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INTERSOL 2008 La réglementation Européenne de la
Responsabilité Environmentale Exemple
dApplication en Allemagne concernant les Sites
Pollués
The European Environmental Responsibility
Regulation Example for Application in Germany
concerning Contaminated Sites Stefanie
Beste Hoffmann Liebs Fritsch Partner
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European Environmental Responsibility Regulation

• consisting of
• European Environmental Liability Directive
• 2004/34/EC
• implemented
• in Germany as
• Umweltschadensgesetz
• (Act on Environmental Damages)
• 14 November 2007

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German Soil Protection Law

• Federal Soil Protection Act
• (Bundesbodenschutzgesetz BBodSchG)

Statutory Order on Soil Protection
(BundesbodenschutzV) Technical Bylaws
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Soil Protection Act Scope of Protection

• Soil, 2 (1)
• Upper layer of the earths crust, in so far as
  the layer carries out soil functions
• Soil functions, 2 (2)
• Natural functions
• Functions as an archive of natural and cultural
  history
• Functions useful to man

• Protection against
• Harmful soil changes, 2 C(3)
• Residual Pollution, 2 (5)

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Case Study German Soil Protection Law
Lessee AGLegal Successor
Purchased 1976
Purchase of site 30 January 2001
Lessee GmbH Lessee until 1970 of industrial site
Lease contract 01.01.1950 - 31.12.1970
FO Former Owner
O Owner
Industrial Site CHC-Contamination
Parent Company PC of O
Administration (Mrs. Clearwater)
Mrs. Clearwater asks Who is liable?
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Soil Protection Act - Responsible Parties

• Who can be held liable by the authorities ?
• Polluter (polluter pays-principle) disturber
  by conduct
• Legal Successor of polluter (to the extent a
  legal obligation to avoid pollution already
  existed at the time of the legal succession)
• Owner of the contaminated land disturber in
  fact
• Party who exercises actual physical control over
  the land harbouring residual pollution (e.g. the
  lessee) disturber in fact
• Former owner in case transfer of property took
  place after 01.03.1999
• Parent company responsibility on the basis of
  commercial and company law (lifting the
  corporate veil)
• Former owner who is responsible for dereliction
  of contaminated land

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Soil Protection Act - Scope of Responsibility

• Investigation and Examination of potential
  contamination in case of initial suspicion
• Safety Precautions in case pollution has already
  occurred (prevention of harmful substances from
  seeping into the soil or the prevention of
  polluted ground water flowing onwards)
• Remediation (removal of the threat posed)Type
  and scope of the remediation are determined by
  competent authorities. The authorities have to
  take into account the permissible use of the land
  
• remediation requirements for industrial areas
  may be lower than those for residential areas

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Soil Protection Act - Application in time

• No statute of limitations!
• In principle, the party responsible can be
  called to account by the competent authority for
  an unlimited period of time.
• The liability scheme of the Soil Protection Act
  applies retroactively to contaminations generated
  a long time before the Soil Protection Act became
  effective if and to the extent contemporary
  public law provisions prohibiting soil or
  groundwater pollution already existed at the time
  the pollution occurred.

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European Environmental Responsibility Regulation

• Responsibility
• for soil damage
• under the
• European Environmental Liability Directive
• and its German act of implementation
• Umweltschadensgesetz USchadG
• (Act on Environmental Damages)

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Scope of Umweltschadensgesetz

• The USchadG regulates solely responsibility
  under public law!
• It does not provide for
• Civil Law claims for damages or indemnification
  (no compensation for personal damages, damage to
  property or economic losses).
• Administrative offences including
  administrative fines in case of violation
  (unlike for instance other Environmental Law
  Acts such as the Water Protection Act
  (Wasserhaushaltsgesetz), Soil Protection Act
  (Bundesbodenschutzgesetz) or Federal
  Immission Control Act (Bundesimmissionsschutzge
  setz).

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Umweltschadensgesetz

• Scope of Protection

• Damage to protected species and natural habits
  pursuant to (new) 21a Federal Nature Protection
  Act (Bundesnaturschutzgesetz)
• Water damage pursuant to (new) 22a Water
  Protection Act (Wasserhaushaltsgesetz)
• Soil damage Adverse effects on the soils
  functions pursuant to 2 (2) Soil Protection
  Act (Bundesbodenschutzgesetz) which additionally
  creates a significant risk for human health
• Notice USchadG only provides guidelines for
  liability!
• For more detailed provisions it refers to
  already existing Environmental Law Acts

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Umweltschadensgesetz - Responsible Person

• Polluter-Pays-Principle
• Operator means any natural or legal, private or
  public person who operates or controls the
  occupational activity or 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.
• (USchadG 2 (3))
• Every person competent to make important
  decisions (for instance managing directors can
  directly be held liable under USchadG even
  after having left the liable company

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Umweltschadensgesetz - Responsible Person

• Polluter-Pays-Principle
• Occupational Activities which may trigger a
  liability (in the event they cause a soil damage)
  are enumerated in Annex 1 of Umweltschadensgesetz
  
• Operational activities requiring a permit under
  Federal Immission Control Act (ICPC-
  Installations)
• Waste handling and disposal
• Discharge of hazardous substances into water
  bodies
• Handling of hazardous substances

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Umweltschadensgesetz- Scope of Responsibility

• Information, 4
• In case of imminent threat of soil damage, the
  responsible operator is obliged to inform the
  authorities without delay!Information should
  contain all relevant facts and circumstances so
  that the competent authority is in a position to
  take the appropriate action.

