Contaminated Land Law: Poland's Expensive Experiment
Contaminated Land Law: Poland's Expensive Experiment
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News Poland
by Randall M. Mott
POLAND’S CONTAMINATED LAND LAW: SYNOPSIS & ISSUES
Poland was required to adopt many environmental requirements from the European Union as a condition of being admitted last year, but one of the most onerous and costly environmental laws recently going into effect was a national choice unrelated to EU requirements, the Contaminated Land Law. 2/ This law now requires the owner of land to “remediate” any contamination found on the property. If the landowner can show that the contamination was entirely the result of another party’s actions, then that party is also liable for remediation. Landowners were required to notify the starost where contamination pre-dated the act and “was caused by another entity” by June 30, 2004. Article 12. If the Starost concludes that this occurred in a formal decision, then the liability under Article 102, sections 1 through 3 shall not apply. This was a onetime chance to get a pass of the remedial obligations of the law. Presumably the party causing the contamination may still be liable under Article 102. Decisions rejecting any application under Article 12 were due to be completed by June 30, 2005.
The Starost has other responsibilities under the law, including to prepare decisions on cleanup and their costs, to actually perform cleanup if the responsible party cannot get access to the land, and to take emergency actions where “irreversible damage to the environment” requires immediate action. The law authorizes the Starost to require sampling by the liable party. Where the Starost conducts the cleanup, the law also requires the landowner to provide access. The obligations of the Starost to “conduct periodic testing of the quality of soil and earth” seem a little broad and are not tied to any specific sites. This may be intended, since the statute requires a Starost registry of areas where the quality standards are exceeded. Starost remedial actions are to be scheduled and cleared by the Powiat enviornmental protection program.
Contamination of the land shall be restored to “quality standards” set by the Ministry of Environmental Protection. “The quality standard shall set out the concentration of certain substances in the soil or earth below which none of the functions served by the land surface is impaired.” A key provision that narrows the cleanup scope provides that the intended functions by “actual development and land use” or the “results from a land-use plan.” The quality standards themselves are also to take into account the type of land “according to the criteria of their current or planned functions. The standards should also differentiate based on “water permeability and depth.” In requiring that the test reference methods be specified in the rules, the law also requires specification of the methods for “modeling the migration of substances in soil and earth.” This is normally a technique used to conduct risk assessments, which will have to be used for land contaminated before September 30, 1980 under the “grandfather” clause of the law. For these sites, the remediation may be limited to actions needed to prevent either “(1) a threat to human life or health or the origination of other damages” or “(2) the possibility of the pollution’s spreading.” The question logically arises as to why remediation under the rest of the Act is necessary if there is no threat to human health and the pollution cannot possibly spread.
The regulations on the quality standards were published on September 9, 2002. See Minister of Environment Regulations on Soil and Sub-Soil Quality Standards of 9 September 2002. They divide land use into three categories: protected areas under environmental or water resource laws, agricultural land, and industrial property. Different numbers are used for each compound or group of compounds based on the soil permeability and depth. A sobering fact in the rules is the depth goes down to 15 meters. The numbers are generally higher in most cases for industrial property compared to U.S. and other countries’ guidelines.However, there are no attenuation factors or risk considerations or apparent basis for more flexible adjustments due to specific site conditions. This rigidity makes these rules more extreme than anywhere else in the EU. The existence of this regulatory approach has already had significant negative effects on new investment projects in Poland. The Polish law is clearly more rigid, costly and inflexible than any other Central European country’s rules.
Similar early rules in the United States and Holland led to the near abandonment of investment in heavily industrialized areas. Buyers simply avoided acquiring land where cleanup problems could lead to very substantial expenditures unrelated to their core business investment. Virtually all states have moved toward risk-based standards and followed the U.S. EPA Brownfields Initiative.” The U.S. EPA website has considerable information that may be useful to groups interested in this approach in Poland, where it seems to clearly make even more sense than in the United States. See http://www.epa.gov/brownfields.
Although the European Union has no retroactive environmental cleanup law, it does have an Environmental Liability Directive that has prospective application. The Directive is also mandatory for member states to implement by 2007 and it specifically requires risk-assessment be used for clean-up decisions:
“For the purposes of assessing damage to land as defined in this Directive the use of risk assessment procedures to determine to what extent human health is likely to be adversely affected is desirable.” Findings, par. 7, Directive 2004/35/CE
Technical groups working on the EU program have found that “risk based decision making is the best available paradigm for dealing with the problems posed by land contamination.” The Danish EPA web-site in discussing Poland’s contaminated land notes: “Land contamination per se does not always pose a threat to the environment, and the importance of the contamination can only be determined following detailed investigation and site specific evaluation of risks.”
