report of the nicole workshop - Common Forum

REPORT OF THE Joint NICOLE - COMMON FORUM Workshop: Contaminated land management: opportunities, challenges and financial consequences of evolving legislation in Europe

Guidelines For State-aid

Renewable Energies Directive

Landfill Directive

Water Framework Directive

Environmental Liability Directive

Strategy Urban Environments

Ground Water Directive

REACH? Soil Framework Directive

Waste Framework Directive

Strategy on sustainable use of resources

Contaminated Sites

Structural Funds IPPC / IED Directives

Strategy on waste prevention and recycling

5-7July 2010 Trieste, Italy

www.nicole.org www.commonforum.eu

Report of the Joint NICOLE - COMMON FORUM Workshop: Contaminated land management: opportunities, challenges and financial consequences of evolving legislation in Europe

Acknowledgements NICOLE and the COMMON FORUM gratefully acknowledge • • •

• • • •

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ISPRA and Consorzio Aussa-Corno, Italy for hosting the event The speakers and chairpersons for their contributions to the workshop and their comments on this report The members of the Organising Committee: o Arthur de Groof (NICOLE-SPG / Grontmij, the Netherlands, co-chair) o John Waters (NICOLE-SPG, / ERM, UK) o Jean-Louis Sévêque (NICOLE-SPG / UPDS, France) o Anja Sinke (NICOLE-ISG / BP, UK) o Ian Heasman (NICOLE-ISG / Taylor Wimpey, UK) o Dominique Darmendrail (COMMON FORUM, France, co-chair) o Marijke Cardon (COMMON FORUM, Belgium/Flanders) o Francesca Quercia (COMMON FORUM, Italy) The NICOLE and COMMON FORUM secretariats Andrea Lodolo of Hydrotech for local assistance Arthur de Groof and Dominique Darmendrail for allowing their workshop overview to be used to support the discussion section of this report. Anja Sinke, Dominique Darmendrail and Joop Vegter for the pictures on the report cover.


NICOLE NICOLE (Network for Contaminated Land in Europe) was set up in 1995 as a result of the CEFIC “SUSTECH” programme which promotes co-operation between industry and academia on the development of sustainable technologies. NICOLE is the principal forum that European business uses to develop and influence the state of the art in contaminated land management in Europe. NICOLE was created to bring together problem holders and researchers throughout Europe who are interested in all aspects of contaminated land. It is open to public and private sector organisations. NICOLE was initiated as a Concerted Action within the European Commission’s Environment and Climate RTD Programme in 1996. It has been self-funding since February 1999, and in 2010 became a not for profit association NICOLE’s overall objectives are to: • • •

Provide a European forum for the dissemination and exchange of knowledge and ideas about contaminated land arising from industrial and commercial activities; Identify research needs and promote collaborative research that will enable European industry to identify, assess and manage contaminated sites more efficiently and cost-effectively; and Collaborate with other international networks inside and outside Europe and encompass the views of a wide range of interest groups and stakeholders (for example, land developers, local/regional authorities and the insurance/financial investment community).

NICOLE currently has 108 members. Membership fees are used to support and further develop the aims of the network, including: technical exchanges, network conferences, special interest meetings, brokerage of research and research contacts and information dissemination via a web site, newsletter and journal publications. NICOLE includes an Industry Subgroup (ISG) – with 24 members; a Service Providers Subgroup (SPG) with 41 members; 29 individual members from the academic sector/research community; and 14 members from other organisations, including research planners, non profit making organisations, other networks, funding organisations. Some members are involved in both the ISG and the SPG. For further general information, further meeting reports, network information and links to contaminated land related web sites, please visit NICOLE's web site: www.nicole.org Membership fees are currently 3,500 EURO per year for companies (1,750 EURO for smes), and 150 EURO per year for academic institutions. For membership requests please contact: Ms Marjan Euser Secretariat NICOLE Deltares PO Box 85467 3508 AL Utrecht The Netherlands

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E-mail: [email protected]


COMMON FORUM on Contaminated Land in the European Union The COMMON FORUM, initiated in 1994, is a network of contaminated land policy makers and advisors from national ministries and Environment Agencies in European Union Member States. The general objectives of COMMON FORUM are to develop strategies for the management and reclamation of contaminated sites and for land recycling with respect to “sustainable resource protection” for contaminated land and groundwater. COMMON FORUM intends to continue to provide this “mutual professional support” by: •

being a platform for exchange of knowledge and experiences, and for initiating and following-up of international research or demonstration projects,

•

establishing a discussion platform on policy, research, technical and managerial concepts of contaminated land,

•

offering an exchange of expertise to the European Commission and to European networks (such as NICOLE, SNOWMAN, EURODEMO+, etc.).

During the last years COMMON FORUM has: a) developed new concepts for Contaminated land management (such as the Risk based land management now in place in some EU countries – third generation of legal framework), b) assessed EU Directives proposals and identified critical issues for transposition, c) Proposed technical guidance documents for EU Directive implementation in MS. Currently COMMON FORUM has experts coming from 17 European Member States and has regular exchanges with other stakeholders (industries, brownfield redevelopers, research) and other European networks (CABERNET, SEDNET, …). It also has active contacts with representatives of foreign countries involved in the International Committee on Contaminated Land (www.iccl.ch, USA, Australia, South Africa, Russia, ….). For further information please contact: Dominique Darmendrail COMMON FORUM Secretary c/o BRGM 3 avenue Claude Guillemin BP 36009 45060 Orléans cedex, France Tél. : (33) 02 38 64 30 41 Fax : (33) 02 38 64 33 80 Email : [email protected] http://www.commonforum.eu

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Executive Summary The members of the COMMON FORUM and NICOLE share a commitment towards responsible contaminated land management. Their different backgrounds lead to a diversity of perspectives on how best to manage contaminated land. The COMMON FORUM members are by definition very involved in building and structuring the legislative framework, whereas the NICOLE members are putting it into practise in their daily work. In order to improve insight in each others perspectives and, with that, improve mutual understanding, the two networks agreed to have a joint workshop. The objective of this workshop was to review recent European legislative and policy developments affecting contaminated land management and examine their practical effects on problem and site management in EU Member States. The main policy documents affecting contaminated land management are: the revised Waste and IPPC Directives, the Environmental Liability Directive (ELD), the Water Framework Directive and its Groundwater Daughter Directive, but also the proposed Soil Protection Directive still under discussion. This workshop offered the opportunity to policy-makers and regulators to learn more about industry’s concerns, thereby supporting “smart transposition and implementation” of the environmental Directives in the EU Member States. The key questions discussed in the joint workshop include: • • • • •

What are the main considerations in the decisions made during the revision and the transposition of the environmental Directives? What is the impact of the evolving legislation on the emerging field of sustainable remediation? What will be the opportunities for the implementation of innovative technologies? What will be the opportunities for cost-effective risk-based land management? How to deal with the nuances in the different Directives?

While the COMMON FORUM and NICOLE have a long track record of collaboration, this joint workshop is the first of its kind. A range of recent and emerging Directives are having an impact on the management of contaminated land, for example the ELD, the Industrial Emissions Directive (IED), the Water Framework and its daughter Directives and the Waste Framework Directive. In addition, the proposed but postponed Soil Framework Directive may yet see further development. The effect of these Directives, their transposition and their interaction with national legislative frameworks on remediation costs are very large, as shown by several presentations at this meeting. From a regulatory standpoint the wording of these Directives can often be problematic and their technical effectiveness open to question, for example the use of soil monitoring surveys in the IED. This workshop offered the opportunity to industry, service providers, policy-makers and regulators to learn more about each other’s concerns, many of which are shared, and so help support better transposition and implementation of the environmental Directives in the EU Member States.

Conclusions 1) There has been a large amount of regulatory and policy change at EU and national levels affecting contaminated land management, although the Soil Framework Directive (FD) drafting is currently stalled. Regulation and policy related to soil management are likely to remain a significant activity at an EU level for some time to come. NICOLE and COMMON FORUM broadly welcome the increasing environmental improvement concerns of these developments. As members of COMMON FORUM and NICOLE feel the impact of regulatory and policy change in their daily work, each from a different perspective, the role of COMMON FORUM and NICOLE in identifying opportunities for improvement and avoiding unintended consequences has never been more important. Therefore, NICOLE and COMMON FORUM intend to: a. Continue to actively gather information on regulatory and policy developments; b. Regularly discuss these developments, each within their own network; c. Draw up a plan to intensify joint discussions, and to find ways to bring the results of those discussions to the attention of decision makers at EU and national levels.

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2) The workshop showed that there are some unintended consequences on soil management, resulting from interactions between different legislative fields which are not primarily concerned with soil. The COMMON FORUM and NICOLE would like to discuss these consequences with decision makers at EU and national levels. As an example, NICOLE and COMMON FORUM are concerned about the conflicting and uncertain interactions between REACH and the Waste Framework Directive, especially about the possibility of treated soils falling under the provisions of the REACH Regulation. 3) One of the options, which could mitigate these unintended consequences, is a Soil FD. Therefore, NICOLE and COMMON FORUM intend to discuss the current state of affairs in the development of the Soil FD, with the aim to reach agreement on suggestions on how to move forward. These discussions could include: a. Comparing pro’s and con’s of different policy strategies, for example comparing developing a separate Directive with a more structural integration of the soil topic in existing policies; b. Views on how the Soil FD should relate to countries at different stages in the evolution of their domestic soil policies; c. Perhaps focusing on threats rather than dealing with all threats in one Directive. However, if contamination is to be in the Soil FD then the drafting has to really reflect the current state of the art, taking into account risk based land management and sustainable remediation philosophies; d. Considering that the sustainability of legislation is considered – e.g. are there wider (perhaps unintended) impacts from the Soil FD in the way it approaches inventories etc 4) NICOLE and COMMON FORUM are concerned about the Industrial Emissions Directive. The technical approach for comparing site conditions against baseline surveys has already resulted in monitoring requirements that appear impossible to comply with. Therefore, NICOLE and COMMON FORUM strongly recommend including expert judgement in the further elaboration of reference documents. 5) NICOLE and COMMON FORUM are concerned about the way the Environmental Liability Directive is being interpreted by Member States. The few European Court of Justice verdicts, available so far imply a broad scope of the ELD, which carries an elevated risk of unintended consequences, as well as a weak causal link between the operator’s activities and the environmental damage it is held liable for. As this can lead to very substantial risks for operators. The COMMON FORUM and NICOLE want to bring the discouraging effect of this on modernising and investing in industrialisation to the attention of decision makers at EU and national levels. 6) NICOLE and COMMON FORUM underline the importance of sustainability, and agree that this should be treated more broadly than just in relation to remediation. Both networks recognize that decision support systems that broadly assess environmental impact of remediation, are available, but that there is a need to further increase knowledge. Therefore, the COMMON FORUM and NICOLE intend to further explore this issue. 7) Innovation in contaminated land management brings many benefits. NICOLE and the COMMON FORUM recognize that the EC Environmental Technology Verification programme could support innovation, but only under the express condition that the programme deals with the issue of applicability in complex conditions and situations, as well as with finding a way to keep participation in any scheme affordable. The full report provides summaries of the papers given, along with a discussion based on points raised during the meeting, and comments from a number of delegates after the meeting.

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Contents Executive Summary

5

1.

Introduction

9

2.

Presentations

11

2.1. The Environmental Liability Directive and the EU legislative process, Valerie Fogleman, Stevens & Bolton LLP, and Professor of Law, Cardiff University, UK

11

2.2. IPPC and Waste Directives, including the REACH perspective, Marijke Cardon, OVAM, B/Flanders

14

2.3. The Groundwater Daughter Directive and its implications, Dietmar Müller, Umweltbundesamt, Austria

16

2.4. Managing the financial consequences of legislation change on company remediation forecasts for land contamination issues, David Oram, National Grid Property, UK 18 2.5. Italian guidelines for the evaluation of background values in groundwater, Antonella Vecchio, Michele Fratini, Maurizio Guerra, and Nicoletta Calace, ISPRA, Italy

21

2.6. Impact of EU legislation on remediation projects: an example of how the Water Framework Directive influences the remediation of historically contaminated groundwater with metals, Lucia Buvé, UMICORE, Belgium

23

2.7. The Dutch inventory 2005 of contaminated sites: the balance after five years, Sible Harmsma, ARCADIS, Netherlands

24

2.8. On the train to sustainable land management, Co , Ministry of VROM, and Hans Slenders, ARCADIS, Netherlands

25

2.9. Regulatory aspects versus society demands from a site owner’s perspective, Historic environmental liabilities, Thomas Mezger, AkzoNobel, Netherlands

26

2.10. An Italian example of an environmental damage claim, Luciano Zaninetta, ENISyndial, Italy

28

2.11. Corby Group Litigation - historic contamination issues reach the English Courts, Paula Whittell, Berrymans Lace Mawer solicitors, UK

29

2.12. IPPC, waste and sustainability, an introduction to the topic, Joop Vegter, COMMON FORUM

30

2.13.

31

Waste case, Anja Sinke, BP, UK

2.14. Evaluating environmental efficiency and transforming contaminated land management towards increased sustainability, Dietmar Müller, Umweltbundesamt, Austria / EURODEMO+

32

2.15. ETV for soil technologies, experiences from pilot testing, Johan Strandberg, IVL, Sweden 35 2.16.

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Flash presentation: ETV from the industrial perspective, Anja Sinke, BP, UK

36


3.

Perspectives from NICOLE Working Groups 3.1. Brownfield development: opportunity or threat to the Soil Framework Directive? Frank Westcott, Eco-Bos Ltd, UK

37

3.2. The polluter pays principle: a barrier to sustainable land use? Ian Heasman, Taylor Wimpey, UK

40

3.3.

42

Is risk assessment sustainable? John Waters, ERM, UK

4.

Discussion

43

5.

Concluding Remarks

45

Annex 1 List of Participants

Page 8

37

47


1. Introduction NICOLE was set up in 1995 as a result of the CEFIC ‘SUSTECH’ programme, which was to promote cooperation between industry and academia on the development of sustainable technologies. It is now an independent association under Dutch law and has become the principal forum that European business uses to develop and influence the state of the art in contaminated land management in Europe. The COMMON FORUM, initiated in 1994, is a network of contaminated land policy makers and advisors from national ministries and Environment Agencies in European Union Member States involved with strategies for the management and reclamation of contaminated sites and for land recycling with respect to “sustainable resource protection” for contaminated land and groundwater. The members of the COMMON FORUM and NICOLE share a commitment towards responsible contaminated land management. Their different backgrounds lead to a diversity of perspectives on how best to manage contaminated land. The COMMON FORUM members are by definition very involved in building and structuring the legislative framework, whereas the NICOLE members are putting it into practise in their daily work. In order to improve insight in each others perspectives and, with that, improve mutual understanding, the two networks agreed to have a joint workshop. Currently a number of European Directives relevant for contaminated land is entering or approaching the stage of transposition to national regulation. This will definitely lead to changes that will affect contaminated land management in EU Member States. Both regulators as well as the private sector should be prepared for these changes. To discuss all these aspects and consequences we invite you to attend this event. The objective of this workshop was to review recent European legislative and policy developments affecting contaminated land management and examine their practical effects on problem and site management in EU Member States. The main policy documents affecting contaminated land management are: the revised Waste and IPPC Directives, the Environmental Liability Directive (ELD), the Water Framework Directive and its Groundwater Daughter Directive, but also the proposed Soil Protection Directive still under discussion. This workshop offered the opportunity to policy-makers and regulators to learn more about industry’s concerns, thereby supporting “smart transposition and implementation” of the environmental Directives in the EU Member States. The key questions discussed in the joint workshop include: •

.

