'There's no accountability': Tantallon property contaminated, but no one will clean it up

A decades-long dispute between neighbours in Tantallon, N.S., highlights the complexity — and sometimes futility — of trying to deal with historical contamination on private property.

Maria Brink moved to her little corner of paradise overlooking Rye Hill Cove in 1960.

The property was an idyllic spot where kids could go swimming and snorkelling to spot flounder and eels among the eelgrass, and where eagles, ospreys and kingfishers could be regularly seen.

One day, years ago — Brink, 90, can't recall exactly when — she became aware there was a problem on her property when her late husband stepped outside, lit a cigarette and the grass went up in flames.

They believed the ground must have been contaminated by the business next door. Once an Esso gas station, over time the property changed ownership, eventually becoming an Irving station run by Tantallon Service Centre.

It is now home to an auto sales business and a dock construction and storage company that lease the land from Tantallon Service Centre.

Brink said at the time, her family made a few calls to find out what could be done, including to the Environment Department, but nothing much came of it. They tested their well water and the results showed it was safe.

It wasn't until last year that Brink's daughter, Margret Holland, received the results of a freedom of information request and learned that the commercial property and her mother's property are contaminated with total petroleum hydrocarbons, including benzene, toluene, ethylbenzene and xylene. 

Soil and groundwater testing were done separately by the Tantallon Service Centre and Irving Oil in the early 2000s.

"The source of the surface soil staining on the neighbour's property appears to be related to surface runoff water and snow melt migrating across the station property onto the adjacent property," reads the environmental report prepared for Irving.

A ministerial order from the Environment Department dated 2003 said the Tantallon Service Centre, owned by Elaine Clark, contravened the Environment Act by releasing a substance into the environment that could cause a significant adverse effect. The business was ordered to provide an environmental site assessment report, a proposed work plan and commence remediation work.

Eventually, Tantallon Service Centre developed a remediation plan, which included removing contaminated soil from Brink's property.

However, Holland and Brink said no work was ever done to clean their land or the property next door. Over the years, Holland and Brink have contacted their municipal councillor, bylaw enforcement, their MLA, several provincial departments, their MP, the federal fisheries department and other bodies to try to get some action on the cleanup, but have not had any success.

"All of these departments, all of these government officials that we pay taxes to, just pretend it doesn't exist and ignore us," Holland said in an interview last week.

Owner responds

Clark, the owner of the commercial property, told the CBC the contamination existed before she purchased the land in 1986. 

"I don't have to clean it up," she said.

Clark said the Environment Department took her to court over the ministerial order, but the case was eventually dropped because it was determined she did not cause the pollution.

Documents contained in the freedom of information request show that the Tantallon Service Centre was summoned to court in 2004, but the charge of violating the Environment Act was withdrawn because the Crown didn't believe the department would be able to demonstrate that the company had violated the act.

A spokesperson for the department confirmed there is no outstanding ministerial order, but said if new information confirms the presence of contamination, it should be reported to the department.

Clark added that the reason Brink's property is contaminated is that Brink's late husband once asked if he could have some soil that had been dug up on the commercial property, and he brought it onto his land. Holland said that story doesn't make any sense.

Who's responsible?

Now, Holland and Brink are left wondering what options remain. They know the two properties are contaminated, yet the problem is allowed to persist.

"It's sad that as a normal layman that they can just whitewash you and just say OK and not do anything," Brink says.

Although several pages in the freedom of information documents are redacted, one notes the potential liability of the Environment Department.

An inspector with the department wrote in 2010, "I feel that it could be interpreted as negligent if the department takes no action in this situation. Impacts to the third-party property have been identified and it is likely that these impacts were sourced from Tantallon Service Centre."

The inspector then concludes, "the impacted third-party property owner could pursue full remediation of the property through civil litigation."

Holland said she has looked into a lawsuit, but she learned that the commercial property owner wouldn't be liable for any amount beyond the current value of the property, which would not be enough to remediate it.

"So what do I feel? Frustrated. I feel impotent. I feel unbelievably sad for my parents," Holland said.

"There's no accountability … I honestly feel that who at this point is responsible, is the government. Somebody has to clean it up."

Infilling, flooding issues

In addition to the contamination issue, Holland said 12 metres of the commercial property, which used to be a marshy area near the water, was infilled without a permit.

It now appears to contain debris, as large pieces of metal, rebar, asphalt shingles and other objects have begun to protrude from the land.

Clark said her tenants built a wharf and may have added some fill to do that, but she is not aware of any other infilling on her property.

"I should notice that, shouldn't I, if it was 42 feet?" Clark said.

Holland has also filed a small claims court case against Clark due to flooding in the backyard she said comes from the commercial property. Holland said the case was dismissed because it was deemed that Brink had not suffered financial loss due to the flooding.