Abstract
Historical pollution is a widespread problem: it is not only an old and unresolved question for many developed countries, but is, or will soon become, a new and complex issue for a number of developing countries. The management and remediation of land and groundwater contaminated by toxic substances released into the environment by past polluting activities thus represents one of the main challenges to which states are, or will be, called upon to give a response in order to protect the environment and human health. Despite this, there is currently no comprehensive strategy at international or EU level for protecting soil and remedying historic environmental damage . In effect, with regard to the remediation of environmental damage, the main binding instrument adopted at supranational level is the European Liability Directive, which cannot, however, be applied retroactively to historic damage; and all attempts to introduce a general instrument on soil protection at international or EU level have been unsuccessful. Furthermore, in accordance with the principle of non-retroactivity, EU Directive 2008/99/EC cannot be applied to past polluting activities carried out before its entry into force. The reluctance of many states to adopt a global strategy for addressing historical pollution has political, economic, legal, and cultural causes. Yet legacy pollution is a common problem for humanity: at stake are the rights of future generations exposed to such pollution. In this regard, the OECD’s recommendations as elaborated in Liability for Environmental Damage in Eastern Europe, Caucasus and Central Asia (EECCA): Implementation of Good International Practices, and the Sourcebook of Pollution Management Policy Tools for Growth and Competitiveness drafted by the World Bank Group, offer significant examples of approaches aimed at addressing historical pollution from a legal, technical, and economic perspective. These instruments could form a basis for developing international guidelines on dealing with this category of pollution.
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Notes
- 1.
Between 1960 and 1980 cases of historical contamination emerged in all the countries of Western Europe. In the early 1980s, severe arsenic contamination of groundwater was found at an abandoned factory at Bocholt in Belgium. In 1980, chemical waste was discovered in the subsoil of a new housing development at Lekkerkerk in the Netherlands. Severe contamination of soil and groundwater as a consequence of industrial and mining activities was found in the Lower Swansea valley and at the village of Shipham. The discovery of these and other cases led all the States to introduce national remediation programmes (see Prokop et al. 2000).
- 2.
With regard to EU countries, Vanheusden (2007) has noted that “Until recently, the historical contamination of land has not been the subject of effective, formalized legal attention. Member States—or regions within a Member State—have only begun to introduce legislation on the remediation of soil contamination within the last ten to twenty years, often inspired by the American approach” (emphasis added).
- 3.
Recommendation on Guiding Principles concerning International Economic Aspects of Environmental Policies adopted by the OECD Council on 26 May 1972, C(72) 128.
- 4.
As evidenced by the doctrine, the polluter-pays principle requires the polluter to bear the primary obligation for the remediation of sites that they have contaminated. See Brandon 2013, p. 82.
- 5.
On this issue, see Larson 2013, pp. 991 ff.
- 6.
On the characteristics of the new generation of risks see de Sadeleer 2010, p. 185.
- 7.
- 8.
Such a strategy has been emphasized by the European Union Commission in the Communication from the Commission to the Council, the European Parliament and the Economic and Social Committee—Community strategy for Dioxins, Furans and Polychlorinated Biphenyls (2001/C 322/02) (COM(2001) 593 final), according to which “PCBs, and that is the main difference with dioxins, are intentionally produced chemicals, that were manufactured for decades before the ban in marketing and use was adopted in 1985 due to their reproductive toxicity and bio-accumulative effects. The main part of these products, which are persistent and bioaccumulable in fat of biota, is now spread in soils, sediments and in the whole aquatic environment (‘historical pollution’).” Consequently, “[t]he most efficient way to reduce the levels [of PCBs] in the foodchain is to reduce the contamination in the environment. This should be done by: (1) avoiding ‘new releases’ in the environment; (2) addressing ‘historical pollution.’” Moreover, see Communication from the Commission on the Results of the Risk Evaluation and the Risk Reduction Strategies for the Substances: Cadmium and Cadmium Oxide—(2008/C 149/03).
- 9.