• • • •

What are the main considerations in the decisions made during the revision and the transposition of the environmental Directives? What is the impact of the evolving legislation on the emerging field of sustainable remediation? What will be the opportunities for the implementation of innovative technologies? What will be the opportunities for cost-effective risk-based land management? How to deal with the nuances in the different Directives?

NICOLE typically has workshops twice a year, and also publishes Position Papers and a newsletter. COMMON FORUM has internal meetings twice a year and a newsletter. Every two years CF is joining the International Committee on Contaminated Land for exchanging information and experiences with country representatives from all around the world. Recent outputs are listed in Tables 1 and 2, below.

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Table 1 Selected NICOLE Publications from 2005 Onwards 2009 2008 2008 2008

2007

2007

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Report of the NICOLE Workshop: Sustainable Remediation – A Solution to an Unsustainable Past? 3-5 June 2009, Leuven, Belgium. See -. http://www.nicole.org/publications/library.asp?listing=1 Report of the NICOLE Workshop: Environmental Decision Support Systems 9-10 October 2008 Madrid, Spain. See http://www.nicole.org/publications/library.asp?listing=1 and Land Contamination and Reclamation, 17 (2) 275-314 NICOLE Position Paper (2008) A note on proposals for increased soil and groundwater monitoring under the proposed new IPPC Directive http://www.nicole.org/documents/DocumentList.aspx?l=9andw=n Report of the NICOLE / SAGTA Workshop: Sustainable Remediation 3rd March 2008, London, UK. http://www.nicole.org/publications/library.asp?listing=1 and Land Contamination and Reclamation, 16 (4) 381-403 Report of the NICOLE Workshop: Using baselines in liability management – what do upcoming Directives require from us? Brussels, Belgium. See www.nicole.org/publications/library.asp?listing=1 Land Contamination and Reclamation, 16 (3) 277-306 Report of the NICOLE Workshop: Redevelopment of sites – the industrial perspective, Akersloot, the Netherlands. See www.nicole.org/publications/library.asp?listing=1 and Land Contamination and Reclamation, 16 (1) 50-75

2007

NICOLE Position Paper (2007) Comments on the Proposal for a Directive of the European Parliament and of the Council on Waste. NICOLE, TNO, The Netherlands. http://www.nicole.org/documents/DocumentList.aspx?l=9andw=n

2007

NICOLE Position Paper (2007) Concerning European Commission Communication “Thematic Strategy for Soil Protection” COM(2006)231 final (“strategy”) and Proposal for Directive of the European Parliament and of the Council establishing a framework for the protection of soil and amending Directive 2004/35/EC (“directive”). Available from NICOLE Secretariat, TNO, the Netherlands. http://www.nicole.org/documents/DocumentList.aspx?l=9andw=n

2006

Report of the NICOLE 1996-2006 Ten Year Network Anniversary Workshop: Making Management of Contaminated Land an Obsolete Business - Challenges for the Future. 5 to October 2006, Leuven, Belgium. See http://www.nicole.org/publications/library.asp?listing=1, and Land Contamination and Reclamation, 15 (2) 261-287

2006

Report of the NICOLE Workshop: Data Acquisition for a Good Conceptual Site Model 10 – 12 May 2006, Carcassonne, France. See www.nicole.org/publications/library.asp?listing=1, and Land Contamination and Reclamation, 15 (1) 94-144

2006

Report of the NICOLE Workshop: The Impact of EU Directives on the management of December 2005, Cagliari, Sardinia, Italy. See contaminated land, 1-2 www.nicole.org/publications/library.asp?listing=1 and Land Contamination and Reclamation 14 (4) 855-887

2005

NICOLE Report: Monitored Natural Attenuation: Demonstration and Review of the Applicability of MNA at Eight field sites, http://www.nicole.org/publications/library.asp?listing=5 (summary). The full report can be ordered from the NICOLE Secretariat

2005

NICOLE Report: The Interaction between Soil and Waste Legislation in Ten European Union Countries sites, http://www.nicole.org/publications/library.asp?listing=7 (summary). The full report can be ordered from the NICOLE Secretariat

2005

Report of the NICOLE Workshop: State of the art of (Ecological) Risk Assessment, 15-16-17 June 2005, Stockholm, Sweden see http://www.nicole.org/publications/library.asp?listing=1 and Land Contamination and Reclamation 14 (3) 745-773

2005

Report of the NICOLE Workshop: Unlocking the Barriers to the Recovery of Soil and the Rehabilitation of Contaminated Land. 15-16 November 2004, Sofia, Bulgaria see www.nicole.org/publications/library.asp?listing=1 and Land Contamination and Reclamation 14 (1) 137-164


Table 2 Selected COMMON FORUM Publications 2009

COMMON FORUM and NICOLE Common Position Paper on Innovative technologies. See http://www.commonforum.eu/Documents/DOC/NICOLE_Common_Forum_joint_Position_Paper _01-12-2009.pdf

2007

COMMON FORUM report on Proposals for text changes in some articles of the proposed soil framework Directive (Fifth draft). See http://www.commonforum.eu/Documents/SFD/sfdcomfordraft5.pdf

2002

CLARINET report Sustainable Management of Contaminated Land: on overview. Available on http://www.commonforum.eu/Documents/DOC/Clarinet/rblm_report.pdf

2002

CLARINET Report Brownfields and Redevelopment of urban areas. http://www.commonforum.eu/Documents/DOC/Clarinet/brownfields.pdf

2000

CLARINET – ETCA – SENSPOL Joint Statement on Management of Contaminated Land for the Protection of Water resources. See http://www.commonforum.eu/Documents/DOC/Clarinet/FP5_Joint_Statement_2000.pdf

Available

on

2. Presentations 2.1. The Environmental Liability Directive and the EU legislative process, Valerie Fogleman, Stevens & Bolton LLP, and Professor of Law, Cardiff University, UK The main EU institutions involved in the European Union legislative process are the European Commission, the Council of Ministers, the European Parliament and the European Court of Justice (ECJ). There are three types of legislative instrument. The most widely used instrument for environmental legislation is the Directive which must be transposed into national legislation by a specified deadline. A Directive allows for flexibility in transposition provided that the national legislation is at least as stringent as the Directive. In the event of a dispute over the meaning of the legislation, the Directive retains supremacy over the transposed legislation. Regulations are directly applicable without the need for transposition and are occasionally used for environmental legislation. Decisions issued by the Council are rarely used, and these too are directly applicable. The ELD is the first EU polluter pays legislation. It had to be transposed into national law across the EU27 by 30 April 2010. It defines two categories of “operators” as follows: •

Annex III operators are strictly liable for preventing or remediating an imminent threat of, and actual, environmental damage to protected species and natural habitats, water and land, and

•

non-Annex III operators are liable, if they are negligent or otherwise at fault, for preventing or remediating an imminent threat of, and actual, environmental damage to protected species and natural habitats.

The ELD vastly expands the scope of required remediation for damage to water and protected species and natural habitats in many Member States. Some of its provisions are mandatory; others are optional. Mandatory provisions include the exceptions set out in the ELD and its application to environmental damage, including pollution incidents, that occurs after 30 April 2007. Optional provisions include joint and several or proportional liability, specified defences and the imposition of mandatory financial security. Some of the resulting differences in implementation are listed in Table 3. In Member States that do not require operators to have financial security for their activities, it is unlikely that most companies will have insurance for the cost of remediating damage under the ELD unless they have environmental insurance. The ELD supplements rather than replaces existing Member State environmental law. It also creates a mechanism for non-governmental organisations to request regulators to commence proceedings for an imminent threat of, or actual, environmental damage.

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When there is an imminent threat of environmental damage, the ELD requires the responsible operator to carry out preventive measures “without delay”, and to notify the relevant competent authority “without delay” if the measures fail to dispel the threat of damage. When environmental damage has occurred, the responsible operator must notify the relevant competent authority “without delay”, “immediately” carry out emergency remedial actions and subsequently carry out remedial measures in accordance with the requirements of the relevant competent authority as set out in the Directive. Remedial measures for land must remove, control, contain or diminish contamination so that the land no longer poses a significant risk of an adverse effect on human health. The remediation standard is the lawful current use or approved future use of the land. There are three types of remedial measures for water and protected species and natural habitats, as set out below: •

Primary remediation: remediation and restoration of environmental damage to the “baseline” condition of the damaged natural resource,

•

Complementary remediation: if a damaged site cannot be fully restored, restoration of a nearby site in addition to partial remediation of the damaged site,

•

Compensatory remediation: the loss of the damaged natural resource and/or services provided by it between the time that the environmental damage occurred and its full remediation (compensation may include providing, enhancing or improving the same or new natural resources at the damaged and/or alternative sites).

Table 3 Differences in Environmental Liability Directive between Member States Issue

Comment on Implementation

Biodiversity

Extended scope of biodiversity applied in: Belgium, Cyprus, Czech Republic, Estonia, Greece, Hungary, Latvia, Lithuania, Poland, Portugal, Spain, Sweden, the United Kingdom (not Scotland)

Defences

Permit and state-of-art defences adopted in: Belgium, Cyprus, Czech Republic, Estonia, Greece, Italy, Latvia (for genetically modified organisms only), Malta, the Netherlands (after justification), Portugal, Romania, Slovakia, Spain, the United Kingdom (not GMOs in Wales or Scotland)

Financial security

Mandatory financial security applied, or to be applied, in: Bulgaria, Czech Republic, Greece, Spain, Hungary, Portugal, Romania, Slovakia

Liability

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Joint and several liability applied Proportional liability applied in: in: Bulgaria, Denmark, France, Belgium, Cyprus, Czech Republic, Lithuania, Slovakia Germany, Greece, Hungary, Ireland, Italy, Latvia, Portugal, Romania, Spain, Sweden, the United Kingdom


To date there have been around 50 cases of liability under the ELD across the EU. Examples include: •

England: o

o •

o

Car racing across Natura 2000 sites Cement seepage damaged biodiversity

Poland o

•

Rubble excavated for spoil banks of a construction waste dump damaged biodiversity

Malta o

•

Mud from industrial site damaged a protected bog forest

Hungary o

•

Crude oil spill from underground pipeline into Coussouls de Crau nature reserve

Germany o

•

Local authorities: land damage from oil spills

France: o

•

Environment Agency: spill of sewage sludge into river caused a large fish kill

Spillages from trucks

Spain o

o

Fuel oil pipeline spill onto a beach Wells drained water from Las Tablas de Daimiel protected site.

Cases have been slow to materialise due, partially, to late transposition of the ELD by many Member States. However, cases under the ELD have begun to be heard by the ECJ, and its decisions are establishing “case law”, i.e. decisions that set precedents for future decisions. The first ELD cases to be heard by the ECJ are Raffinerie Mediterranee (ERG) SpA v Ministero dello Sviluppo economico (C378/08), (C-379/08 and C-380/08) (9 March 2010). The two judgments issued by the ECJ in these cases considered the effects of the operation of many petrochemical companies in the Priolo Gargallo Region of Sicily since the 1960s. Italian authorities had declared the area to be a “site of national interest for the purposes of decontamination”. Remediation has included the removal of two metres of contaminated sediment from a sheltered anchorage, construction of a slurry wall to contain groundwater, and construction of a physical barrier along the shoreline next to the companies’ facilities. In its rulings on the cases, the ECJ considered the meaning of the exception which provides that the ELD “shall only apply to environmental damage or to an imminent threat of such damage caused by pollution of a diffuse character, where it is possible to establish a causal link between the damage and the activities of individual operators”. The ECJ concluded that Member States may establish a rebuttable presumption of a causal link between contamination and the operators’ activities if plausible evidence of such a link exists. The evidence to establish a link may include the location of an operator’s facility near the contaminated site, and correlation between substances used by an operator and those identified at the contaminated site. The operator may rebut this presumption by showing that its activities did not cause the contamination. The ECJ also concluded the following.

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•

The ELD applies to environmental damage caused by an emission, event or incident that took place after 30 April 2007 if damage is derived from activities carried out after that date, or activities that had been carried out but had not finished before that date (as set out in the ELD).

•

In cases of serious contamination, the “polluter pays” principle in the Treaty and the ELD does not preclude domestic legislation conditioning an operator’s right to use land on the operator


remediating contamination on adjacent land even if the operator’s land had never been contaminated or has been remediated. •

A competent authority may substantially alter remediation measures chosen on a consultative basis with a responsible operator if the authority considers that new measures are required, even if the operator has begun carrying out measures. However the competent authority must provide the responsible operators with an opportunity to comment on proposed measures except in the case of an emergency.

The ECJ case law emphasises the broad scope of the ELD and the weak nature of the causal link between an operator’s activities and environmental damage in cases involving diffuse pollution.

2.2. IPPC and Waste Directives, including the REACH perspective, Marijke Cardon, OVAM, B/Flanders A review of existing European pollution prevention and control legislation has resulted in seven existing Directives being merged into one, the draft Industrial Emission Directive (IED). On 25 June 2009 political agreement was reached on a common position for the draft IED, which was sent for its first reading on February 2010. The second reading process was started under the Spanish presidency and was formally approved by the European Parliament on 6th July 2010, following a number of consultations under the jurisdiction of the Council of Ministers. Formal approval by the Council will follow after juridical and linguistic verification. Further conciliation procedure under the Belgian presidency will not be necessary. The IED deals with soil related issues in several places: Article 3: definitions for dangerous substances, baseline report and soil; Article 11: general provisions; Article 12: application for permit; Article 14: permit conditions; Article 16: monitoring requirements and Article 22: site closure. The monitoring requirements specified under the IED permit conditions [Article 14(1)] are that approaches should be based on Best Available Technique (BAT). The frequency of the periodic monitoring required [point (e) of Article 14(1)] is to be determined by the competent authority in a permit for each individual installation or in general binding rules. The IED specifies that “without prejudice of the first paragraph, periodic monitoring shall be carried out at least once every five years for groundwater and ten years for soil, unless such monitoring is based on a systematic appraisal of the risk of contamination.” A baseline report is required before starting operation of an installation or before a permit of installation is updated for the first time where the permitted activity involves the use, production or release of listed hazardous substances. The report can be based on available existing information on soil and groundwater measurements or new soil and groundwater measurements. The baseline report and monitoring need to consider the possibility of soil and groundwater contamination. Guidance will be developed by the European Commission. Comitology work will be launched for soil and groundwater monitoring and specification of remediation techniques. MS will be expected to nominate experts for this process. Where installations have a baseline report, when the process activity ceases for the site, the state of soil and groundwater contamination must be assessed. If there is significant pollution compared to baseline report, then measures must be undertaken to return the site to state of base line report. The specification of these measures must take technical feasibility into account. The execution of the baseline report may also trigger remedial action if its findings indicate significant risk to human health or environment as result of the permitted. For installations without requirements for baseline report, when the process activity ceases for the site, any 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.

