Q: What do environmental contamination, real estate development and liability insurance have in common?
A: Millions of dollars more than you might have thought before you read this paper, especially in British Columbia.
The purpose of this paper is, as the title indicates, to serve as a primer on contaminated sites and clean-up cost recovery litigation in B.C.. The two main sections of the paper therefore focus on both statutory and common law liability for environmental contamination, on the one hand, and liability insurance - whether commercial, errors and omissions or even homeowners - on the other.
Our starting point, in the first section of the paper, will be the single most important piece of environmental legislation in this Province, the Environmental Management Act ("EMA"). That will be followed by most of the administrative and judicial decisions which have considered the Act, and the Contaminated Sites Regulation (the "CSR"), and then some of the leading and more recent cases regarding tort liability for environmental contamination. The former will draw heavily upon research and submissions prepared by one of the authors (Tuytel), with respect to the Britannia Mine administrative remediation order process, and the Beazer (Koppers) cost recovery litigation.
The second part of the paper will focus on judicial interpretation of the so-called absolute pollution exclusion clause in CGL policies. This will be based upon, a paper by Mr. Hodes, and similarly draws from the authors' experience (often as co-counsel) on various environmental liability and insurance coverage matters.
Particularly given the lack of case law on liability, let alone insurance defence and indemnity under EMA and the CSR, this paper is very much a work in progress.
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