A is the operator of a waste disposal site. Hazardous waste produced and handed over to A by C causes polluting effects. B suffers a loss.

Who is liable? If C had not properly informed A of the dangerous properties of the waste, who will be liable?

Comparative remarks

Comparison

The producer of the waste is primarily subject to fault liability. With regard to hazardous waste, the producer must comply with a series of special duties regulating the management and disposal of waste under administrative law. The failure to perform these duties can give rise to liability for breach of a statutory duty according to fault liability. Under certain conditions, the laws of the neighbourhood – or an action in nuisance in the common law countries – can also be applicable.

In several countries, the producer of waste is under a strict liability obligation. Since 1974, Belgian law provides for a strict liability regime for toxic waste, which applies to industrial, commercial and research activities. Liability covers the production, transportation and disposal of toxic waste, even if these activities are not performed by the responsible party itself. Due to a rather restrictive definition of toxic waste (in a Royal Decree from 1976), there is still no case law available on this liability regime. In English and Scots law, the producer of waste can be held liable under section 73(6) EPA 1990, if he failed to inform the operator of the deposit site of the hazardous nature of the waste.