Summaries of completed soil surveys at 34 leisure boatyards in Swedish coastal municipalities have shown that such areas are often highly contaminated by a variety of known hazardous substances and compounds, such as various metals (copper, zinc, lead, mercury, cadmium) and organic compounds (organotin compounds (e.g. TBT), polyaromatic hydrocarbons (PAHs) and polychlorinated biphenyls (PCBs) ). TBT, PAHs, lead, cadmium and mercury compounds are among the priority substances which, according to the EU’s Water Framework Directive and its daughter directives, are to be phased out since they pose a significant risk to the aquatic environment. These are also substances that are important to remove from soil.
A rough estimate indicates that there are about 2500 places in Sweden that may have been contaminated as a result of storage and maintenance work on pleasure boats alone. The report analyzes who bears the legal responsibility for these polluted sites. The emphasis is on the public law responsibility for any assessment and decontamination that may be required under Chapter 10 of the Environmental Code but the potential legal consequences of land contamination in the relationship between landowners and leaseholders are also looked at.
The County Administrative Boards manage most of the decontamination operations on the basis of an order of priority based on risk classification. Leisure boatyards are usually categorized as two out of four on the risk classification scale. However, with respect to leisure boatyards it is the municipalities that are supervisory authorities and thus have the mandate to, inter alia, require the person responsible under the Environmental Code to take decontamination measures.
The basic rule regarding liability for the remediation of contaminated land and water areas is that any person who pursue or have pursued an activity or taken a measure that is a contributory cause of the contamination (termed “operators”) are liable for remedying it to the extent that can be considered reasonable. The reasonability assessment that this necessitates includes both environmental factors, including planned future land use, and factors relating to the operator, including how much time has elapsed since the contamination took place and the extent to which the environmental risks were known at that time. Joint and several liability applies which means that any operator who contributed to the contamination may be required to pay for the remediation. However, any operator who shows that her contribution to the environmental damage is so insignificant that it does not by itself justify any remedial action is responsible only for such portion of the remedial action as corresponds to her own contribution to the harm.
In situations where no operator can be made to perform or pay for remediation the property owner becomes liable for remediation even when she had nothing to do with the polluting activity. However, this applies only if the property owner acquired the property after 31 December 1998 and if she then knew or should have discovered the contamination.
Whether leisure boat clubs are to be held liable for contamination depends on whether they are considered operators of the polluting activity. That, in turn, depends on whether they are considered to have the factual and legal ability to take action against damage or detriment caused by the activity. Relevant case law clearly supports that leisure boat clubs are to be regarded as operators with respect to activities carried out by their respective members and thus liable for any contamination. That does not preclude that individual members may also be considered operators. In most cases, however, the potential liability of individual members is of less importance since the above mentioned exception to the principle of joint and several liability makes it practically very difficult to hold them liable. However, any person who has polluted her own property through maintenance work on pleasure boats should be easier to hold liable were the municipality to pursue such a case. With respect to leisure boatclubs that lease the land where they operate the landowner may have the right to require that the land be restored to the state in which it was before the lease started, even if that is not explicitly stated in the lease agreement. The land owner may also be able to makea claim based on tort law if, for example, the value ofthe land decreases due to the leaseholder’s polluting activities.
In addition to liability for remediation there is an equally important responsibility to prevent damage from ongoing activities. This entails an obligation to implement protective measures and take any other precautions that are not unreasonable in view of the benefits of the measures compared to the costs. This obligation applies to leisure boat clubs as well as to individual boat owners and may, if necessary, be supplemented by injunctions issued by the regulatory authority. It is important for the leisure boat clubs to adopt clear rules for their members and make sure that they are complied with.
Lease agreements can also be an important instrument for regulating how leisure boatyards are used, including by specifying substances that may not be used and measures that must be taken to prevent the spread of toxic paint or other contaminants that have already reached the soil.There may also be reason for the legislature to consider making leisure boatyards subject to a permit requirement. Such a requirement would clarify the responsibility and send a signal about the potentially serious consequences of activities at leisure boatyards.