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“Cleaning up” The Environmental Liability Directive, by Randy M. Mott, CEC Government Relations |
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The transposition of the EU Environmental Liability Directive,
2004/35/CE, in Central Europe affects a broad range of companies in
complex ways. The Directive generally is prospective, i.e. directed
toward events that occur after April 30, 2007, the date it must also be
transposed by Member States. The Directive creates liability for
environmental cleanup and damages to natural resources, specifically
habitats protected by EU Directives. Unlike some directives, the ELD
leaves many issues to the Member States’ discretion. The scope of
liability, the legal defenses available, the scope of habitats covered,
and the financial security provisions are all largely open issues.
The BPCC Environmental Committee is working on the Polish transposition
of this Directive. The biggest issue facing us in that the Directive
uses risk assessment for determining the scope and need for cleanup,
while the current Polish Contaminated Land Law uses rigid numeric
standards, regardless of risk and site-specific conditions. Unless
amended, both regimes will coexist after April 30, 2007, creating major
confusion, delay as well as inordinate and unnecessary cost by the
application of rigid numeric standards.
BPCC is working to amend the law to allow the same risk assessment
approach to all sites covered by the Directive as well as the existing
law. This risk assessment policy has been established as firm EU
environmental policy, along with steps to standardize the approach of
risk assessment among Member States. Poland is alone in its use of
rigid numeric categorical standards with no specific consideration of
site conditions.
The Polish draft transposition law keeps the rigid numeric standards in
force and also has some other problems. It specifically ignores the EU
Directive's intent to only cover sites caused by events after April
2007 and applies to sites “discovered” after that date. Because the
Directive requires that operators notify the government about sites
within its scope, this interpretation is of added consequence. The
Directive sets forth detailed standards and rules for cost-benefit
analysis and determinations on the scope of cleanup and damages: the
Polish draft does not incorporate the vast majority of this language,
notably anything that tempers the cost to the operator.
The Polish draft preserves the joint and several liability standard
used under existing Polish law in these cases, but does not provide any
opportunity for the party singled out to join other liable parties or
seek contribution. So the party tagged by the government, who may not
even be the most at fault, can get hit with the entire bill. We are
working on provisions that would assure that “all polluters pay” under
the broad principles of EU policies.
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While the Directive sets out several protections for the rights of the
operators, the Polish draft largely ignores these provisions, even
suggesting that decisions could be made on third-party complains to the
government before notification of the operator.
Finally, on the difficult issue of providing a financial assurance
mechanism and promoting environmental insurance for these risks, the
Polish draft simply leaves the issue to the Ministry to include in
future rules. We think that this is unacceptable and important policies
such as this should be in the statute itself. Recent studies show that
the market is not developed enough to make insurance compulsory (the UK
Environmental Minister publicly indicated this in May), although steps
can be taken to help the market evolve to assure risk pooling and broad
insurance availability in the future.
The Environmental Committee will be meeting regularly on this issue and
will also start briefings on other key EU Environmental Directives and
Polish national environmental programs.
Randy Mott is Senior Environmental Consultant at CEC Government
Relations, Warsaw. He has worked in the environmental field in the US
and Europe for over 28 years. |
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