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368 Who is responsible for cleaning contaminated land? One of the most basic rules of environmental law in Ontario is that contamination which threatens the environment or people's health must be cleaned up. Ontario's Environmental Protection Act establishes rules about who is responsible for the clean-up and who will pay for it. The Ministry of the Environment has broad powers to order the person or company who owns or controls a contaminant to clean up any environmental damage. The Ministry can also order the current owner or a previous owner of the property to do the clean-up.
There are three general situations where contaminated land must be cleaned up. First, where the current owner of the property caused the contamination; second, where some other person or company such as a neighbour caused the contamination; and third, where a previous owner of the property caused the contamination.
- Pollution caused by the current owner of the propertyIf the current owner of a property causes or permits a spill, a leak, or contamination that threatens people or the environment, then the property owner must report it to the Ministry and the property owner must pay to clean it up.
- Pollution caused by some other person or companyIf some other person or company, such as the owner of a neighbouring property, owns or controls a contaminant that adversely affects your property, then they are responsible for cleaning up and disposing of the contaminant. If this other person or company does not do the clean-up, then you or the Ministry may make arrangements to clean it up. If this happens, then you or the Ministry may recover the cost of the clean-up by suing the person or company that owned and / or controlled the contaminant.
- Pollution caused by a previous owner of a propertyIf a previous owner contaminated a property, then either the current property owner or the polluter can be held responsible for the clean-up. If the person who caused the contamination cannot be found or cannot pay for the clean-up, then the current owner will have to pay. The current property owner can then try to recover the cost by suing the original polluter for the cost of the clean-up. Property owners have a legal obligation to inform people who buy their property that it is contaminated. If they do not inform the buyer, they could be sued by the buyer for the cost of the clean-up and any other financial losses.
- Buying a property that could have environmental problemsThe general rule regarding the purchase of any property is "buyer beware". When you purchase a property, you should investigate what the land was previously used for to determine if it may be polluted or contaminated. In addition to protecting your own health and your ability to use the property, you could also be held responsible for any environmental problems.
If you buy a property with some contamination, you may have a choice about when to clean it up, or if it needs to be cleaned up at all. But there may be consequences if you wait. For example, the land may become worthless or unsalable, it may be difficult or impossible to obtain municipal permits, or your neighbours may sue you if the contamination adversely affects them.
When you are considering buying a property, you should discuss all environmental concerns with your lawyer to ensure that you are protected. A lawyer can also help you recover the cost of cleaning up contamination on your property caused by someone else. Additional information can also be obtained from the Ministry of the Environment.