Contaminated soil – How to protect your rights

The term “contaminated” instantly conjures to mind several frightening images of toxic chemicals and glaring liability. There are several common contaminants that one may recognize such as petroleum hydrocarbons, metals or metalloids, asbestos, and pesticides. However, this is only to name a few among many. Confronted with such a situation, one may wonder how to proceed. Several important steps may be followed to mitigate damages, protect your rights and ensure the situation is not as dire as anticipated. 

Is the Soil Contaminated?

Step 1: Have the soil tested by a professional; this will determine whether the level of contamination exceeds the legal limit.  In Quebec, contamination levels are outlined in the Environment Quality Act¹. This law distinguishes between contamination levels for a commercial and a residential property. Contamination thresholds are considerably more stringent for residential properties when compared to commercial properties². However, zoning and location can play an important role in deciding contamination levels. If a business operates in a residential area, or near a park, or a school, it may be subject to the higher residential standard.

The relevant regulation contains several schedules, which list the various contaminants as well as how much of that particular contaminant is permitted before the soil is considered to be contaminated. Briefly, if the amount of the contaminant exceeds this threshold, then the soil is contaminated.

The Soil is Contaminated How to Proceed?

Step 2: To ensure sufficient protection in the case of contamination, one should immediately contact an attorney to know one’s rights.  It is essential to explore all options with a legal specialist before proceeding with any decontamination. Exceptional circumstances may apply if decontamination is urgent, but generally, it is best practice to identify who is responsible for the contamination and the various actors involved before proceeding. If one does not act prudently and judicially inform the right individuals in a timely manner, one may forfeit their rights to certain legal remedies.

Step 3: While contacting an attorney, it is also important to contact any and all insurance providers to verify whether any applicable policies include coverage for contamination.

Step 4:  Subsequently, one must decide whether to decontaminate and at which moment. Your legal adviser can surely assist you with this decision. In most cases of residential contamination, there is no obligation to decontaminate, even if the threshold limit of contamination is surpassed. Nonetheless, it is recommended to contact the Minister to verify that no special circumstances apply for certain types, or quantities, of contamination. 

Available Recourses

Step 5:  Several legal recourses are available for a commercial or a residential property if the contamination is caused by a third party or if it existed at the time of sale, such as:

- Neighboring Property: If the contamination is directly caused by a neighboring property, a remedy is available against one’s neighbor, whether or not he or she is at fault.

- Latent Defect: a recourse under is available under the legal warranty ifthe contamination meets the criteria for a latent defect. The contamination must be³:

• Serious;
• Above the applicable legal threshold of contamination at the moment of sale;
• Hidden at the time of sale; and
• In commercial matters, the contamination must also prevent the property from being used for its intended purpose to constitute a hidden defect⁴.

- Violation of Public Law: A second legal warranty is availableif the contamination exceeded the threshold amount at the moment of sale, and the seller warranted that the property did not violate any public law.

- Fraud: It is important to note that recourses pertaining to a legal warranty, either for latent defect or the violation of public law, may be limited. This occurs, if the property was sold without any guarantee, or at the risk and peril of the purchaser⁵ However, a limit to any legal warranty will not apply if the seller knew of the contamination and fraudulently concealed this fact. This means that even if one were to purchase at his risk and peril, he may still have a recourse if the seller knew of the contamination prior to the sale.

Conclusion

Dealing with a case of contaminated soil can be complicated, especially when several parties are involved. Moreover, environmental laws are subject to change, thus thresholds levels for contaminants may vary throughout time. Although several recourses are available, it is important to act quickly in identifying contamination and proceed prudently to protect one’s rights.