a Measures to prevent or clean-up environmental damage

Our questions in this chapter were:

 what kinds of measures are taken in case of actual environmental damage or imminent threat of damage under the Environmental Liability Directive by the operators or by the authorities (or third parties)?

 if the measures are taken by the operators (or third parties), how far they are determined (consented to) by the authorities (e.g. existence of guidelines prepared by the competent authority to facilitate the operator to draft the measures)?

 what are the measures taken in the cases of abandoned, historical, or “orphan sites”; how are such sites included into the national priority list, and how they are handled?

136 Measures taken by the operators

The order of responsibilities in ELD cases is determined by the fact that the operator is in the position to best know what measures are the most effective under the circumstances of their facilities, therefore they have the primary obligation to take the remedial actions (SE, EL).

The first step is that the operator is obliged to take immediate actions to prevent further damage to the environment or to avoid raising the risk of damaging the environment and human health. If the measures are urgent, they must be taken without informing the authority. Urgent measures are implemented when the threat of imminent damage needs to be removed or to prevent further damage, multiplication and expansion of damage, and the domino effect (HR). Thereafter, the operator has an obligation to notify the authority in order to clarify if additional actions are needed (SE, IT, CZ). Not only are urgent activities expected from the concerned operator, but they should refrain from engaging in any activity, too, that would pose further imminent threat or damage to the environment in the given situation (HU).

The second step is determined by the high stakes and the need for balancing the interests of urgency with the best calculation of the ramifications of the pollution and the clean-up measures. Planning the remedy actions therefore counts as a key stage. The operator is obliged to prepare the clean-up plans without undue delay, which is more exactly prescribed in Italy: in any case, no later than thirty days from the harmful event (IT). The proposal for remedial measures has to be submitted to the competent authority for approval (LT, CZ, IT). Even if no detailed guidelines exist for drafting of the remedial action plan in Estonia the environmental authority in practice provides guidance based on some general provisions of the national ELD Act. Certain circumstances have to be considered in drafting the plan, such as the likelihood of the success of the measures, and their cost. When selecting remedial measures, preference should be given to measures that allow achievement of the baseline condition directly, and in an accelerated timeframe or by way of natural recovery. Upon planning of substitutive (complementary) and compensatory remedial measures, the remedial action plan must first consider the substitution of the damaged natural resource with an equivalent natural resource. First, it must be considered whether it is possible to take measures that ensure the existence of a natural resource of the same type, quality, and quantity as the damaged natural resource. If substitution with an equivalent natural resource is not possible, the natural resource may be substituted with an alternative natural resource. If it is not possible to substitute a damaged natural resource or the benefits thereof with an equivalent one, remedial measures must be found using the method prescribed by the environmental authority on a case-by-case basis (EE). The competent authority maintains a high level of oversight over the recovery programs. The recovery programs are produced by accredited professionals and scrutinized by an expert committee formed by the Ministry responsible for environmental protection. After the expert committee scrutinized the recovery program, the Ministry needs to issue a compliance receipt (HR).

The third stage²⁵ is taking clean-up measures. Where environmental damage has occurred, the user of the environment (operator) is obliged to take measures to restore the baseline condition, or a similar level as specified in specific other legislations, or to restore, rehabilitate, or replace the damaged natural resources and/or impaired services (HU). The party causing the damage can carry

25 In principle, these three steps should follow each other quickly, but in practice they might take years (a comment from Csaba Kiss)).

137 out the measure by itself if they have the proper knowledge and equipment, otherwise the measures are to be carried out by a third party; in certain cases, such as a fire at an industrial plant, the urgency would also prevent the operator from doing the works themselves – in such cases, the relevant State organisation shall take them (SI). In the case when more than one kind of damages has occurred and it is impossible to undertake simultaneous remedial action regarding these damages, the competent authority may determine in its decision which damage should be treated first. In determining the order of taking the remedial action, the authority shall take into account the nature, extent and size of damage and the risk to human health, as well as the possibility of natural repair of natural elements in the area where the damage occurred (PL).

Fourth and utmost, the liable operator shall bear financial responsibility for the pollution. The operator having caused site pollution is obliged to accept responsibility for the environmental damage they have caused, and to cover the costs of prevention and rehabilitation (HU). The whole procedure will not start in a conflict-free manner in all cases. In the opinion collected from the representatives of the Lithuanian Environmental Protection Department, which view might be shared by many in other Member States, too, liable persons are mostly unwilling to fully restore the environment; they try to restore it as little as possible. They often challenge instructions, requests, or orders from officials in this regard. It is hard for officials to gather the evidence to prove damage that has been done, because the activities are easy to conceal. In some cases, it is generally and objectively difficult to assess the extent of the environmental damage due to the lack of laboratories that are capable of carrying out certain tests and the lack of primary data on the state of the environment prior to the occurrence of the damage (LIT). An example case is the ‘Vlčie hory’ landfill in the town of Hlohovec, where hazardous waste was illegally deposited in a municipal waste landfill, pollutants (petroleum products and asbestos) leaked from the landfill from loose barrels into the surrounding area, and wastewater was discharged from the landfill site. However, the operator repeatedly appealed against the decision of the environmental authority and did not take any precautionary measures. Subsequently, he terminated the operation of the company (SK).