Duty to inform Right to remain silent ?
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Umweltschadensgesetz - Scope of Liability

• Obligation to ward off imminent threats of
  damage, 5
• Remediation, 6
• If environmental damage has been caused, the
  responsible party must take the necessary steps
  of limit remediate damage
• The principle of proportionality must be applied
  when determining the necessary remediation
  measures
• The necessary measures are taken pursuant to the
  relevant legislator/regulatory provisions (soil
  remediation Soil Protection Act Ordinance on
  Soil Protection

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Umweltschadensgesetz - Scope of Responsibility

• Remediation of land damage
• The necessary remediation measures shall be
  taken to ensure, as a minimum, that the relevant
  contaminants are removed, controlled, contained
  or diminished so that the contaminated land,
  taken account of its current use or approved
  future use at the time of the damage, no longer
  poses any significant risk of adversely affecting
  human health.
• (Annex 2, no 2 Environmental Liability
  Directive)
• USchadG simply refers to already existing soil
  protection provisions

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Umweltschadensgesetz - Repartition of Costs

• Costs relating to measures for mitigation
  remediation, 9
• Main principle
• Costs must be born by the responsible party
• The States must fix rules for reimbursement of
  costs by administrative authorities
• Repartition of costs under civil law when several
  responsible parties are involved, 9
  (2)(comparable to 24 (2) Soil Protection
  Act)Advice for contract drafting
• Exclusion of claims under 24 (2) Soil
  Protection Act and 9 (2) USchadG

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Umweltschadensgesetz Repartition of costs

• Costs for mitigation remediation measures, 9
• Optional regulations concerning cost exemptions
  (to be implemented by the States)
• The responsible party does not have to bear the
  costs in case of
• Operations compliant with operating licence (so
  called permit defence)
• Operations compliant with state of the art
• Particular allowance for use of plant protection
  agents in agriculture

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Umweltschadensgesetz - Participation of Third
Parties

• Request for action by third parties, 10
• Right to request that the authorities take action
  to enforce obligations to remediate
• Precondition To credibly demonstrate that
  environmental damage or an imminent risk of
  such has occurred
• Beneficiary Concerned third parties or
  environmental interest groups pursuant to 3
  Act on Environmental Legal Actions
• Legal Protection Right to file an action against
  authorities in case of failure or faultive
  enforcement of requirements under USchadG

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Umweltschadensgesetz - Application in Time

• Limitation of liability, 14
• USchadG neither applies to damage caused by
  emissions, events or incidents that took place
  before the date of enforcement (14.11.2007), nor
  to damage caused by emissions, events or
  incidents occurring after 14.11.2007 when such
  damages arises from a specific activity that took
  place and finished before 14.11.2007
• Liability claims under USchadG become time-barred
  in 30 years since the emission, event or incident
  resulting in the damage occurred

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Case Study
Lessee AGLegal Successor
Purchased 1976
Purchase of site 30 January 2001
Lessee GmbH Lessee until 1970 of industrial site
Lease contract 01.01.1950 - 31.12.1970
FO Former Owner
O Owner
Industrial Site CHC-Contamination
Parent Company PC of O
Administration (Mrs. Clearwater)
Mrs. Clearwater asks Who is liable?
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Umweltschadensgesetz Soil Protection Act

• Comparison Scope of Protection and Responsible
  Parties

Umweltschadensgesetz Soil Protection Act
Damage to soil (and its functions) which has an adverse effect on human health or creates a risk of such an adverse effect Damage to soil and its functions Harmful soil changes Residual pollution
Polluter Polluter Legal Successor of polluter Owner Former owner Party exercising physical control Parent company
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New Impulses by European Environmental Liability
Law

• New rules for contaminated sites via the
  Umweltschadensgesetz
• Obligation to inform authorities in case of
  pollution or risk of such
• Polluter-pays-principle (in spite of the fact
  that the authorities tend to oblige the
  disturber in fact (owner) of the contaminated
  site)
• Further civil law claims for compensation are
  possible if several liable parties 9 (2) USchadG
• Legally compliant action is no excuse ( some
  regional laws may exonerate from payment)
• Extension of participation by the public
• Environmental interest groups have the right to
  bring action, in order that the authorities be
  forced to act by the courts

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