The All-Consuming Definition of ‘Waste’ and the End of the ‘Contaminated Land’ Debate?:
Case C-1/03: Van de Walle
Owen McIntyre,
Faculty of Law,
University College Cork.
Introduction
The issue of soil contamination, and in particular the allocation of legal responsibility for causing land
contamination, has proven one of the most persistent and thorny problems with which environmental
policy-makers have had to grapple. In marked contrast to the comprehensive corpus of Community
rules and standards adopted for most environmental media and activities, such as water1 and air
pollution2 or waste management3 and nature conservation,4 Community policy-makers have avoided
the problem of soil contamination and remediation, preferring instead to leave it to Member States to
identify their own legal solutions. National responses have varied enormously, ranging from very
severe statutory regimes imposing strict, retrospective liability for the costs of remediation of
contaminated land on either actual polluters or innocent landowners, as occurs under Part IIA of the
UK Environmental Protection Act 1990, or the ad hoc and incidental application of various statutory
regimes not primarily concerned with contaminated soil, such as planning law, water pollution law or,
of course, waste management law, as appropriate. This latter approach has developed in Ireland in the
absence of a dedicated statutory framework for historical soil contamination, ostensibly due to
constitutional obstacles to the imposition of retrospective liability.
However, the recent decision by the European Court of Justice to the effect that both oil leaking from
underground pipes or storage tanks and soil contaminated as a result of such leakage can constitute
‘waste’ for the purposes of Article 1 of the Waste Framework Directive5 and, consequently, that such
contaminated soil may now come within the scope of domestic and Community rules relating to waste
management, is likely to have a profound impact on the application of rules imposing liability for the
remediation of contaminated sites. This decision would appear to have potentially extended, or at least
to have liberally interpreted, the scope of the definition of ‘waste’ as it makes it clear that it applies
even to contaminated soil which has not been excavated or treated in any way. The Court would also
appears to have taken a liberal approach to the concept of a ‘holder’ of waste, for the purposes of
Article 1(c) of the Directive and of identifying where responsibility lies for the obligation to dispose of
or recover waste. It is also noteworthy that, in arriving at this position, the Court has clearly interpreted
the individual provisions of the Waste Framework Directive in a purposive and contextual manner, in
light of the stated aims of the Directive, and in light of the qualitative environmental standards and of
the guiding principles of Community environmental law-making set out under the EC Treaty.
The Facts
This case involved a criminal enforcement action under a Brussels waste decree which implements the
Waste Framework Directive. Texaco had leased the property on which a petrol station was located,
Directive 2000/60/EC, OJ (2000) L327/1, the ‘Water Framework Directive’.
Directive 96/62/EC on ambient air quality assessment and management, OJ (1996) L296/55.
3
See the ‘Waste Framework Directive’, infra, n. 5.
4
Directive 92/43/EEC, OJ (1992) L206/7, the ‘Habitats Directive’.
5
Directive 75/442, (1975) OJ L194/47, as amended by Directives 91/156, (1991) OJ L78/32 and 91/692, (1991) OJ
L377/48.
1
2
1
though the petrol station was operated and managed by an independent contractor under an operating
agreement, which made the land, buildings and equipment available to the manager who operated the
station on his own behalf, but did not give him the right to make changes to the premises without
Texaco’s permission. Texaco supplied the manager with petroleum products and retained control over
book-keeping and supplies. The Brussels government commenced renovation works on a building
adjacent to the site and discovered that the surrounding soil and groundwater was contaminated with
some 800 litres of hydrocarbons that had leaked from the stations underground storage pipes and tanks.
Texaco terminated the operating agreement with the manager and, without admitting liability,
proceeded to remediate some of the soil contamination and to replace part of the storage facilities.
However, subsequent tests showed that soil and groundwater were still contaminated with fuel and the
Brussels government, taking the view that the remediation conducted was incomplete, paid for further
remedial measures.
During the course of criminal proceedings taken by the public prosecutor against the station manager,
Mr. Van de Walle, two Texaco executives and Texaco itself for abandoning and not properly disposing
of waste in violation of the 1991 Brussels waste decree, the Brussels government joined the
proceedings as a civil party and claimed damages from Texaco. The trial court acquitted the
defendants and rejected the claim for damages but the public prosecutor and the Brussels government
appealed to the Brussels Court of Appeals, which referred two questions to the European Court of
Justice for a preliminary rulling under Article 234:
(i)
whether leaked hydrocarbons and the unexcavated soil contaminated as a result of the
leakage constituted waste under the Waste Framework Directive; and
(ii)
whether Texaco should be regarded as the producer or holder of of such waste for the
ourposes of the Waste Framework Directive.
Meaning of ‘Waste’
The Court concludes, as a matter of fact, that the spilled fuel cannot easily be separated from the land
which it has contaminated6 and so that the key question is, in the words of the Advocate General,
‘whether the contaminated soil as a whole should be classified as waste’.7 The Court clarifies that the
categories set out under Annex I of the Framework Directive are not definitive but ‘are only intended
as guidance’, and that the key issue is whether the holder discards or intends or is required to discard.8
In examining this source of guidance, the Court points out that Annex I waste category Q4, which
includes among the substances or objects which may be regarded as waste, ‘[M]aterials spilled, lost or
having undergone other mishap, including any materials, equipment, etc., contaminated as a result of
the mishap’, can certainly be construed to include contaminated soil.9 Further, the Advocate General
notes10 that the inclusion of unexcavated soil is suggested by subsection 17 05 of the European Waste
Catelogue,11 entitled ‘soil (including excavated soil from contaminated sites), stones and dredging
spoil’, and which includes ‘soil and stones containing dangerous substances’12 and ‘soil and stones
other than those mentioned in 17 05 03’.13 However, the Advocate General also suggests that it may be
inferred from Annex I waste category Q15, which covers ‘[C]ontaminated materials, substances or
6
Judgment of the Court (Second Chamber), 7 September 2004, para. 52.
Opinion of Advocate general Kokott, 29 January 2004, para. 24.