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The revised Waste Framework Directive 2008/98 of 19 November 2008 has to be transposed by MS by 12 December 2010. From 12 December 2010 the former Directives 75/439/EEC, 91/689/EEC and 2006/12/EC are repealed. The Waste Directive excludes from its scope: •

Land (in situ) including unexcavated contaminated soil and buildings permanently connected with land;

•

Uncontaminated soil and other naturally occurring material excavated in the course of construction activities where it is certain that the material will be used for the purposes of construction in its natural state on the site from which it was excavated.

However, excavated soil is waste where it is contaminated or if it is uncontaminated used off-site. The waste status of excavated soil depends on the definition of waste and the provisions on by-products or on the end of waste status in The Directive. A by-product is a substance or object, resulting from a production process, the primary aim of which is not the production of that item. For a material to qualify as a by-product the following conditions must be met. Its further use must be certain, and the by-product must be capable of use directly. It must be produced as an integral part of the production process and its further use must be lawful. If an excavated soil can meet these conditions it will qualify as a by-product. If the excavated soil is a waste there are conditions by which this status can be ended. The Directive states that “certain specified waste shall cease to be waste when it has undergone a recovery, including recycling, operation and complies with specific criteria to be developed in accordance with following conditions: •

Used for specific purposes

•

A market or demand exists

•

Fulfils technical requirement for the specific purposes and meets existing legislation and standards applicable to products

•

Use will not lead to overall adverse environmental or human health impacts.”

In some cases end of waste criteria are set at an EU level, otherwise they are determined by the MS. REACH is an EU Regulation (1907/2006) from 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals. Its aim is to create a high level of protection for human health and environment for the manufacture, placement on the market and use of chemical substances. The regulation carries two main obligations: the registration of substances and the provision of specified information. Wastes are excluded from its scope, however, there is no specific exclusion for soil. Soil can be excluded from the provisions stipulated under title II Registration, title V Downstream users and title VI Evaluation following Article.2.7.b and annex V. Article.2.7.b states that: “substances covered by annex V, as registration is deemed inappropriate or unnecessary for these substances and their exemption from these Titles does not prejudice the objectives of the Regulation”. Annex V states excludes natural materials as follows: •

§7 the following substances which occur in nature, if they are not chemically modified: minerals, ores, ore concentrates, cement clinker, natural gas condensate, process gases and components thereof, crude oil, coal, coke.

•

§8 substance occurring in nature other than those listed under §7, if they are not chemically modified, unless they meet the criteria for classification as dangerous according to directive 67/548/EEC

Hence, It seems that soil should be considered as a resource and not as a substance or a product.

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2.3. The Groundwater Daughter Directive and its implications, Dietmar Müller, Umweltbundesamt, Austria The importance of groundwater as a resource for surface and drinking water, as an essential part of the environment was confirmed at the European Level in 1991 at a Ministerial Seminar in The Hague. The declaration from this meeting recognised a need for further action to avoid long term deterioration of quality and quantity of freshwater resources. As a follow up action the European Commission (EC) adopted the “Groundwater Action Programme” in 1996 (COM 1996/0355). In parallel, the European Parliament and the Council Ministers requested the establishment of a framework for a European water policy. Consequently the Groundwater Action Programme was not further elaborated and groundwater issues were integrated into the Water Framework Directive (WFD, 2000/60/EC). However, technical and policy discussions regarding groundwater have proved more difficult than surface waters discussions. As a result the WFD was adopted without giving specific groundwater criteria. Instead its Article 17 introduced obligations for the EC and Member States to specify environmental quality criteria for groundwater. Criteria for chemical status assessment, for trend (reversal) assessment and for preventing and limiting input of pollutants into groundwater were defined within “daughter” Directive Groundwater (GWD, 2006/118/EC). The WFD included groundwater criteria for nitrate pesticides. Other environmental quality standards were specified in a related “daughter” Directive: 2008/105/EC of 16 December 2008 on environmental quality standards in the field of water policy. These legislative and policy processes have been accompanied by the development of technical information and guidance at a European level. The Water Framework Directive includes an activity for MS to collaborate on implementation, the Common Implementation Strategy (WFD CIS), which has included a working group (C) on groundwater since 2001. In addition, in 2001 an Expert Advisory Forum (EAF) involving MS experts and stakeholders was initiated by the EC to discuss groundwater related issues. This supported the development of criteria for environmental quality standards to be included in a Directive. Given the diverse hydrological and hydrogeological situation across Europe as well as the principle of subsidiarity the EAF suggested that threshold values should be derived on an aquifer specific basis. The EAF also suggested that for problems of (historically) contaminated land and point source pollution, groundwater management should be based on “risk management areas” (2003) where groundwater deterioration was managed over a period of time. This suggestion was not taken forward A research project was established to support a tiered approach specifying threshold values at regional or national levels, Background cRiteria for the Identification of Groundwater thresholds (BRIDGE) which ran from 2005-6. BRIDGE developed a common methodology for the evaluation of groundwater environmental quality. Generic concepts and criteria developed by BRIDGE were included as an annex to the GWD. The methodology itself has been refined and adopted in a guidance document produced by CIS Working Group C in 2009 1. Further CIS Guidance on risk assessment has been published in 2010 2. This guidance describes the generic elements of risk assessment, the use of conceptual models and their specific implementation for groundwater under the WFD. It is intended to support activities for the second river basin plan period.

SEC(2009) 415, 2009: Commission Staff working document accompanying the Report from the Commission to the European Parliament and the Council in accordance with article 18.3 of the Water Framework Directive 2000/60/EC on programmes for monitoring of water status. 1

SEC(2010) 166 final, 2010: Commission Staff Working Document accompanying the Report from the Commission in accordance with Article 3.7 of the Groundwater Directive 2006/118/EC on the establishment of groundwater threshold values.European Communities (2007): Guidance on Groundwater Monitoring, Guidance Document No. 15, Technical Report 2007 – 002.

2

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Groundwater is controlled under the WFD on the basis of groundwater bodies as management units. These are delineated and characterized to provide basic information for a systematic understanding across river basins. 12,473 groundwater bodies have been identified across the EU. The compliance regime for groundwater chemical status assessment draws from the five environmental objectives of the WFD. The objective of reaching good groundwater chemical and quantitative status across Europe by 2015 is one of the most challenging of these and demands a comprehensive perspective. The biggest challenge for groundwater management is to deal with diffuse pollution stemming from agriculture and groundwater quality standards established for nitrates and pesticides and reinforcing a series of Directives (Nitrates Directive, 91/676/EEC; Plant Protection Products Directive, 91/414/EEC; Biocidal Products Directive, 98/8/EC). Besides the GWD also requires MS to establish risk-based groundwater quality standards (referred to as “threshold values”) taking into account a list of substances given in Annex II of the Directive. Threshold values had to be established by 22nd December 2008. These have been summarised across MS. The number of threshold values established by each MS varies between zero (Portugal) and 62 (United Kingdom) 3. The majority of threshold values were set at MS level, but there are also threshold values set at groundwater body level or river basin district levels. Table 4 shows the pollutants and indicators which were reported by at least 10 MS. There is a broad range in threshold values. This may in part be due to different hydrogeological circumstances, and the conceptual models used (e.g. functions and receptors). Fundamentally, any groundwater body failing these thresholds should not be regarded as having “good” status. However, the GWD allows that local pressures (e.g. point source pollution) should not endanger the status of a complete groundwater body. The GWD allows for the investigation and amelioration of local impacts but without classifying the overall groundwater body as of “poor status”. Under the WFD groundwater management is included in periodic river basin management plans (RBMP). A pressure and impact analysis has to be performed at the beginning of each RBMP period. The result of this analysis is used to determine whether good status will be achieved at the end of a RBMP period or whether “appropriate measures” to improve status will need to be implemented. Status assessment (the classification of water bodies) is formally undertaken and reported once every six years and reviews performance over the preceding RBMP period. Status assessment only needs to be carried out for groundwater bodies identified as being at risk. Groundwater bodies not at risk are automatically classified as being of good status. Risk assessment is used to forecast whether groundwater-bodies will meet the WFD status objectives by the end of the current RBMP period. The first EC report analysing river basin districts was published in 2007. It indicates that 30% of groundwater bodies across the European Union were at risk of failing to meet the objective of good chemical status by 2015 and for other 45% the result of the risk assessment was not conclusive due to insufficient data. It was further expected that most MS would establish an appropriate monitoring as well as threshold values for any pollutants of concern. Groundwater monitoring is required whether environmental objectives are met: quantitative status and chemical status and to identify any significant, long-term trends in natural conditions and trends in groundwater bodies resulting from human activity. Supplementary monitoring may be necessary in protected areas (e.g. for drinking water) and where risk assessment procedures is underway. Programmes meeting these requirements had to be operational by 22 December 2006. As of 2009, across the EU, there were about 31,000 stations for surveillance chemical status monitoring, 20,000 stations for operational monitoring, and almost 30,000 monitoring stations for groundwater level monitoring 4.

3

C(2010) 1096 final http://ec.europa.eu/environment/water/water-framework/groundwater/pdf/EN.pdf

(COM(2009)156 Final http://ec.europa.eu/environment/water/waterframework/implrep2007/pdf/com_209_156_en.pdf 4

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The GWD, its history and its implementation provide an example that intensive discussions across science, policy and practice are crucial to launch a European Directive, which can support tailor-made environmental assessments and effective responses and measures. A prerequisite is the willingness of stakeholders to involve themselves in discussions without prescribed results, and institutions as well as individuals taking facilitative leadership. Table 4 Pollutants/Indicators for which at least 10 Member States have Established Threshold Values (from C(2010) 1096)

Status assessments were to be established by December 2009 and the deadline for reporting of RBMPs to the EC was 22nd March 2010. The first RBMPs are finalized, all the underlying documents are available and monitoring programmes are operational. Individual EU Member States and international RBMPs can be accessed via: http://ec.europa.eu/environment/water/participation/map_mc/map.htm. RBMP programmes of measures are to become operational by the end of 2012 and have to be reviewed and if necessary updated by 2015 and every six years thereafter. It will be still a big challenge that groundwater management and protection will be more effectively integrated to other environmental policies particular land management in general.

2.4. Managing the financial consequences of legislation change on company remediation forecasts for land contamination issues, David Oram, National Grid Property, UK National Grid regularly reviews its UK forecast of land contamination remediation costs. This is updated on an annual basis taking into account macroeconomic influences, the value of work undertaken to address the liabilities and newly acquired data about individual sites and changes in legislation, many of which have their origins in European legislation. Legislative developments tend to have either direct or indirect influences on these forecasts which have a material impact on future business planning and financial management. An example of a macroeconomic effect that has had a substantial effect on our business has been the spike in Diesel prices, given the haulage demand for National Grid Property (NGP) site remediation projects.

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The most direct influences tend to be governed by MS specific changes to regulation: e.g. liability apportionment and fiscal initiatives. For example, in the UK in recent years, legacy remediation works have benefited from exemption from a specific UK tax on disposal to landfill. This exemption will be withdrawn in 2012. Legislation that originates at a European level tends to have an indirect fiscal impact because the direct impact occurs at the point of transposition into MS legislation and, perhaps most importantly, subsequent regulation and enforcement. For example, the Landfill Directive resulted in indirect change to NGP financial forecasts. Substantial revisions of remediation forecasts were required due to the loss of competition in the hazardous waste disposal market, which, in the absence of a network of alternative treatment facilities, resulted in a distortion of that market and increased disposal costs, as well as substantially increased haulage distance to suitable disposal facilities. The Groundwater Directive does not appear to have resulted in a universal change in risk assessment in the UK context; however, each site specific forecast will need to be reviewed. The changes resulting from the Directive may not fully impact on our forecasts for several years, however the effect may not only ultimately increase the cost of remediation, but it is likely to increase the forecasts as a result of being obliged to incur the cost of simply establishing the long term financial impact of the Directive. NGP are currently assessing what the impact of a Soil Framework Directive might be (based on the June 2009 draft). The draft Directive proposes specific timescales for identifying potentially contaminated sites and for investigating them. This could have a potentially significant influence on the period over which costs are forecast and future business plans developed. Ultimately, whilst the transposition of indirect EU legislation into the more direct impact of MS legislation, and sometimes pragmatic enforcement of such legislation may be intended to secure a sustainable way forward with regard to addressing Europe’s industrial legacies, this can create significant “grey area” in respect of an EU based Company’s requirement to effectively communicate and manage the liability on behalf of their shareholders. Figure 1 illustrates the volume of EU legislative change that NGP has dealt with and needed to include in its forecasting within the UK. Figure 2 illustrates the volume of UK legislative change, much, but not all of which relates to the transposition of EU Directives into UK law (and subsequent amendment to the resultant regulations). This excludes the large amount of guidance documentation in support of regulations that is produced. Approximately 50 relevant documents were published in the UK over 2009 alone, 17 of which had a potential to impact remediation forecasts. Figure 3 illustrates the effect of legislative change on remediation forecasts. The impact of legislative changes has been a 78% increase in NGP’s liability from a 2003 baseline, or 8.6% year on year, in excess of inflation effects. Overall, this means that although a significant amount of money has been invested in site remediation since 2003, and a large number of sites have been returned to productive use, NGP’s remaining overall remediation forecast remains broadly similar to the 2003 figure. Sometimes there may be interactions between factors driving remediation forecasts that result in possibly unintended consequences. For example the spike in Diesel process combined with the reduced availability of landfill (and no alternative network of treatment facilities), which led to longer road haulage distances, multiplied the economic consequence of the Landfill Directive effects on NGP and has a resulted in a substantially increased carbon footprint for remediation activities in the UK.

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Water Framework Directive 2000 Council

Habitats Directive 1992

REACH 2006

Decision on Waste 2003

1990

Waste FD 2008

Groundwater Directive 2006

Soil FD ????

2000

2010

Landfill Directive 1999

Dangerous Substances Directive 2006 Priority Substance List 2001

EQS Directive 2008

ELD 2004

Figure 1 Legislative Changes – EU perspective

Water Resources 1991

EPA 1990

Waste 1991

Act

Anti Pollution Works Regs 1999

Regs

List of Waste Regs 2005

Landfill Regs 2004

Environment Act 1995

NERC Act 2006

Finance Act 2008 (LTE)

ED 2009

Landfill Regs 2005

Finance (LTE)

Regs

Act

2008

WRA Act Regs 2009

Transpose Soil FD ????

