet a third case, a fraudster tried to punish someone for a business dispute by setting up a fake dumpsite on his property. The fraudster happily sold fill dumping tickets to anyone who would buy them, encouraged them to dump whatever they liked on the property, and then vanished.

Protecting yourself

To avoid these disasters, no property owner should accept “clean fill” without proof that the fill really is clean. Many different materials may be sold or given away for use as “clean fill”. Not all of these are truly clean. Some materials may be considered clean now, but will cease to be clean when new standards come into effect, as they frequently do. For example, the Ontario Environmental Protection Act rules for “how clean is clean” will undergo significant changes on July 1, 2011, when amendments to Regulation 153/04 (Records of Site Condition) come into force.

There will be another important change on July 1, 2011, for anyone who is going to want a Record of Site Condition for their property. A Record of Site Condition is an official document registered with the province on the Environmental Site Registry, which certifies that a property is clean enough for a particular land-use, such as residential or agricultural. In most cases, a property owner is not required to have a record of site condition, but it can be helpful in proving environmental compliance to buyers, lenders, and went seeking building permits.

For these properties, there will be stringent new rules on the maximum levels of contaminants that can be present in soils moved from one property to another. Until now, for example, property developers have freely moved soil from one residential property to another, as long as the soil meets Table 2 or Table 3 (generic residential) standards. After July 1, 2011, this will no longer be permitted. The only soils that will be permitted free movement will be those that meet the very stringent Table 1 (background) standards, as demonstrated by testing. Table 2 or Table 3 soils will only be permitted to be moved onto sites formerly used for gas stations, dry cleaners, etc., where full environmental site assessments will be mandatory before any change in use.

These restrictions will not be mandatory for all property owners, but it would be prudent for all property owners to follow them.

Read the contract

It is important to read the conditions of any invoice or contract of purchase and sale for fill materials. The small print may be critical in determining whether you can sue the vendor should the fill be contaminated. For example, some contracts will expressly state that the material is not permitted for use in paving driveways or around the pipes – the very uses for which the purchaser requires them.

Also, the vendor may limit its obligations to the purchaser by inserting a clause that says that they do not warrant or represent that the product is fit for a particular purpose. The contract may also limit liability to a maximum of the cost of the product. Finally, the wording of the contract may be irrelevant if the vendor goes out of business.

Bottom line: don’t simply believe an advertisement that says a fill is “environmentally friendly” – check it out. Free fill can be much too good to be true.

Dianne Saxe and Jackie Campbell

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