8
Judgment, para. 42, referring to Case C-129/96 Inter-Environnement Wallonie [1997] ECR I-7411, para. 26, and Case
Case C-9/00 Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus [2002] ECR I-3533, para. 22.
9
Judgment, para. 52.
10
AG Opinion, para. 29.
11
Adopted under Commission Decision 94/3/EEC.
12
Subsection 17 05 03.
13
Subsection 17 05 04.
7
2
products resulting from remedial action with respect to land’, that, as it appears expressly only to cover
excavated soil, as yet unexcavated contaminated soil would not be covered. 14 The Advocate General
refutes the relevance of the fact that various Member States restrict the concept of waste to movables
by pointing out that ‘the regulatory traditions of some Member States cannot be the deciding factor
where the interpretation of concepts of Community law is concerned’15 and, similarly, counters the
Commission’s argument that soil, as a ‘natural element’, cannot be waste under the Waste Framework
Directive, which calls for the protection of soil from the risks posed by waste, by pointing out that the
case is not concerned with ‘soil’ as an indeterminate natural element but with a precisely determinable
quantity of contaminated earth which ‘may be the subject of disposal or recovery operations’. 16
However, the Court is quite clear that the notion of ‘discarding’ is decisive in determining whether a
material constitutes waste. It reiterates that this notion must be interpreted in the light of the Waste
Framework Directive’s aim of protection of the environment and human health as expressed in its third
recital, and in light of the standards and principles set out under Article 174(2) of the EC Treaty, and so
‘cannot be interpreted restrictively’.17 The Court has absolutely no difficulty in concluding that
accidentally spilled hydrocarbons are akin to a ‘production residue’, which ‘must be considered to be a
burden which the holder seeks to “discard”’,18 and are ‘therefore substances which the holder did not
intend to produce and which he “discards”, albeit involuntarily, at the time of the production or
distribution operations which relate to them’.19 The Court then goes on to state that, due to the fact that
leaked fuel cannot be separated from contaminated soil, and having regard to the aim of the Directive
and to heading Q4 of Annex I thereto, ‘[T]he same classification as “waste” within the meaning of
Directive 75/442 applies to soil contaminated as the result of an accidental spill of hydrocarbons’.20
Rather helpfully, the Advocate General states confidently that ‘[A]n intent to discard must be ruled out
as long as the holder is unaware of the contamination of the soil’.21 Also, in what might be regarded as
quite a creative legislative interpretation, he states that ‘once the holder has become aware of a
pollution incident that precludes further appropriate use of the soil, a (rebuttable) intent to discard may
be presumed’.22 Indeed, though he makes little effort to explain the origin of this presumption, he goes
on to state that it can be rebutted ‘if the holder, rather than discarding the soil, takes concrete measures
to make it usable again’.23 However, in relation to the origin of an obligation to discard the positions of
the Court and of the Advocate General diverge. The Court clearly feels that the obligation to discard
arises by means of a purposive interpretation of the Waste Framework Directive and, therefore, under
Community Law. It states that
‘The classification as waste in the case of land contaminated by hydrocarbons does indeed
therefore depend on the obligation on the person who causes the accidental spill of those
substances to discard them. It cannot result from the implementation of national laws
governing the conditions of use, protection or decontamination of the land where the spill
occurred.’24
14
AG Opinion, para. 29.
AG Opinion, para. 30.
16
AG Opinion, para. 31.
17
Judgment, para. 45, referring to Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others, [2000] ECR
I-4475, at paras. 36-40.
18
Judgment, para. 46, referring to Palin Granit, supra, n. 8.
19
Judgment, para. 47.
20
Judgment, para. 52.
21
AG Opinion, para. 35.
22
Ibid.
23
Ibid.
24
Judgment, para. 52.
15
3
In contrast, the Advocate General points out that there may also be an obligation to discard, arising
wholly or in part under Community or national law.25 Indeed, from this viewpoint, it would appear that
such an obligation would be more likely to arise under national law as the Advocat General found,
contrary to the argument of the Brussels-Capital Region that contaminated soil must always be
regarded as waste to prevent the Waste Framework Directive from being circumvented, that ‘it is not
possible to conclude from the general waste-law clause of Article 4 of the framework waste directive
that there is an obligation to discard contaminated soil’.26 The position taken by the Court may serve to
render many national regimes on contaminated land redundant as the treatment of contaminated soil
would now be required under and would need to be conducted in accordance with the relevant waste
management legislation.
Ultimately, however, the decision to allow for the possibility that unexcavated contaminated soil may
constitute waste for the purposes of the Waste Framework Directive is one of policy, made possible by
a purposive interpretation of the Directive and of the qualitative environmental standards and guiding
principles set down in the EC Treaty. Referring to Article 4 of the Directive, which requires Member
States to ensure that waste is recovered or disposed of without endangering human health and ‘without
risk to water, air, soil and plants and animals’ and to ‘prohibit the abandonment, dumping or
uncontrolled disposal of waste’,27 and to Article 8, requiring that they ensure that any holder of waste
has it handled by an operator responsible for its recovery or disposal, the Court concludes that
‘Directive 75/442 would be made redundant in part if hydrocarbons which cause contamination were
not considered waste on the sole ground that they were spilled by accident’.28 Indeed, the Court states
boldly that its approach ‘is the only interpretation which ensures compliance with the aims of
protecting the natural environment and prohibiting the abandonment of waste pursued by the
Directive’.29 It further refers to Article 15 of the Directive which designates the operator who must
bear the cost of disposing of waste ‘in accordance with the “polluter pays” principle’.30 Similarly,
Advocate General Kokott refers to the objective set out in the third recital to the Waste Framework
Directive relating to the protection of human health and the environment against harmful effects caused
by the collection, transport, treatment, storage and tipping of waste, and to Article 174(2) of the EC
Treaty, according to which ‘Community policy on the environment is to aim at a high level of
protection and is to be based, in particular, on the precautionary principle and the principle that
preventive action should be taken’, and reiterates that ‘[F]rom this the Court has concluded that the
concept of waste cannot be interpreted restrictively’.31 Having regard to the obligations identified in
the text of the Directive itself, such as Article 4, the Advocate General concludes that ‘[T]he rest of the
legal framework for organising the disposal of waste ... is also largely applicable to the treatment of
contaminated soil and could help to achieve a high level of environmental protection.’32 Similarly, he
25
AG Opinion, para. 38.
