The farther we move away from the “polluter pay” principle, the greater the disarray in Ontario’s contaminated sites law and policy, and the greater its economic and environmental harm. The Ontario Bar Association is working on a submission to the Law Commission of Ontario, asking them to look into the issue and make recommendations for law reform. Ecojustice has moved more quickly, and has asked the Environmental Commissioner of Ontario to do the same.
Ecojustice’s thoughtful paper proposes seven recommendations:
“By adopting various tools, including legislation, used in other jurisdictions, Ontario can greatly reduce its risk of financial liability for contaminated site remediation, thereby reducing needless expenditure and improving fiscal responsibility. Ecojustice makes seven recommendations on how Ontario may implement the Drummond Report’s recommendations:
- Make government spending on environmental remediation more transparent;
- Extend the scope of financial assurance and strengthen its requirements;
- Establish a trust fund to pay for environmental remediation, drawing from models in Canada, the US, and other jurisdictions;
- Stipulate that the principle of fairness guide the issuance of ministerial orders in regard to contaminated sites;
- Adopt the beneficiary principle, retroactive liability, liability exemptions and liability for environmental loss and damage;
- Develop measures to discourage litigation over liability;
- Create additional incentives to encourage brownfield redevelopment.”
There are obvious conflicts between these recommendations, but the report is an honourable and timely attempt to restart an important debate on who should pay for contaminated sites.