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Reporting

I suppose it’s a good thing that environmental law is confusing. If it weren’t, who would need lawyers? However, there can be too much of a good thing.

There are some strong contenders for the “greatest confusion” award. However, the question of reporting to regulators may be in the lead. Who has to report? When do you have to report? What do you have to say? I have seen more incorrect answers confidently offered on these questions than in any other area of my practice. Among the doozers: “You have to clean this spill up, but you don’t have to report it to the Ministry.” (If you have to clean it up, you have to report it.) “You don’t have to report anything unless it is going offsite.” (It’s not nearly that simple.) “You don’t have to report anything unless you do invasive testing offsite.” (Off-site testing, invasive or not, has nothing to do with it.) “It’s safest to be ignorant.” (Ignorance is very risky. Is this a local version of “don’t ask, don’t tell”?) Clients are paying good money for this advice and sometimes take it, at their peril.

Admittedly, environmental regulators are primarily responsible for the confusion. First, Canadian regulatory reporting requirements are general, and difficult to interpret. For example, s. 30(2) of the Ontario Water Resources Act says:

“Every person that discharges or causes or permits the discharge of any material of any kind, and such discharge is not in the normal course of events, or from whose control material of any kind escapes into or in any waters or on any shore or bank thereof or into or in any place that may impair the quality of the water of any waters, shall forthwith notify the Minister of the discharge or escape, as the case may be.”

Although the section does not explicitly say so, case law states that “any waters” includes groundwater. Groundwater exists almost everywhere, and anything on or under the surface of the ground can be washed down towards the groundwater. “May impair” refers to contaminant loading, not just concentration, so even small spills of toxics are reportable. Result: reporting obligations that are surprisingly broad.

Second, reporting obligations under different statutes overlap and sometimes conflict. In many cases, a spill must be reported under at least 2 sections of the Environmental Protection Act, and a section of the Ontario Water Resources Act. Small spills may be exempted from reporting under one section by regulations under the Environmental Protection Act. However, the same spill may still be reportable under the Ontario Water Resources Act!

Third, regulators have failed to provide clear interpretations of these requirements. They could, for example, issue a policy statement on what spills are reportable. Does the spill have to leave the property? Does potential impact on groundwater on your own site make a spill reportable? What if no one uses the groundwater, e.g., in an area of municipal water supply? Does it matter if the municipal water supply comes, in part, from groundwater? Does it matter how far away are the groundwater supply wells? What if the municipality is considering drawing groundwater for drinking in the future? And what if the impact is due to historical soil and groundwater contamination, rather than a current spill? Even better, what if the current problem is a breakdown product, like vinyl chloride, that no one ever spilled? These should not be difficult questions for regulators to answer. Instead, companies and courts are left to struggle with them on a case by case basis.

On top of these, (the obligations of property owners), professional engineers have separate reporting obligations. It is professional misconduct for a professional engineer to “fail to make responsible provision for complying with applicable statutes, regulations, standards, codes bylaws and rules in connection with work being undertaken by or under the responsibility of the practitioner”. In particular, it is professional misconduct for an engineer to fail to report to regulators a situation that s/he believes may endanger the safety or welfare of the public. This sometimes leads to consultants reporting a problem, or threatening to do so, over the objections of a reluctant client.

Thus, we have it: a potent stew of confusion. Government regulators ought to clarify what they require. Until they do, here are some principles to keep in mind:

  1. This is not an easy area of the law. Common sense is not a reliable guide.
  2. A spill does not have to cross a property boundary to be reportable. The key questions are whether it has entered the natural environment or a place where it may impair water quality.
  3. A spill that is effectively contained inside a specifically constructed, impervious containment area has not reached the “natural environment” and need not be reported.
  4. “Spills” include gases, smoke, and odours.
  5. Historical contamination that is moving probably requires reporting, no matter how long it has been there. Property owners have both statutory and civil obligations to halt the outflow of contamination from their properties.
  6. Willful blindness is risky, and poor strategy in the long run.
  7. The courts view reporting obligations more broadly than they do cleanup obligations. If in doubt, report.

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