AG Opinion, para. 37.
27
Though the provisions of Article 4 does not lay down any specific technical requirements and would not appear to impose
any express obligations on individual operators, the Court has tended to take a purposive approach to its applicability. For
example, in a case concerning the illegal fly-tipping of waste in the San Rocco riverbed in Naples, it stressed that local
waste management practices were not in conformity with the environmental protection requirements laid down in Article 4,
Case C-365/97 Commission v. Italy [1999] ECR I-7773. See further, L. Marmo, ‘Developments on Soil Protection in the
EU’, in M. Onida (ed.), Europe and the Environment: Legal essays in Honour of Ludwig Kramer (Europa Law Publishing,
Groningen, 2004) 175, at 181.
28
Judgment, para. 48.
29
Judgment, para. 52.
30
Judgment, para. 48.
31
AG Opinion, para. 24, referring to Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others [2000]
ECR I-4475, para. 38 et seq. and Case C-9/00 Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus
[2002] ECR I-3533, para. 23.
32
AG Opinion, para. 32.
26
4
points out, for example, that ‘[B]earing in mind the aim of a high level of protection set out in Article
174(2) EC, the treatment of unexcavated contaminated soil as waste leads to perfectly reasonable
results’.33 On the basis of such inherently policy-oriented considerations, the Advocate General
concludes resolutely that ‘preference should be given to the view that unexcavated contaminated soil
can fall within the scope of category Q4’.34
Holder of Waste
In relation to the question of who might constitute the ‘holder’ of waste for the purposes of the
obligations now arising under the Waste Framework Directive, the Court construes Article 8, relating
to the obligation of a holder of waste to have that waste recovered or disposed of appropriately, and
Article 15, relating to application of the ‘polluter pays’ principle, together and concludes that the
Directive
‘distinguishes between practical recovery and disposal operations, which it makes the
responsibility of any “holder of waste”, whether producer or possessor, and the financial burden
of those operations, which, in accordance with the principle of polluter pays, it imposes on the
persons who cause the waste, whether they are holders or former holders of the waste or even
producers of the product from which the waste came.’35
The Court relies in particular on Article 15 of the Directive, which expressly includes among those who
may have to bear the cost of disposing of waste ‘the previous holders or the producer of the product
from which the waste came’, to permit possible extension of liability for breach of or compliance with
the obligations arising under the Directive to the producers of products. Though, in this case, the Court
limits the application of the Directive’s obligations to the producer where that producer’s conduct or
actions have given rise to the waste36 and leaves determination of this question to the competent
national court,37 the Court would appear to have left it open to Community and Member States’ policymakers to impose liability for the cost of waste disposal operations on product producers. Of course,
this already occurs in relation to a number of priority waste streams38 but, taken in combination with
the Court’s expansive view of the substantive obligations arising under the Directive, this might prove
to have significant implications for manufacturers. The Advocate General offers quite detailed
guidance as to the situations in which the petroleum company might be regarded as the holder or
producer of waste, including where the manager merely operated the station on behalf of the company,
where the damage to the tanks could be traced to the conduct of the company, and where the petroleum
company had actual physical control of the site and was entitled to dispose of the waste.39
Contaminated Land – The Situation in Two Member States (UK and Ireland)
The implications of this decision for the design and application of national regimes seeking to allocate
responsibility for the remediation of contaminated site are likely to be significant. Broadly speaking
there are two approaches that Member States have taken to the problem of historical land
contamination. Firstly, most Member States have introduced dedicated statutory regimes containing
33
Ibid.
AG Opinion, para. 33.
35
Judgment, para. 58.
36
Judgment, paras. 60-61.
37
Judgment, para. 54.
38
See, for example, Directive 2000/53 on End-of-Life Vehicles, (2000) OJ L269/34, which introduces the concept of
‘extended producer responsibility’, whereby vehicle manufacturers are required to offer free take-back for vehicles sold
after 1 July 2002 and for all vehicles sold after 2007, a concept which is regarded as consistent with the ‘polluter pays
principle’.
39
AG Opinion, para. 59.
34
5
detailed rules on the identification of the appropriate liable parties, on the powers and duties of the
enforcing authorities, and on the standard of remediation required.40 The regime set out under Part IIA
of the UK Environmental Protection Act, 1990 provides a good example of such a system.41 This
regime provides a definition of ‘contaminated land’, based on the causing of or risk of causing
significant harm, and adopts a ‘suitable for use approach’, whereby such land is identified having
regard to its present or planned use and remediation is required to a level suitable for such purposes and
subject to a cost/benefit analysis. Local authorities have a duty to inspect their areas systematically
and, where necessary, to issue remediation notices on the appropriate liable person. In the first
instance, the appropriate person will be any person or persons who caused or knowingly permitted the
contaminating substances to be present. However, where such persons cannot be found or no longer
exist, liability will fall on the innocent owner or occupier of the site.
