Soil Protection Law in Ireland

Soil Protection in Ireland

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Soil Protection Law in Ireland Owen Mclntyre*

In the absence of Community rules relating to soil contamination and protection, the Irish authorities have neglected to legislate for this issue. While afew common law tortious grounds of action and certain statutory regimes may be applicable to partic ular cases of soil contamination, their application is arbitrary and piecemeal, depend ing,for example, on the type of operation originally causing the contamination, on the extent of understanding of the problem at that time, on the nature of its related adverse effects, or on plans for the future use or development of the contaminated site. One particular lacuna in the coverage of the relevant Irish law relates to the prob lem of historical soil contamination,for which the Irish authorities have felt unable to legislate on account of a constitutional prohibition on retrospective liability. This paper seeks to set out the possible application of existing Irish rules to the problem of historical soil contamination and to highlight the shortcomings inherent therein. It also outlines the non-legislative solutions employed by Irish lawyers in the face of such legal uncertainty. It then goes on to examine the likely impacts of recent key developments, including the 2004 decision of the European Court of Justice in the Van de Walle case and the entry into force of the 2004 Environmental Liability Directive.

I. Introduction Ireland does not, at least as yet, have a dedicated body of rules relating to soil protection.1 Though the Irish Environmental Protection Agency issued a discussion document on development of a strate Owen McIntyre, racult’ of Lav. University college Cork, National University of Ireland. I A volume purporting to outline the various national legal regimes applying to the remediation of soil contamTh.ation in each of the 15 pre-May 2004 Member States covers 13 such regimes, negler Iing to give an account of the position in either Greece or Ireland. See, Seerden/Deketelaere ledsi, Legal Aspects of Soil Pollution and Decontamination in the EU Member States and the United States, niersentia/Metro, 2000. 2 Environmental Pro,euion Agency, Towards Setting Environmental Quality Obectives for Soil Developing a Soil Protection Stra tegy for Ireland, Dublin, 2002. See also, Enviror,memal Protec tion Agency, Viewpoint on Brownfield Site Redevelopment, Dublin, 2005. In an unpublished report from 2003, the Environ mental Protection Agency estimates that the number of sites in Ireland that, due to past or present industrial activity, may pose a risk to soil and groundwater lies between 1,985 and 2,371, see further, McIntyre, ‘Probiems of Liability for Historical Contamina tion under Irish Law’, 10 Irish Planning and Environmental Law leurnal, 20°, n 117 et cm.: McIntyre, ‘Liability for Remediation of Contaminated Land in Ireland: The Need or a Ueutcated —

gy on soil protection in 2002: there have not been any corresponding legislative initiatives and Irish rules relating to soil contamination and protection are found among a range of common law princi ples and diverse statutory provisions. There exists a particular lacuna in relation to historical soil con tamination, for which common law remedies would rarely be available and where a constitu tional prohibition on the imposition of retrospec tive liability has impeded the adoption of a dedi cated statutory regime such as that introduced in the United Kingdom under Part hA of the Environmental Protection Act 1990. Instead, a number of diverse legislative measures have been applied to the problem of historical soil contami nation and to the allocation of the costs of its reme diation, depending on the particular circumstances in each case- Such measures include, for example, statutory provisions relating to water pollution, waste management and planning (development control). In addition) lawyers have devised numer ens innovative non-legic1ativ snltitinns for allocat :_.,::j r..:;:r,- !!:::t, Inc ‘.c n!::n

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historically contaminated soil. This situation may be profoundly affected by the 2004 Van de Walle decision of the European Court of Justice, which found that contaminated soiL would in many instances be classified as waste under the Waste Framework Directive, thus bringing the issue of soil contamination within the scope of Irish waste management legislation. Of course, the revision of the Waste Framework Directive currently ongoing might alter this situation in turn. As regards liabil ity for the remediation of soil contamination aris ing from activities subsequent to its entry into force in 2007, the 2004 Environmental Liability Directive is likely to define the parameters of Irish legislative rules for the foreseeable future.

