Liability for Polluted Environment

The prohibition of polluting the soil forms the grounds for liability for refining the soil. The prohibition means that waste or any other substance must not be left or released into the soil in a way that leads to such degradation of the soil which may cause hazard or harm to health or the environment or a substantial decrease in amenity of the environment. A prohibition pertains also to ground water, so that it may not be altered in a way that it becomes hazardous for health or harmful for the environment or its quality otherwise substantially deteriorates.

The polluter is primarily responsible for the refining of the polluted soil and ground water. The refinement obligation of the soil and ground water is not dependent on whether the behavior was intentional or negligent. Hence the party responsible for the polluting activities is liable for both refining the polluted soil or ground water and limiting the pollution as much as possible. The company is also obliged to be aware of the best available technology as well as the refining and limiting procedures.

On the public interest’s point of view, it cannot be held acceptable that the polluted environment is left abandoned. Thus in addition to the polluter there must be a party who can be held liable for the costs of refining the environment. Secondary, the party in possession of the real estate (practically the owner) may be held liable in case the polluter is not reached or held liable due to e.g. insolvency. An additional prerequisite is the possessor’s knowledge of the pollution or his consent to the activity causing the pollution. Therefore it is rational to require a guarantee from a real estate’s lessee in case there is an intention of performing potentially polluting activities on the real estate.

In case of change of ownership of the real estate the new owner is imposed to a certain obligation of inspection. The responsibility of the environmental hazard is passed on to the new owner if he knew or should have known about the pollution at the time of purchasing the area. This obligation of inspection, which is fulfilled with reasonable measures, must be fulfilled regardless of the fact that the seller is also acting under an obligation of informing the buyer of the activities that have been performed on the area and waste and substances on the area that may cause environmental pollution. The seller’s information obligation is fulfilled by presenting all the available information of the area to the buyer. Neglecting the seller’s inspection obligation may lead to sentencing to fines.

Ultimately the municipality is responsible for the costs, if the refining procedure would lead to probable unreason ability to the real estate’s possessor. However, the municipality’s ultimate liability is limited to refining the soil, but refining ground water is still left as the real estate’s possessor’s responsibility, if the pollution of ground water is a consequence of the polluted soil on the property.

If the soil has been polluted in earlier decades, the grounds for liability may in certain situations differ from the above mentioned, since liability questions are solved in accordance with the legislation that was in force at the time.

The soil and ground water must be refined into the state in which they can no longer cause hazard or harm to health or the environment. In the consideration of the need for refinement, notice is paid to the present and future use of the polluted area, its environment and ground water as well as the possible hazard or harm to health or the environment caused by the pollution. It must be noted that the refining activity itself may require an environmental permit.

In case the soil or ground water has been subjected to waste or other substance which may cause pollution, the party responsible for the action shall immediately notify the competent authority. If the refinement procedure does not require an environmental permit, the party responsible can commence the refining once it has submitted the notification in the Centre for Economic Development, Transport and the Environment (ELY Centre). The ELY Centre then makes a decision containing necessary provisions or prerequisites on for instance the refining process, utilization of the land or monitoring the process. In case the party liable for the refinement does not voluntarily commence the procedures the  Centre for Economic Development, Transport and the Environment (ELY-keskus) has the authority to give orders on the matter and use administrative enforcement.