regulatory framework for soil protection in europe and future developments

COMMON FORUM on Contaminated land in the European Union

Regulatory Framework for Soil Protectionin Europe and Future Developments

D. DARMENDRAIL

September 2011


Water Framework

Directive

EnvironmentalLiabilityDirective

Strategy Urban

Environments

IPPC / IED Directives

Structural Funds

Strategy on sustainable

use of resources

SoilFrameworkDirective

GroundWater

Directive

ContaminatedSites

GuidelinesFor

State-aid

WasteFrameworkDirective

Strategy on waste

prevention and recycling

LandfillDirective

Regulatory environment at European level

RenewableEnergies Directive

REACH?

COMMON FORUM on Contaminated land in the European UnionEddy Van Dyck

EU Thematic strategy on Soil ProtectionSoil threats covered

sealing

organic matter decline

salinisation

contamination

erosion

compaction

landslides


• 4 pillars:– (1) framework legislation with protection and

sustainable use of soil as its principal aim;• Soil Protection Directive – Draft• Environmental Liability Directive – Implementation phase

– (2) integration of soil protection into other policies• Revision of the Sewage Sludge Directive, the IPPC / IED

Directive, the Waste Framework Directive• Soil Provisions in the Renewable Energies Directive• Biodiversity, Climat Change, Rural development Plans, etc.

– (3) closing the recognised knowledge gap by Community and national research programmes;

– (4) increasing public awareness of the need to protect soil

the Soil Protection Strategy


Draft Soil Protection Directive /The Inter-institutional debate

• Commission Proposal in April 2007• Favourable opinions:

– Committee of the Regions, February 2007– European Economic and Social Committee, April 2007– European Parliament : Adoption in November 2007, with

amendments providing more flexibility in some provisions and strenghtening others

• Portuguese Presidency:– Substantial changes for trying to find a compromise– No Political agreement on the Ministers Council the 20

December 2007 - Blocking minority formed by Austria, France, Germany, Netherlands and United Kingdom


Blocking Minority MS Statements

• Experienced countries having yet a National Approach, intregrated in other policies (water, health, IPPC, food, …)– Austria: Soil contamination treated on a different way,

problems on costs (related to AppendixII)– France: problem on methodology and goals (too much

emphasis on inventory and too little on prioritisation and remediation)

– Germany: concern on several chapters, but mainly on Contamination; needs of common agreement on goals to be reached, evolving process necessary

– Netherlands: needs on all threats, but at appropriate levels, difficulties for implementing EU legislation, bad timing,

– United Kingdom: needs of Proportionnality, too time and costs consuming, focus on specific issues that are not necessarly priorities


Second part of the discussion• Not at the Slovenian Presidency• French Presidency / new proposal:

– Different objectives, New methodology

• Czech Presidency:– Intense discussions but No Proposal for a vote at the

June European Council (risk for a new blocking minority – Same Five + Malta)

• Nothing under the Swedish Presidency• Spain Presidency:

– Start from Portuguese proposal– COREPER March 2010: 6 against, 4 in middle (Sweden,

Finland, Poland and Romania)– Bilateral discussions between Spain/EC and three no-

countries: France, Germany and Netherlands


Second part of the discussion

• Not at the Agenda of the Belgian and Hungarian Presidencies

• Polish Presidency: – low level of interest– Conference « Soil and Agriculture », Brussels, 21

September 2011– Waiting for « positive hints » from NO Countries

• The Common Forum Initiative


• 4 pillars:– (1) framework legislation with protection and

sustainable use of soil as its principal aim;• Soil Protection Directive – Draft• Environmental Liability Directive – Implementation phase

– (2) integration of soil protection into other policies• Revision of the Sewage Sludge Directive, the IPPC / IED

Directive, the Waste Framework Directive• Soil Provisions in the Renewable Energies Directive• Biodiversity, Climat Change, Rural development Plans, etc.