II. Deficiencies in the Common Law In the absence of a statutory regime specific to the problem of soil contamination, which apportions liability for damage resulting from such contami nation and allocates responsibility for its remedia tion, the nature and extent of such exposure remains uncertain. The UK House of Lords decision in Cambridge Water C0. Ltd. v Eastern Counties Leather,3 has clearly established that in order to succeed in an action in nuisance or under the socatted rule in Rylands v Fletcher,4 a third-party injured as a result of contamination originating on a defendant’s land must establish that the damage was reasonably foreseeable at the time of the activ ity giving rise to the contamination. This will usu ally be very difficult where the activity occurred in the distant past and where the damage is caused by small-scale and continuing escapes and emanations taking place over many years. Similarly, any thirdparty action in negligence requires that the damage was reasonably foreseeable.5 Common law grounds of action stifler further inherent inadequacies when it conies to resolving disputes over contaminated soil,° though it appears that a more flexible appli cation of common law rules by the Irish courts may, in some circumstances, help to alleviate hardship or anomalies caused by such deficiencies. Private nuisance, ‘the primary vehicle for actions in environmental cases’,7 is restricted in its applica tion to those situations where a plaintiff possesses a recognised proprietary interest in land, which has been or continues to be affected.O Attempts made during the 19905 by the English Court of Appeal to

broaden the scope of private nuisance, by extend ing the class of interests which would entitle a plaintiff to sue,9 were firmly reversed by the House of Lords.’° According to Lord GofF in Hunter, the position under English law is that: ‘[A{ person can only sue if he has the right to exclusive possession of the land, such as a freehold er or a tenant in possession or even a licensee with exclusive possession. Exceptionally.. this category may include a person in actual possession who has no right to be there Therefore, in England and Wales, spouses (who are not a legal owner or tenant) and other family members living in the family home, lodgers, seden tary employees and many others will continue to be disqualified from suing in nuisance for loss, injury or personal discomfort arising by virtue of soil con tamination. Where the legal occupier of land is dis inclined, for whatever reason, to act to protect or restore the environmental condition of that land, it is not possible for any other person, no matter how affected, to Lake an action in nuisance. In Ireland, however, it would appear that both the owner and occupier of land tnight sue in nuisance. In Hanrahan v Merck Sharpe & Dohme (Ireland) Ltd, -

3 119941 All ER, 53. :18661 LR I Ex 265.

5 For e.g., in Cabridgewater ,supra note 3, the High court dis missec he action in negligence, having found that pollution of a chalk aquifer by ongoing, small-scale accidental spillages of a solvent was not foreseeable by a reasonable supervisor. 6 On the deficiencies of the common law in dealing with the reme datjonofcont,iminated land, seegenerally, McIntyre, ‘Statutory Hability for Contaminated Land: Failure of the common Law’, in Lown’/Edmunds teds.), Environmental Protenion and the Co mon Lass Oxford 2030, p.15 1115-1201. 7 Malcolm, A Guidebook to Environmental Law, London 1994, p.37. The tort of nuisance has also been described as ‘the envi ronmental tort par excellence’: see Wightman, ‘Nuisance the Environmental Tort? Hunter v Canary Wharf in the House of Lords’, 61 Modem Law Review, 1998, p. 370. 3 For a detailed account of the restrictions on nuisance in in appli cation to environmental disputes, see Cross, ‘Ooes Only the Careless Polluter Pay? A Fresh Examination of the Law of Private Nuisance’, ill Law Quarterly Review, 1995 p. 453, and Cearty, ‘The Place of Private Nuisance in the Modern Law of Torts’, 48 Cambridge Law journal, t989, p.214. —

9 Khorasandjian v Bush t993 1 W,L.R. 476, 1993i Q.B. 727 and HuntervCanaR’ Wharf 1997] AC. 655, per Pill Li. writing In, a unanimous Court of Appeal tat 670-675). 10 Hunter v Canary Wharf Ltd ibid. 11 Ibid., at 433. See also, Pembenon v Southwark London B.C. 20001 3Al1 ER. 924, where the Court of Appeal. applying the House or Lords decision in Hunter, held that a tolerated trpas sor had locus standi as her possession of the property ‘though precarious was not wrongfut and was exclusive’.