The questions raised by this decision for the operation of such a regime are obvious and run to its very
compatibility with Community waste law, as the 1991 amended directive definition of waste has, since
1994, been transposed into UK waste law. At any rate, the doctrine of ‘sympathetic interpretation’
would require that Member States’ waste legislation be interpreted and applied in a manner consistent
with Community law. For example, the owner or occupier of land contaminated by substances that
must now be regarded as constituting waste, or where the contaminated soil itself must now be
regarded as waste, would appear to be a holder of waste and is likely to be criminally liable for keeping
controlled waste or knowingly causing or permitting controlled waste to be kept in or on land without
an appropriate waste management licence.42 Such criminal liability might arise even where the site
would not be judged to represent a significant risk of significant harm for the purposes of its
identification as contaminated land under Part IIA. In the same way, an owner of land contaminated by
material now considered to be waste might be criminally liable for breach of the so-called statutory
‘duty of care’, where, by selling the site, he transfers the waste to an unauthorised person.43 Of course,
attendant civil liability might arise for the costs of remediation.44 Similarly, the remediation required
for such a site may not now be determined having regard to the ‘suitable for use’ approach and the
detailed guidance issued pursuant to Part IIA, but instead, on the basis of the procedures and standards
mandated under Community and national waste management legislation. Generally, the policy
objectives underlying a dedicated statutory contaminated land regime such as Part IIA, including, for
example, that of harnessing any development value inherent in contaminated land so as to encourage
redevelopment of brownfield sites and ease pressure on greenfield sites, do not apply to waste
management legislation and so sites requiring remediation under waste law will normally be subject to
different standards and policy priorities. The impact of this on wealth-creating sectors of the economy
remains to be seen but could potentially be enormous.45
40
Indeed, a 2000 publication identifies and outlines the dedicated national regimes applying to the remediation of
historically contaminated land in each of thirteen of the, then fifteen, EU Member States. See, R. Seerden and K.
Deketelaere (eds.), Legal Aspects of Soil Pollution and Decontamination in the EU Member States and the United States
(Intersentia / Metro, 2000).
41
Part IIA, consisting of sections 78A to 78YC, was inserted into the 1990 Act by section 57 of the Environment Act 1995.
See further O. McIntyre, ‘Statutory Liability for Contaminated Land: Failure of the Common Law’, in J. Lowry and R.
Edmunds, Environmental Protection and the Common Law (Hart Publishing, 2000) 115; R. Turrall-Clarke and S. Tromans,
Contaminated Land: The New Regime (Sweet & Maxwell, 1999); P. Lane and M. Peto, Blackstone’s Guide to the
Environment Act 1995 (Blackstone Press, 1995); A. Layard, ‘Contaminated Land: Law and Policy in the United Kingdom’
(1995) Environmental Liability 56; R. Lewis, ‘Contaminated Land: The New Regime of the Environment Act 1995’, (1995)
JPL 1087.
42
Contrary to section 33(1)(b)(i) of the Environmental Protection Act, 1990.
43
Contrary to section 34(1)(c) of the Environmental Protection Act, 1990.
44
Under section 73(6) of the Environmental Protection Act, 1990.
45
For example, in 1993, Friends of the Earth estimated that there may be as many as 100,000 contaminated sites in England,
Buyer Beware: A Guide to Finding Out about Contaminated Land (London, FoE, 1993). In the same year, the
6
Secondly, Member States such as Ireland have declined to introduce a dedicated statutory regime
imposing liability for the remediation of historically contaminated land46 and instead apply, where
appropriate, the relevant provisions of planning legislation, water pollution legislation, public health
legislation, derelict land legislation, building control legislation, workplace health and safety legislation
and, of course, waste management legislation.47 Utilisation of the Irish Waste Management Act, 1996
has the potential to prove particularly effective, though its use has hitherto been restricted to incidents
of contamination caused as a result of the carrying out of a waste disposal or recovery operation, such
as illegal landfilling.48 In particular, sections 57 and 58 of the 1996 Act provide that, where a person
has in the past held, recovered or disposed of waste in a manner that is causing or has caused
environmental pollution, any person, regardless of proof of standing or of special interest, may seek an
order from the courts requiring that they mitigate or remedy any effects of the waste management
practice concerned. Whereas it has been assumed that the 1996 Act could not be invoked to deal with
hazardous substances that did not constitute waste, the ECJ’s interpretation of Community law to the
effect that leaked oil and the soil it contaminates fall with the scope of the definition of waste very
considerably enhances the applicability of this measure to sites contaminated by virtue of industrial
use. In fact, the definition of ‘waste’ provided in the 1996 Act merely reproduces, almost verbatim, the
1991 amended directive definition.49 It would appear, therefore, that the issue of contaminated land
remediation and liability has been almost completely subsumed into the sphere of waste legislation.
Ironically, it is generally accepted that any attempt to establish a regime for remediation of
contamination caused by past activities would have been likely to fall foul of the constitutional
prohibition on legislation having retroactive effect,50 even though, on a literal interpretation, sections
57 and 58 of the 1996 Waste Management Act would appear capable of applying retroactively.51
While sections 57 and 58 could still be the subject of a constitutional challenge, their apparent
consistency with Community law makes it rather less likely that they would be struck down.
Therefore, the greatly enhanced role of waste management legislation in the remediation of
contaminated sites may apply equally to past pollution. At first glance, this would appear to be
inconsistent with the European Comission’s long-standing policy of declining to propose legislation
intended to apply retrospectively, as evidenced by the 2000 Commission White Paper on
Environmental Liability, which unequivocally recommended that, for reasons of legal certainty and
Confederation of British Industry estimated that these sites might cover as much as 200,000 hectares of land and cost up to
₤20 billion to investigate and, where appropriate, remediate, Firm Foundations: CBI Proposals for Environmental Liability
and Contaminated Land (London, CBI, 1993).
46
It would appear that by 2000 only two Member States out of a total of 15, Ireland and Greece, had not introduced a
dedicated statutory regime for the remediation of contaminated land. See, R. Seerden and K. Deketelaere, supra, n. 40.
47
See further, O. McIntyre, ‘Liability for Remediation of Contaminated Land in Ireland: The Need for a Dedicated
Statutory Regime’, (2002) 10 Environmental Liability 83.
48
See, for example, Wicklow Co. Co. v. Fenton, [2002] IEHC 102 (High Court), 31 July 2002.
49
Section 4. See further, D. Laurence, ‘Swallows and Fishes: The Definition of Waste in the Waste Management Act
1996’, (2000) 7 Irish Planning and Environmental Law Journal 43.
50
Article 15.5 of the 1937 Irish Constitution provides that
‘The Oireachtas [Parliament] shall not declare acts to be infringements of the law which were not so at the date of
their commission’.
