Can a Property Purchaser Be Held Liable for Historical Contamination?

When acquiring real property, particularly for commercial or industrial use, understanding environmental liability is critical. One question that often arises among both buyers and professionals conducting environmental due diligence is: Can a purchaser be held responsible for contamination that pre-dates their ownership?

In most Canadian jurisdictions, including Alberta, the answer is yes—under strict liability regimes, current property owners may be held accountable for legacy contamination, regardless of whether they contributed to or were even aware of the environmental issues.

Understanding Strict Environmental Liability
Environmental protection statutes across Canada, such as Alberta’s Environmental Protection and Enhancement Act (EPEA), operate under principles of strict, joint, and several liability. This means that a current owner can be compelled to undertake remediation of contamination that occurred under previous ownership, even decades earlier. Regulatory orders, clean-up mandates, and potential civil actions are legal mechanisms through which liability may be enforced.

For environmental professionals advising clients or managing their own acquisitions, this underscores the importance of thorough due diligence.

Key Due Diligence Tools

Phase I Environmental Site Assessment (ESA)
A Phase I ESA, conducted in accordance with the Canadian Standards Association (CSA Z768), is an essential first step in evaluating a site’s potential for environmental liability. It involves a review of historical records, aerial photos, regulatory files, interviews, and a non-intrusive site inspection to identify actual or potential areas of environmental concern (APECs).

Phase II ESA
Should the Phase I ESA identify APECs, a Phase II ESA may be recommended. Conducted per CSA Z769, this phase includes intrusive sampling of soil, groundwater, and potentially vapour to confirm the presence, extent, and type of contamination.

Environmental professionals are encouraged to ensure that these assessments are not treated as a formality but as a robust investigative tool. Documented evidence of proper due diligence can be vital in defending against future claims or regulatory actions. 

For Those Who Already Own Contaminated Properties
If ownership has already been transferred and contamination is discovered post-acquisition, environmental professionals should advise property owners to:

• Commission a Phase I ESA (if not previously conducted) to document the state of knowledge at the time of purchase.
• Engage qualified environmental professionals to conduct further assessments and recommend risk-based or prescriptive remediation options.
• Determine whether notification to the applicable regulatory authority (e.g., Alberta Environment and Protected Areas) is legally required.

Early action can help mitigate liability, reduce cleanup costs, and prevent enforcement orders.

Final Thoughts for Environmental Professionals
As practitioners in the environmental field, it's important to emphasize to clients that legal liability for contamination does not necessarily rest with the polluter—it can rest with the property owner. Thorough due diligence, well-documented ESAs, and an understanding of relevant provincial and federal regulations are indispensable tools in the management of environmental risk.

For those entering or advancing in the environmental site assessment profession, understanding these principles is essential to delivering sound guidance and protecting client interests in a rapidly evolving regulatory landscape. 

By: Sam Siegl, C. Tech., CESA
Sam is the founder and principal consultant of Nexus Environmental Services Ltd., based in Lethbridge, Alberta. With over a decade of dedicated experience in the environmental consulting industry, Sam specializes in Phase I, II, and III Environmental Site Assessments for commercial and industrial properties.
Sam can be reached at info@nexusenvironmental.ca