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the Irish Supreme Court, without commenting specifically on locus standi, considered an action in nuisance taken both by the registered legal owner and her son and daughter-in-law, who were in occu pation but enjoyed no recognised legal interest.12 In relation to the rights of those in occupation of that what land, Henchy J. stated that, ‘it is cleat an occupier of land is entitled to as against his neighbour is the comfortable and healthy enjoy ment of the land’)3 This statement was interpreted by Shanley J. in Royal Dublin Society v Yates14 as representing ‘a diflerent and more flexible approach’ than that taken by the House of Lords in Hunter.15 In Molumby and others v Kearns and others)6 where locus standi on the grounds of mere occupation was specifically challenged, O’Sullivan J. stated that, ‘ILlocus standi was estab lished by a plaintiff who sues in nuisance if he or she is the occupier of the land. I do not tlunk it nec essary that the plaintiff establish a legal interest over and above this’.17 While it would appear that mere occupation rather than a recognised legal right will suffice, McMahon and Binchy caution that ‘it would be wrong to imagine that the Irish position has yet been definitely determined’ as in both the Royal Dublin Society and Molumby cases the plaintiffs would have had ‘sufficient legal inter est to sue, even under the Hunter approach’.18 While it remains necessary for a plaintiff to have a ...

12

19881 I.L.R.M, 629.

13 Ibid.. at634. 14 unreported, High Court, Shanley J., July 31, 1997. 15 Supta note 9. t

16 Unre:,orted, High Court, O’sullivan J., January 19, 1999. 17 Ibid., at44. 18 McMahon/Binchy, Irish Law of Tons, 3rd ed,, Oublin 2000, p.701. 19 Rylands Fletcher [18661 LR I Lit 265. at 278. ‘

20 See Jones v Festiniog Rly Company 18681 LR 3 Q.B. 733, Midwood & Co Ltd v Manchester comoration 119051 2 KB. 597 and Read v Lyons & Co 119471 AC. 156. 21 See, e.g., Hale v lennings Brothers 11938] 1 All ER. 579. 22 Perry v Kendricks Transport Ltd 119561 1 All ER. 154, 23 Supm note 20. 24 1199412 AC. 264 at 300. 25 Unreported, Supreme Court, Keane J., July 23, 1977. 26 Superquinn Ltd v Bray uDC, unreported, High Court, Laffoy J., February 18, 1998. 27 :1962-63: Irish Jurist 9. 28 MrMahorJBinch supra note 18.

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connection with the land, it is apparent that family members, guests, lodgers and even employees are significantly more likely to be afforded standing to sue in nuisance before the Irish than before the English courts. The problem is, however, that there remains considerable uncertainty as to who may sue in nuisance in relation to unlawful interference, such as foul odnurs, caused by soil contamination. Also, the rule in Rylands v Fletcher, as originally articulated by Blackburn J. relates to ‘all the damage which is the natural consequence of itsl escape’.1 suggesting that liability is not restricted to damage caused to adjoining landowners or those in occupa tion of land. However, uncertainly persists in rela tion to this issue in English law. There is clear authority that a party who owns land can sue in relation to damage to that property2° and in rela tion to personal injuries.21 Though there is some authority to support the proposition that compen sation for injury to those nol in occupation of land can be recovered,22 in Read v Lyons23 Lord Simonds found the principles of Rylands v Fletcher to be ‘exactly analogous with the law of nuisance where only he who had suffered an invasion of some proprietary or other interest in land had a lawful claim’. The House of Lords decision in Cambridge Water further reintegrates the two doc trines, Lord Goff making it clear that Rylands v Fletcher derived from the law of private nuisance and was never intended to constitute a separate tort in itself.24 Therefore, it may be argued that the rules on locus standi applying to nuisance also apply to Rylands v Fletcher, including the restric tion on recovering damages for injuries not associ ated with occupation of land. This problem is unlikely to arise in ireland, however. In McDonnell v Ireland25 Keane J. declared on behalf of the Supreme Court that the rule in Rylands v Fletcher creates an entirely novel form of liability. Conse quently, as a separate and distinct tort, there is no reason wily Rylands v Fletcher should not have sep arate and distinct rules on locus standi. Though Laffoy J. in a subsequent, albeit High Court, deci sion,26 would appear to have tacitly accepted the reintegration of the Rylands doctrine into the gen eral tort of nuisance, she was not dealing with the issue of locus standi and leading commentators, cit ing the Supreme Court decision in Healy v Bray UDC,27 have remarked that ‘the authorities here would appear to support... a right of action’ for non-occupiers who sue for personal injury.28

