NORWAY Law and Practice Contributed by: Elise Johansen, Tonje Hagen Geiran and Lene Marita Berg Hermann, Wikborg Rein Advokatfirma AS
responsible operator, and regulators are not bound by indemnity clauses. Such agreements only gov- ern recourse between the parties and do not alter primary liability. • Enforceability depends on context. Between sophisticated commercial parties, negotiated liabil- ity limitations are generally upheld. However, claus- es excluding liability for intentional misconduct or gross negligence by management may be set aside under the Norwegian Contract Act ( Avtaleloven ), Section 36 or general principles if they would lead to unreasonable results. • Where strict environmental liability applies (eg, under the Pollution Control Act), the operator or property owner remains externally liable regardless of any internal allocation. Contractual indemnities only regulate cost-sharing between the parties and do not affect the public law duty to remedy dam- age or the authorities’ right to enforce against the legally responsible party. 12. Contaminated Land 12.1 Key Laws Governing Contaminated Land The Norwegian Pollution Act ( Forurensningsloven ) incorporates a comprehensive prohibition against pol- lution, encompassing contaminated land. Section 7 of the Act explicitly prohibits any individual from engag- ing in actions or activities that could pose a risk of pollution, except when authorised under Section 8 or 9, or permitted by a decision outlined in Section 11. In cases where there is an imminent threat of pollution contrary to the Act, those responsible for the poten- tial pollution must undertake measures to prevent its occurrence. In instances where pollution has already transpired, the parties accountable for the pollution are obligated to initiate actions to cease, eliminate or mitigate its effects. Moreover, there exists a duty to mitigate any resultant damage stemming from the pollution. The authority overseeing pollution control holds the power to issue directives mandating those responsible for the pollu- tion to execute necessary measures. These measures may include further investigations, pollution removal or actions to mitigate its impact. However, any deci-
sions made by the authorities must maintain reason - able proportionality in relation to the anticipated dam- age to be averted. However, the Act lacks precise delineation regarding the designation of responsibility for historical pollution. This ambiguity is particularly challenging to ascertain when the pollution incidents occurred many years in the past. Consequently, the determination of liability for historical pollution has evolved over time, influ- enced by judicial precedents and interpretations of the Act, notably within legal theory and by regulatory pollution control entities. 12.2 Clearing Contaminated Land When determining liability for pollution in accordance with the Norwegian Pollution Act ( Forurensningslov- en ), the polluter pays principle governs. This entails that the party responsible for the pollution bears the financial responsibility. However, in certain instances wherein identifying the polluter becomes unfeasible, such as when the polluter no longer exists or lacks financial capacity, among other scenarios, the onus often falls upon the property owner. Additionally, individuals in possession of a contami- nated property can also incur liability. This circum- stance commonly involves entities leasing or renting a property. The recognition that parties other than the owner may bear responsibility for pollution was articulated in a ruling by the Supreme Court in 2010 (the “ Hempel case ”, Rt 2010 p 306). The Hempel case underscores the potential for a parent company to assume liability for ground pollution associated with a property under the control of its subsidiary. The person or company that caused the pollution remains legally responsible for ensuring remediation, even if the practical work is carried out by another party. In practice, delegation often occurs through contractual arrangements: for example, between a landowner, developer or specialist remediation con- tractor. Such agreements can assign the execution of investigation and clean-up tasks, but the public-law obligation to restore the site ultimately remains with the person or company deemed responsible by the authorities.
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