1990

2000

Env. Protection Regs 1991

Groundwater 1998

2010

Regs Haz Waste Regs 2005 Contaminated Regs 2000

Wildlife and Countryside Act 1991

Waste Licensing Regs 1994

G/water Regs 2009

Finance Act 2010? (LTE)

Land

Wildlife and Countryside Regs 2004

Figure 2 Legislative Changes – UK Perspective

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Contam. Land Regs 2006

Waste Licensing Regs 2005

SWMP Regs 2008

River Basins Direction 2009


£300

Effect of Legislative Change 2003 - 2010

Remediation Forecast £ sterling

£250

£200

£150

£100

£50

Expected remediation forecast after 7 years remediation progress

£-

2003

2004

2005

2006

2007

2008

2009

2010

Annual Re-evaluation of Remediation Forecast

Do Nothing

Actual Remediation Expenditure

Effect Of Newly Acquired Data

Effect of Legislative Changes

Effects of "normal" inflation

Figure3 Illustrates The Effect of Legislative Change on Remediation Forecasts

2.5. Italian guidelines for the evaluation of background values in groundwater, Antonella Vecchio, Michele Fratini, Maurizio Guerra, and Nicoletta Calace, ISPRA, Italy Under the prevailing Italian legislation on contaminated sites (Legislative Decree 152/2006 Part IV, Title V – Art.240 Definitions), a potentially contaminated site is defined as: “a site where the concentrations of one or more chemicals in the environmental media (i.e. soil, sub-soil and groundwater) exceed the ‘Contamination Threshold Concentrations’ (CTC, i.e. screening values)”. CTC values are tabulated in a specific Annex to the Decree (Annex V). However if a potentially contaminated site is located within an area where natural or anthropogenic (diffuse) phenomena caused exceeding of CTC, then screening levels are assumed equal to background values for soil and groundwater. These background values may take into account natural geochemical but also diffuse contaminant inputs to soil and groundwater. Background values in groundwater may also be determined for anthropogenic substances (typically organic contaminants). Directives 2000/60/EC and 2006/118/EC have recently been adopted by the Italian legislation (Legislative Decree 152/2006 Part III and Legislative Decree 30/). Under the Groundwater Protection Legislation (Legislative Decree 30/2009), background values have to account mainly for natural geochemical contaminants inputs to groundwater, i.e. “corresponding to no, or only very minor, anthropogenic alterations to undisturbed conditions”. , Therefore background values in groundwater may be determined only for naturally occurring substances (inorganics, metal and metalloids). Threshold Values, as established by the Groundwater Directive, for the majority of chemicals have been set equal to Contamination Threshold Concentrations defined by (Legislative Decree 152/06. The groundwater CTCs are coherent with drinking water standards (i.e. tap water standards). The Italian Ministry for the Environment asked ISPRA (Institute for Environmental Protection and Research) to develop a methodology for the evaluation of background values in groundwater of a selection of inorganic contaminants (iron, manganese, sulphates and chlorides) frequently found at Italian National Priority List Sites in Tuscany 5. ISPRA published the resulting Technical Guidelines in 5

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It has also been applied in Sardinia in 2010.


2009 (http://www.apat.gov.it/site/_files/Fondo_metalli_acque_sotterranee.pdf, in Italian; an abstract in English will be available soon). It was considered that in the context of large potentially contaminated areas, like for example NPL sites, natural inputs of contaminants cannot be clearly separated from anthropogenic inputs. The guidelines are therefore intended for use in the context of contaminated sites identification and remediation and not for the definition of the “status of a groundwater body”. The guidance is based on a conceptual model for the pressures and stresses on the groundwater system. It considers the specific geological and hydrogeological context, the evaluation of geochemical, chemical and biological phenomena determining the diffuse presence of chemicals in groundwater. All concepts in the Guidelines have to be applied to significant aquifers (i.e. aquifers with a significant flow and ecosystem dependency and/or characterised by an abstraction of significant quantities of water). The guidance sets out a calculation to assess the anthropogenic impact on groundwater combining assessments of land use and aquifer vulnerability. The land use assessment considers: •

Analysis of emissions form point and diffuse sources associated to human activities: domestic heating, industrial activities (including ports and airports, constructions, etc.), transport networks, commercial and recreational activities, etc.

•

Inputs from agricultural activities have been evaluated on the basis of the common agricultural practices (only use of natural fertilizers).

•

Metal inputs from human activities have been associated to land uses. Contribution of of other land uses (e.g. passive contamination of the surroundings of an industrial area) may be considered in terms of percentages.

The assessment of the aquifer vulnerability uses the EEA PRA.MS parametric model for the Groundwater Exposure Route (EEA Technical Report, “Towards an EEA Europe-wide assessment of areas under risk for soil contamination, Volume III PRA.MS: scoring model and algorithm”, http://www.eionet.europa.eu/software/prams/) The background derivation considers existing data, and also whether new data will need to be collected. There are a number of criteria determining the use of existing data. Monitoring points: should be located in the same aquifer and far or up-gradient from contamination sources active in the present or in the past. Chemical data that may be either not representative of the aquifer geochemistry or potentially affected by contamination inputs should be excluded using the following benchmarks: presence of organic chemicals at levels more than three times of the detection limit; samples from wells/piezometers whose filter position is not known, samples with a concentration of nitrate > 10 mg/l, levels of NaCl > 1000 mg/l (this criterion may be revised for coastal aquifers). Trends: data from different monitoring campaigns have to be treated separately if time-trends are evident. Correlations of chemical data with groundwater physical-chemical properties (e.g. Eh) need to be considered. New groundwater data collection may use suitable existing monitoring points or new ones. Samples should be analysed after filtering. However, non-filtered data may be collected for comparison. Blank samples should be used for “quality assessment”. The analyses required are: •

Temperature, redox potential, electric conductivity, pH, dissolved oxygen; total suspended solids;

•

Major Ions: K+, Na+, Mg2+, Ca2+, Cl-, SO42-, HCO3-, NO3-;

•

The metals, metalloid and inorganics for which a background concentration is required;

•

Specific organic chemicals (for the assessment of local contamination)

Geochemical analyses on aquifer media may also be carried out as, for example, analysis of trace elements and isotopic analyses. The minimum dataset consists of 10–30 samples. For “non-detects” the lowest available detection limit should be used as a datum. Outliers, if they are “true outliers” (i.e. errors) should be removed. “False outliers” (real extreme values) should be managed on the basis of site-specific conditions (contamination vs. geochemical anomaly). The data collected needs to be fitted to an appropriate

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probability data distribution (e.g. normal, lognormal, gamma, non parametric). Some tests for statistical indication of goodness of fit to different probability distributions have been proposed in order to select the appropriate indicator value to be used as background. Several indicators for background values, on the basis of the data distribution, have been proposed: mean + 2 standard deviation (normal distribution); discontinuity in the cumulated frequency curve (different populations – background vs anthropogenic inputs); 95° percentile (calculated from sample data or a statistically estimated from population data). The selection of 95° percentile is generally suggested, but the selection of the appropriate indicator strongly depends on site-specific conditions. For the comparison of BV with site data, a “statistical approach” of population distribution data comparison – background population vs site population – has been proposed. The Guidelines have been calibrated for contaminated sites evaluation and in many cases the provided site-specific assessment procedure cannot be extended to the whole groundwater body. The procedure has been calibrated at a limited scale (contaminated site scale) and, especially for wide aquifers; the scale of the assessment may strongly influence the results. In many cases groundwater may have an high spatial variation due to local geological settings (e.g. presence of not continuous separation layer between surface and deep groundwater). Therefore the extension of these Guidelines to the evaluation of groundwater quality may present some critical problems, including the difficulty in evaluation of natural background in aquifer zones interested by diffuse contamination not directly connected with a specific source. A revision process of the Guidelines, starting from application to case studies, is currently ongoing and a new release is expected in the next future.

2.6. Impact of EU legislation on remediation projects: an example of how the Water Framework Directive influences the remediation of historically contaminated groundwater with metals, Lucia Buvé, UMICORE, Belgium Despite extensive research into alternative in situ remediation approaches for dealing with groundwater contaminated with metals, typically remediation is carried out using pump and treat, with extracted water passing through a waste water treatment plant (WWTP) before discharge to surface water, in compliance with the prevailing water protection regulations. In the Flanders region of Belgium the 1995 Flemish Soil Decree regulates the remediation of groundwater. The 2000 Water Framework Directive sets out to reduce emissions of hazardous substances to surface water (volume and load), with the phasing out of emissions of Priority Hazardous Substances (PHS), including cadmium, mercury and PAHs by 2015, with the possibility of further substances being listed in the future. While production processes can minimise release of PHS, in the case of historically contaminated land these substances are already in their environment, and the phasing out of PHS emissions by 2015 poses a major challenge to remediation work given its reliance on pump and treat. The “daughter” EQS-Directive sets out the derivation of maximum allowable concentrations of PHS in water bodies. However, it also allows for a mixing zone, i.e. an area around the discharge point where concentrations may exceed the water quality standards. These mixing zones, however, should be gradually reduced in scale in the future. An example of the challenge faced by remediation work from these legislative developments is the pump and treat remediation taking place at a Metal smelter which has been operating in Northern Belgium since the late 1800’s. The site was located in that area for logistical reasons. However the geology and hydrology is one of acidic loose sands. It is a very vulnerable aquifer with groundwater levels close to the surface, contiguous with small surface water bodies. The aquifer is seriously contaminated with metals, among them cadmium, which is a PHS. The EQS-Directive has defined the maximum allowable concentrations (quality standard) for Cd in surface water as 0.08 to 0.25 µg/l, depending on the hardness of the water. The aquifer is being managed using pump and treat, The current discharge concentration from this process’ WWTP is: 4

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µg/l. It is not possible to phase this discharge out to a zero concentration of cadmium, given its prevalence in the contaminated land around the smelter and the lower limits of what is technically feasible with WWTP. Adding a sand filter is predicted to reduce the cadmium discharge from the WWTP from 4 µg/l to 1 µg/l Cd. The cost of this filter is €1 million for a 250m³/h (which will only reduce cadmium emissions). The mixing zone concept allowed for by the EQS Directive has been considered. The WWTP discharges to a small river with a width of 15 m. Modelling studies have indicated that the mixing zone required to meet the EQS threshold represents a 1 km length of the river if the sand filter is added to the WWTP; if not 1,800 m is required to dilute the current 4 µg/l WWTP cadmium discharge. However, the mixing zone is ideally required to be a maximum of 10 times the width of the river, and in any case no longer than 1000m. In the case of this river a mixing zone of 150 m length only is likely to be required. The regulatory solution for this site may be a derogation. A further EU legislation possibly impacting the WWTP is the Environmental Liability Directive (ELD). This determines who should repair damages caused to soil, surface water, groundwater, protected ecosystem It applies to damage caused after April 30th 2007, including damages caused by installations that ceased activities before that date. It is unclear whether or not the discharge from the treatment of historically contaminated groundwater (by the WWTP) could be seen as causing damage under the ELD.

2.7. The Dutch inventory 2005 of contaminated sites: the balance after five years, Sible Harmsma, ARCADIS, Netherlands The Netherlands (European area) covers an area of 41,526 square kilometres and has 16.4 million inhabitants. National reporting of sites being remediated started in 1995 in the Netherlands. In 2004/5 VROM completed a detailed inventory project. This has been based on searching all archives in the provinces back to the 1850s for potentially contaminated activities, via a central soil data system, at a cost of €100 million. The system includes a cost model to predict the management costs for the sites identified. There were several underlying reasons for the inventory. In the first place soil contamination was seen as an important factor in the stagnation of land development. By making an inventory of the (potentially) contaminated sites, the intention was that soil contamination would become apparent at an earlier stage, so stagnation of land development could be prevented. The searching and investigation of site history information in an ad hoc way was seen as a cause of delay, and hence added cost for projects. Secondly, the inventory was intended to facilitate more cost-effective planning of remediation needs, provide better insight into soil quality in the Netherlands and allow a prioritisation of public money towards the most urgent problems. This process has identified over 1,700,000 polluting activities, and based on these, 760,000 suspect sites, although the quality of returns varied between provinces. Of these 420,000 possibly need contamination (i.e. slightly contaminated or worse). This number includes 20,000 dump sites. 100,000 private oil storage tanks, 100,000 infilled former canals and drainage ditches and 200,000 industrial sites. The industrial sites include 380 gasworks, 2,000 dry cleaners and 50,000 petrol stations. All information is publicly available via www.bodemloket.nl, in compliance with the Arhus Treaty. This web site attracts around 900 visitors per week, including estate agents, town and country planners, house hunters, local residents, mortgage providers and commercial users. This inventory has been used as a rationale for environmental budget setting. Some 1,500 to 2,500 of these sites are expected to have “serious” and “urgent” remediation problems (i.e. posing human health risks under current or proposed use). These are to be remediated or isolated by 2015. Some 25-30% of Dutch contaminated land management professionals are engaged in data management of one kind or another.

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Looking back five years on from completion, it is evident that the inventory improves the efficiency and accuracy of site investigation for historical data. The inventory continues to be managed and annual status of site management is reported. Its data has been used in planning the allocation of public resources and in policy setting, for example the elimination of all serious and urgent contaminated site problems by 2015. The inventory represented a massive investment in time and money, and requires ongoing maintenance for it to still be useful. However, the inventory can still lead to fear and uncertainty amongst members of the public who are less well informed about the risks posed by land contamination. It may also have overstated the problems in how its statistics have been compiled and used to represent the overall extent of contaminated land across the Netherlands. The information in the inventory is caveated to exclude its use for legal purposes. However, it is still used as a screening tool for mortgage applications. These are important lessons for any ambition for a Europe-wide inventory, for example under the scope of some future soil framework Directive.

2.8. On the train to sustainable land management, Co Molenaar, Ministry of VROM, and Hans Slenders, ARCADIS, Netherlands Currently, in the Netherlands, the owner of a contaminated site has the obligation to remediate, either under legislation relating to historical contamination (before 1987); or duty of care (after 1987). Soil quality must comply with the current or future use. There are 42 competent regulatory authorities for remediation and 425 municipalities have a soil policy for excavated soils. Groundwater is included in definition contaminated site. 1500 -2000 sites are remediated each year, with an annual budget contribution of €180 million from the Public Sector. All sites with serious and urgent risks have to be remediated, controlled or managed by the end of 2015. However, there are some bottlenecks that affect the achievement of this goal. Urban areas often contain large mixed groundwater contamination plumes, for which it is very difficult to assign liability. Often no technical or cost effective solution is available, so there is little incentive to remediate these sites. Dispersion of the contamination is often influenced by other functions of the subsoil. From a strategic point of view municipalities want to make an integrated comparative assessment for developing an urban area, rather than a piecemeal approach. Hence perhaps a change in addressing liability is needed, along with an incentive is needed to reach the 2015 goal. A possible solution for the liability problem for groundwater is to decouple the source from plume. Under the new proposal for legislation the owner has to remediate the source but could transfer the liability for the plume to a public organisation with some redemption money (bruidschat). For the situation of mixed plumes up scaling remediation to an area wide approach is needed, so the emphasis is essentially shifted from being site specific. Groundwater monitoring would take place on the border of the mixed plume area and, if necessary, remediation measures would be taken from an area management perspective. It has been estimated that this would reduce costs by 50% on average. However, while dispersion of contamination within the area is allowed, the quality of the groundwater must comply with the functions of the subsoil. This approach is possible under the Groundwater Directive for historic contamination. The competent authority has to make a (management) plan and public consultation is obligatory. Its goal has to be to decrease the dispersion of the contamination by remediating the source, while monitoring the borders of the area, and, if necessary, executing remediation at the borders. This will require agreement for permissible values of contamination at the area boundaries (target values, intervention values). This area management approach has useful synergies with the growing interest in wider uses for the subsoil in the Netherlands, e.g. for renewable energy, and its importance related to climate, water management and spatial planning. A more integrated concept perhaps represents an evolution in contaminated land management approach from Risk Based Land Management to “Sustainable Land Management”. Sustainable Land Management might be defined as: managing soil quality so that it is suitable for the current and future use of the soil, including both the top soil and the subsoil

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In The Netherlands a consultation on spatial planning for subsoil is underway. There are already more than a 1000 installations for reducing energy demand for heating and cooling by using subsoil heat storage across the country. However, to exploit the subsoil resource it is necessary to deal with any existing contamination, and particularly for mobile contamination, a new regulatory approach is needed. This new approach is the area management approach outlined above. In this approach the source will be remediated by the owner and the plume will be controlled/managed across an area. This revised policy for “groundwater management zones “ is expected to be launched in 2010. Its aims are to manage risks and protect surrounding areas, gradually improve groundwater quality, and make effective use of groundwater. In most cases the municipality will be responsible for groundwater zone management, and industries will have the possibility to pay for transfer of their responsibilities for groundwater plumes. While problem owners will have to deal with the sources in the top soil, overlapping plumes will be dealt with in an integrated way across an area, typically by the government or a government owned institution. Utrecht About 30 heat cold storage systems (HCS) Aquifer Thermal Energy Storage (ATES) systems will be operative in the inner city area of Utrecht, an area with a diameter of about 3 km. However, the aquifer where these systems are intended to be used is contaminated to depths of 5 to 50 below ground surface. Approximately 30 to 50 million m3 of groundwater are contaminated with chlorinated solvents. Because of this, until recently Dutch Soil Protection Law hindered the use of HCS. The municipality has responsibility for more than 70% of the contamination plumes in this area. Cost modelling by Utrecht has found that compared with conventional options for their groundwater management (remediation, containment etc), and groundwater management with heat and cold storage offered a 50-fold cost reduction, reduced use of non renewable resources and reduced emission of CO2. Apeldoorn The city of Apeldoorn is confronted with many groundwater contaminant plumes in the city centre. A groundwater management plan has recently been agreed between the municipality and the province of Gelderland (the competent regulatory authority). An important part of this agreement was a pilot project carried out in the township of Ughelen. This pilot project combines groundwater remediation with heat storage, but it also supplies treated groundwater as process water to an industrial water user, and the output from this process subsequently provides water for the restoration of a stream and its surrounding ecology. It also acts to help reduce high groundwater levels. This kind of approach is seen as being capable of rollout across the city, and its 2-3 fold re-use of groundwater and improvement of groundwater quality is seen as highly sustainable across environmental, social and economic perspectives.

