Soil Pollution
What regime governs liability for soil pollution (including the allocation, transfer and limitation of liability)?
Soil pollution is not comprehensively regulated at EU level. The protection and sustainable use of soil is regulated in measures, resulting in mainly indirect protection of soil – for example, through environmental policies on waste, water, chemicals, industrial pollution prevention, nature protection and biodiversity, nitrates and pesticides, sewage sludge, forestry strategy, climate change adaptation and mitigation, and biofuels.
EU legislation partly tackling soil protection includes:
- the Landfill Directive (1999/31/EC, as amended by Directive 2011/97/EU), which addresses the presence of toxic substances resulting from a land-filling operation;
- the Environmental Liability Directive (2004/35/EC, as amended by Directive 2013/30/EU), which requests liable operators to undertake the necessary preventative and remedial action for a range of polluting activities; and
- the Industrial Emissions Directive (IED) (2010/75/EU), which aims to ensure that the operation of an industrial installation does not lead to deterioration in the quality of the soil.
The European Commission had proposed a Soil Framework Directive (COM/2006/0232 final) in September 2006 that aimed at filling this gap and providing a common strategy for the protection and sustainable use of soil. However, the commission withdrew the proposal in April 2014 as it had failed to be enacted after nearly eight years. The commission hopes to propose legislation on soil again in the future.
What environmental due diligence measures are recommended before concluding land transactions?
As mentioned above, soil pollution is not comprehensively regulated at EU level. National and potentially regional rules need to be considered.
The EU legislation partly tackling soil (as noted in the section “Liability” above) includes:
- the Landfill Directive, which addresses the presence of toxic substances resulting from a land-filling operation;
- the Environmental Liability Directive, which requests liable operators to undertake the necessary preventative and remedial action for a range of polluting activities; and
- the IED, which aims to ensure that the operation of an industrial installation does not lead to deterioration in the quality of the soil.
What remediation and clean-up measures are typically applied and how can remediation costs be recovered?
Soil pollution is not comprehensively regulated at EU level. National and potentially regional rules must be considered.
Verde Environmental Consultants undertake characterisation of soils as required by landfill regulations and undertake the necessary sampling to assess whether a waste is classified as hazardous or non-hazardous. Our specialists are trained in the use of the appropriate classification tools and have an in-depth knowledge of the relevant legislation and guidance, which allows them to guide clients in establishing cost effective and sustainable soil management solutions.