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In an action for negligence, where right of action is not based upon proprietary interests but on the existence of a duty of care, it can prove very diffi cult in environmental cases to establish that the defendant’s offending behaviour amounted to breath of that duty. Establishing breach of the duty of care, having regard for example to any accepted safety standards relating to the offending activity during the relevant period, or even establishing a causal connection between the activity and the damage or injury, may involve very complex scien tific evidence and may ultimately prove impossi ble.29 However, in Hanrahan v Merck Sharpe & Dohme (Ireland) Ltd.,3° the Irish Supreme Court acknowledged that ‘lack of knowledge as to the true nature of the defendant’s conduct may cause the plaintiff difficulty’ and allowed for the possibility that the court could, where ‘the tort in question was basically ineffective to protect his constitutional right’, change the onus of proof31 The Supreme Court contemplated a relaxation or reversal of the burden of proof in cases ‘when the act or default complained of is such that it would be fundamen tally unjust to require the plaintiff to prove a posi tive averment when the particular circumstances show that fairness and justice call for disproof by the defendant’. The constitutional right in question is that of effective access to the courts, as protected under Art.4o.3 of the Irish Constitution.32 Though this constitutional remedy may apply to any tor tious ground of action, it has the potential to con siderably augment the usefulness of negligence in environmental litigation. However, the general requirement at common law, equally applicable in English and Irish law, that damage be reasonably foreseeable at the time that the activities giving rise to such damage took place, presents the single greatest obstacle to establishing liability at common law for soil contamination caused by past activities. Much industrial land will be found to be contaminated by virtue of activities carried out many years ago when knowledge of the properties of substances employed and of the health and ecological risks associated with such substances was under-developed. Also, erstwhile standards of safety and environmental manage ment, where they existed at all, would often be found to be hopelessly inadequate, thereby creating difficulties for the plaintiff seeking to establish fault in negligence. Further, the allocation of responsibility for the remediation of contaminated

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soil requires sophisticated arrangements for deter mining the level of remediation required with regard to the particular circumstances of individual sites and for the apportionment of liability where multiple wrongdoers have been identified. For example, in Cambridge Water, Lord Golf suggested that legislation would be required when lie stated that it would be more appropriate for any system of strict liability for environmental damage caused by soil contamination to be introduced by Parliament than by the courts: ‘I incline to the opinion that, as a genera) rule, it is more appropriate for strict liability in respect of operations of high risk to be imposed by Parliament, than by the courts. If such liability is imposed by statute, the relevant activities can be identified, and those concerned can know where they stand. Furthermore, statute can where appropriate lay down precise criteria establish ing the incidence and scope of such liability.’33 Recognising that common law principles alone were inadequate, the UK authorities considered it necessary to introduce a dedicated statutory regime explicitly creating and allocating liability for the remediation of historically contaminated land.34 However, it is equally clear that the inadequacy of the common law for resolving disputes concern ing soil contamination relates principally to histor ically’ contaminated land and may be seen as a quite specific problem arising at a particular point in time. Much contaminated soil today is the result of activities carried out in the distant past when there was little or no consideration of the environ-

29 See Reay and Hope v British Nuclear Fuels Ltd., Medical Law Review, 1994. For an account of the probiems of estaolishing causation in a class of such neetigence actions, see Oay, ‘Can(Cr: Proving the Causal Link, Tobacco, Radiation and Environ nental Polluion’, 22 Medico-Lecal journal, 1998, p. 141. 30 Supro ne:e 12. 31 Ibid. per Henchy J., at 636.

32 This unenumented constitutional right was lint succslullly asserted in Macauley v Minister for Posts and Telegraphs (19661 l,R, 345. 33 Supra note 3, at 76. 34 Pt IA of the Environmental Protection Act 1990 inserted by means of s.57 of the Environment Act 1995, which entered into force in April 2000. See further, Lan&Peto, Blackstone’s Guide to the Environment Act 1995, London 1995; McIntyre, supra note 5; McIntyre, ‘The UK Environment Act 1995, Section 57: A contaminated Land Regime Al Lastl’ 4 Environmental Liabi lity, 1996, p.67; Lewis, ‘Contaminated Land: The New Regime of the Environment Act 1 995’, 2 lournal of Planning and Envi ronmental Law, 995, p. loB?.