2.9. Historic environmental liabilities: Regulatory aspects versus society demands from a site owner’s perspective, Thomas Mezger, AkzoNobel, Netherlands This case study shows the impact of different regulatory regimes affecting a single site. The site is abandoned former paint factory in Belgium, situated across the provincial boundary between Brussels and Flanders (shown in Figure 4). The site has been for sale for 15 years. Originally the area was a wetland close to Brussels in a river valley, which was filled-up with rubble and debris in order to develop it for early industrial use. It was initially used for the production of fertilizers until ~1925. Gypsum waste was then stockpiled on site in line with contemporary practice. In 1926 the site was bought by a predecessor company of current owners to start a paint production facility. The site changed ownership several times and in 1976 99 year long lease agreements were made between affiliates of the owner company. Paint production ceased in 1994 and in 1995 part of the site was sold to a third party. In the same year the Flemish soil decree began to regulate the transfer of land in Flanders.

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The new Flemish regulations required that the transfer of land must be accompanied by investigation and - if necessary - remediation. The site investigation at the former paint factory revealed the presence of hydrocarbons, heavy metals, chlorinated solvents and complex cyanides impacting groundwater. The amount of complex cyanide was far greater than might be expected from a paint factory using it as pigment, and between 1995 and 2007 the site owner was in dispute with the regulator (OVAM) about responsibility for these complex cyanides. Ultimately the owner was able to prove that the complex cyanides were historic waste deposits from former gas works that had also been operating close to the site. The debate was complicated by the two regional regulatory regimes. In Flanders OVAM has accepted 95% of the liability for the costs of dealing with the complex cyanides, as current site owner is not responsible for these, whereas the Brussels region does not accept public liability for such costs. OVAM has decided that the complex cyanides need to be removed by excavation for the Flemish part of the site to mitigate the groundwater impact. This is a costly approach, and OVAM does not currently have the budget to support the work. On the other hand Brussels is satisfied with a permeable reactive barrier based remedy for risk control. The cumulative projected remediation costs including residual uncertainties could potentially exceed the commercial value of the land. These administrative discussions have been an obstacle for the redevelopment of the site. Sales/purchase negotiations have been going on for nearly 10 years. The sale could not be finalised as transfer of land as there were too many uncertainties left and there are unresolved concerns over whether the ending of the 99 year lease will be regarded as a transfer of land and so trigger a new round of site investigations.

Brussels/BIM

Sold to 3rd Party

Area for redevelopment

Gypsum stockpile

Flanders/OVAM Railway

Figure 4 Case Study Site

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10


The case might be solved finally and satisfactorily by selling the legal entity owning the land, rather than the land itself, to a party who fortunately has the capability of carrying out remedial works with their own resources . This case study raises a series of sustainability and legal issues. From a legal perspective the letter of the law tends to take precedence over the spirit of the law. There are uncertainties that affect the sales agreement relating to the interpretation of law, future legal demands and the extent of residual liabilities. Combined with a lack of trust in potential buyers these uncertainties can make it difficult to formulate clear indemnities. The difficulty can be in many cases further exacerbated by a lack of knowledge and experience for the lawyers, consultants and official bodies involved. The outcomes of this protracted process of administration from a sustainability point of view are: •

Environmental issues: these include often unrealistic remediation targets (leading to an overly expensive and over-designed remediation solution), difficult decision processes within regulatory body and indeed also within the company, difficulties in predicting project duration and cost, and unpleasant surprises during the site sale and development process.

•

Economic issues: the economic driver for redeveloping the site relies on realising the maximum value for the minimum expenditure. The real estate valuation depends on the re-use scenario and a remediation cost greater than the land value will stall a project. For this site there were a number of uncertainties including what was deductible against tax and how to deal with liabilities created by historic polluters no longer in existence.

•

Societal issues: from a societal perspective there is a demand to maximise the reutilisation of previously developed land, optimise the use of already available infrastructure, avoid unnecessary downgrading of land and protect public health and environmental resources, in line with the general objectives for this case study site. However, the viability of the project depends on providing planning security to landowner and developer and a fair sharing of cost burdens.

The lessons learned from this site are that contaminated site re-use can be greatly supported by: an open dialogue in finding solutions, adopting a risk based approach for soil and groundwater and taking a sustainable and proportional view of remediation. It may be appropriate for the general public and their bodies to share burdens for revitalisation of derelict land. One way of achieving this might be a tax relief, for example, a general exemption in VAT charges for remediation investigation and execution.

2.10. An Italian example of an environmental damage claim, Luciano Zaninetta, ENI-Syndial, Italy The Cengio Site (Liguria, Italy) is an industrial site now belonging to Syndial which is part of the ENI Group. The site was originally developed for dynamite production in 1882 and has been used for industry during the whole of 20th century for the production of chemical substances. The chemical production has caused a great change in the original morphology of the site and a substantial contamination of the soil, the groundwater, the water of an adjacent river, the Bormida. In 1987 the Bormida Valley was declared environmental high-risk area by the Ministry of the Environment. Industrial activity ceased in 1999. On December 4th 2000 the Ministry of Environment, the Ministry of Health, ACNA, Enichem and the local authorities made an agreement to reclaim the site. These works consisted of the decontamination and the restoration of the flood bed of the river and of the site, at an estimated cost of about €400 million Euro, 90% of which has already been spent. The site has been remediated by excavation and disposal (to disposal sites in Germany). The site has been surrounded by a slurry cut off wall and the course of the river has been excavated and relayed. Ecological assessment of the river has subsequently found that the sediment quality in the Bormida river is high, with ecotox tests below the lowest mortality index set (20%), a substantial improvement of earlier (2001) findings. The ecological risk from the reclaimed site was found to be low. However, in 2008, under the Environmental Liability Directive, On 2008, so nearly at the end of cleanup activities, the Ministry of Environment brought an action against Syndial for €250 million Euro of

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environmental damage. The action was brought on the basis that Syndial is the present ownerof the site and has inherited all the liability for past environmental consequences; and has not done what was necessary to avoid the export of the contamination from the site. Syndial’s view is that there is no environmental damage, given the voluntary remediation it undertook was to the satisfaction of the public authorities. Furthermore there is no rationale for action against Syndial under the ELD since the property was purchased after several transfers of ownership and all activities were done in compliance with given. The circumstances of this action depend on how the ELD was transposed in Italy, and this national legislation is still developing. However, this case opens a broad question: can an industry be competitive today, with the interpretation of environmental damage use at Cengio? At the moment the main consequence of this action has been that investment in reindustrialisation elsewhere in Italy by the parent company have been discouraged 6.

2.11. Corby Group Litigation - historic contamination issues reach the English Courts, Paula Whittell, Berrymans Lace Mawer solicitors, UK Corby, one of the smallest boroughs in England, has been one of the main steel producing centres in Great Britain. In its heyday in the 1960s and 1970s, as part of the nationalised steel industry, the plant handled three million tonnes of iron ore per annum, and from that producing up to one million tonnes of iron, 300,000 tonnes of steel, and approximately 1.6 million tonnes of slag. The processes involved had not changed since the nineteenth century, and this had been a single use site throughout. After the steelmaking plant was closed down in 1980, the council decided to reclaim the site. The council took on the job of the reclamation process instructing experts to advise and manage some of the contract work, but they managed a significant proportion of the work themselves. The work was a great success in terms of the redevelopment of the town, with new businesses opening in storage, food and general production. However, a number of mothers who either lived in the town or who visited the town while pregnant when the reclamation work was going on gave birth to children with birth defects in the form of undeveloped fingers and clubbed feet. There were also a small number of other defects in the group. They claimed that these defects were caused by exposure to airborne dusts from the remediation work, with the dusts containing teratogenic substances, which they claimed to be PAHs, cadmium, nickel, chromium and their compounds. This they claimed was a foreseeable hazard. The Council disputed this claim on technical grounds (that teratogenicity was unproven and that there was no feasible airborne pathway, and no harm to unborn children was foreseeable. In 2009 a High Court judge said Corby Borough Council was negligent in its clean-up of the site which allowed chemicals to affect pregnant women, and in 2010 the 19 families of children born with deformities caused by toxic dust from a former steelworks, have reached an out-of-court settlement over compensation. In 2009 the Council had launched an appeal against the judgement. However, for a number of reasons it decided also to proceed with mediation and an out of court settlement was reached. The original judgement raised a number of serious issues about the use and interpretation of expert evidence, which were part of the original grounds for appeal, and although the out of court settlement is confidential, likely played a strong role in influencing the sums finally agreed. The full abstract provided by this speaker is included available from: www.nicole.org/news/downloads/Trieste/NICOLE%20presentation%20July%202010%5b1%5d.pdf

Readers may be interested in this paper: Mulatu et al. () Environmental Regulation and Industry Location in Europe. Environ Resource Econ (2010) 45:459–479, DOI 10.1007/s10640-009-9323-3. http://www.springerlink.com/content/q2w1v488756j086h/fulltext.pdf 6

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2.12. IPPC, waste and sustainability, an introduction to the topic, Joop Vegter, COMMON FORUM Policy perspectives concerning soil pollution have changed over the almost 30 years that most industrialised countries have addressed these problems. During the early days of policy making in the 1980, responses were largely driven by source removal. Protocols for assessing the impact of contamination were developed, and these largely focussed on soil contamination. Over the 1990’s a risk based approach to contaminated land became more prevalent, including possibilities for tailormade site specific approaches. Lessons were being learned from previous management work leading to a greater emphasis on cost effective investigations, applying accuracy and precision where they are most needed, and not investigating what is already known. Land use became a major factor across Europe in assessment and decision making. These developments culminated in concepts of Risk Based Land Management solutions around 2000, from the CLARINET network. More recently there is an increasing interest in the Integration or remediation projects with wider issues of spatial planning and water management, and the social and economical context is increasingly emphasised. Hence most national approaches are evolving from sectoral soil-oriented and chemical substancesoriented policies to more system-oriented and adaptive management approaches under headings like “revitalisation of brownfields” “sustainable urban development” and “river basin management”. These integrated approaches are supported by results of many EU funded research projects, Integration means that “pollution” is only one of the many aspects that has to be addressed. Integrated approaches are more complex, but this can be an advantage because more stakeholders are involved that can contribute to the solution and gain benefits from it, and different policy goals, like attractive urban landscapes and job creation, can be reached simultaneously. Another important factor driving this process is the wide range of policy interests which have a soil policy component, illustrated in Figure 5.

Biodiversity discussion

Water Framework Directive

Liability Directive

Landfill Directive

Strategy Urban Environments

Ground Water Directive IPPC

Contaminated Sites

Strategy on sustainable use of resources

Bird and habitat directives Strategy on Soil protection

Waste Framework Directive

Strategy on waste prevention and recycling

Figure 5 The policy and regulatory environment for soil management Recent discussions in various “Sustainable Remediation Fora” (SURF-UK, SURF-US , SURF –Australia) have emphasised the need for more flexible regulations allowing for site specific decisions based on balancing environmental, social and economic issues. At first sight “regulations” and “flexibility” is a difficult combination. However, there are several ways in which European legislation can allow flexibility:

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•

Providing exclusions for specific circumstances

•

Providing site specific approaches to regulation

•

Allowing flexibility in national transposition

•

Providing European legislation that provides a frame for but does not prescribe national or regional approaches.

A possible way forward is to use adaptive management approaches and planning site development in such a way that stakeholders or interest groups become aware of the real consequences of the choices available. This may mean asking more basic questions during project planning: •

What are the consequences of a decision for the surrounding environment?

•

What are the consequences of a decision for future uses and functions?

•

How does the decision affect implementation of other policies?

•

How are stakeholders and interest groups affected?

Concerning the three pillars of sustainable development, People Planet and Profit, the interaction between economy and environmental aspects of contaminated land has been studied and discussed in detail. However, the social component has been less well debated. A particular problem may be a lack of awareness of the importance of soil as a resource, and the effects of threats like contamination, amongst policy makers and the public in general. Prevention of soil contamination and degradation needs to become more important in policy-making. In addition, it needs to be more widely recognised that contaminated sites are parts of larger systems like riverbasins. Planning for sustainable remediation should also address these larger scale impacts of contaminated sites and go beyond sitespecific sustainability discussions. The concept of maintaining ecosystem services (for example soil formation, bio-geochemical cycles, and atmospheric oxygen turnover) may play an important role in this emerging debate.

