Dominik Wałkowski

Not every contamination is environmental harm

The touchstone for determining liability for contamination of the earth or soil is the Act on Preventing and Remediating Harm to the Environment. But not every contamination will result in liability under the act.

Supreme Administrative Court of Poland, order of 20 January 2012 (Case No. II OW 97/11)

Application of the Act on Preventing and Remediating Harm to the Environment of 13 April 2007 (often referred to in Poland as the Environmental Harm Act) is limited in terms of the subject matter and the entities involved. In other words, the liability rules set forth in the act do not apply to each and every event that might ordinarily be regarded as harmful to the environment, and not every perpetrator of environmental harm is liable under the act.

There is environmental harm within the meaning of the Environmental Harm Act only when there is injury to the surface of the earth (consisting of contamination of the soil or earth), waters, protected species or protected natural habitats. Other ecological injuries are beyond the scope of the act.

Moreover, in the case of harm consisting of contamination of soil or earth, liability will arise under the Environmental Harm Act only when the harm is caused by an activity defined as “creating a risk of harm to the environment.” The act includes a fixed list of such types of activity. Thus a polluter who does not conduct activity defined by the act as creating a risk of harm to the environment will not be liable under the act. This is the rule that was stressed in the Supreme Administrative Court order discussed here.

The case in which the ruling was issued involved an accident that occurred during the transport of dairy produce. The accident resulted in a release of petroleum derivatives from the vehicle’s fuel tank. This in turn caused contamination of the soil and earth. The court held in the ruling that whether the Environmental Harm Act applies to a case connected with a traffic accident depends on whether the accident occurred during transport of hazardous substances or chemicals. Under the act, activity creating a risk of harm to the environment is defined to include transport of hazardous substances or compounds, or substances presenting a threat or compounds thereof within the meaning of regulations governing chemical substances, as well as transport of hazardous goods within the meaning of the Act on Transport of Hazardous Goods of 19 August 2011.

The court pointed out that while there was a release of a hazardous substance from the fuel tank, and the release resulted in contamination of soil and earth, the accident did not involve transport of hazardous substances. Transport of dairy produce may not be included within the statutory list of activity creating a risk of harm to the environment. Consequently, the Environmental Harm Act may not be applied in this case, because the grounds for liability to arise were not met.

This does not mean that an event of this type will remain beyond the scope of environmental regulations entirely. The Supreme Administrative Court stressed that the general regulations will continue to apply, including more specifically Art. 362(1)(2) of the Environmental Protection Law, under which if an entity exploiting the environment exerts a negative impact on the environment, the relevant environmental protection authority may issue a decision ordering that the environment be restored to its proper state.

Dominik Wałkowski, Environmental Law Practice, Wardyński & Partners