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mental consequences of such activities. In recent years, however, there has been an exponential growth in environmental awareness and, conse quently, in scientific understanding of environmen tal impacts and techniques of risk assessment. It appears increasingly likely that the courts could establish the forseeability of environmental dam age from more recent activities.35

III. Relevant statutory provisions Such statutory provisions as may apply to contami nated soil are concerned primarily with associated issues, such as the health and safety of workers or pollution to water, and so cannot function to restore contaminated sites which do not pose an obvious risk of causing such associated problems.36 There is no proactive programme of assessment and renw diation of potentially contaminated sites and, in the absence of any transaction, proposed development or major pollution incident, such sites would gener ally receive no scrutiny. A disparate range of statutory provisions may require that action be taken to prevent or mitigaw the impacts of contaminants found in soil. Most obviously, liability for remediation of soil pollution may arise where contaminants present in the land cause or threaten to cause pollution to waters. Section 12(1) of the Local Government (Water Pollution) Act 1977 allows a local authority to re quire any person having the custody or control of any polluting matter on premises to take any meas ures that appear necessary to prevent or control pol lution of waters. Furthermore, s.12(ZA)37 permits the authority to regulate or restrict the carrying on of any activity, practice or use of premises and to require the provision, re-location or alteration of facilities for the collection or storage of polluting 35 See, e.g., Steele, ‘Assessing the Past: lort Law and Environmentat Risk’, in )ewell/Steele, feds.), Law in Environmental DecisionMaking: National, European and Internationat Perspectives, Oxford 1 998, p. 111. 36 For example, the Safety, Health and Welfare at Work Act 1909 and the Local Government (Water Pollution) Act 1977. 37 Inserted by s.9 of the Local Government (Water Pollution) Act 1990. 38 As substituted by s. 7 of the Loral Government (Water Pollution) Act 1990, 39 See, Gill, ‘Environmental Law and its Implications in Property Transactions’, 3 Irish Planning and Environmental Law Journal, 1’96,p. 111.

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matter. Similarly, 5.7 of the Local Government (Water Pollution) Act 1990 permits any person, whether or not they have an interest in the waters concerned, to bring an appliration to the courts in respect of pollution by another, Obviously, tile costs involved in taking any such measures could be very considerable, not to mention the potential for inconvenience and disruption to business. Under S.12(5) of the Local Government (Water Pollution) Act 1977, the local authority may take any steps it considers necessary to prevent the polluting matter in question from entering waters and may recover the cost of such steps from the offender as a simple contract debt. Of even greater relevance to soil con tanunation, the local authority may, under s. io( 1) of the 1977 Act,38 apply to the courts for an order requiring a person causing or permitting polluting matter to enter waters to terminate the entry and to mitigate or remedy any effects of the entry. The courts are empowered to order a wide range of measures incltiding the replacement of fish stocks, the restoration of spawning grounds, the removal of polluting matters from waters and the treatment of affected waters. in practice, remediation of a contaminated site in Ireland is most likely to occur by virtue of planning control legislation. Where a site is potentially con taminated, Dublin Corporation has tended to include the following standard condition in planfling permissions: ‘Since the site has been used for industrial pur poses for a considerable period of time, the appli cants shall consult with the Chief Environmental Health Officer, Engineering Department, regard ing any possible contamination of the land and shall ascertain and comply with their require ments (if any) for dealing with such contamina tion (if any) prior to commencement of develop ment.’39 This practice is widespread and Dun Laoghaire Rathdown County Council, for example, has insert ed the following condition into a planning permis sion authorising the redevelopment of a contami nated industrial site: ‘The developer shall consult with the Chief County Medical Officer regarding remedial works required to ensure that site contamination does not pose any public health hazard to the future residents or occupiers of the development. Details of these works shall be submitted to tile Planning Authority for its written agreement