Measures taken by the competent authority

The responsibilities of the competent authority depend on whether there is a liable party. Even if there is a liable person, the authority might decide to interfere with the case (IT, DE, LT). Naturally, the activity of the authority is not optional when there is an imminent threat of environmental damage in case totally unattended by the operator (HU, DE). In some countries, the mandatory tasks of the competent authority are broader: they have to act when the operator is not carrying out the necessary preventive measures, or when the measures taken by the operator are not sufficient, or when the operator does not comply with the instructions given by the environmental authority, or when the responsible operator is not identifyable (LV, LU, SK, RO, ES). The costs of such authority actions are either included into the general budget of the competent authorities or there are certain State channels through which the authorities shall acquire the necessary funding. This could be performed for example by a request submitted to the national environmental agency (SE) or such costs are generally included in the State budget, and there is an application process that might be quite time-consuming for the competent authority (EL).

The competent authority

 deals with submissions and requests for actions;

138

 identifies and registers cases of environmental damage, keeps summaries of information on environmental damage or its imminent threat and on preventive and remedial measures;

 assesses the impact of the planned measures, including a comparison of alternative risk mitigation or elimination procedures, and an estimate of the financial costs, including the time taken for each alternative; the competent authority might suspend the procedure to impose remedial measures until the assessment has been submitted;

 approves the proposed remedial measures or imposes additions or amendments where explicit consent is needed, if the measures are different from those of the instructions of the authority;

 issues decisions on imposing preventive measures or remedial measures, imposes instructions or other measures determined by the law, especially invitesinviting the operator to take the necessary remedial measures within a specified period of time, and providing them with instructions to be followed in their implementation, orders the operator to take remedial measures, defines their conditions and sets a deadline for their implementation;

 monitors compliance with the obligations set out in the relevant environmental liability law and also determined by the decisions of the authority;

 decides on the reimbursement of costs;

 evaluates the opportunity to reach an agreement with the operator;

 imposes fines for offenses (CZ, SE, IT, LV, ES).

It is important to note that environmental authorities are usually too short of resources, thus there are only exceptional cases when they must interfere; in any other case, they only may do so. In Portugal, for instance, the environmental authority shall on a subsidiary basis intervene at the expense of the liable operator when the severity and consequence of the damage so requires (and recovery of expenses seem to be ensured). As last resort, it may intervene in three cases: when the operator fails to comply with the legal obligations; when it is not possible to identify the operator; or finally, when the operator is not obliged to support the costs – that is, in the case of the exclusion of a payment obligation. The authority also only may intervene in case of extreme situations harming persons and property, the so-called environmental state of exception, but these situations only legitimate the action of the competent authority when aiming at reasonable results that could not be reached by any other means, in particular compliance with the rules of the national ELD legal regime (PT).

Orphan sites

The notion of the orphan sites is conceptualized by the Portuguese environmental authority as follows:

 any measurable adverse change in a natural resource or measurable impairment of a natural resource service when it is not possible to apply the polluter pays and liability principles,

 a situation of environmental degradation would be at stake, resulting from the release of pollutants over time and/or in an uncontrolled manner,

 the question of the responsibility of the State emerges for safeguarding the respective rehabilitation,

 however, any intervention should be preceded by identification and quantification through analytical methods of the pollutants in such sites, which would aim at enclosing their spatial distribution at length and in depth (PT).

139 Such orphan sites might or might not fall under the scope of the national ELD laws, depending primarily on the time dimensions of the cases. The key elements of this definition, however, compared to that for other ELD sites, is that the authority acknowledges that the available resources for clean-up of these orphan sites are very scarce at the time, thus the State has to strongly prioritize them, as well as to restrict the goals of remediation to halting the further spread of the pollution and prevent any damage to human health. Even if this happens, the matter of orphan sites should not be removed from the social and political agenda, thus obtaining a clear picture of them is indispensable, as the following example from Portugal shows.

According to information from the Government, following the Plan for Intervention in the Stone Quarries in a Critical Situation, in November 2019 the majority of the 191 stone quarries at risk had complied with the measures approved: seals, signalling, and works. 150 stone quarries lacked signalling, the signalling works having been carried out in September 2019 by the Company of Mining Development (Empresa de Desenvolvimento Mineiro – EDM a private company owned by the Portuguese State); 185 stone quarries needed seals to prevent entry, and all the respective owners were notified. 164 stone quarries complied with the sealing measures. Criminal complaints have beenA criminal complaint was filed to the Public Prosecutor in the case of 21 stone quarries that are not complying with the measures and are still lacking seals. Nevertheless, the competent authority will implement such measures on those 21 stone quarries through intervention of EDM, which was scheduled for late December 2019 and April 2020. The cost of this intervention shall be covered by the Environment Fund and they will be further charged to the owners of the stone quarries; 153 stone quarries needed major intervention including projects and works to strengthen structural safety: 132 projects were brought forewardforward by the owners of the stone quarries to structurally strengthen the slopes of the stone quarries, and the approval process is complex. 35 were already approved in mid-November 2019, while the remaining projects were scheduled to be approved in late 2019 so thatin order for the interventions to begin as soon as possible. The length of this kindthese kinds of projects is very variable, ranging from 6 months to 6 years (PT).