Besides the unnecessary additional economic burdens that it places on the Polish economy, there are important practical reasons for changing that provision of the law. First, Poland will have to develop the risk assessment expertise to make decisions for pre-1980 contamination in any event. Second, Poland will have to use EU-approved risk assessment techniques under the EU Directive on Environmental Liability as well by April 30, 2007.
Anyone looking at this law will immediately see some practical issues that cannot be overlooked. The cost of sampling for these compounds in any investigation will be quite significant. The role assigned to the Starost authorities is quite unrealistic. And many legal issues also arise because of very limited statutory guidance. While a landowner who can prove he contamination predated the law might convince the Starost of this fact, when the same landowner digs a new foundation or utility-line and re-deposits the contaminated soil then it can be argued that it is new contamination caused by the landowner after the date of the law. What other parties will be deemed as “causing” the contamination? If the landowner notified for an exemption, but the other parties involved in causing the contamination did not (a tenant, a waste producer, a waste transporter), are all parties exempt? If the landowner is exempt under the Contaminated Land Law, will he face liability under the Waste Law, since EU law currently defines contaminated soil as a waste? 3/ How can a company prove that the contamination was done entirely before September 1980 [analytical testing of samples will not produce this information]? If the contamination was pre-1980, when will the Starost be justified in alleging that there is a health threat or a real risk of migration? How will contractual provisions between the parties affect their statutory liability? What will insurance cover on this loss? What impact does in have on property used at collateral for loans?
These issues are all beyond the scope of this article, but they will need answers. And the answers may not come quickly or without some substantial litigation over the meaning and impact of the law. Hopefully, the business coalition being organized to amend the law can address many of these problems in the near future with revisions by the legislature to make the Polish rules more consistent with the EU practices.
Randall Mott
1/ Mr. Mott is an attorney/consultant affiliated with Kalwas and Partners, Warsaw, Poland and has been active in hazardous waste matters since 1978.
All rights reserved @.
2/ Environmental Protection Act of 27 April 2001 (the „EPA”); The Act on the Entry into Force of the EPA and the Waste Act of 27 July 2001 ( the „Transitional Act”); Minister of Environment Regulations on Soil and Sub-Soil Quality Standards of 9 September 2002.
3/ See European Court of Justice, Van de Walle et al. Case C 1/03, September 7, 2004 (sustaining a criminal claim for “disposal” of oil-contaminated soil from service station accidentally leaking tank even if it was not excavated). This extreme result is an issue now being addressed by the European Commission for possible changes.
News Poland
by Randall M. Mott
POLAND’S CONTAMINATED LAND LAW: SYNOPSIS & ISSUES
Poland was required to adopt many environmental requirements from the European Union as a condition of being admitted last year, but one of the most onerous and costly environmental laws recently going into effect was a national choice unrelated to EU requirements, the Contaminated Land Law. 2/ This law now requires the owner of land to “remediate” any contamination found on the property. If the landowner can show that the contamination was entirely the result of another party’s actions, then that party is also liable for remediation. Landowners were required to notify the starost where contamination pre-dated the act and “was caused by another entity” by June 30, 2004. Article 12. If the Starost concludes that this occurred in a formal decision, then the liability under Article 102, sections 1 through 3 shall not apply. This was a onetime chance to get a pass of the remedial obligations of the law. Presumably the party causing the contamination may still be liable under Article 102. Decisions rejecting any application under Article 12 were due to be completed by June 30, 2005.
The Starost has other responsibilities under the law, including to prepare decisions on cleanup and their costs, to actually perform cleanup if the responsible party cannot get access to the land, and to take emergency actions where “irreversible damage to the environment” requires immediate action. The law authorizes the Starost to require sampling by the liable party. Where the Starost conducts the cleanup, the law also requires the landowner to provide access. The obligations of the Starost to “conduct periodic testing of the quality of soil and earth” seem a little broad and are not tied to any specific sites. This may be intended, since the statute requires a Starost registry of areas where the quality standards are exceeded. Starost remedial actions are to be scheduled and cleared by the Powiat enviornmental protection program.
Contamination of the land shall be restored to “quality standards” set by the Ministry of Environmental Protection. “The quality standard shall set out the concentration of certain substances in the soil or earth below which none of the functions served by the land surface is impaired.” A key provision that narrows the cleanup scope provides that the intended functions by “actual development and land use” or the “results from a land-use plan.” The quality standards themselves are also to take into account the type of land “according to the criteria of their current or planned functions. The standards should also differentiate based on “water permeability and depth.” In requiring that the test reference methods be specified in the rules, the law also requires specification of the methods for “modeling the migration of substances in soil and earth.” This is normally a technique used to conduct risk assessments, which will have to be used for land contaminated before September 30, 1980 under the “grandfather” clause of the law. For these sites, the remediation may be limited to actions needed to prevent either “(1) a threat to human life or health or the origination of other damages” or “(2) the possibility of the pollution’s spreading.” The question logically arises as to why remediation under the rest of the Act is necessary if there is no threat to human health and the pollution cannot possibly spread.