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before development commences on site. On com pletion of the development and prior to occupa tion the developer shall provide certification by a suitable specialist consultant (to be agreed wIth the Planning Authority in writing) that no health hazard exists for residents or occupiers of the development.’40 Under the Derelict Sites Act 1990, local authorities may order the clean-up of derelict sites, which are defined as: Any land which detracts, or is likely to detract, to a material degree from the amenity, character or appearance of land in the neighbourhood of the land in question because of (a) The existence on the land in question of struc tures which are in a ruinous, derelict or dan gerous condition, or (b) the neglected, unsightly or objectionable con dition of the land or any structures on the land in question, or (c) the presence, deposit or collection on the land in question of any litter, rubbish, debris or waste, except where the presence, deposit or collection of such litter, rubbish, debris or waste results from the exercise of a right con ferred by Statute or by Common Law’41 Although, the derelict sites legislation is primarily intended to deal with visual and physical derelic tion rather than contamination by toxic or haz ardous substances, it clearly provides yet another means by which local authorities may require the retnediation of some contaminated sites. Where noxious fumes or odours are given off by virtue of contaminated soil present on land, cer tain statutory nuisances contained in 5.107 of ihe Public Health (Ireland) Act 1878 may apply, re quiring an investigation to be carried out by the local authority on the complaint of an aggrieved person. Alternatively, civil liability may arise under 5.28l3()(a) of the Air Pollution Act 1987,42 whereby a person may recover damages for injury, loss or damage caused to him or his property by an unau thorised emission. Also, 5.12 of the Building Control Act 1990 allows a local authority, where it considers that there is a risk to the health and safety of people in a building arising from construction or a change of use, to apply to the High Court for an order to rectify the problem arisitig. Part C of the Building Regulations ]991 defines contamination as including ‘any sub stance which is or could become flammable, explo —

sive, corrosive, toxic or radioactive and any deposits of faecal or animal matter’. Where business is ongo ing on a contaminated site or where that site is undergoing development, or even remediation, lia bility may arise in relation to those employed. Section 2 of the Health, Safety and Welfare at Work Act 1989 defines a place of work sufficiently wide ly to include a development site.43 Where it is not satisfied that an employer (including a sub-contrac tor) is not doing all that is reasonably practicable to ensure the safety, health and welfare at work of employees, the Health and Safety Authority may serve prohibition notices ordering that work be stopped or improvement notices requiring that measures be taken to ensure the protection of employees. Such notices can involve considerable expense and delay and can increase exposure to personal injury claims. However, recent events suggest that waste man agement legislation might move centre-stage and take on the key role in relation to soil contamina tion and liability for its remediation. It has long been apparent that, where land has become con taminated by waste, certain provisions of the Waste Management Act 1996 may apply44 For example, under s. 58, 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 requir ing that they mitigate or remedy any effects of the waste management practice concerned.45 Also, in drawing up waste management plans and haz ardous waste management plans, local authorities46 and the Environmental Protection Agency17 respec tively, are required to identify closed waste recovery

30 Ibid. 41

Derelict Sites Act 1990,;. 3.

42 Inserted by s. ta o(Ilw Environmental Protection Agency Act 1992. 33 See, Spence. ‘contaminated Sites Clean up or Be cleaned Out?, 1 Irish Plannino antI Cnvimnmental law lounat, 1994. p. 57. —

See. Meehan. ‘The Waste Mar,artement Act 1996: Thp las: Green Bottle’. 3 Irish Planring and Environmental Law lournal, 1 996. p. 67. 45 See. Wicklow Co. Co. v Fenton, unreported, High court, uly 31, 2002. and Cork Co. co. v. O’Reoan, unreported, High Court. tune 17,2305.

44

46 Waste Management Act 1 99r,, s. 2217). 37 Environmental Pm:ection Agency Act 1992,s. 26(2).


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and disposal facilities and to ensure that they do not cause further environmental pollution. Of course, it had always been assumed that the Waste Management Act 1996 could not be invoked to deal with soil contaminated by hazardous sub stances that did not constitute waste, as traditional ly understood. However, the recent decision by the European Court of Justice in the Van de Walle case,48 to tim effect that both oil leaking from underground pipes or storage tanks and soil contaminated as a result of such leakage can con stitute waste’ for the purposes of Article i of the Waste Framework Directive49 and, consequenti) that such contaminated soil must now come within the scope of domestic and Community rules relat ing to waste management, might have a profound impact on the application of rules imposing liabili ty for the remediation of contaminated sites. This decision would appear to have extended, or at least to have liberally interpreted, the scope of the defi nition of ‘waste’ as it makes it clear that it applies even to contaminated soil which has not been exca vated or treated in any way. The Court would also appear to have taken a liberal approach to the con cept of a ‘holder’ of waste, for the purposes of

—Van do WaNe and others, ludgment of the court (Second chamber) of? September 2004, not yet reported. See further, Mcintyre, ‘The all-consuming definition of waste and the end of the contaminated (and debate’, 17 Journal of Environ mental Law, 2005. p. 109; de Sadeleer, ‘Case C-1/03 Thul Van de WaNe’, 43 common Market Law Review, 2006, p.207. 49 Directive 75/442, 0)1975 L 194/47, as amended by Directives 91/156,0(1991 1 78/32, and 91/692. OJ 1991 L 377/48.

