Tadashi Otsuka

Professor of Law at Gakushuin University
(1-5, Mejiro, Toshima-ku, Tokyo 171 Japan)

Abstract

Lately the cleanup of soil contamination is getting to be a more and more serious topic in Japan, but we have no National Laws about this problem except that for agricultural land contamination. Now it is an urgent issue to establish legal systems regarding the liability framework and the process of cleaning up soil contamination.

Then we will meet 3 main problems:(1) trigger values for administrative orders, (2) liability of landowners, and (3) principles of liability such as strict liability, retroactive effect of liability, and joint and several liability. In the light of related legislation in Japan and the experience of CERCLA of the U.S., I conclude that (1) trigger values for administrative orders should be set from the viewpoint of public danger and they will be lower than the tolerable level under Japanese Civil Law, (2) landowners have to pay cleanup cost only when polluters are not identified or insolvent, and (3) although the potentially responsible parties should be liable retroactively under the principle of the strict liability, joint and several liability should be imposed only when they are closely connected one another.

Key words: soil contamination, owner's liability, strict liability, retroactive liability, joint and several liability