We would like to underline that the mandatory or optional activities of the competent authority when there is no liable party or it isone unable to take measures are closely interrelated with the broader topic of historical sites. Old, polluted sites are generally out of the scope of the national ELD laws, while in the mirror of some findings, especially in respect to brownfields, we have to acknowledge that retroactivity is not a black and white matter. Old pollution might cause environmental damage now – for instance, because of spreading finally reaching the sensitive layers of water, soil, or nature. Also, they offer certain solutions regarding the scarcity of industrial lands if laws and procedures are at hand to manage such complicated matters.

The size of the problem of the historical sites is clearly described by a study from Lithuania. This example also shows the difference between the numbers determined by the State responsible for cleaning up the orphan sites and the more objective data from a scientific organisation. However, the differences are partly because of the vague terminological borders between orphan and historical sites.

According to data form the Lithuanian Geological Survey, on 31 December 2019 there were 12,514 potential pollution hotspots with a total area of 26,527 ha (0.41% of the territory of Lithuania). In more than half of these areas, activities were ceased in 2000 or earlier. Economic activities were discontinued in 6,189 territories, but only 1,770 (28.5%) were studied, of which only 281 (4.5%) were investigated in detail. According to the data provided by the Lithuanian Geological Survey, in about 50% of the investigated areas, contamination of soil or groundwater with hazardous chemicals was

140 identified. Major pollutants are petroleum products, pesticides, heavy metals, polycyclic aromatic and halogenated hydrocarbons, detergents and phenols. By 2020, only 117 contaminated areas had been remediated, i.e. only 13.2 % of investigated areas, where pollution with hazardous substances had been identified (3.8% of contaminated territories, where economic activities had been discontinued). 53 of them were remedied using EU and municipal funds – 10.3 million EUR were used. According to the Lithuanian Geological Survey, 432.568 million EUR would be needed to remedy all contaminated sites. However, there are no data available concerning the application of any form of environmental liability in these cases (LIT).

As concerns the composition of the abandoned sites nationally, an old (2003) Hungarian set of data might still be informative.

Activity Share of contaminated sites

Landfills 41%

Industrial/commercial objects 31%

Storage of technological materials 14%

Agricultural areas and objects 7%

Other activities 7%

Unfortunately, in Hungary the accounting of longstanding pollution cases has been halted since 2003 (HUN). In some other countries, reliable statistics exist only about sites successfully cleaned-up already. There have been no data available for orphan sites since 2016 in Greece. The only period from which we have data is between 2012 and 2015, but only concerning cases that were remediated with funding from the Green Fund in the framework of the Urban Rehabilitation program (GRE). The Slovenian researcher also acquired trustworthy personal information from the Ministry about old, polluted sites. Based on a provision of the Environmental Protection Act, special sites with a degraded environment can be designated by the government. Although the country has at least five such areas according to professional NGOs, only one site was officially designated. There is still no list of historical or abandoned “orphan sites,” and their remediation has not been addressed yet.

According to the principle of the subsidiarity, measures are to be taken by the local community, or if it is not able to do so, by the State, while as the Ministry’s legal expert emphasized, the provision is not further elaborated in detail, so the system is not yet functioning – it first needs some changes in the more general legal background and the availability of proper financial sources. In Slovenia, in 2017 the Ministry for the Environment and Spatial Planning wanted to address these old burdens in the draft of the new Environmental protection act and to establish a special financial fund and yearly plans for remedial measures, but this initiative has not been successful so far (SI).

Contrary to these examples, in Sweden a national programme is in place with the aims to detect and decontaminating polluted areas – mainly sites that were/have been used for industrial purposes or as waste deposit areas. This activity is well documented on a regional basis with all municipalities involved. The relevant statistics are reliable and there is a good overview of the individual sites (SWE). In Romania, the keeping of a register of polluted sites is decentralised at the county level. The county list of potentially contaminated sites represents the situation at a county level of potentially contaminated sites, which is permanently updated and accessible to the public, while there is a summarized national list, too (ROM). There is a register in Latvia, too, established according to the Law on Pollution in 2001, aimed at conscripting polluted sites as well as “potentially polluted sites.”

This has been established in connection with incentives to identify abandoned as well as historical

141 sites requiring the environmental authority together with municipalities to identify such places and register them in a publicly available register, which has taken place since 2004. At this moment, there are 3500 sites altogether from which 240 are confirmed as polluted sites where remediation measures need to be taken. Usually, these are sites where State and different public funding sources

141 sites requiring the environmental authority together with municipalities to identify such places and register them in a publicly available register, which has taken place since 2004. At this moment, there are 3500 sites altogether from which 240 are confirmed as polluted sites where remediation measures need to be taken. Usually, these are sites where State and different public funding sources