The regulations on the quality standards were published on September 9, 2002. See Minister of Environment Regulations on Soil and Sub-Soil Quality Standards of 9 September 2002. They divide land use into three categories: protected areas under environmental or water resource laws, agricultural land, and industrial property. Different numbers are used for each compound or group of compounds based on the soil permeability and depth. A sobering fact in the rules is the depth goes down to 15 meters. The numbers are generally higher in most cases for industrial property compared to U.S. and other countries’ guidelines.However, there are no attenuation factors or risk considerations or apparent basis for more flexible adjustments due to specific site conditions. This rigidity makes these rules more extreme than anywhere else in the EU. The existence of this regulatory approach has already had significant negative effects on new investment projects in Poland. The Polish law is clearly more rigid, costly and inflexible than any other Central European country’s rules.
Similar early rules in the United States and Holland led to the near abandonment of investment in heavily industrialized areas. Buyers simply avoided acquiring land where cleanup problems could lead to very substantial expenditures unrelated to their core business investment. Virtually all states have moved toward risk-based standards and followed the U.S. EPA Brownfields Initiative.” The U.S. EPA website has considerable information that may be useful to groups interested in this approach in Poland, where it seems to clearly make even more sense than in the United States. See http://www.epa.gov/brownfields.
Although the European Union has no retroactive environmental cleanup law, it does have an Environmental Liability Directive that has prospective application. The Directive is also mandatory for member states to implement by 2007 and it specifically requires risk-assessment be used for clean-up decisions:
“For the purposes of assessing damage to land as defined in this Directive the use of risk assessment procedures to determine to what extent human health is likely to be adversely affected is desirable.” Findings, par. 7, Directive 2004/35/CE
Technical groups working on the EU program have found that “risk based decision making is the best available paradigm for dealing with the problems posed by land contamination.” The Danish EPA web-site in discussing Poland’s contaminated land notes: “Land contamination per se does not always pose a threat to the environment, and the importance of the contamination can only be determined following detailed investigation and site specific evaluation of risks.”
Besides the unnecessary additional economic burdens that it places on the Polish economy, there are important practical reasons for changing that provision of the law. First, Poland will have to develop the risk assessment expertise to make decisions for pre-1980 contamination in any event. Second, Poland will have to use EU-approved risk assessment techniques under the EU Directive on Environmental Liability as well by April 30, 2007.
Anyone looking at this law will immediately see some practical issues that cannot be overlooked. The cost of sampling for these compounds in any investigation will be quite significant. The role assigned to the Starost authorities is quite unrealistic. And many legal issues also arise because of very limited statutory guidance. While a landowner who can prove he contamination predated the law might convince the Starost of this fact, when the same landowner digs a new foundation or utility-line and re-deposits the contaminated soil then it can be argued that it is new contamination caused by the landowner after the date of the law. What other parties will be deemed as “causing” the contamination? If the landowner notified for an exemption, but the other parties involved in causing the contamination did not (a tenant, a waste producer, a waste transporter), are all parties exempt? If the landowner is exempt under the Contaminated Land Law, will he face liability under the Waste Law, since EU law currently defines contaminated soil as a waste? 3/ How can a company prove that the contamination was done entirely before September 1980 [analytical testing of samples will not produce this information]? If the contamination was pre-1980, when will the Starost be justified in alleging that there is a health threat or a real risk of migration? How will contractual provisions between the parties affect their statutory liability? What will insurance cover on this loss? What impact does in have on property used at collateral for loans?
These issues are all beyond the scope of this article, but they will need answers. And the answers may not come quickly or without some substantial litigation over the meaning and impact of the law. Hopefully, the business coalition being organized to amend the law can address many of these problems in the near future with revisions by the legislature to make the Polish rules more consistent with the EU practices.
Randall Mott
1/ Mr. Mott is an attorney/consultant affiliated with Kalwas and Partners, Warsaw, Poland and has been active in hazardous waste matters since 1978.
All rights reserved @.
2/ Environmental Protection Act of 27 April 2001 (the „EPA”); The Act on the Entry into Force of the EPA and the Waste Act of 27 July 2001 ( the „Transitional Act”); Minister of Environment Regulations on Soil and Sub-Soil Quality Standards of 9 September 2002.
3/ See European Court of Justice, Van de Walle et al. Case C 1/03, September 7, 2004 (sustaining a criminal claim for “disposal” of oil-contaminated soil from service station accidentally leaking tank even if it was not excavated). This extreme result is an issue now being addressed by the European Commission for possible changes.
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