About
The Pollution Control Act imposes no-fault liability for ground contamination on property owners. Such strict liability applies even if the contamination is caused by other persons than the owner. The Act allows for a number of other parties to be held liable in addition to the current owner, for example former owners and other parties that have conducted business activities on the property. The authorities are, as a main rule, free to choose on whom to impose a site assessment and clean-up order. The authorities are not required to consider how contamination liability may be allocated in underlying agreements between affected parties.
Clean-up requirements/standards vary with property use. The strictest requirements apply if the property is to be used for residential purposes.
The Norwegian Environment Agency maintains a database in which it continuously registers properties with identified or suspected ground contamination (more than 10,000 localities are registered thus far). The database does not provide a complete overview, but anyone going to purchase or develop a property on which ground contamination is not considered inconceivable should in any case check this database. The authorities may always require designated ground contamination declarations to be registered as encumbrances on properties with such identified or suspected ground contamination.
Who does it impact?
Contamination cost liability may be incurred by anyone currently owning contaminated land, as well as by former owners and other parties that have conducted business activities on properties on which contamination has been uncovered.
Status: In force
The current statutory contamination liability provisions were introduced in 1981.
Relation to other initiatives and regulations
Pollution prevention and control is one of the six environmental objectives under the EU taxonomy.
Thommessen's comments
The parties need to carefully consider the contractual regulation of liability for costs, especially in transactions that involve properties with identified or suspected ground contamination. There are numerous pitfalls and many examples of parties having incurred large and unforeseen costs as the result of inadequate contractual regulation.
Relevant experts (environmental consultants) should always be hired for any site assessment and ground contamination clean-up. Comprehensive data on the specific contamination situation (extent, contamination type, etc.), combined with well-founded solutions for the location of buildings, parking facilities, etc., and for the specific organisation of clean-up, may give rise to major cost savings.
More and deeper digging on contaminated land will, as a general rule, lead to higher costs. It is our experience that the costs of dealing with ground contamination are often much higher than was envisaged by the parties involved. There is no reason to expect requirements to be less onerous in coming years.