Art. 1, Para. 7, of the Convention establishes that POPs are organic substances that: (a) possess toxic characteristics; (b) are persistent; (c) bioaccumulate; (d) are prone to long-range transboundary atmospheric transport and deposition; and are likely to cause significant adverse human health or environmental effects near to and distant from their sources.
- 10.
The Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade was transposed into the European Union with Decision 2003/106/EC. However, in Case C-94/03 the Court of Justice of the European Union annulled the decision, arguing that it would have had to be based exclusively on the rules of the EC Treaty concerning the common commercial policy and not on the article concerning the environmental policy. By Decision 2006/730/EC, the Rotterdam Convention was again transposed. Regulation (EC) no. 1907/2006 of the European Parliament and of the Council of 18 December 2006 Concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) implements the Rotterdam Convention (Recital no. 2). Furthermore, the European Union has adopted the following international instruments: Regulation (EU) no. 649/2012 of the European Parliament and of the Council of 4 July 2012 Concerning the Export and Import of Hazardous Chemicals; Council Decision 259/2004/EC of 19 February 2004 Concerning the Conclusion, on Behalf of the European Community, of the Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Persistent Organic Pollutants; Council Decision 2006/61/EC of 2 December 2005 on the Conclusion, on Behalf of the European Community, of the UNECE Protocol on Pollutant Release and Transfer Registers (PRTR); the Council Decision Concerning the Conclusion, on Behalf of the European Community, of the Stockholm Convention on Persistent Organic Pollutants was adopted on 14 October 2004 and emended by several Commission regulations.
- 11.
For instance, chemical manufacture (e.g., petroleum and petrochemical industries, pharmaceutical manufacture, pesticide manufacture, etc.); metal and mineral extraction, refining, storage, and use (e.g., metal treatment, mining industries, asbestos products manufacture, hydrocarbon exploration, etc.); waste recycling, treatment, and disposal; storage and use of explosives; production and distribution of GM products, etc.
- 12.
Recital No. 24 of the IPPC Directive establishes that “[i]n order to ensure that the operation of an installation does not deteriorate the quality of soil and groundwater, it is necessary to establish, through a baseline report, the state of soil and groundwater contamination.”
- 13.
In particular, Recital No. 12 of the Directive clarifies that it has the aim “to indicate clearly the requirements with which landfill sites must comply as regards location, conditioning, management, control, closure and preventive and protective measures to be taken against any threat to the environment in the short as well as in the long-term perspective, and more especially against the pollution of groundwater by leachate infiltration into the soil” (emphasis added).
- 14.
See: Council Directive 78/176/EEC of 20 February 1978 on Waste from the Titanium Dioxide Industry; Council Directive 82/883/EEC of 3 December 1982 on Procedures for the Surveillance and Monitoring of Environments Concerned by Waste from the Titanium Dioxide Industry; Council Directive 92/112/EEC of 15 December 1992 on Procedures for Harmonizing the Programmes for the Reduction and Eventual Elimination of Pollution Caused by Waste from the Titanium Dioxide Industry.
- 15.
Recital No. 18 of the Preamble states that the aim of the Directive is “to indicate clearly the requirements with which waste facilities servicing the extractive industries should comply as regards location, management, control, closure and preventive and protective measures to be taken against any threat to the environment in the short and long-term perspectives, and more especially against the pollution of groundwater by leachate infiltration into the soil” (emphasis added).
- 16.
Art. 5(2)(c)(ii) of this Directive states that the waste management plan “prevents or at least minimises any long-term negative effects, for example attributable to migration of airborne or aquatic pollutants from the waste facility.”
- 17.
At international level see, among other instruments to protect air from pollution, the Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Persistent Organic Pollutants (CLRTAP).
- 18.
See, for example, United Nations Convention to Combat Desertification (UNCCD).
- 19.
See, for example, European Union Protocol on the Implementation of the Alpine Convention of 1991 in the Field of Soil Conservation (1998).
- 20.
European Commission, Proposal for a Directive of the European Parliament and of the Council Establishing a Framework for the Protection of Soil, COM (2006) 232 final.
- 21.
