Contamination

The problem of contaminated soil and groundwater appears to be growing in significance on the radar screen of regulatory authorities across Canada. Yet the discovery of environmental contamination in the course of an engineering assignment raises an interesting issue: is the engineer legally obligated to report the contamination to government officials?

The authors submit that in most cases there is no legal requirement in Canadian environmental protection legislation that an engineer must report. Engineers are, of course, bound by professional standards of conduct and ethical duties imposed by their provincial regulatory bodies. We suggest, however, that there will rarely be a professional obligation for an engineer to report environmental contamination to government officials.

Environmental protection legislation at the federal and provincial levels clearly defines who is legally obliged to report contamination. The Canadian Environmental Protection Act, 1999, for example, requires reporting of the occurrence or likely occurrence of a release into the environment of a substance on the List of Toxic Substances. This duty is imposed on any person who owns or has the charge, management or control of the substance immediately before its initial release or its likely release, or who causes or contributes to the initial release or increases the likelihood of the initial release.

There are similar provisions in environmental protection legislation in every province and territory. For example, British Columbia’s Spill Reporting Regulation requires that the person who had possession, charge or control of a polluting substance or waste immediately before an escape or spill must immediately report it. In Alberta, if there is a release that has caused, is causing or may cause an adverse effect on the environment, the person who releases, causes or permits the release must report it as soon as possible. The person having control of the substance released must report the incident only if there are reasonable grounds to believe that the person who released, caused or permitted the release did not report it. In Ontario, every person having control of a pollutant that is spilled, and every person who spills or causes or permits a spill of a pollutant that is likely to cause an adverse effect, must report the spill.

Two common themes emerge from the above review. The first is that the duty to report is imposed on those who actually caused or permitted the discharge and those who had control of the substance immediately prior to the discharge. The second is that the duty to report is triggered by a spill, discharge, escape or release into the environment. Existing case law suggests that the migration of a contaminant from one part of the environment to another is not a fresh spill triggering a new duty to report.

There may be occasions where an engineer causes or permits a discharge in the course of an assignment, in which case he or she would have a duty to report. However, in circumstances where an engineer discovers environmental contamination in the course of carrying out an environmental site assessment or any other type of site investigation, it will be rare that there will be a legal duty to report imposed on the engineer. There is also no Canadian case law that suggests that an engineer who discovers contamination in the course of an assignment is under a legal obligation to report such contamination to regulatory officials.

We are sympathetic to the dilemma faced by engineers in circumstances where long-term relationships with government officials may be an important component of properly serving present and future clients’ needs. However, in our experience, there are clearly circumstances where immediate reporting to regulatory authorities may not be in the client’s best interest.

We acknowledge that an engineer may in some circumstances be under a professional obligation to report. Most codes of ethics for professional engineers, which are reasonably consistent across the country, require an engineer to regard his or her duty to public welfare as paramount. It may even be professional misconduct if a professional engineer fails to report a situation that the engineer believes may endanger the health, safety or welfare of the public.

We have two general observations on these ethical obligations. First, in our experience it is the exception, not the norm, that historic environmental contamination can reasonably be believed to endanger public health or safety. Second, an engineer’s ethical obligation to report dangerous situations is typically not specific to government officials. The ethical duty is merely to report the situation to someone.

We do not suggest that engineers should never report environmental contamination to regulatory officials. Our argument is only that an engineer’s decision to report should be premised on careful consideration of the code of ethics that he or she is subject to, and not a false understanding that he or she is under a legal duty to report contamination under environmental protection legislation.

Engineers are of course free to determine that, as a matter of practice and on principle, they will always report to the appropriate government officials on environmental contamination discovered in the course of an assignment. We submit, however, that there is an obligation to clearly disclose this position at the point of accepting the engagement, so that the client is in a position to make an informed decision.

John Tidball and Michelle Fernando are with Miller Thomson LLP in Markham, Ontario