The Irish Supreme Court has interpreted this provision as ‘an expressed and unambiguous prohibition against the enactment
of retrospective laws declaring acts to be an infringement of the law, whether of the civil or the criminal law’, Magee v.
Culligan [1992] 1 ILRM 223 at 272, per Finlay CJ. See also, Hamilton v. Hamilton [1982] IR 466, per O’Higgins CJ, at
474.
51
For example, section 58(1)(a) provides
‘Where, on application by any person to the appropriate court, that court is satisfied that another person is holding,
recovering or disposing of, or has held, recovered or disposed of, waste, in a manner that is causing, or has caused,
environmental pollution, that court may make an order requiring that other person to one or more of the following
…’ (emphasis added).
7
legitimate expectations, any EC regime should only work prospectively, imposing liability only for
damage that becomes known after entry into force of the proposed EC regime and which results from
acts or omissions that have taken place after that date.52 Indeed, Article 17 of the 2004 Environmental
Liability Directive makes it clear that it is not intended to apply to damage caused by any emission,
event or incident that took place before the Directive entered into force, or even to damage caused by
an emission, event or incident subsequent to its entry into force but deriving from an activity that took
place and finished before that date.53 However, the designation of contaminated soil as waste for the
purposes of waste legislation might obviate questions relating to retrospective application as a liable
party could be regarded as a current holder of waste.
Of greatest concern, however, are the various forms of statutory liability or duty which would appear to
apply to the owners or occupiers of contaminated sites as a consequence of this decision.54 First of all,
they will be subject to section 32(1) of the 1996 Act which provides that ‘[A] person shall not hold,
transport, recover or dispose of waste in a manner that causes or is likely to cause environmental
pollution’. Section 32(6)(a) provides that ‘[A] person who contravenes subsection (1), (2) or (3) ...
shall be guilty of an offence’ and the amendments made to section 32(6), by means of section 29 of the
Protection of the Environment Act 2003, make it clear that where a person acts in the absence of or in
contravention of a required licence ‘it shall be presumed, until the contrary is shown, that the carrying
on of that activity was likely to cause environmental pollution’. Further, under section 32(2), ‘[A]
person shall not ... transfer the control of waste to any person other than an appropriate person’, which,
according to section 32(5), only includes ‘a local authority ... or a person otherwise authorised ... to
undertake the collection, recovery or disposal of the class of waste in question’. Therefore, not only
would an owner who sells contaminated land effectively be transferring control of waste and more than
likely be guilty of an offence under section 32(6), but the validity of the purported transfer of the land
might be called into question under section 32(7), which provides that
‘ ... where a person transfers the control of waste to another person in contravention of
subsection (2) –
(a) any act done or instrument made by a person to transfer title in the waste for that purpose
shall not operate to transfer that title ...’.
Clearly, this provision might create all sorts of problems for those involved in the conveyance of
contaminated sites. In addition, section 32(3) requires that
‘A holder of waste shall, without delay, inform
(a) the local authority in whose functional area the loss, spillage or other matter ... occurs, or
(b) in the case of hazardous waste, both the said local authority and the Agency,
of any loss, spillage, accident or other development concerning that waste which causes, or is
likely to cause, environmental pollution.’
Therefore, it would appear that owners or occupiers of contaminated land are under a proactive duty to
notify the appropriate authorities of almost any incident concerning that land.
COM (2000) 66 final, February 9, 2000, para. 4.1. On the White Paper generally, see O. McIntyre, ‘E.U. Proposals on
Environmental Liability: A Thorny Issue Revisited’, (2001) 8 Irish Planning and Environmental Law Journal 135; L.
Bergkamp, ‘The Proposed EC Environmental Liability Regime and EC Law Principles’ (2001) 6 Environmental Liability
251; L. Bergkamp, ‘The Commission’s White Paper on Environmental Liability: A Weak Case for an EC Strict Liability
Regime’, (2000) European Environmental Law Review (April), 105; G. Betlam, ‘White Paper on Environmental Liability’,
(2000) 11 Journal of Environmental Law 405.
53
Directive 2004/35/EC on environmental liability with regard to the prevention of and remedying of environmental
damage, (2004) OJ L143/56. See further, O. McIntyre, ‘The New European Directive on Environmental Liability:
Substantive Content and Practical Implications’, (2004) 11 Irish Planning and Environmental Law Journal 99.
54
For a brief roundup of the possible implication of the decision for the application of the Waste Management Act 1996, see
J. Derham, ‘Do we need contaminated land legislation after all!’, (December ’04) Groundwater Newsletter (Geological
Survey of Ireland).
52
8
Generally speaking, there are likely to be many public and private sector owners and occupiers of
contaminated sites throughout the country who are unaware that these duties and liabilities apply to
them as unwitting holders or transferors of waste. Equally, it is clear that providers of professional
services advising clients who may be about to buy, sell or develop contaminated or potentially
contaminated sites would themselves be well advised to take account of the implications of the Van de
Walle decision.