At EU level, see, for example, Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 Establishing a Framework for Community Action in the Field of Water Policy and Directive 2006/118/EC of the European Parliament and of the Council of 12 December 2006 on the Protection of Groundwater Against Pollution and Deterioration.
- 22.
- 23.
Without any pretensions to being exhaustive, we may distinguish between the following international agreements: conventions on civil liability for environmental damage ; conventions on civil liability for damage caused by oil pollution; conventions on civil liability for damage caused by the transport of dangerous goods; conventions on civil liability for nuclear risks; conventions on liability for damage resulting from the movement of hazardous wastes; conventions on civil liability and compensation for damage caused by industrial accidents; conventions on civil liability for damage caused by space objects.
- 24.
- 25.
Dangerous substances are: (a) substances which have properties listed in Annex I, Part A to the Convention (i.e., toxic, very toxic, harmful, carcinogenic, dangerous for the environment, etc.), which cause a “significant risk for man, the environment or property”; (b) substances listed in Annex I, part B, which are dangerous over certain concentrations (Art. 2, Para. 2). Annex I refers to the EU instruments on the approximation of domestic law relating to the classification, packaging, and labelling of dangerous preparations.
- 26.
However, Para. 63 of the Explanatory Report to the Convention clarifies that this provision “does not create a true presumption of a causal link.”
- 27.
Art. 17 states: “Limitation periods. (1) Actions for compensation under this Convention shall be subject to a limitation period of three years from the date on which the claimant knew or ought reasonably to have known of the damage and of the identity of the operator. The laws of the Parties regulating suspension or interruption of limitation periods shall apply to the limitation period prescribed in this paragraph. (2) However, in no case shall actions be brought after thirty years from the date of the incident which caused the damage. Where the incident consists of a continuous occurrence the thirty years’ period shall run from the end of that occurrence. Where the incident consists of a series of occurrences having the same origin the thirty years’ period shall run from the date of the last of such occurrences. In respect of a site for the permanent deposit of waste the thirty years’ period shall at the latest run from the date on which the site was closed in accordance with the provisions of internal law.”
- 28.
Under Art. 7: “A causal nexus between the activity undertaken and the ensuing damage shall normally be required under environmental regimes. This is without prejudice to the establishment of presumptions of causality relating to hazardous activities or cumulative damage or long-standing damages not attributable to a single entity but to a sector or type of activity” (emphasis added).
- 29.
Moreover, Art. 10 establishes that “[f]oreseeability of damage in general terms of risk should not affect the availability of insurance.”
- 30.
Under the Guidelines, the term “pure economic loss” means “loss of income, unaccompanied by personal injury or damage to property, directly deriving from an economic interest in any use of the environment and incurred as a result of environmental damage .”
- 31.
Guideline 12 states: “Time limits for presentation of claims. (1) Domestic law should establish that claims for compensation are inadmissible unless they are brought within a certain period of time from the date the claimant knew or ought to have known of the damage and the identity of the operator. In addition, claims should be inadmissible unless they are brought within a certain period of time following the occurrence of the damage. (2) Where the damage-causing incident is a series of occurrences having the same origin, the time limits established under the present guideline should run from the last of such occurrences. Where the damage-causing incident consists of a continuous occurrence, such time limits should run from the end of that continuous occurrence.”
- 32.
Adopted after a long discussion generated by the Green Paper on Remedying Environmental Damage (COM (93) 47 final, Brussels, 14 May 1993), the White Paper on Environmental Liability (European Commission, COM (2000) 66 final, Brussels, 9 February 2000), and the Legislative Proposal for a Directive (COM (2002) 17 final, Brussels, 23 January 2002).
- 33.
The ELD does not apply to environmental damage regulated by the international agreements incorporated in Annex IV. See International Convention of 27 November 1992 on Civil Liability for Oil Pollution Damage; International Convention of 27 November 1992 on the Establishment of an International Fund for Compensation for Oil Pollution Damage; International Convention of 23 March 2001 on Civil Liability for Bunker Oil Pollution Damage; International Convention of 3 May 1996 on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea; Convention of 10 October 1989 on Civil Liability for Damage Caused During Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels.
- 34.
