The Big 4 (and some other things)

1. The Big 4 (and some other things) Contaminated Land and Brownfield Remediation Kathy Mylrea, CMS Cameron McKenna LLP

2. The Big 4 – Water Framework and Groundwater, Waste Framework, ELD, Soil Framework

3. Water Framework Directive – 2000/60/EU • Where are we with implementation? • December 2009 – programmes of measures for each river basin district to deliver the environmental objectives (good chemical an ecological status by 2015) • Programmes of measures to be reviewed in 2012

4. Groundwater Directive – 2006/118/EC • Daughter directive to the Water Framework Directive • UK Regulations to implement to follow on from last year’s consultation • Basic obligations to protect or limit the input of pollutants into groundwater • Coupled with Water Framework Directive requires member states to protect, enhance and restore groundwaters to good status • Note that Part 2A still does not have a “significance” element in the water pollution limb of the definition of “contaminated land”.

5. Soil Framework Directive • December 2007 stalemate • Soil protection in the widest sense • Erosion • Organic matter decline • Compaction • Salinisation • Landslides • Contaminated Land provisions • Obligation to prevent further contamination • Inventory of contaminated sites • Soil status reports when sties sold • Limiting or mitigating effect of sealing land

6. Soil Framework Directive • Cost and overlap with existing contaminated land regimes • Anticipated that Spanish presidency will make Directive a priority – although not for the contaminated land provisions • DEFRA well aware and prepared for this • “Safeguarding our Soils: A Strategy for England” released 24 September 2009 outlines some “new” actions Defra will be taking to achieve the vision of all England’s soils being managed sustainably and degradation threats tackled successfully by 2030

7. Environmental Liability Directive and Environmental Damage(Prevention and Remediation ) Regulations 20009 • Apply to damage that occurs after the Regulations come into force – I March 2009 • Not retrospective • No fault liability for Schedule 2 operators – includes activities requiring an EP • Fault based liability for damage to SSSI’s or EU species or habitats for all others • Primarily a remediation regime rather than a compensation regime

8. ELD/EDR • Environmental Damage • Biodiversity – significant adverse effect on conservation status of EU species or habitats or adverse effect on integrity of an SSSI • Water – adverse effect sufficient to lower status under Water Framework Directive • Land – contamination causing significant risk of adverse effect on human health • Imminent threat of or actual environmental damage requires immediate action by operator including notification of enforcing authority

9. ELD/EDR • Joint and several liability approach taken by UK is familiar from Part 2A • Deciding on remediation to be undertaken is more collaborative than has been the case • Financial security reports to the Commission under the ELD due in April 2010 – future mandatory requirement for financial provision? • Role of NGO’s in deciding on remediation and securing it

10. Waste Framework Directive – 2008/98/EU • To be implemented in Member States by 12 December 2010 • Doesn’t change the fundamental definition of waste which has caused all the trouble – the intention to discard test • Note recent Divisional Court decision in EA V. Inglenorth • Does address the “contaminated soil not yet dug up, Van de Walle issue”

11. Waste Framework Directive • Prospect of EU wide enforcement body being discussed • Currently in consultation in England and Wales until 9 October 2009 along with proposed strategy for Hazardous Waste Management • Key on waste issues will be the exemption and permitting decisions dealing with contaminated land

12. The Claimants appearing on the Register of the Corby Group Litigation and Corby District Council, [2009]EWHC 1944 (TCC) • Causation • Statistically significant cluster of birth defects between 1986-1999 • Involved airborne contaminants which could conceivably have resulted in the birth defects • Standard of Proof in civil claims • Group Litigation Issues

13. Corby • Council Negligence • “extensively negligent” in approach to remediation • Best practice/good practice/bad practice • Large scale removal, basic errors, transport

14. Corby Knock on Effects • Review of past dig and dump remediation – local authority and private • Impact on resident liaison at ongoing remediation sites • Further impetus for on-site remediation? Possibly but same arguments apply to other exposure pathways

15. Sandridge • SoS Decision Letter – July 2009 • SoS dismissed appeals by Redland Minerals Ltd (original operator of site) and Crest Nicholson Residential plc (subsequent residential developer) • Judicial Review

16. Sandridge • SoS modified the original remediation notice (as expressly provided for in the legislation) to include actions to identify best practicable long-term approach to remediation and in the meantime, continuation by Crest and Redland on an urgency basis of “scavenge pumping” being undertaken by the water companies to limit serious and ongoing pollution of the aquifer • Natural attenuation does not appear to be resulting in a decrease in bromate and bromide levels downstream from the site

17. Sandridge • Both appellants found to have “caused” presence of bromate and bromide • Neither company was completely excluded from liability on the basis on the “sold with information” exclusion test • Apportionment • Bromate – Redland 85% and Crest 15% • Bromide – Redland 45% and Crest 55% • As quantities for which each is responsible could not be precisely measured based apportionment for bromate on period when parties in control of the site

18. Some Other Issues • Does the “economic downturn” really mean that we will see more Part 2A actions? • Environment Agency, “Dealing with Contaminated Land in England and Wales: A review of progress from 2000-2007 • Number of sites determined • Number of sites remediated

19. Some Other Issues • Is the problem with determination or with liability and what remediation can be required? • Both? • Harshness of retrospective nature of Part 2A and possibility of joint and several liability led to process safeguards • Remediation rather than a compensation regime

20. Some other issues • Part 2A in transactions • Transfers of liability • Wording tracking Part 2A • Indemnities to Sellers • Use of EIL policies • Involvement of technical consultants - collateral warranties, changing guidance

21. Some other issues • Change Part 2A? Throwing the baby out with the bathwater or is there any other way? • New guidance? • More prescriptive procedures on timing of steps in the process? • Funding issues

22. Defra Guidance on the Legal Definition of Contaminated Land, July 2008 • Non-statutory • “local authorities are given considerable discretion to decide whether such risks exist having studied the details of each specific case” (para 3) • “It does not remove the uncertainty” (para 5)

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