2.13. Waste case, Anja Sinke, BP, UK This case study is of the aftermath of a blocked valve incident for an oil pipeline in Europe but outside the EU. Cause of accident is unclear and might have been by vandalism or terrorist action. An emergency response was immediately initiated. The pipeline was shut down to protect people and environment and to help extinguish fire. Temporary ponds were put in place to collect the water used in extinguishing the fires, and the soil impacted by oil and extinguishing water were scraped up and stored at the site as stockpiles on a liner (see Figure 6). Two stockpiles were created, with a TPH content of 2039 mg/kg and 11064 mg/kg. Degradation was already occurring and it was estimated TPH levels would fall to below 500 mg/kg within two years. A number of options were considered for treating the excavated soil. While the site was outside the EU, the regulator used EU legislation and Directives as points of reference. The excavated contaminated soil was regulated as a waste (in line with the Waste Framework Directive). Possibilities included biopiling to treat the oil contamination and allow the soil to be reused on site; exporting the soil for treatment and recycling in the Netherlands; transporting the soil for energy recovery in a cement kiln; or transporting to offsite hazardous landfill. In terms of the waste hierarchy the preferred option would be to re-use the soil on site. A conventional biopile approach was envisaged with nutrient addition and turning and the collection and treatment of leachate. The soil would be re-used at the site when agreed quality standards were met. However, this option was not selected because the re-use of the soil on site was not considered to be a market for the soil, and so the soil would have remained technically a waste. Less favoured by the waste hierarchy is recycling, and the shipment of soils to a thermal treatment facility in the Netherlands would also have reduced the sustainability of this option. This option was not

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selected, initially because of concerns over the Basle Convention which later turned out to be unfounded, but ultimately because BP did not consider the approach to be particularly sustainable given the transportation involved.

Figure 6 Stockpiling impacted soil at the site of the incident Less favoured again by the waste hierarchy is energy recovery. The contaminated soil had an energy content of 800-8000 kJ/kg. From a regulatory standpoint the treatment of soil in the cement kiln would mean that the soil was no longer a waste, so from a regulatory and management standpoint this was a viable option. However, although this approach had regulatory approval, BP decided not to proceed with it because it had concerns on the air filtration of the cement kiln and possible air emissions. Ultimately the soil was removed to a hazardous landfill, which is the lowest ranked option of the waste hierarchy. The removal of the soil took 297 truck loads to the landfill site which was 920 km distant. The trucks passed through the countryside and numerous villages. The estimated fuel cost for haulage was 136,620 litres of diesel, resulting in a CO2 emission of approximately 350,000 kg. Several differences in decision-making would have been needed to have selected a more sustainable option (biological treatment and re-use on site). The requirement for treated waste to have ‘market’ would have needed to have been more favourably interpreted, allowing the treated waste to cease to be waste even although it was being reused by its original owner at the same site. Perhaps it could have been helpful to have included sustainability criteria be included in the evaluation of options. However, this would have required a consensus with the regulator on how to weight sustainability concerns with respect to other regulatory issues.

2.14. Evaluating environmental efficiency and transforming contaminated land management towards increased sustainability, Dietmar Müller, Umweltbundesamt, Austria / EURODEMO+ At an EU level there are a number of current sustainable development policy initiatives which should affect our consideration of the remediation processes used to manage contaminated land. The 6th Environment Action Programme emphasises the sustainable use of natural resources, in particular that the consumption of resources should not exceed the carrying capacity of the environment, and sets the goal of de-coupling of resource use and waste generation from economic growth. The Environmental Technology Action Plan provides a framework for how environmental technologies are to be verified in the EU, and includes in its criteria that they should be eco-efficient, evaluated against ‘indicators. The EU Thematic Strategy on the Sustainable Use of Natural Resources sets out life cycle thinking

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integrated to sector policies and the “20-20-20” EU climate and energy targets set the challenge of transforming the EU into a highly energy-efficient, low carbon econom 7y. Often in the contaminated land sector we like to make very generic assumptions about sustainability. For example biological treatment is seen as “more sustainable” than other forms of treatment such as landfill disposal. These assumptions need to be scrutinised carefully, for example if the biological treatment is at a distant off site facility the impacts of soil transportation could nullify the benefits of soil re-use. The problem is that this kind of balancing judgement is very difficult to make: how does one compare the benefit of reusing soil with the impact of excessive transportation? One tool that may assist this comparison is the assessment of eco-efficiency. Eco-efficiency is an important component of the overall sustainable development picture. Sustainable development comprises three elements: society, economy and environment. Eco-efficiency is an economic and ecological (environmental) analysis of processes and products aiming at economic and environmental optimisation. Depending on the denominator for expressing a ratio of economic vs. ecological aspects, results may indicate environmental productivity, environmental intensity, environmental improvement costs, and/or environmental cost-effectiveness. Using efficiency assessments can reveal that assumptions are misplaced, and that apparently counterintuitive approaches may give better results. A good example of this in the EURODEMO reports available from www.eurodemo.info is a case study prediction for an in situ thermal treatment application. This found that enhanced thermal vapour extraction showed much greater energy efficiency than conventional (cold) soil venting. This was because the effectiveness of adding heat in terms of liberating contaminants greatly exceeded its energy requirement compared with the energy requirement needed to run conventional venting fans for a much longer period. Eco-efficiency is a ratio between a specific value (financial, ecological benefit, or social welfare) and environmental impacts, or the inverse of this ratio. It links to some policy visions: “decoupling”, achieving the same service but with less environmental impacts; and “Factor 4”, doubling the service but halving the impacts. The advantages that are seen from using eco-efficiency are that it is illustrative of relative economic and environmental impacts, and different kinds of rations can be used, e.g. using different values to compare environmental impacts with such as financial, cost, price, wealth, or social welfare. The calculation is seen as relatively easy to implement using readily available data, and the assessment itself is seen as easy to understand and communicate to different stakeholders, and so support development towards increasingly sustainable practices. EURODEMO suggests a tiered approach to sustainability assessment for remediation, beginning with simple broad ranging qualitative approaches, these can then be supplemented with simple ecoefficiency assessments, and if necessary – where the circumstances demand more sophisticated life cycle assessments (as illustrated in Figure 7). Life cycle assessment is a fairly laborious and dataintensive procedure and it is not seen as a routine remediation assessment in the way that ecoefficiency assessments could be. Table 5 sets out suggestions for environmental criteria which could be included in a simplified eco-efficiency assessment for the evaluation of remediation technologies. For life cycle assessments, including simplified assessments such as eco-efficiency setting the boundary conditions, such as options, goal and scope, is very important to ensure that like is being compared with like. These include: geographical boundaries; time boundaries; the “functional unit’” which is the basis of comparison e.g. pollutant mass recovered; the system boundary (illustrated in Figure 8); and what “cut-off-criteria” will be used in determining effects, e.g. effects below 1% of the total will not be included in the calculation. The system boundary defines the key elements of the approaches and processes being compared and so the identification of these is a key stage of both ecoefficiency determination and more detailed life cycle assessment. Life cycle assessments may also make use of reference scenarios where assessments of frequently employed approaches or technologies are available.

7

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Link: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0030:FIN:EN:HTML


Eco-efficiency assessments could assist decision making by a wide range of stakeholders. Technology developers and vendors can use eco-efficiency to document improvements in performance and innovation, for example to support the market entry of new products and services. These involved in applying remediation can use eco-efficiency as a decision support criterion during the planning and tendering of a site remediation project, and in its verification and reporting. Collated eco-efficiency data could also be used for reporting and review at regional, national and European level, and to assist with the development and definition of general policy targets.

Figure 7 Applying sustainability assessments such as eco-efficiency

Figure 8 Illustrating the system boundary for eco-efficiency assessment

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Table 5 Environmental criteria which could be included in a simplified eco-efficiency assessment for the evaluation of remediation technologies IMPACT CATEGORIES

PARAMETERS

energy consumption

renewable, non-renewable consumption

water consumption

m³ water

OUTPUTS

waste generation

hazardous & non-hazardous waste (in tons)

Secondary Impacts

global warming

carbon dioxide (kg CO2)

INPUTS

&

total

energy

2.15. ETV for soil technologies, experiences from pilot testing, Johan Strandberg, IVL, Sweden TRITECH ETV was a pilot project aimed to develop an EU wide scheme for verifying the performance of environmental technologies, which was funded by the European Union’s Life Environment Programme. The overall aim of the TRITECH project was to establish a mechanism to objectively validate the performance of innovative environmental technology products. The TRITECH project has provided guidance to the European Commission on the design of the coming EU Environmental Technology Verification (ETV) system. This validation mechanism is seen as ultimately leading to new environmental technologies being introduced into the market place at a much quicker rate. The ETV aims to establish a platform for third party verification, so buyers can be assured a product or service "does what it says on the tin". A major challenge for the ETV is to find a common structure for technology branches such as energy and soil is radically different. This caused a lot of discussion and will continue do so. The TRITECH project worked in three technology areas: soil remediation, waste water and energy related technologies. IVL’s area of work concerned soil remediation, including verification of both treatment technologies and one measurement technology. The focus and aims of the verification work changed in several aspects during time, as experience grew. This is the first test ever in Europe within the ETV using commercially available processes for operating service providers. The opinions of the companies and authorities in Sweden (and one UK company) involved with the TRITECH project were very positive towards the process, both in terms of improving the acceptability of a new technology and in terms of providing a competitive edge for service providers. Not all of the comments supported the vision of a European ETV. For example comments related to level of detail needed, entry costs, and particularly related to who undertakes the versification and in what country showed that an EU ETV would not necessarily be viewed objectively and that it could be advantageous to companies with bigger financial resources. The TRITECH approach to verification is a modular one across processes, costs and environmental impacts (see Table 6). It is clearly in the interest of a technology supplier that verification applies across a range of applications. However, the nature of soil remediation is complex and highly dependent on site specific factors. The modular construct is seen as a way of at least partially resolving this dilemma, by assuming that the number of soil properties affecting performance is limited. On this basis verifying performance against these key parameters can allow the translation of technology performance from one site to another.

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Table 6 Verification factors for environmental costs Input indicators Use of recycled materials (secondary materials) [kg, m3 etc.] Use of non-renewable materials [kg, m3 etc.] Use of renewable materials [kg, m3 etc.] Consumption of primary energy Consumption4) of freshwater resources

Output indicators raw Materials for recycling Materials for energy recovery Non-hazardous waste to disposal Hazardous waste to disposal Radioactive waste to disposal Exported energy Secondary raw materials components for reuse) Emissions to air Emissions to water

(by-products,

2.16. Flash presentation: ETV from the industrial perspective, Anja Sinke, BP, UK The purposes of the ETV are perhaps to validate quality, to re-assure stakeholders and to support innovation. BP has substantial experience in the trialling of innovative remediation technologies. Current and recently trialled innovative technologies include: the use of “nano-iron”, combined chemical and biological oxidation using amendments like calcium peroxide and persulphate, phyto-remediation, use of windmills as boundary interception to supply oxygen and slow in situ thermal processes using oxygen injection. BP’s view based on this experience is that the quality of a remediation technique’s application depends on the site specific situation and design. Their concern is that certification of techniques would result in false “certainties” and unrealistic expectations. A better mode for reassurance for problem owners, regulators, consultants, and the public might be to improve the transfer of information. This is already a substantial process across the remediation sector internationally, for example via the technical literature, the Internet (e.g. via EUGRIS and Clu-in), networking (e.g. NICOLE, Common Forum and national networks such as CL:AIRE and SKB), and conferences and workshops. BP suggests that it the key areas to focus efforts on is in ensuring that problem owners and the consultants they use have sufficient technical competence to execute effective decisions, rather than reduce reliance on this competence through a certification scheme. The idea that ETV may trigger innovation is flawed. Indeed it may reduce innovation if the entry costs and effort to verification are high, which would have the effect to restricting verification to well established technologies, where the costs can be spread over a large number of applications and a larger cost base. Furthermore, the real triggers for innovation are different. Effective encouragements include:

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•

Tax incentives for site owners (lower tax for ‘innovative technology’)

•

Allowing an extended time frame to reach targets

•

Regulatory endorsement

•

Overall (potential) cost reduction

•

Blue sky projects

•

The balance between overall risk for failure and risk for success

•

Reliability, robustness and easiness of a fall back scenario in case of failure of a first application of an innovative approach


•

Cross-sectoral international technology development projects including research bodies, industry, consultants and regulators (such EURODEMO, SNOWMAN).

NICOLE and the Common Forum have published a common position paper on innovative technologies (available from http://www.nicole.org/news/downloads/NICOLE%20%20Common%20Forum%20joint%20Position%20 Paper%2001-12-2009.pdf). This recommends an overall plan with actions/suggestions to enhance use of innovative techniques by establishing a suitable organisational, financial and societal climate based on supporting sustainability in remediation. A key part of this approach is the improvement of the “accessibility” of existing information. To this end the paper suggests the development of a “Joint memory database” exploiting existing systems in Europe like EUGRIS, EURODEMO, and SNOWMAN.

3. Perspectives from NICOLE Working Groups 3.1. Brownfield development: opportunity or threat to the Soil Framework Directive? Frank Westcott, Eco-Bos Ltd, UK Concern over the effects that the proposed EU Soil Framework Directive could have on their established brownfield development policies has been a cause of opposition to the proposed Directive from some Member States. However, the development of brownfield sites remains fully in line with the objectives of the 2006 European Commission Thematic Strategy on Soil Protection. The NICOLE Brownfields Working Group (BFWG) has been examining brownfield definitions across Europe; studying of national brownfield land and development markets; reviewing liability management and transfer mechanisms and practices in these markets; and developing a European “Roadmap” for liability management and transfer. In 2005 CABERNET network defined “brownfield sites” as “sites that: have been affected by the former uses of the site and surrounding land; are derelict and underused; may have real or perceived contamination problems; are mainly in developed urban areas; and require intervention to bring them back to beneficial use”. This definition has gone on to have widespread use across Europe. Perhaps a related definition for “brownfield development” can be proposed, as “the interventions that are carried out on a brownfield site with the specific aim of bringing it back into beneficial use”. Under this definition, both built development and land restoration for “green” end-uses are considered as “brownfield development”. In 2009 a BFWG survey of 33 NICOLE members in 15 European territories yielded the following information found that:

Page 37

•

Risk-based definitions of contaminated land exist in all but four of the countries assessed. Brownfield definitions vary, being synonymous with derelict or vacant land, contaminated land or previously developed land.

•

In most countries policy and regulation emerged for contaminated land prior to policy and regulation for brownfield land and regeneration.

•

The UK has the strongest brownfield market and incentives. There is some activity elsewhere, but most European brownfield markets are weaker.

•

Liability transferable by contract is important for safe divestment of land but appeared to be possible in only four of the countries reviewed.

•

Approaches to liability transfer are highly variable, being routine in some countries and rare in others. Contamination responsibility is rarely comprehensively transferred; non- or partial transfer is more usual. Many liability transfer mechanisms are available but few are frequently used.


