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The proposed regulation implements into Polish law the provisions of
the Directive 2004/35/CE of the European Parliament and the Council of
21 April 2004 on environmental liability. If implemented in the
proposed form, the new regulations will considerably modify the current
rules on liability for environmental damage.
The regulation presupposes a unification of the principles of liability
for damaging the aquatic environment and protected habitats, harming
endangered species and polluting soil. In the case of environmental
damage to any of the above, the entity liable for remedying it would be
the one whose activity led to the damage. Conditions for remedial
measures should be agreed with a Voivod by way of an administrative
decision. The Voivod will have the right to oblige a given entity to
implement certain measures preventing environmental damage, or to apply
remedial measures in cases where damage has already occurred.
Scope of the proposed act
The project also regulates situations where the damage has not yet
occurred, but where there is a direct threat that it will arise.
Exclusions from the proposed Act include:
- Damage caused by events or emissions that occurred more than 30 years ago
- Damage identified before 30 April 2007
- Damage caused by defence activities
Another important exclusion covers cases where an administrative
decision has been taken, permitting the activity leading to the land
contamination.
The proposed principles of liability would only concern entities
conducting activities set out in the Act’s Implementing Ordinance. It
follows from Annex III to the Directive of 21 April 2004 that this will
include activities subject to the obligation to obtain an integrated
permit. This covers all entities dealing with – even indirectly – water
and wastewater management or waste management.
The above exclusions are crucially important from the point of view of
establishing principles that should be followed when remedying an
environmental damage not covered by the Act.
In view of the wide range of damages covered by the Act, I will focus on damage relating to the pollution of soil or land.
Land regeneration: polluted soil
The changes concerning the principles of soil remediation have
far-reaching consequences. The project proposes to resign from separate
regulations pertaining to the principles of liability for the pollution
currently contained in the Environmental Protection Law. Under current
law, it is, in principle, the entity which holds a given plot of land,
usually the owner or perpetual usufructuary, that is under an
obligation to ensure the remediation of soil. The entity that purchased
the real estate covered by the obligation may not in principle use as
an excuse the fact that the pollution was caused by the former user.
The purchaser becomes obliged to conduct the rehabilitation and may
seek the satisfaction of possible claims towards the former owner
(perpetual usufructuary) only under civil law, for example, on the
basis of an agreement on the sale of such real estate.
This is inconsistent with the polluter pays principle applicable to
other cases of environmental damage. The new Act means that the entity
obliged to remediate the land will always be the one whose activity was
the source of contamination. The entity that caused the damage will not
be allowed to release itself from this obligation by selling the land.
It will still be obliged to remediate the damage even when it no longer
holds legal title to the land. The project stipulates that in such a
situation the current owner of the real estate will be obliged to
render possible the remediation and that he will be entitled to
compensation for the damage suffered in connection with providing
access to the land for remediation purposes.
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Serious problems concerning the interpretation of provisions may arise
owing to the numerous exclusions to the scope of the proposed Act. What
provisions will regulate the remediation of polluted covered by the
above exclusions is unknown.
The project attempts to solve problems connected with contamination
that took place in the past. It stipulates that the environmental
damages concerning the surface of the ground identified before 30 April
2007 shall be governed by the provisions of the Environmental
Protection Law in their current wording. Such a solution, however,
gives rise to other doubts and problems.
It may result in the application of two quite different legal regimes
on liability for the remediation of land – an old one (based on the
Environmental Protection Law) with respect to cases where contamination
was identified before 30 April 2007, and the new one (based on the
proposed Act) with respect to the other cases. The two regimes will
coexist until all land on which contamination was identified before 30
April 2007, are remediated.
The new draft Act may substantially complicate the real estates market.
An entity purchasing land will face not only the necessity to assess
the soil quality (as is the case nowadays), but also the necessity to
establish when the pollution occurred and when it was identified – as
the date of "discovering" the pollution will determine which legal
regime applies.
The notion of "discovering" the pollution is a fuzzy one and may lead
to divergent interpretations – even abuses. One can imagine cases where
land requiring remediation is being purchased, the actual date of the
discovery of the pollution is learned by the purchaser after the legal
title to the real estate has been transferred to him, which
substantially changes the scope of liability of both parties to the
real estate sale agreement.
The date of discovering the pollution as a criterion for using the
current of the new regime on liability for land pollution is not in
line with the EU Directive, which uses the criterion of the date on
which the contamination occurred. This means that – as far as
historical pollution is concerned – the application of the proposed Act
has a wider scope than as required by the EU Directive itself.
It is still not clear what principles for the remediation of
contaminated soil would be used in other cases covered by the
exclusions provided for in the draft Act. Moreover, it is not clear why
the damages in the form of an unfavourable transformation of natural
landform features have been excluded from the definition of
environmental damage.
Conclusion
The need to implement a new act of law governing the principles of
liability for environmental damage is indisputable. We are required to
adopt such a regulation as an EU Member State, and also due to the fact
that in our current legal system, issues pertaining to this liability
are governed in a fragmentary and incoherent manner.
The draft Act is still at the stage of discussions and social
consultations; a large number of solutions it provides for (especially
as regards its correlation with other provisions governing
environmental protection) may be subject to further modifications.
© Michał Kubicz, a trainee legal adviser and a lawyer at the Infrastructure Department of law firm Gide Loyrette Nouel
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