10.9.   Overall evaluation of experience with administration of the contaminated land problem



From the quantitative point of view the contaminated land problem is enormous. The course of events in Denmark has been like that in other countries that have worked systematically with the problem: At first it is believed that the problem concerns a manageable number of depositories containing waste chemicals. Eventually, though, it is discovered that many sites in old industrial districts are contaminated, and that ordinary landfills also pose problems. The only consolation could be that one can say that contaminated sites are one of the sins of the past and that no more sins of that kind will arise in the future. However, things are not that simple. Danish legislation is such that we have so far only dealt systematically with sites that were contaminated before 1976, it being less common for the authorities to look for and remediate those contaminated after that date. It is probably likely that soil pollution has decreased in step with the implementation of the new environmental regulations and the increasing environmental consciousness. However, things did not proceed so rapidly under the 1973 Environmental Protection Act, and regular environmental supervision of industrial enterprises did not start until 1987.

Soil pollution is also difficult to handle from the qualitative environmental point of view. It is possible using technically determined criteria to draw the boundary between "clean" and "polluted" soil. It has proved very difficult to decide upon that boundary in Denmark, though, although the process is now well under way. In the future course of events, however, some very difficult problems may be encountered concerning questions of cost-benefit, namely 1) whether it is even rational to remediate a given contaminated site and 2) how great a priority society should accord these endeavours in relation to other endeavours on the environmental front.

The first question - whether it is even rational to remediate a given contaminated site - is not so apparent when one starts by prioritizing at the national level, and then begins by remediating those contaminated sites that are most hazardous to health or threaten the groundwater. However, at some point or other one should pose questions such as "Is the groundwater that we protect by remediating a specific site worth all the money that remediation would cost?". In Denmark it is almost a religion that the groundwater is holy and that the water supply should be produced from pure Danish groundwater. The obvious heretical questions are "Is it so impossible to drink water that has been treated?" and "Would tap water from Sweden be undrinkable then?".

The second question - how great a priority should society accord these endeavours in relation to other endeavours on the environmental front - is in the last analysis a political matter. What strikes one, though, is that certain other environmental problems pose a serious threat to the ecological balance at both the global level, e.g. CO2 emissions and the greenhouse effect, and at the Danish level, e.g. nitrate loading of the groundwater and the sea by the agricultural sector. In this respect I am inclined to interpret the trend in the Netherlands, Germany and Denmark as follows: Over the last few decades the original threat - industrial emissions - has faded, and we are now in a phase where emissions are declining despite increasing industrial production. As far as concerns the environmental problems associated with agriculture, progress is deadlocked by the political power conditions in the individual states and in the EC. Progress with respect to CO2 emissions is also deadlocked, the populations not being ready to accept the privations that a marked reduction in energy consumption would entail. Seen on that background, the contaminated land problem presents itself as one that is conspicuous in these countries, and which can be managed both technically and administratively, albeit with some difficulty.

It came as an unpleasant surprise for Danish politicians and authorities that the contaminated land issue developed into such a problem on the real estate market around 1990; however, that is probably what will happen in any other market economy. Seen from the point of view of the environmental authorities the course of events was as follows: A contaminated site is an unsatisfactory site because it has to be cleaned up before it can be used for the various purposes that a clean site can be used for. Prior to around 1990 knowledge of the contaminated land problem was limited to the environmental authorities, even though they made several attempts to focus the attention of others on the problem. Now and again the media reported on a "toxic site", and a single large case involving 30 homes repeatedly surfaced in the media. In 1990, consciousness of the contaminated land problem reached the building societies, which play a decisive role in the Danish real estate market. Their reaction was nervous because they had made considerable losses on an inflated market in the 1980s.

The players on the real estate market are inclined to place the blame on the environmental authorities: As soon as the environmental authorities raise the suspicion that a site is contaminated, it becomes impossible to sell on a buyers market. The situation does not improve when the site becomes officially registered by the authorities as contaminated, and becomes compounded when the authorities then limit the owner’s right of dominion over the site.

I do not believe, however, that it would make much difference today if the Contaminated Sites Act was repealed. The genie has been let out of the bottle and cannot be forced back in again. Property purchasers now know about the problems, and they will safeguard themselves against possible site contamination. The environmental authorities have been the ones that delivered the unpleasant message. They have perhaps done so in a somewhat clumsy manner by registering so many sites and undertaking so few clean-up projects, as well as by having the fact that a site is contaminated recorded in the Register of Mortgages, the latter being very conspicuous on the real estate market. Perhaps the message could have been delivered with greater tact.

Once the message has been understood, the discussion arises as to who is to shoulder the loss resulting from the depreciation of the property, or the costs of remediation. The Polluter Pays Principle immediately springs to mind. However, that is not how things are in reality - at least not in Denmark. The demands of liability law that the party causing the damage has to be identified with certainty, that negligence has to be proved, and that the statute of limitations must not have been exceeded, prevent many claims being made. Furthermore, even if there is a justifiable claim for compensation, it is often worthless because the party causing the pollution is insolvent or no longer exists.

The loss can therefore only be borne by the present owner or by society as a whole. As far as concerns private homes, the decision was made in Denmark to let the risk lie with society through the Depreciation Protection Act (Section 10.6 above). For others, especially industry, the loss must be borne by the present owner. All things relative, the loss is usually not so great in the case of industrial properties: As long as they are still used for industrial purposes, it is usually possible to let the pollution remain in place.

All in all, Denmark has gained some interesting experience in dealing with contaminated sites. It must be admitted that current legislation does not function optimally. The committee that is presently drawing up the new Contaminated Sites Act faces two main questions:

1) Where should remediation be undertaken? When should it be undertaken? What should be done with the soil that is removed?

2) Which procedures should be followed? Who should pay?

Twelve years’ experience with the problem should make it possible to provide qualified answers.