Table 7 compares land management under a brownfield redevelopment regime with a liability management regime. There are differences in emphasis for the two approaches between MS. , Regulation that is efficient for liability approach may obstruct and/or create blight for brownfield development. Equally, regulation that incentivises brownfield development may work less efficiently for the liability approach. However, crucially Member States with low commercial development values cannot rely on development proceeds to fund remediation. This is a dilemma that creates challenges for drafters of the possible Soil Framework Directive. Table 7 Comparing Brownfield and Liability Regimes Brownfield Development

Liability Remediation

Voluntary Liability transfer to developer Remediate to new beneficial end use Regulate through development framework Remediation funded by beneficial end use value Works with the grain of the market Must add value and avoid long term blight to be successful

Enforced by regulation/ legal action Polluter pays/responsible Remediate to existing use or unused (exclusion) standard Remediation funded by polluter with no added value No market incentive to do more than minimum May create long term blight if it does not lead to beneficial end-use

The Soil Thematic Strategy has identified a range of threats of soil degradation that affect European soils. These threats range in origin from agricultural degradation through developmental pressures and environmental pollution. The specific threats identified in the Thematic Strategy include erosion, loss of soil organic matter, salinisation, compaction, sealing, contamination and biodiversity decline. Several of these effects are exacerbated by the impacts of climate change. Table 8 provides an appraisal of how conventional brownfield development can contribute to addressing these threats (positive impacts), and also how it can exacerbate these threats (negative impacts). Policies that encourage brownfield development can have a net beneficial effect on soil protection by displacing soil-damaging development from greenfield sites, mobilising the energy and economic power of the development industry into non-soil damaging activities, and transferring remediation skills into soil restoration actions. The consequence of policies that might obstruct or prevent brownfield development, will be increased threats from development on agricultural or ecologically-important soils, not only for the development itself but from the provision of essential new infrastructure to serve the development. The principle obstacles the current draft Soil Framework Directive puts in the way of brownfield development are:

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•

Inventories which will cause blight if sites remain on them forever

•

Soil Status Reports which have a high cost burden and may lead to blight

•

The cost implications of timetables for remedial action

•

Soil sealing – restrictions could discourage remediation by low permeability cover systems

•

The Harmonisation of Risk Assessment Methodologies may lead to a “lowest common denominator” approach where the sustainability advantages of site specific risk assessment are lost

•

In many countries there are effective existing effective national policies and functioning development land markets which will suffer as a result of a Directive from the basis of implementing a regime where none exist already.


If obstacles barriers can be avoided the cause of much of the previous opposition to the Soil Framework directive may be negated. Table 8 Assessment of Brownfield Development Impacts Related to Key Soil Threats Identified in the EC Soil Thematic Strategy Threat

Potential Positive Impacts Brownfield Development

from Potential Negative Impacts Brownfield Development

Erosion, Organic Matter Decline, Salinisation, Compaction and Landslides

•

Displacement of development from Greenfield sites, therefore reducing loss of farmland and pressure to cultivate sensitive land

•

Brownfield site restoration for open space uses, and soil making techniques, can contribute to reversal of organic matter decline

•

Could remediation skills be used to remediate salinised land ?

Soil sealing • (permanent covering of soil surface with • impermeable material, / irreversible loss of fertile soils ) •

Brownfield sites already sealed, so no additional sealing

Soil contamination (from historic sources)

Based on delivery of beneficial end-use and regulated through development framework

•

Displacement of development from greenfield sites avoiding additional sealing

•

Badly planned development (brownfield or greenfield) could cause/worsen erosion or landslides

•

Some remediation methods destroy soil organic matter

•

Impermeable covers (to prevent contaminant leaching) often used as a sustainable remediation method

•

Some construction techniques/products designed to preserve soil functions are unsuitable for brownfield developments

•

Only effective if land values greater than remedial costs

•

Sensitive to negative perceptions (“blight”) and market fluctuation

•

Hard to demonstrate transparently that Polluter Pays Principle adhered to, especially if liability transferred

Brownfield restoration to open end uses can reverse soil sealing

•

Voluntary action and funding

•

Intellectual energy focussed on making site fit for use rather than legal disputes over liability (eg US Superfund)

•

Where market conditions allow, more sites remediated faster than through liability mechanism (UK: >95%)

from

For beneficial outcomes to be realised it is important that European policies and legislation, including any future resurrection of the Soil Framework Directive, and also revisions to Waste, Water and Industrial Emission Directives, evolve in a manner that encourages sustainable forms of brownfield development. These also need to be framed (and transposed into national legislation in a way that also avoids creating barriers to sustainable brownfield development. A positive agenda would be to should encourage sustainable forms of brownfield development. This might be achieved by: addressing barriers to liability transfer while recognising that it should not negate the Polluter Pays principle; incentivising (through supportive regulatory regimes) voluntary actions to bring land back into beneficial use; encouraging dissemination and adoption of examples of national

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good practice Europe-wide; and interventions to assist the development of Brownfield Land market across Europe.

3.2. The polluter pays principle: a barrier to sustainable land use? Ian Heasman, Taylor Wimpey, UK The Polluter Pays Principle (PPP) in the context of land contamination has been identified as a potential barrier to the current and future supply of contaminated brownfield land for redevelopment. PPP is an environmental policy cornerstone which requires that the costs of pollution be borne by the party who caused it. The PPP was initially proposed by the OECD in its 1972 publication: Guiding Principles concerning International Economic Development Aspects of Environmental Policies. It is enshrined in the treaty establishing the European Union incorporated by the Single European Act (1987). Liability is apportioned under the PPP through two broad classes of mechanism: market mechanisms (internalisation of environmental costs into products and services, environmental taxation and tradable permits) and control mechanisms (performance standards, technology standards and legal liability apportionment). Unlike surface water and air, historic pollution of land can remain present indefinitely prior to remedial action, which increases the chance of an historic contaminated land liability arising. Contaminated land liability can be defined as loss or potential loss due to environmental damage. The loss is typically monetary but can take other forms such as damage to reputation. Losses may be foreseeable (for example established remediation costs) or potential (for example undiscovered contamination, or future changes in scientific knowledge or legislation). Provided adequate site characterisation has been undertaken remediation costs are typically reasonably foreseeable. ,While in most instances potential costs may be close to zero, occasionally they will be substantial, even for a large industrial company. . The liability of the polluter may last in perpetuity, over all future cycles of land use. The polluter liability might also be affected or magnified by the actions of future site owners over which it has no control. The combination of long term liability and the potential for high and possibly unforeseeable costs is an obstacle to land transactions and brownfield redevelopment, unless mechanisms to manage or transfer liability can be put in place. However, concern over urban growth and sprawl particularly in the last 50 years have led to increasing calls for more sustainable land use through the redevelopment of ‘brownfield’ land. While there are a wide variety of approaches to redeveloping brownfields across Europe there is a growing consensus that land regeneration must become increasingly important. Both Polluter Pays and sustainable land use are important environmental issues, but how are they linked? Given the potential retention of liability, large corporately responsible land holding organisations are cautious about selling contaminated land for redevelopment, in particular for sensitive end uses such as housing. These organisations are sensitive to the possibility that, even with safeguards in place, it could be possible for a post-divestiture contamination problem to end up back with them. Unlike the sale of many assets there can be a continuing liability associated with the sale of land in line with the Polluter Pays Principle. Such liability can ‘bounce back’ to the original polluter even after one or more land use changes and perhaps decades after divestment. Where this is viewed as a significant risk sites will be locked away and managed as closed redundant land. This can be a significant constraint on the supply of contaminated brownfield land, and hence on sustainable land use. This issue has been the subject of a research project by the NICOLE Brownfield Working Group. The research work has included an examination of contaminated land and brownfield definitions, a look at markets for brownfield land across Europe, and a detailed review of environmental liability transfer mechanisms and practices. It is developing a ‘road map’ for liability transfer and has also developed the concept of ‘liability linkages’ for liability management, as a complementary concept to ‘pollution linkages’ in contaminated land management. The research is drawing conclusions that liability transfer is an important factor in overcoming this potential land supply constraint. The main research findings are as follows:

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•

Risk-based definitions of contaminated land exist in all but four of the countries assessed. Brownfield definitions vary, being synonymous with derelict or vacant land, contaminated land or previously developed land.

•

In most countries policy and regulation emerged for contaminated land prior to policy and regulation for brownfield land and regeneration.

•

The UK has the strongest brownfield market and incentives. There is some considerable activity elsewhere in northwest Europe, but most eastern and some southern European brownfield markets are weaker.

•

Liability transferable by contract statute is important for safe divestment of land but appeared appears to be possible in only four of the countries reviewed.

•

Approaches to liability transfer are highly variable, being routine in some countries and rare in others (see above).

•

Contamination responsibility is rarely comprehensively transferred; non- or partial transfer is more usual.

•

Many liability transfer mechanisms are available but few are frequently used.

•

Belgium (and most specifically Flanders) has the most comprehensive approach to liability transfer; in some southern and eastern European countries it is given little consideration.

•

Most EU land transactions are conducted on a ‘Sold with Information’ basis. ‘Sold as Seen’ (with no significant information) is still often used in some countries but strongly avoided others.

Where liability transfer is possible, it provides the vendor with confidence that responsibility for contamination has been transferred. However, for the transfer to be effective the vendor must ensure that the new site owner has the skills and financial standing to take on that liability. Money from the redevelopment process is used to tackle the historical legacy of contamination, which has the benefit of reducing pressure on public money. The redevelopment process has additional wider benefits of assisting regeneration and preserving greenfield land. At first glance it appears that the polluter is benefiting financially from the land that is being sold, which might imply that they are not actually paying directly for the remediation work, which is being undertaking as part of the redevelopment. This might seem contrary to the polluter pays principle. In fact the polluter does pay because the sale price will be discounted by the buyer to take account of the remediation costs that the redevelopment will incur, compared with the value of a greenfield site in a similar situation. Where potential environmental liabilities can be transferred with the land redevelopment economic activity is encouraged and sustainable land reuse enabled. The parties who are the recipients of the potential environmental liabilities must be incentivised and benefit from the redevelopment of the land (e.g. developers), and have sufficient skill, knowledge and financial resources such that there is confidence that they can resolve both known and unforeseen future pollution problems. These parties effectively take on some of the polluter responsibilities to safeguard human health and the environment. Regulators can have confidence that the safeguards inherent in the polluter pays principle are preserved and that the pollution is being managed responsibly, albeit by an alternative organisation. The original polluting organisations gain sufficient confidence that they may transfer their potential environmental liabilities together with the land and hence will engage in divestment of the land back into productive use. The proposed Soil Framework Directive includes actions to deal with historic soil contamination. However, it also provides opportunity to support liability transfer across the EU, which at present is impeded in several Member States. This is an opportunity to assist regeneration of brownfield areas, and should therefore be included in any future reworking of the Directive proposals.

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3.3.

Is risk assessment sustainable? John Waters, ERM, UK

A common goal in returning contaminated land to beneficial re-use is to bring consequent environmental, social and economic benefits. The risk based management of contaminated land is a key policy tool that has been adopted in many countries. Quantitative risk assessment is typically the dominant tool, in line with contaminated land regulations, in determining clean-up goals. Yet this may ignore other key factors crucial to sustainable remediation. For example, as suggested in the SuRF US White Paper (2009), the risks associated with many sites are relatively small, pertain to a small population, and/or are speculative to hypothetical in nature…. a far greater risk of significant injury and even fatality exists for remediation workers and impacted community (e.g., truck accidents on the open road). These risks are not given proper consideration in remediation decisions. At the 2009 NICOLE Leuven workshop Rebecca Wallace gave an example of a site with PCB contaminated soil where an initial remedial options analysis concluded with a strategy of excavation to 65 feet (19.8 m) or use of a permeable cover. Excavation and offsite disposal would have taken over 114 months. The risk of fatality as a result of excavation and road traffic accident was several orders of magnitude greater than the risks from the contamination itself. The concept of sustainable remediation is now emerging as a new policy driver though as yet the practical implications of this evolving area of policy on the methodology and technology selection for contaminated land remediation are not yet known. In many cases sustainable remediation is considered at the point of remedial options appraisal after the risk assessment has been completed and the remediation design / goals set. However there is also the opportunity to integrate sustainability at different stages of the risk assessment process leading to streamlined and consistent decision making in remediation design as well. Important considerations in the remediation design are the assumptions underpinning the risk assessment. An under designed solution will not be fit for purpose as it will not mitigate risks in a way that is deemed to be acceptable. However, an over-designed solution will not provide additional risk management benefit (for example for the land use envisaged) but will consume resources and effort and generate impacts such as wastes and emissions in a way that is unnecessary and wasteful. It is more sustainable to preserve these resources so that they are available for other needs of Society and to prevent unnecessary impacts. There is a difficult balancing act also in apportioning risks, for example risks to future site users, versus risks to wider members of society and risks to workers from remediation processes themselves. This has yet to be considered in an explicit way in any national policy agenda for contaminated land management. Two of the most significant causes of over design is the use of overly conservative assumptions (for example from groundwater compliance points to acceptable risk levels), and also the use of generic approaches and thresholds for site assessment that do not allow the flexibility of a site specific remediation design. Generic thresholds are inherently conservative as they will always have to reflect a worst case scenario for any particular land use. Generic approaches may have a value as a screening tool, but in many cases a site specific risk assessment will provide a more optimised remediation design and so avoid unnecessary impacts and use of resources. Quantitative Risk Assessment (QRA), undertaken in isolation, may not be compatible with developing a sustainable remediation solution. The incorporation of sustainability principles may lead to questioning of fundamental QRA assumptions and hence difficult choices but also may encourage more holistic decision making. This will require a meaningful and rational debate about degree of conservatism applied specifically to site specific QRA and the necessity to re-evaluate regulations on contaminated land management more generally. This debate has the opportunity to maximise the amount of sustainable remediation undertaken and the number of contaminated sites brought back into beneficial reuse.