Environmental Liability Directive
Though Community initiatives to create a Community-wide regime of environmental liability can be
traced back to proposals for a Directive on Civil Liability for Damage Caused by Waste,55 the regime
eventually adopted in April 200456 is designed to include many types of environmental damage arising
from a wide variety of activities. The Directive effectively identifies three kinds of ‘environmental
damage’, a concept that includes ‘damage to protected species and natural habitats’, ‘water damage’
and ‘land damage’, and imposes strict liability for such damage or imminent threat of such damage
caused by an operation of any of the activities regulated elsewhere under Community law and listed in
Annex III to the Directive. Significantly, Annex III includes waste management operations under the
Waste Framework and Hazardous Waste Directives, including landfill and incineration operations. The
2004 Directive defines ‘damage to protected species and natural habitats’ as ‘any damage that has
significant adverse effects on reaching or maintaining the favourable conservation status of such
habitats or species’57 and ‘water damage’ as ‘any damage that significantly adversely affects the
ecological status, ecological, chemical and/or quantitative status and/or ecological potential, as defined
in Directive 2000/60/EC, of the waters concerned’.58 Therefore, it is perfectly possible that land
contaminated by material or substances now regarded as waste might give rise to either of these
categories of damage. However, it is more likely that contaminants in soil would give rise to ‘land
damage’, which is defined as ‘any land contamination that creates a significant risk of human health
being adversely affected as a result of the direct or indirect introduction in, on or under land, of
substances, preparations, organisms or micro-organisms’.59 The significance of the current decision for
the operation of this regime lies in the fact that there is no Community legislation concerned primarily
with the regulation of soil contamination which might have been included in Annex III, and so strict
liability would only be imposed where the ‘land damage’ occurred as a result of one of the
‘occupational activities’ listed therein, such as the manufacture, use, storage, processing, filling, release
into the environment and on-site treatment of dangerous substances as defined in the Classification,
Packaging and Labelling of Dangerous Substances Directive,60 dangerous preparations as defined in
the Classification, Packaging and Labelling of Dangerous Preparations Directive, 61 plant protection
products as defined in the Plant Protection Products Directive,62 and biocidal products as defined in the
Biocidal Products Directive.63 Of course, fault-based liability might still arise for damage to protected
species and natural habitats caused by soil contamination resulting from other non-regulated
occupational activities not listed in Annex III, though this would clearly be a great deal more difficult
to establish. However, with the inclusion of contaminated soil within the definition of waste for the
55
COM(89) 282 final, (1989) OJ C251/1 and COM(91) 219, (1991) OJ C192/6.
Supra, n. 53.
57
Article 2(1)(a).
58
Article 2(1)(b).
59
Article 2(1)(c).
60
Directive 67/548/EEC.
61
Directive 1999/45/EC.
62
Directive 91/414/EEC.
63
Directive 98/8/EC.
56
9
purposes of the waste management operations listed under Annex III, damage caused by virtue of
contaminants in soil will almost certainly be covered by the regime of strict liability created under the
Directive. Moreover, though, as discussed above, the Directive is not intended to apply retrospectively,
the designation of contaminated soil as waste might permit the possession of contaminated land to be
regarded as a current and ongoing waste activity.
Guiding Principles of Community Environmental Law-Making
Finally, it is noteworthy that both the Advocate General and the Court placed such emphasis on the
guiding principles of Community environmental law-making when interpreting the scope of the
concept and definition of waste. Firstly, the Advocate General explains that
‘According to Article 174(2) EC, Community policy on the environment is to aim at a high
level of protection and is to be based, in particular, on the precautionary principle and the
principle that preventive action should be taken. From this the Court has concluded that the
concept of waste cannot be interpreted restrictively.’64
More specifically, the Court states that
‘the verb “to discard” must be interpreted in the light of the aim of ... [inter alia] ... Article
174(2), which states that Community policy of the environment is to aim at a high level of
protection and is to be based, in particular, on the precautionary principle and on the principle
that preventive action should be taken. The verb “to discard”, which determines the scope of
“waste”, therefore cannot be interpreted restrictively.’65
Though both the Court and the Advocate General refer to previous case law to provide authority for
their conclusions,66 it is clear that the guiding principles are increasingly being used by the Court to
interpret the normative content of substantive provisions of Community environmental legislation.
Similarly, the Court refers to the polluter pays principle to justify its expansive interpretation of the
concept of a ‘holder’ of waste in order to impose the financial burden of waste management operations
on the persons who cause waste, ‘whether they are holders or former holders of the waste or even
producers of the product from which the waste came’.67 The significance of these principles for the
purposes of challenging the actual validity of Community legislation has been restricted in the Safety
Hi-Tech case, where the Court held that, while the principles contained in Article 174(2) could prove
justiciable, due to the complexity of these principles it would limit itself to the question of whether the
Council, in adopting legislation, committed a ‘manifest error of appraisal’ regarding the conditions for
the application of Article 174.68 However, from recent decisions such as Waddenzee,69 where the Court
took account of the precautionary principle in determining the appropriate steps to be taken and the
appropriate assessment to be made by national authorities concerning the potential of particular plans
and projects to impact adversely on habitats protected under Article 6 of the Habitats Directive,70 it is
apparent that the guiding principles can operate to permit the strict interpretation of Community
environmental norms and standards. While this development might generally be welcomed, it raises
the danger of Community environmental rules suffering from a measure on indeterminacy with the
Court enjoying wide discretion to apply these rules as it sees fit. It would be helpful if the Court were
64
AG Opinion, para. 25.
Judgment, para. 45.
66
ARCO Chemie Nederland, and Palin Granit, supra, n. 31.
67
Judgment, para. 58.
68
Case C-284/95, [1998] ECR I-4301. See also, Case C-341/95, Bettati, [1998] ECR I-4355. See further, A. Whelan,
‘Fundamental Principles of EU Environmental Law’, (1999) Irish Journal of European Law 37, at 42.
69
Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Anr v. Staatsecretaris van Landbouw,
Natuurbeheer en Visserij (Judgment, 7 September 2004).
70
Council Directive 92/43/EEC, (1992) OJ L206/7.
65
10
to be more specific in relation to the normative content and significance of the guiding principles in
order that their application might become more predictable.