– (3) closing the recognised knowledge gap by Community and national research programmes;

– (4) increasing public awareness of the need to protect soil

the Soil Protection Strategy


Brief recap of ELD / Content• Targets : surface water, groundwater, endangered species,

protected habitats, soil (only in case damage is a danger to human health)

• Activities of concern : – (1) IPPC-installations, – (2) discharges of dangerous substances to water and air, – (3) transport of dangerous substances, – (4) waste management activities, – (5) processing, storing, transport (on own land) of dangerous substances,– (6) use and discharges of GMO’s – = STRICT LIABILITY vis-à-vis all targets

• Other activities : = FAULT LIABILITY vis-à-vis endangered species and protected habitats

• Directive only applicable to damages caused after date of entry into force (20/04/2007)


Brief recap of ELD / Current situation

•Around 50 Court Cases in Europe• Most linked to soil and Water Damages

•EC Report on the challenges of the ELD issues• harmonization needed, • financial provisions.• Proposal for extending to marine environment


• New industrial activities covered (20-50 MW combustion plants, wood production, …)

• Revision of emission limits: Stricter limits for nitrogen oxides and sulphur dioxide (by 2016)

• Transitional national plans for large combustion plans (including fossil fuel power stations, waste incineration plants, waste co-incineration plants) by July 2020 to meet the rules

• To receive a permit, installations covered by IPPC rules must apply “Best Available Techniques” (BATs) to optimise their all-round environmental performance.

• Emissions to air, soil or water, as well as noise and safety are all considered

• New Site closure and remediation procedures

• Better administrative control / integration

Main Changes in the Industrial Emissions Directive (IPPC recast)


Article 12 / Baseline report

• where activity involves use, production or release of relevant hazardous substances and having regard to the possibility of soil and groundwater contamination

• before starting operation of an installation or before a permit of installation is updated for the first time

• available existing information on soil and groundwater measurements or new soil and groundwater measurements– The EC shall establish guidance on the content– ‘initial state’? When starting? When updating?– <-> Soil Status Report of the Soil Protection Directive proposal


Article 16 / Monitoring

• Periodic monitoring– periodic monitoring not for all installations, for

dangerous substances likely to be found …; – frequency of at least every 5 years (GW), 10 years

(soils)• Monitoring of soil and groundwater and BREF-

documents– How to tackle monitoring of soil and groundwater

and remediation of the site in BREF-documents?– Substantial incremental?

• + monitoring of IPPC plant integrity


Article 22 – Site closure Installations with Baseline Report

– upon definite cessation, state of soil and groundwater contamination must be assessed

– significant pollution compared to base line report, measures to return the site to state of base line report

– technical feasibility may be taken in to account– significant risk to human health or environment as

result of permitted activities carried out before first update of the permit; measures must be taken so that contamination ceases to pose such a risk

• Remediation to baseline• And if baseline is not enough, additional measures

based on risk approach.


Article 22 / Site Closure

• Remediation to initial state from baseline report– zero-tolerance as a principle– how to deal with small elevation of concentrations

not reaching remediation standards?– what with update of a permit?– only risk approach when baseline report wasn’t

necessary– Art. 23.4: does this imply that all operators have

to conduct a soil investigation at definitive cessation?


Article 22 – Site Closure / Installations without Baseline Report

– upon definite cessation, necessary measures must be taken so that the site ceases to pose a significant risk to human health or the environment due to the contamination of soil and groundwater as a result of the permitted activities

• Risk based approach• For the substances of relevance!


Revised Waste directive / Soil related issues

• Revision of waste directive December 2008. – National transposition before end of 2010

• According to Article 2 (Scope) para 1 subpara (b) unexcavated contaminated soil is excluded from the scope of WFD.

• According to the subpara (c) uncontaminated soil excavated in the course of construction activities where it is certain that the material will be used for the purpose of construction in its natural state on the site which it was excavated is also excluded from the scope. – BUT what if it is reused somewhere else?

