Black points: Liability for clean-up costs

Abstract

The paper describes in what cases, and by whom, remedial action can be taken under Belgian law in order to clean up environmentally dangerous waste deposits. Emphasis is placed on the situation in the Flemish region. An overview is given of the general liability rules relevant to the allocation of the clean-up expenses. Especially important, in this respect, are the liability for personal fault and for defective things. Also a number of specific statutory rules imposing strict liability for clean-up expenses are described. Here the act on toxic waste of 22 July, 1974 is given special attention. The paper describes the legal position of the most likely defendants in a suit brought by the government in order to recover clean-up costs: the operator or former operator of a disposal site, the producer of hazardous waste, and the subsequent owner of land containing waste. The paper concludes by criticising the potential liability of the unsuspecting buyer of land formerly used as a waste-disposal site and which may result from the application of generally accepted principles of tort law. An equitable and efficient allocation system implies that clean-up costs are in the first place borne either by those originally responsible for making the remedial action necessary, or by the operator of the waste-disposal facility, or by the generator of the waste. If it is not possible to allocate the clean-up costs in this way, they should be financed from levies on polluting products or activities.