The Future of Community Policy on Soil Protection
The Community’s 2002 Sixth Environment Action Programme (EAP)71 sets out seven thematic
strategies, or priority areas for action, including one on soil protection, and, as a first step in the
development of an integrated and comprehensive strategy on the protection of soils, the Commission
published a Communication entitled ‘Towards a Thematic Strategy for Soil Protection’ in April of the
same year.72 This Communication recognises the problem of soil contamination and makes a
distinction between local and diffuse soil contamination, identifying industrial facilities, mines and
waste landfills, both in operation and after closure, as potential sources of local contamination. It
expresses the Commission’s view that effective soil protection can best be achieved by means of the
integration of soil protection objectives into existing environmental protection regimes. For example, it
proposes the adoption of a fourth daughter directive under the Air Quality Framework Directive73
relating to heavy metals and a revision of the Sewage Sludge Directive,74 as well the introduction of
new directives on mining waste,75 on compost and other biowaste, and on soil monitoring.76
In addition, it is quite clear that the new Community Directive on Environmental Laibility77 will have a
significant impact on national soil strategies, particularly as Annex II to the Directive now sets out in
some detail a common framework to be followed in order to choose the most appropriate remedial
measures. In relation to land damage, Annex II to the Directive requires that necessary remedial
measures ensure that contaminants are removed to the extent that, taking account of its current or
approved future uses, the land in question no longer poses any significant risk of adversely affecting
human health. This risk ‘shall be assessed through risk-assessment procedures taking into account the
characteristic and function of the soil, the type and concentration of the harmful substances,
preparations, organisms or micro-organisms, their risk and the possibility of their dispersion’. Even in
the absence of the Van de Walle decision uncertainties were likely to persist in relation to contaminated
land remediation. For example, though the addition of Annex II is certainly likely to prove helpful, the
concept of ‘baseline condition’ could prove problematic as the main remediation objective as there are
likely to be wide variations in available environmental data and thus in the quality of enforcement. In
addition, in determining appropriate remedial measures, the competent authority is required to invite
those persons entitled to make submissions and to request action under Article 12(1) and the landowner
on whose land remedial measures would be carried out to submit their observations which the authority
must take in to account.78
71
Decision 1600/2002/EC, (2002) OJ L242/1.
COM(2002) 179 final, 16 April 2002.
73
Council Directive 69/62/EC on ambient air quality assessment and monitoring, (1996) OJ L296/55.
74
Council Directive 86/278/EEC on the protection of the environment, and in particular of the soil, when sewage sludge is
used in agriculture, (1986) OJ L181/6.
75
Since published as COM(2003) 319, 2 June 2003.
76
See further, M. Doak, ‘The future for excavated contaminated / brownfield site materials: new policy and practice across
the EU’, (2004) 12/4 Land Contamination and Reclamation 309; L. Marmo, ‘Developments on Soil Protection in the EU’,
in M. Onida (ed.), Europe and the Environment: Legal Essays in Honour of Ludwig Kramer (Europa Law Publishing,
Groningen, 2004) 175; B. Vanheusden, ‘Towards a Legal Framework in the EU for Brownfield Development’, (2003) 12
European Environmental Law Review 178.
77
Supra, n. 53.
78
Article 7(4). Article 12(1) refers to “[ N]atural or legal persons:
(a) affected or likely to be affected by environmental damage or
(b) having a sufficient interest in environmental decision-making relating to the damage or, alternatively,
72
11
Also, in relation to Community rules on State aid pursuant to Articles 87-89 of the Treaty, in 2001 the
Commission published new Community Guidelines on State Aid for Environmental Protection,79
which explicitly aim to facilitate contaminated land remediation. These guidelines replace former
guidelines issued in 1994,80 under which aid for brownfield redevelopment did not receive express
mention and could only be assessed on a case-by-case basis.81 The new guidelines contain a specific
subsection E.1.8, under the heading of investment aid, which concerns the rehabilitation of polluted
industrial sites where the person responsible for the pollution is not identified or cannot be made to
bear the cost. The relevant subsection provides:
‘Interventions made by firms repairing environmental damage by rehabilitating polluted
industrial sites may come within the scope of these guidelines. The environmental damage
concerned may be damage to the quality of the soil or of surface water or groundwater.
Where the person responsible for the pollution is clearly identified, that person must
finance the rehabilitation in accordance with the “polluter pays” principle, and no State aid may
be given. By “person responsible for the pollution” is meant the person liable under the law
applicable in each Member State, without prejudice to the the adoption of Community rules in
the matter.
Where the person responsible for the pollution is not identified or cannot be made to
bear the cost, the person responsible for the work may receive aid.
Aid for the rehabilitation of polluted industrial sites may amount to up to 100% of the
eligible costs, plus 15% of the cost of the work. The eligible costs are equal to the cost of the
work less the increase in the value of the land.’
Therefore, the 2001 Guidelines are quite specific and only apply to ‘orphaned’ liability and where the
remedial measures are to be undertaken by private enterprises rather than by public authorities. The
Commission has approved a number of notified measures under subsection E.1.8, including the Dutch
Soil Protection Agreement, or Bedrijvenregeling,82 concerning a voluntary environmental agreement
promoted by the Dutch authorites whereby they would reimburse up to 70% of the eligible costs of
remediation where at least 80% of the pollution dates from before 1 January 1975 – the date before
which no person can be held liable under Dutch law. Other examples include a scheme of State aid
granted by the Italian government to encourage the remediation of polluted industrial sites in the
Tuscany Region83 and another Dutch measure to provide financial support to ensure the remediation of
polluted former gas sites in the province of Soutrh Holland.84
However, in light of the Van de Walle decision, such a piecemeal approach is unlikely to suffice. The
key problem is that there are no standards for soil contamination under Community law,85 such as
maximum permissible concentrations for a range of commonly occurring contaminants in soil. Such
maximum permissible concentrations might be graduated, depending on the current or planned use of a
(c) alleging the impairment of a right, where administrative procedural law of a Member State requires this as a
precondition.”
79
OJ (2001) C37.
80
OJ (1994) C72.
81
Only one application to provide State aid for brownfield redevelopment was approved by the Commission under the 1994
Guidelines, i.e. the UK Gap funding case, Commission Decision of 22 December 1999 on aid scheme C 39/99 (ex E 2/97),
‘EP/PIP Scheme, OJ (2000) L145. See further, B. Vanheusden, supra, n. 76, at 182-183.
82
Commission Decision of 27 February, State aid N 520/2001 – Netherlands, OJ (2002) C146.
83
Commission Decision of 15 November 2002, State aid N 424/2001 – Italy – Tuscany Region, OJ (2003) C78.
84
Commission Decision of 3 December 2002, State aid N 414/2002 – Netherland – Province of South Holland,OJ (2003)
C82.