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4. Discussion This discussion has been drawn from the discussions through the workshop including its closing plenary session, from the conclusions of the organising committee for the workshop and from comments kindly sent in by a number of delegates and NICOLE and COMMON FORUM members after the workshop. While the COMMON FORUM and NICOLE have a long track record of collaboration, this joint workshop is the first of its kind. A range of recent and emerging Directives are having an impact on the management of contaminated land, for example the ELD, the Industrial Emissions Directive (IED), the Water Framework and its daughter Directives and the Waste Framework Directive. In addition, the proposed but postponed Soil Framework Directive may yet see further development. The effect of these Directives, their transposition and their interaction with national legislative frameworks on remediation costs are very large, as shown by several presentations at this meeting. From a regulatory standpoint the wording of these Directives can often be problematic and their technical effectiveness open to question, for example the use of soil monitoring surveys in the IED. This workshop offered the opportunity to industry, service providers, policy-makers and regulators to learn more about each other’s concerns, many of which are shared, and so help support better transposition and implementation of the environmental Directives in the EU Member States. Valerie Fogleman (Stevens & Bolton, UK) overviewed the ELD and how its transposition has varied across Member States. The ELD substantially expands the requirement for remediation following environmental damage within its scope. The ELD applies only to environmental damage after April 2007. A couple of presentations, however, identified the potential for problems caused by historic contamination to fall under its ambit. One example was presented by Luciano Zaninetta (ENI-Syndial, Italy). After spending € 350 million remediating a site, the operator was still held accountable by the Italian authority for environmental damages of € 250 million. This was despite having regulatory signoff for its previous voluntary remediation effort. It was unclear how the Italian authority was relying on the ELD for the further claim however. In another example, Lucia Buvé (UMICORE, Belgium) described how any environmental damage caused by pumping and treating historic contamination in the Netherlands can also comes within the scope of the ELD. So far case law for the ELD is limited, but what does exist points to a broad interpretation of the scope of the ELD, and the need for only a weak causal link between the operator’s activities and the environmental damage they are held liable for in the case of diffuse pollution. From a process operator’s point of view, it is unclear how far a defence of operating within a permit is effective. Environmental insurance products are widely available; public liability policies, as a general rule, do not provide the requisite cover. Operators would, of course, do well to work within the conditions of their license, but nevertheless should at least consider purchasing environmental liability insurance. From a regulator’s point of view it is important to understand that an overzealous approach to securing compensation for environmental damage will discourage investment in ongoing industrial production, as shown in the ENI-Syndial example. Paula Whittell (Berrymans Lace Mawer, UK) reviewed the judgement and out of court settlement reached at Corby in the UK where a group of families had successfully claimed in court that various malformations of children at birth could be due to the way in which the town council had previously managed a large remediation project in the town. While the Corby Borough Council were to appeal this decision, in the end they settled out of court for commercial reasons, and to avoid further distress to the young people involved. This action was brought under Common Law in England and not under European legislation. A number of technical deficiencies in the use of expert evidence were cited, which surprised a number of delegates at the workshop, although one or two UK delegates did express reservations about how the remediation work had been originally executed. Marijke Cardon (OVAM, Belgium/Flanders) overviewed the Industrial Emissions Directive (IED), which is undergoing implementation and replaces previous Integrated Pollution prevention and Control (IPPC) legislation. This Directive aims to return the quality of soil and groundwater to a condition that poses no significant risk to human health or the environment after the cessation of any permitted activity. The technical basis for this requirement is linked to a baseline survey of soil and environmental condition when permits are issued. This would be compared with soil and environmental condition at process cessation. However, the limitations of available analytical techniques combined with the limitations on

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feasible sampling mean that the findings of any such surveys and comparisons will be highly questionable. This is of concern to both NICOLE and COMMON FORUM, and while neither network was successful in removing this requirement from the Directive drafting, both are hoping to be able to provide a technical input to whatever guidance about this is forthcoming from the European Commission. The Waste Framework Directive clarified when soil might be classed as a waste (typically if excavated and contaminated, or if excavated and moved off site). It also introduced the concept of “byproducts” and clarified end of waste criteria which may assist clarity of regulation for soil treatments on and off site. Any assistance is strongly dependent on the trans[position of the Directive to national laws, which shows some variation between Member States. Furthermore, the NICOLE Working Group on Waste considers that any advantages from this are more than circumvented by the possibility of treated soils falling under the provisions of the REACH Regulation (Registration, Evaluation, Authorisation and Restriction of Chemicals). The requirement of REACH may make a case for soil treatment and re-0use or recycling at best marginal. However, again this appears linked to national perspective. Marijke Cardon (OVAM) pointed out that from the Flanders point of view the exclusions in the REACH regulation meant that it did not extend to soil. An example provided by Anja Sinke of BP illustrated that the detail of the Waste Framework Directive, in particular the significance of showing a “market” for recycled or re-used soil can lead to conservative and less sustainable soil management solutions, because the end of waste regulations militate against the use of treatment based approaches. An interesting aspect of this talk was that the case study was based in a country outside the EU, but that EU legislation was a dominant influence in that countries environmental regulatory approach. The “reach” of EU Directives is indeed wide. Dietmar Müller (Environment Agency, Austria) reviewed the Water Framework Directive (WFD) and the Groundwater daughter Directive (GDD). NICOLE and some COMMON FORUM Members had hoped that these would allow more explicitly for risk management solutions for groundwater contamination by allowing zones for plume management and control. While this was not included, the Directives do recognise that a point source of contamination in a groundwater body should not necessarily render the whole groundwater body as poor status. The scope offered for area management of groundwater and for zones of mixing around sources offer some flexibility for remediation, but this is limited (as the pump and treat illustration from Umicore showed). A more positive aspect, described by Co Molenaar of VROM, is the increasing recognition, particularly in the Netherlands, that an area groundwater management approach may provide a less expensive and more sustainable groundwater remediation solution, and allow synergies with other aquifer uses such as heat and cold storage (as illustrated by the examples provided by the presentation of Hans Slenders in Arcadis). The workshop heard about the possibility of verifying remediation and site investigation technologies under the EU Environmental Technology Verification Scheme (ETV) from presentations by Johan Strandberg, IVL and Anja Sinke, BP. Whole some merit in a verification scheme was seen for site investigation technologies, opinions were divided on the usefulness of this scheme for remediation technologies. A number of practitioners felt that the site specific nature of remediation work meant that a general certification scheme was unworkable, and they were also concerned that it would lead to a diminution of expert judgement on the part of consultants and problem holders. However, several regulators welcomed the idea of verification, which they felt would improve their confidence in technological solutions being suggested to them. A general consensus was that NICOLE and Common Forum were in a good position to improve access to good information about contaminated land management in general and that they would further advance their concept of a “joint memory database” based on EUGRIS, EURODEMO and SNOWMAN, set out in their December 2009 Position Paper on innovative technologies. David Oram of National Grid Property drew the workshops attention to the impact of developing regulatory and policy changes on liabilities for historic land contamination. He illustrated the sheer number of EU and national initiatives that his company needed to take account of in their liability forecasting, and the economic impact of these developments. This impact has been that despite a very large remediation investment each year since 2003 by his company, they calculate that their liability position since 2003 is essentially unchanged. Ian Heasman (Taylor Woodrow) reviewed the current

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findings of the NICOLE Brownfield Working Group, which included amongst its findings that the UK has the strongest brownfield market and incentives. There is some activity elsewhere, but most European brownfield markets are weaker. Liability transferable by contract is important for safe divestment of land but appeared to be possible in only four of the countries reviewed. Approaches to liability transfer are highly variable, being routine in some countries and rare in others. Frank Westcott (Eco-Bos Ltd) also in the BFWG gave a view that the current drafting of the proposed Soil Framework Directive was likely to discourage brownfield regeneration, but that a better drafted approach would allow a synergy between brownfield regeneration and the management of threats to soil. A strong message from the workshop was the importance of undertaking contaminated land management in a sustainable way. Joop Vegter illustrated how ideas of sustainability were having an increasing influence in remediation decision making, and expressed the view that the future direction of travel was for the sustainability of remediation projects to be considered in an integrated way across a spatial domain, and the likely increasing importance in concepts of ecosystem services in understanding sustainability. John Waters (ERM) of the NICOLE Sustainable Remediation Working Group analysed the linkage between risk assessment and achieving sustainable remediation. A strong finding from this analysis was the importance of being able to take a site specific approach to risk based decision making, rather than relying on conservative generic criteria, which allowed an optimised remediation design. Dietmar Müller pointed out how eco-efficiency could be a useful tool in comparing remediation options for their cost effectiveness and wider environmental effectiveness in reaching particular remediation goals.

5. Concluding Remarks 1) There has been a large amount of regulatory and policy change at EU and national levels affecting contaminated land management, although the Soil Framework Directive (FD) drafting is currently stalled. Regulation and policy related to soil management are likely to remain a significant activity at an EU level for some time to come. NICOLE and COMMON FORUM broadly welcome the increasing environmental improvement concerns of these developments. As members of COMMON FORUM and NICOLE feel the impact of regulatory and policy change in their daily work, each from a different perspective, the role of COMMON FORUM and NICOLE in identifying opportunities for improvement and avoiding unintended consequences has never been more important. Therefore, NICOLE and COMMON FORUM intend to: a. Continue to actively gather information on regulatory and policy developments; b. Regularly discuss these developments, each within their own network; c. Draw up a plan to intensify joint discussions, and to find ways to bring the results of those discussions to the attention of decision makers at EU and national levels. 2) The workshop showed that there are some unintended consequences on soil management, resulting from interactions between different legislative fields which are not primarily concerned with soil. The COMMON FORUM and NICOLE would like to discuss these consequences with decision makers at EU and national levels. As an example, NICOLE and COMMON FORUM are concerned about the conflicting and uncertain interactions between REACH and the Waste Framework Directive, especially about the possibility of treated soils falling under the provisions of the REACH Regulation. 3) One of the options, which could mitigate these unintended consequences, is a Soil FD. Therefore, NICOLE and COMMON FORUM intend to discuss the current state of affairs in the development of the Soil FD, with the aim to reach agreement on suggestions on how to move forward. These discussions could include: a. Comparing pro’s and con’s of different policy strategies, for example comparing developing a separate Directive with a more structural integration of the soil topic in existing policies; b. Views on how the Soil FD should relate to countries at different stages in the evolution of their domestic soil policies; c. Perhaps focusing on threats rather than dealing with all threats in one Directive. However, if contamination is to be in the Soil FD then the drafting has to really reflect the current state

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of the art, taking into account risk based land management and sustainable remediation philosophies; d. Considering that the sustainability of legislation is considered – e.g. are there wider (perhaps unintended) impacts from the Soil FD in the way it approaches inventories etc 4) NICOLE and COMMON FORUM are concerned about the Industrial Emissions Directive. The technical approach for comparing site conditions against baseline surveys has already resulted in monitoring requirements that appear impossible to comply with. Therefore, NICOLE and COMMON FORUM strongly recommend including expert judgement in the further elaboration of reference documents. 5) NICOLE and COMMON FORUM are concerned about the way the Environmental Liability Directive is being interpreted by Member States. The few European Court of Justice verdicts, available so far imply a broad scope of the ELD, which carries an elevated risk of unintended consequences, as well as a weak causal link between the operator’s activities and the environmental damage it is held liable for. As this can lead to very substantial risks for operators. The COMMON FORUM and NICOLE want to bring the discouraging effect of this on modernising and investing in industrialisation to the attention of decision makers at EU and national levels. 6) NICOLE and COMMON FORUM underline the importance of sustainability, and agree that this should be treated more broadly than just in relation to remediation. Both networks recognize that decision support systems that broadly assess environmental impact of remediation, are available, but that there is a need to further increase knowledge. Therefore, the COMMON FORUM and NICOLE intend to further explore this issue. 7) Innovation in contaminated land management brings many benefits. NICOLE and the COMMON FORUM recognize that the EC Environmental Technology Verification programme could support innovation, but only under the express condition that the programme deals with the issue of applicability in complex conditions and situations, as well as with finding a way to keep participation in any scheme affordable.

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Annex 1 List of Participants Organisation

First name

Family name

Country

COMMON FORUM

Ana

Alzola

Spain / Country

COMMON FORUM

Christian

Andersen

Denmark regions

ERM

Rony

Annaert

Belgium

Adventus Europe

Elli

Argyrou

Austria

ERM Italia SpA

Stefano

Azzolini

Italy

Tauw BV

Laurent

Bakker

NL

Environmental Paul Technology Ltd.

Bardos

UK

Eni S.p.A.

Serena

Beghetti

Italy

COMMON FORUM

Birgitta

Beuthe

Belgium / Wallonia

COMMON FORUM

Andreas

Bieber

Germany

Regenesis Ltd.

Jeremy

Birnstingl

UK

Homes and Communities Richard Agency

Boyle

UK

Deltares

Jos

Brils

NL

UMICORE

Lucia

Buvé

Belgium

Capus

Luxembourg

r3

Administration l'Environnement

Page 47

de Sophie

Basque /

Danish

OVAM

Marijke

Cardon

Belgium

URS Italia S.p.A.

Pasquale

Caruso

Italy

TOTAL

Jean-Paul

Cazalets

France

Niton Europe GmbH

Roel

Crama

Germany

COMMON FORUM

Dominique

Darmendrail

CF Secretary

Berrymans Lace Mawer, Denise solicitors

Dowen

UK

Land Restoration Trust

Jonathan

Ducker

UK

COMMON FORUM

Eddy

Van Dyck

Belgium / Flanders

KemaktaKonsult AB

Gabriella

Fanger

Sweden

Stevens & Bolton LLP

Valerie

Fogleman

UK

Common Forum

Jörg

Frauenstein

Germany

CH2M Hill

Johan

De Fraye

UK

COMMON FORUM

Esther

Goidts

Belgium / Wallonia

Barbara J. Goldsmith & Barbara Company

Goldsmith

Belgium

GDF SUEZ

Olivier

Gosset

France

Grontmij

Arthur

de Groof

NL

Deltares

Hans

Groot

NL

KemaktaKonsult AB

Bertil

Grundfelt

Sweden

Arcadis

Sible

Harmsma

NL


Organisation

First name

Family name

Country

Renare Mark

Peter

Harms-Ringdahl

Sweden

CL:AIRE

Nicola

Harries

UK

Taylor Wimpey UK Ltd

Ian

Heasman

UK

CH2M Hill Italy

Robert

Hooley

Italy

Solvay S.A.

Roger

Jacquet

Belgium

Rio Tinto

Boris

Jenka

Switzerland

EDF Electricité de France

Yves

Le Corfec

France

Verhoeve Milieu BV

Thom

Leenen

NL

Regenesis Ltd.

Alberto

Leombruni

Italy

COMMON FORUM

Andrea

Lodolo

Italy

WSP Environmental

Sarah

MacKay

UK

ICF Environnement

Gérard

Marceau

France

COMMON FORUM

Kine

Martinsen

Norway

CH2M Hill France

Olivier

Maurer

Spain

Labein

Pierre

Menger

Spain

COMMON FORUM

Margot

Meijer

Netherlands

BRGM

Corinne

Merly

France

Akzo Nobel T&E bv

Thomas

Mezger

NL

Arcadis

Alberto

Milani

Italy

Molenaar

NL

Ministry of Environment

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the Co

IDOM S.A.

Germán

Monge

Spain

Environment Agency

Dietmar

Müller

Austria

MediTerra Consultors Lluïsa Ambientals, S.L.

Nadal

Spain

University of Nottingham

Nathanail

UK

MediTerra Consultors Pernille Ambientals, S.L.

Nielsen

Spain

National Grid

David

Oram

UK

COMMON FORUM

Anna-Maija

Pajukallio

Finland

Saipem

Michele

Pellegrini

Italy

ERM France

Oliver

Phipps

France

ISPRA

Francesca

Quercia

Italy

MWH S.p.A.

Antonino

Rapisardi

Italy

Dow Benelux BV

Paul

van Riet

NL

NICOLE ISG Secretariat

Lida

Schelwald-van Kleij

Eni S.p.A.

Francesca

Scoretti

Italy

UPDS - French Ass. Of Jean-Louis Soil Remediation Companies and Consultants

Sévêque

France

National Grid Property

Shoesmith

UK

Paul

Colin

der NL


Page 49

Organisation

First name

Family name

Country

BP International

Anja

Sinke

UK

Arcadis

Hans

Slenders

NL

Shell

Jonathan

Smith

UK

Shell Global Solutions Mike (UK)

Spence

UK

IVL

Johan

Strandberg

Sweden

ENVIRON

Daniele

Susanni

Italy

AECOM

Alessandra

Tognoni

Italy

Total UK Ltd.

Tilly

Undi

UK

Port of Antwerp

Joris

Vanderhallen

Belgium

ISPRA

Antonella

Vecchio

Italy

COMMON FORUM

Joop

Vegter

Netherlands / CF

Grontmij

Paul

Verhaagen

NL

Parliament of Ukraine / Oksana lecturer of the KyivMohyla Academy

Volosko-Demkiv

Ukraine

Ingenieursbureau Oranjewoud BV

Jack

van der Voort

NL

ERM

John

Waters

UK

Eco-Bos Ltd. (formerly Frank RSK Group Ltd.)

Westcott

UK

Berrymans Lace Mawer, Paula solicitors

Whittell

UK

Honeywell

Lucy

Wiltshire

UK

Grontmij

Mike

Wilyman

UK

Syndial

Luciano

Zaninetta

Italy