Tonje P Gormley Dag Erlend Henriksen March 2 2009 Legal Challenges Affecting Port Clean-ups Arntzen de Besche Advokatfirma AS | Environment & Climate Change - Norway Tonje P Gormley, Dag Erlend Henriksen Environment & Climate Change IntroductionPollution in PortsPollution Control ActResponsibility and LiabilityCommentIntroductionThe government has a stated aim of cleaning up pollution in Norwegian ports. The initiative was originally launched in 2002 as a part of a coherent policy for the marine environment, presented to Parliament in Government Report 12 (2001-2002), entitled "Protecting the Riches of the Seas".Since then the strategy for polluted ports has been closely pursued by the pollution authorities.(1) Thus, efforts to identify pollution problems in ports and to clean up polluted ports are ongoing. Such efforts will typically involve two tasks: (i) investigations, risk analyses and subsequent measures to determine whether a port is polluted, and (ii) measures to clean up the pollution.The issues such work raises are of both a legal and practical nature. This has been clearly demonstrated by the lively debate in local media regarding the cleaning of the Port of Oslo. This update provides an outline of the provisions for determining the responsibility for arranging investigations and cleaning up measures, as well as the liability for costs.Pollution in PortsIndustrial port areas often suffer from very high concentrations of environmental pollutants, which can damage ecosystems and public health, and restrict opportunities for fishing and fish farming. Port traffic leads to the spread of pollutants in sediments due to the use of propellers.The causes of pollution are often complex; in addition to actual port activities and shipping, industrial discharges and more diffuse discharges from towns or other densely populated areas add to high pollution levels over time.Pollution Control ActThe scope of the Pollution Control Act(2) includes pollution from polluted sediments in ports.(3)Pursuant to Section 6 of the act, the term 'pollution' includes the introduction of solids, liquids or gases to air, water or ground, as well as anything that may aggravate the damage or nuisance caused by earlier pollution, or that together with its environmental impact causes or may cause damage or nuisance to the environment.The act establishes a general duty to avoid pollution. Pursuant to Section 7, no individual may possess, do or start anything that may involve a risk of pollution. Certain exemptions from this general prohibition are made under Section 8 on limitations on the duty to avoid pollution, Section 9 about regulations relating to pollution and, importantly, Section 11 under which pollution may be permitted by a decision (ie, a discharge permit).Discharge permits are issued by the relevant pollution authority on application, with or without conditions, for any activity that involves a risk of pollution. Discharge permits are normally issued without an expiry date. However, the act accommodates changing circumstances and gives a degree of flexibility by allowing for the subsequent addition of further conditions to an existing permit,(4) as well as the alteration or withdrawal of a permit.(5)Responsibility and LiabilityThe act's provisions may be difficult to enforce in respect of polluted ports. The starting point is clear: the act is based on the 'polluter pays' principle as stated in Section 7. However, the application of the different legal instruments of the act on the basis of this principle is not as clear. One obvious problem in relation to the clean-up of ports is establishing the identity of the polluter - in most cases there may be several possible polluters. Determining the extent of the polluter's liability may also be anything but straightforward. Polluting activities have usually been carried out over a long period of time, such that the pollution may have built up and thus date back to well before the act and any discharge permits issued thereunder. Therefore, identification of the polluters and their proportionate responsibility may be difficult.In respect of preliminary investigations, the responsible authority can order a person that possesses, does or starts anything that results or may result in pollution to arrange or to pay for any investigations or similar measures.(6) This power is subject to certain limitations. The authority can issue such orders only if such measures may reasonably be required to: determine whether and to what extent the activity results or may result in pollution; ascertain the cause or impact of pollution that has occurred; or ascertain how the pollution is to be combated.In cases where it is established that pollution has occurred, a distinction must be drawn between illegal and legal pollution (ie, it must be estalished whether pollution is discharged in accordance with the act, regulations or the terms of a discharge permit).Section 7(2) establishes that in respect of illegal pollution, the polluter is under a general duty to ensure that measures are implemented to stop or remove the pollution or to limit its effects, and to mitigate any damage or nuisance resulting from the pollution or from measures to counteract it. In addition, the Pollution Control Authority can order the individual or entity responsible to clean up. In practice, this normally happens only when activities stop or when there are acute emissions (Section 7(4)).Section 7(2) does not apply to legal pollution. This is a natural consequence of the legality of the pollution in question. However, if changing circumstances so require, the authorities may use their power to introduce further conditions to an existing permit or even to alter or withdraw it. However, if such measures are applied, the authorities must take due care not to contravene the prohibition against retroactive effect of law pursuant to Section 97 of the Constitution.CommentIn light of the challenges outlined above and in respect of the cleaning of the Port of Oslo, it is not surprising that the parties involved have opted for a pragmatic solution rather than strict application of the law when it comes to the payment of the clean-up bill. Despite efforts to apply the 'polluter pays' principle as far as possible, the costs of cleaning up the port area are overwhelmingly covered by a 'Dutch treat' solution where the developers, the Directorate of Public Roads, the City of Oslo, the Port of Oslo KF and the Ministry of the Environment, represented by the Pollution Control Authority, all contribute.As the campaign continues, it is expected that local authorities and local polluters in other ports might want to apply a similar pragmatic approach. Otherwise, it is feared that these issues will be debated in the courts for quite some time.For further information on this topic please contact Dag Erlend Henriksen or Tonje Pareli Gormley at Arntzen de Besche Advokatfirma AS by telephone (+47 23 89 40 00) or by fax (+47 23 89 40 01) or by email ([email protected] or [email protected]).Endnotes(1) The pollution authorities consist of: at national level, the king (in practical terms, the government), the Ministry of Environment and the Pollution Control Authority; at county level, the county municipality and the county governor, or person authorized by the Ministry of Environment; and at municipal level, the municipality.(2) March 3 1981, No 6.(3) Chapter 3 of the Pollution Regulations June 1 2004 No 931.(4) Section 16 of the act.(5) Section 18 of the act.(6) Section 51 of the act.