Article 2(6) of the ELD establishes that an “operator” is “any natural or legal, private or public person who operates or controls the occupational activity or, where this is provided for in national legislation, to whom decisive economic power over the technical functioning of such an activity has been delegated, including the holder of a permit or authorisation for such an activity or the person registering or notifying such an activity.”
- 35.
On the issue see Fogleman 2015, pp. 9 ff.
- 36.
The ELD recognizes, inter alia, the right of people affected by environmental damage to request that competent public authorities take necessary measures. See Art. 12.
- 37.
Art. 17 of the ELD also establishes that this Directive shall not apply to: “ —damage caused by an emission, event or incident that took place before the date referred to in Article 19(1), —damage caused by an emission, event or incident which takes place subsequent to the date referred to in Article 19(1) when it derives from a specific activity that took place and finished before the said date.”.
- 38.
de Sadeleer 2015, p. 234) has highlighted that “[t]he ELD does not apply retroactively to historic pollution or damage caused before 30 April 2007. This means that the costs of cleaning up and restoring contaminated sites before this date will eventually be borne by public authorities” (emphasis added). On the temporal provisions of the ELD see Fogleman 2014, pp. 144 ff. For critical discussion, see Brandon 2013, p. 203.
- 39.
Recital No. 13 of the ELD establishes that “Not all forms of environmental damage can be remedied by means of the liability mechanism. For the latter to be effective, there need to be one or more identifiable polluters, the damage should be concrete and quantifiable, and a causal link should be established between the damage and the identified polluter(s). Liability is therefore not a suitable instrument for dealing with pollution of a widespread, diffuse character, where it is impossible to link the negative environmental effects with acts or failure to act of certain individual actors.”
- 40.
On the differences between the ELD and national laws on contaminated land adopted in certain EU member States with reference to historical pollution, see Fogleman 2015, p. 11.
- 41.
- 42.
As underlined by the EU Court of Justice, this is a zone “affected by recurring incidents of environmental pollution, dating back as far as the 1960s, when the Augusta-Priolo-Melilli site was established as a hub for the petroleum industry. Since that time, numerous undertakings operating in the hydrocarbon and the petrochemical sectors have been set up and/or succeeded one another in the region” (Para. 19).
- 43.
According to the EU Court of Justice, “Such a causal link could easily be established where the competent authority is confronted with pollution which is confined to a particular area and period of time and is attributable to a limited number of operators. On the other hand, that is not the case with diffuse pollution phenomena and, therefore, the legislature of the European Union considered that, in the case of such pollution, a liability mechanism is not an appropriate instrument where such a causal link cannot be established. Consequently, Article 4(5) of Directive 2004/35 provides that the directive is to apply to that kind of pollution only where it is possible to establish a causal link between the damage and the activities of individual operators” (Para. 54; emphasis added).
- 44.
- 45.
According to the EU Court of Justice, “given that, according to the facts described in the documents before the Court, the historic environmental damage at issue in the main proceedings stems from economic activities undertaken by former owners of the land currently held by Fipa Group, Tws Automation and Ivan, respectively, it is unlikely that Directive 2004/35 is applicable ratione temporis in the main proceedings” (Para. 43).
- 46.
As summarized by de Sadeleer (2015, p. 237), “mere owners of historically contaminated occupational sites, who are not responsible for the environmental damage, must not take on the burden of remedying pollution to which they have not contributed” (emphasis added).
- 47.
For detail, see Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions on the Sixth Environment Action Programme of the European Community, “Environment 2010: Our future, Our choice” [COM (2001) 31 final].
- 48.
European Parliament Legislative Resolution of 14 November 2007 on the Proposal for a Directive of the European Parliament and of the Council Establishing a Framework for the Protection of Soil and Amending Directive 2004/35/EC [COM(2006)0232-C6-0307/2006-2006/0086(COD)].
- 49.
