The Rural Voice, 2005-07, Page 48Paul G.
Vogel, a
partner in the
London law
firm of Cohen
Highley LLP.
By Paul Vogel
Development of historical
industrial sites raises the potential for
the release of hazardous waste into
the environment. What rights do area
residents have to ensure that such
development does not contaminate
their drinking water supply?
The Ontario Superior Court
recently considered a case where a
municipality proposed construction
of a multi -use recreational facility on
a former foundry site. Despite an
environmental report demonstrating
the presence of hazardous materials
in ground water on the site, the
municipality had proceeded without
environmental assessment and had
begun the removal and disposition of
potentially contaminated soils in a
nearby municipal landfill. At the time
of granting of the Certificate of
Approval for the municipal landfill,
the Environmental Appeal Board had
prohibited placing hazardous waste in
the landfill because of potential for
leachate from the landfill site to
contaminate the nearby lake from
which the municipality obtained its
municipal water supply.
A municipal resident applied for
an injunction restraining the
municipality from proceeding with
construction pending completion of
an environmental assessment and
site-specific risk assessment and from
depositing materials excavated from
the site in the municipal landfill. In
allowing the application and granting
this injunctive relief, the court stated:
"Although a full and complete
assessment of the merits of the
case before this court is not
possible on this application, a
preliminary assessment of the
merits reveals that an
44 THE RURAL VOICE
Agrilaw
A right to clean water
environmental report prepared for
the defendant itself found the
existence of hazardous materials
in the ground water of the
"Foundry" site in a concentration
many thousands of times more
than permitted by the standard set
by the MOE. That, coupled with
the finding of the tribunal which
granted the Certificate of
Approval for the landfill site, that
there is a potential for leachate
from the landfill site into (the
nearby lake), the latter being the
source of drinking water for the
residents of the defendant
(municipality), are factors I have
considered in arriving at the
disposition I have made."
The court concluded that the
resident requesting the injunctive
relief might suffer irreparable harm if
the relief was not granted and that his
right to uncontaminated drinking
water outweighed the additional costs
or inconvenience to the municipality
pending determination of the risk
posed by the excavated soils. The
court stated:
"The plaintiff is a resident of the
defendant (municipality) who, like
most other people in the
community, receives drinking
water from the municipal drinking
water supplied by the
(municipality). The (municipality)
draws this water from (the nearby
lake ... Ground and surface water
from the landfill site has the
potentiai of flowing directly into
(the nearby lake). As a result, the
introduction of any contaminants,
either through construction
activities at the proposed
(development) site or through
migration of contaminants from
the landfill site can directly impact
on the municipal drinking water
source of supply.
As a result I am satisfied that the
circumstances surrounding the
landfill site and the specific nature
of the contaminants already
known to exist at the proposed site
raise sufficient concern that a
permanent Toss of natural
resources may result if the
challenged activity of dumping the
subject soil from the proposed
(development) site into the landfill
site is not enjoined, or at least
closely monitored with a view to
easy removal in the future if it is
found to breach the provisions of
the Environmental Protection
Act...
I am satisfied in the circumstances
of this motion that the plaintiff's
right to a fresh uncontaminated
drinking water supply could be so
seriously impaired that it may be
impossible after the damage has
been done to afford an adequate
remedy at trial. In other words, the
question remains open as to
whether there is a remedy for the
potential disruption to nature if
contaminants are allowed to enter
the drinking water supply as
leachate from the landfill site".
Area residents have a right to
assurance that proposed development
will not contaminate their
environment. Where proposed
development poses such a risk,
injunctive relief may be available
from the courts to restrain the
development from proceeding at least
until potential environmental effects
are identified, assessed and
control led.0
Agrilaw is a syndicated column
produced by the full service London
law firm of Cohen Highley LLP. Paul
G. Vogel, a partner in the firm,
practices in the area of commercial
litigation and environmental law.
Agrilaw is intended to provide
information to farm operators on
topics of interest and importance.
The opinions expressed are not
intended as legal advice. Before
acting on any information contained
in this column, readers should obtain
legal advice with respect to their own
particular circumstances and
geographical area.