Hazardous substances on the seabed
Marek Górski,
Professor,
Faculty of Law and Administration,
University of Szczecin,
Poland
In Polish internal law, the issues related to risks and hazards associated with shipwrecks (in particular with respect to the fuel contained therein) as well as with containers containing chemical warfare agents are primarily the responsibility of public administration. Determining the scope of such tasks and the authorities which should perform them requires consideration of many issues, and in particular establishment of the following:
1) the legal status of the substances and objects located on the seabed;
2) the legal basis for the possible obligation to remove the designated substances and objects from the seabed as well as the subjective scope thereof; more broadly, the obligation to monitor the potential consequences of their retention in the sea;
3) the role of individual public administration authorities in the enforcement or possible performance of the designated obligations.
Such an analysis requires that reference be made, first and foremost, to internal law instruments but also to relevant international agreements. It should be noted here, in particular, that, in Polish internal legislation, there is no provision clearly defining the legal status of shipwrecks and containers with warfare agents submerged in the sea, but the matter seems quite obvious – from the point of view of the provisions of the Waste Act of December 2012, these objects and substances inside them should be considered as waste. As a consequence, one should refer to orders and prohibitions related to waste management procedures addressed to entities responsible for waste management and supervisory obligations of relevant administrative authorities, including the duty to take over the obligations not fulfilled by those who should do so; this also applies to a situation in which the obliged entity cannot be established.
It is particularly important in this problem that we are dealing with substances or objects which were transformed into waste in the past, many years ago, described as ‘waste residues’. The waste residues (in German law, the so-called Altlasten) are nuisances for the environment caused by activities carried out many years ago often by an unknown entity and usually in unknown circumstances. The consequence is the inability to apply the “perpetrator’s principle” (the polluter pays rule), which is fundamental for contemporary environmental protection law, to enforce the liability associated with the removal of nuisances. In Polish law, there are no legal regulations directly related to the so-called “waste residues”, except for regulations related to “historical pollution” of the land surface (provisions of the Environmental Protection Law Act of 2001 relating to the protection of the land surface, yet, not applicable in the analysed case). This results in the need to search for specific grounds for determination and enforcement of the obligation to remove waste residues.
The basis should be primarily the provisions of the Water Law Act related to water quality protection and the institution of water quality protection programmes, which is also an element of the maritime strategy (Art. 144 et seq.). Nevertheless, this system requires the identification of potential threats and their monitoring from the point of view of the possibility of influencing the achievement of environmental objectives aimed at maintaining or restoring of the properties typical for the good environmental status of sea waters.
The main authorities responsible for implementation of these tasks are the Environmental Protection Inspectorate within the scope of monitoring activities and directors of maritime offices, who should be considered as the authorities competent to undertake activities with respect to waste accumulated on the seabed in order to eliminate or reduce its negative impact on the possibility of achieving the environmental objectives of water quality protection. The latter assumption results primarily from the general competence of the Director of the Maritime Office in matters “within the scope of government administration related to the use of the sea within the scope regulated by this Act and other acts”, and in particular “the matters related to protection of the marine environment against pollution caused by the use of the sea and by dumping of waste and other substances”. (Art. 42 of the Act on the Maritime Areas of the Republic of Poland of 1991).
The crisis management instruments provided for in the Act of 26 April 2007 on Crisis Management should play a complementary role. It is primarily a preventive function in the context of preparing the system to react in the event of a significant threat from such waste, while the directors of maritime offices cooperate in this respect in the areas of sea waters with the Maritime Search and Rescue Service, which results from the provisions of the Act of 16 March 1995 on the Prevention of Sea Pollution from Ships.
Email: marek.gorski@usz.edu.pl
Expert article 2622