Art. 13 provided for the following: “Remediation. (1) Member States shall ensure that the contaminated sites listed in their inventories are remediated. (2) Remediation shall consist of actions on the soil aimed at the removal, control, containment or reduction of contaminants so that the contaminated site, taking account of its current use and approved future use, no longer poses any significant risk to human health or the environment. (3) Member States shall set up appropriate mechanisms to fund the remediation of the contaminated sites for which, subject to the polluter pays principle , the person responsible for the pollution cannot be identified or cannot be held liable under Community or national legislation or may not be made to bear the costs of remediation.”
- 50.
Art. 12 stated the following: “Soil status report. (1) Where a site is to be sold on which a potentially polluting activity listed in Annex II is taking place, or for which the official records, such as national registers, show that it has taken place, Member States shall ensure that the owner of that site or the prospective buyer makes a soil status report available to the competent authority referred to in Article 11 and to the other party in the transaction. (2) The soil status report shall be issued by an authorised body or person appointed by the Member State. It shall include at least the following details: (a) the background history of the site, as available from official records; (b) a chemical analysis determining the concentration levels of the dangerous substances in the soil, limited to those substances that are linked to the potentially polluting activity on the site; (c) the concentration levels at which there are sufficient reasons to believe that the dangerous substances concerned pose a significant risk to human health or to the environment. (3) Member States shall establish the methodology necessary for determining the concentration levels referred to in paragraph 2(b). (4) The information contained in the soil status report shall be used by the competent authorities for the purposes of identifying contaminated sites in accordance with Article 10(1).”
- 51.
Before the approval of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives, which excludes unexcavated contaminated soil from the scope of the Directive, many scholars considered the ruling of the European Court of Justice in Van de Walle and others to be important for the development of an EU policy on brownfield redevelopment (Vanheusden 2007, p. 566; McIntyre 2005). In that decision, the Court of Justice ruled that hydrocarbons that have been spilled accidentally into the soil can be considered waste under the Directive 75/442/EEC. According to the Court of Justice, if the hydrocarbons which are the source of the pollution were not to be regarded as “waste” for the fact that they have been spilled unintentionally, their holder would be subtracted from the obligations laid down in this Directive, in contrast with the prohibition of abandonment and uncontrolled discharge of waste. Moreover, the Court of Justice argued that the soil contaminated by a spill of hydrocarbons must be classified as waste: “in that case, the hydrocarbons cannot be separated from the land which they have contaminated and cannot be recovered or disposed of unless that land is also subject to the necessary decontamination” (Para. 52). In conclusion, the Court of Justice ruled that “the petroleum undertaking which supplied the service station can be considered to be the holder of that waste within the meaning of Article 1(c) of Directive 75/442 only if the leak from the service station’s storage facilities which gave rise to the waste can be attributed to the conduct of that undertaking” (Para. 61).
- 52.
However, the indications of the Sourcebook cannot be applied in cases of diffuse pollution. See World Bank Group (2012, pp. 66–67).
- 53.
For recent comment on the issue, see Azam 2016.
- 54.
For example, Art. 55 of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 states that “Protection of the natural environment—(1) Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population. (2) Attacks against the natural environment by way of reprisals are prohibited” (emphasis added). Article 9(5) of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal establishes that “Each Party shall introduce appropriate national/domestic legislation to prevent and punish illegal traffic.” Art. VII (2) of the Convention on the Prevention of Marine Pollution by dumping of Wastes and other Matter of 29 December 1972 states that “Each Party shall take in its territory appropriate measures to prevent and punish conduct in contravention of the provisions of this Convention.”
- 55.
First, on 4 November 1998 the member States of the Council of Europe adopted the Convention on the Protection of the Environment through Criminal Law . However, the Convention never entered into force. In EU law, regulations for environmental crimes have been introduced via two Directives, namely Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the Protection of the Environment through Criminal Law and Directive 2009/123/EC of the European Parliament and of the Council of 21 October 2009 Amending Directive 2005/35/EC on Ship-source Pollution and on the Introduction of penalties for Infringements.
- 56.
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Vozza, D. (2017). Historical Pollution and Long-Term Liability: A Global Challenge Needing an International Approach?. In: Centonze, F., Manacorda, S. (eds) Historical Pollution. Springer, Cham. https://doi.org/10.1007/978-3-319-56937-6_14
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