85
Though Derham, supra, n. 54, suggests that for certain cases the criteria in Council Decision 2003/33/EC on waste
acceptance criteria might be considered in the absence of an alternative.
12
particular contaminated site. If such standards existed, it would be possible for the ECJ to determine
that only soil which failed to comply would be included within the scope of the Waste Framework
Directive definition of ‘waste’. More importantly, such standards would dictate the level of
remediation of contaminated soil required in order to ensure that contaminated soil might be
declassified as ‘waste’.86 Currently, it would not appear that there exists any possibility for considering
partially remediated soil as anything other than waste,87 with the result that the owners or occupiers of
remediated sites would remain subject to the licensing requirements and attendant criminal or civil
liability outlined above. In terms of policy outcomes, this fact is likely to create a major disincentive
for the redevelopment and reutilisation of brownfield sites, thereby increasing development pressure on
greenfield sites. In the absence of detailed technical Community soil standards, however, resolution of
this difficulty could be achieved through judicial reinterpretation of the Waste Framework Directive to
the effect that only unexcavated contaminated soil which, according to the latest risk assessment
techniques, poses a significant and unacceptable risk of adversely affecting human health or the
environment would be considered to constitute waste. In other words, a decision establishing a
threshold relating to the risk of harm at which unexcavated contaminated soil becomes ‘waste’. It
would appear that such a threshold has been established in relation to remediation of land under Annex
II of the Environmental Laibility Directive and this threshold would inevitably become clearer over
time with accumulated practice and, possibly, judicial deliberation. Alternatively, legislative
amandment of the Waste Framework Directive would be necessary. Such amendment might, for
example, involve modification of the categories of waste set out under Annex I to expressly include
only unexcavated contaminated soil posing such a risk. Indeed, moves to consider such an amendment
had already been underway and are likley to enjoy a certain urgency as a result of the Van de Walle
decision. In May 2003, the Commission published a Communication88 discussing, inter alia, the
arguments for amending the Waste Framework Directive definition of ‘waste’, which concludes that
‘ ... discussion on the virtues and drawbacks of the current and alternative definitions should
also cover possibilities to ease the application of the definition and reduce conpliance costs.
This could include (a) the development of objective criteria to establish when certain products
become waste or to establish that recovery of certain wastes has been completed ...’89
In addition, the Van de Walle decision highlights a number of ongoing practical problems relating to
the future management of waste materials arising from contaminated land remediation or
redevelopment projects. Key among these is the impact of Article 6(c) of the Landfill Directive,
which, since July 2004, prohibits the co-disposal of hazardous waste and other waste to landfill. As the
vast majority of contaminated soil would be classed as hazardous waste, it would now be required to be
disposed of in hazardous landfills or, if possible, treated on-site. Indeed, in the absence of hazardous
landfill facilities in Ireland, such contaminated soils would need to be exported. In 2002, 139,892
tonnes of contaminated soil (including hazardous soils) were exported from Ireland by ship to
Germany, Belgium and the Netherlands for recovery.90 Even prior to the Van de Walle decision, Doak
could point out that legal uncertainty makes it ‘difficult to de-classify the treated soil waste to a
material / aggregate that can be reused widely’ and, further, that ‘the law restricts the outlet for treated
86
Doak, supra, n. 76, details the difficulties inherent in seeking legal recognition that waste soils /spoil treated by means of
thermal / physical / biological processes generally produce an inert material that can be reutilised for aggregates.
87
A similar shortcoming haunted the ill-fated section 143 of the UK Environmental Protection Act 1990, which was
intended to require the establishment and maintenance of local authority registers of potentially contaminated sites, but
which made no provision for the removal from the register of sites which were remediated or were found not to have been
contaminated in the first place. The provision was never brought into force due, inter alia, to concerns that such remediated
or uncontaminated sites would remain ‘blighted’ indefinitely. See further, O. McIntyre, supra, n. 41.
88
COM(2003) 301.
89
Ibid., at 39, (emphasis added) See further, Doak, supra, n. 76, at 312-313.
90
See further, Doak, ibid., at 310-311.
13
soil to landfill for cover material’.91 The recent ECJ decision will do nothing to promote soil treatment
methods and reduce demands on scarce European landfill capacity. Indeed, it is likely to greatly
increase pressure on limited landfill capacity when one considers that there are estimated to be between
300,000 and 1.5 million contaminated sites in the former 15 States of the European Union.92
Conclusion
In a highly critical account the ECJ’s decision in Van de Walle, Prof. Lucas Bergkamp suggests that the
Court ‘without even a referenec to the newly adopted legislative regime [EC Environmental Liability
Directive], created a separate and independent judge-made liability regime based on already existing
EU waste legislation’.93 He further notes that ‘the new court-made liability regime provides for strict,
retroactive, joint and several liability of operators, land-owners, and product manufacturers for the cost
of spill clean-up and soil and groundwater remediation’, and that ‘this liability is not limited by
defenses or procedures of risk assessment and cost-benefit analysis, which are key features of the
Environmental Liability Directive and already-existing national soil remediation legislation’.94
However, most damningly, he complains that
‘This new waste liability regime is superimposed on the existing national liability and
regulatory regimes for spills and soila nd groundwater contamination, and the EU’s new
environmental liability regime, creating a labyrinth of overlapping administrative, civil and
criminal liability rules. It will take some time before the courts have sorted out how the new
waste regime fits in with these other regimes.’95
91
Ibid., at 312.
European Environment Agency, Management of contaminated sites in Western Europe, Topic Report No. 13/1999 (June
2000). See, http://reports.eea.eu.int/Topic_report_No_131999/en
93
L. Bergkamp, ‘A new court-made environmental liability regime for Europe’, (2004) 12/4 Environmental Liability 171, at
171. For an opposing view, see L. Kramer, ‘Decontamination of soil and EU waste legislation’, (2004) 12/6 Environmental
Liability 263.
94
Ibid.
95
Ibid.
92
14