• It is either waste - permit / notification needed for the reuse• Or not - if no waste status


• For Excavated uncontaminated soil used elsewhere:

• It is in principal waste – Permit or simplified notification is needed for the reuse

• Or not – if no waste status– Waste or non-waste status has to be defined

New waste directive / Soil related issues


• The permit requirement (article 23)– Establishment or undertaking intending to carry out

waste treatment (includes recovery) shall obtain a permit from the competent authority

• Rather heavy instrument for clean soil!

• ”professional” reuse – large quantities => permit• ”private” reuse - small quantities => case by case –

assessment, no permit requirement?• local general provisions instead?

New waste directive / Soil related issues


Directive on wastes from extractive industry (2006/21/EC)

• Article 3 – definitions (inert waste, unpolluted soil)

– Unpolluted soil: ”soil that is removed from the upper layer of the ground during extractive activities and that is not deemed to be polluted under the national law of the MS where the site is located or under Community law.”

– Criteria for ”inert waste” was given in comitology procedure (TAC-comittee) in 2009


Inert waste definition (2009)

• If they fulfilled in both the short and the long term:• (a) the waste will not undergo any significant disintegration or dissolution or

other significant change likely to cause any adverse environmental effect or harm human health;

• (b) the waste has a maximum content of sulphide sulphur of 0,1 %, or the waste has a maximum content of sulphide sulphur of 1 % and the neutralising potential ratio, defined as the ratio between the neutralising potential and the acid potential, and determined on the basis of a static test prEN 15875 is greater than 3;

• (c) the waste presents no risk of self-combustion and will not burn;• (d) the content of substances potentially harmful to the environment or

human health in the waste, and in particular As, Cd, Co, Cr, Cu, Hg, Mo, Ni, Pb, V and Zn, including in any fine particles alone of the waste, is sufficiently low to be of insignificant human and ecological risk, They shall not exceed national threshold values for sites identified as not contaminated or relevant national natural background levels;

• (e) the waste is substantially free of products used in extraction or processing that could harm the environment or human health.


Calculating GHG emissions savings (Annex V)Bonus (29 gCO2eq/MJ) if the land:

(a) was not in use for agriculture or any other activity (b) falls into one of the following categories:

(i) severely degraded land, including such land that was formerly in agricultural use;

(ii) heavily contaminated land

SUSTAINABILITY CRITERIA FOR BIOFUELS

Directive 2009/28/EC


Rules for calculating GHG emissions savings (Annex V)

‘heavily contaminated land’ means land that is unfit for the cultivation of food and feed due to soil contamination.

Bonus applies for up to 10 years provided that• […] that soil contamination for land is reduced

Commission to make a proposal by March 2010 for criteria to define heavily contaminated land under the Renewable Energy Directive

SUSTAINABILITY CRITERIA FOR BIOFUELS

Directive 2009/28/EC


The needs for geochemical mapping

• For defining what is :– An unpolluted soil– an Inert waste– A resource (raw material, Soil/water) in line with the Resource Efficiency

Communication– A contaminated area

• To set a sustainable risk based land use (for all threats)– To conduct reliable Human Health and Ecosystems risk assessment on

contaminated areas– To establish what should be remediated (and then how to do so)

• To identify vulnerable areas to other threats:– Salinization, acidification

• To Monitor the trends ( for IED, ELD)


Concluding remarks

• Different pieces of legislation, with different basic principles (hazards for waste, risks for soils)

• Need of real integration for more sustainability

• Real need for technical work for transposition

– Definitions, monitoring, etc.

• Use the Sustainable Risk based Land Management concept for developing land / soil regulations


Thanks my CF network colleagues from their contribution on this legal framework assessment !


• Thanks for your attention!

• More information on www.commonforum.eu

regulatory framework for soil protection in europe and future developments

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