Q: A group of us farmers have come under scrutiny for the way we dispose of our empty chemical containers. Do we have any risks in the way we do this?
A: The short answer is yes.
Over the last two decades there has been an increased concern with the environment, so the laws have changed. It is now extremely important for farmers to comply with federal, provincial and local laws in this area. Your potential
liability exists in several areas of
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the law.
There could be criminal charges if you dispose of toxic waste or containers in a way that is not approved. Many of these charges are of the “strict liability” variety. That means that once it is proven in court that you disposed of your containers in a manner not authorized by law, you are guilty unless you show you exercised due diligence in trying to comply with the law and prevent contamination.
For example, if for 20 years you’ve been dumping all your chemical containers into a pile near the creek, and the water has been contaminated, you will have a tough time showing due diligence. To do this, you have to show you took reasonable steps to prevent contamination.
If, however, you are spraying and a chemical spill occurs as a result of malfunctioning machinery, you may not be guilty if you can demonstrate that you had a regular and reasonable maintenance schedule for your implements.
The court looks at existing agricultural standards to determine what a reasonable and prudent farmer would do in these circumstances. Unless you can show you fall within those standards, you are guilty and may face substantial fines or jail. In Saskatchewan, for example, the fines can be as high as $1 million, or up to three years in jail, or both. This is serious stuff and no one, including farmers, can afford to take it lightly.
In addition to criminal liability, you may face civil consequences. If you have polluted adjoining land or livestock, your neighbours can sue you for their losses.
Each province has different environmental laws. Check with a local lawyer who is knowledgeable in
this area.
Also, common law (case law) gives rise to certain liability for nuisance and trespass. If you negligently or intentionally allow material from your land to enter another’s land, you will be on the hook. The amount you could have to pay varies widely. Courts look at the type of harm, your conduct in taking preventive measures, the frequency and duration of your activities, the effects of it and the overall reasonableness of those involved.
Liable for pollutants
Also remember that under most provincial statutes, the polluting material does not have to be chemicals or fertilizers that are dangerous in nature. Many ordinary items have been held to be pollutants including water. You have to take reasonable measures to contain all substances that are on your land within the boundaries of your property.
If it escapes via air, land or water, you may be liable.
Finally, keep the non-legal consequences in mind. You may be endangering your family. The economic viability of your farming unit can be destroyed as a result of the consequences of breaching environmental regulations.
More importantly, people can get sick or, at a minimum, have their enjoyment of life reduced through improper environmental manage-ment. This is an area of the law that will be expanding in the future and
I believe farmers will face more restrictions and regulations on
their operations.
Rick Danyliuk is a practising lawyer in Sask-atoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