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case C-1/03

50 See, for example. Wicklow Co. Co. v. Fenton, and Cork Co. Co. v. 0’Rean, supra note 45. 51 Section 4. See further, Laurence, ‘Swallows and Fishes: The Definition of Waste in cite Waste Management Act 1996’, 7 Irish Planning and Environmental Law iournal, 2000, p.43. 52 Article 15.5 of the 1937 Irish Constitution provides that ‘The Oireachtas ltrliamentI shall not declare acts to be infringe ments of the law which were not so at the date of their commis sion’. The Irish Supreme Court has interpreted this provision as ‘an expressed and unambiguous prohibition against the enactmerit of retrospective law-s declaring acts to be an infringement of the jaw, whether of the civil or the criminal law’, Magee v. Culligan (1992] 1 ILRM 223 at 272, per Finlay Cl. See also, Hamilton Hamilton 119821 IR 466. per O’Higains ci. at 474. ‘.

53 For example, section 58(11(a) provides ‘Where, on applicatior by any person to the appropriate court, that coun is satisfied that another person is holding. recovering or disposing of, or has held, recovered or disposed of, waste, in a manner that is cau sing, or has caused, environmental pollution, that court may make an order requiring that other person to one or more of the following ...‘ temphasis addedl.

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Article 1(c) of the Directive attd of identifying where responsibility lies for the obligation to dis pose of or recover waste. Therefore, utibsation of the Irish \Vaste Manage ment Act, 1996 has the potential to prove partictt larly effective, though its use has hitherto been restricted to incidents of contamination caused as a result of the carrying out of an obvious waste dis posal or recovery operation, such as illegal landfill ing?° In particular, sections 57 and 8 of the 1996 Act provide that, where a person has in the past held, recovered or disposed of waste in a manner thaI is causing or has caused environmental pollu tion, any person, regardless of proof of standirtg or of special interest, may seek an order from the courts requiring that they mitigate or remedy any effects of the waste management practice con cerned. Whereas it has been assumed that the 1996 Act could not he 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, tile definition of ‘waste’ provided in the 1996 Act merely reproduces, almost verbatim, tite 1991 amended directive definition.51 It would appear, therefore, that the issue of contaminated soil reme diation 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 contamina tion caused by past activities would have been like ly to fall foul of the constitutional prohibition on legislation having retroactive effect,Z2 even though, on a literal interpretation, sections 57 and 58 of the 1996 Waste Management Act would appear capable of applying retroactively?3 While sections 57 and 58 could still be the subject of a constitutional chal lenge, 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 remedia tion of contaminated sites may apply equally to past pollution. At first glance, this would appear to be inconsis tent with the European Commission’s long-stand ing policy of declining to propose legislation intended to apply retrospectively, as evidenced by the 2000 Commission White Paper on Environ-

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mental Liability? which unequivocally recommend ed that, for reasons of legal certainty and 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.54 Indeed, Article 17 of the 2004 Environmental Liability Directive makes it clear that it is not intended to apply to damage caused by any emis sion, event or incident that took place before the Directive entered into force, or even to damage caused by an emission, event or incident subse quent to its entry into force but deriving from an activity that took place and finished before that date?a 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 to owners or occupiers of contaminated sites, however, are the various forms of statutory liability which would appear to apply to such persons as a consequence of this decision.5° 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 environ mental pollution’. Section 32(6)(a) provides that ‘[Al person who contravenes subsection (i), (2) or () 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 car rying on of that activity was likely to cause envi ronmental pollution’. Indeed, the owner or occupier of a contantinated site might be well advised to go to the considerable trouble of obtaining a waste licence as section 32M(b) of the 1996 Act provides that where a prosecution is brought for breach of section 32(1), it shall be a good defence to prove that the activity concerned was carried on in accor (lance with a waste licence issued under the Act (or an IPC licence issued under Part IV of the Environmental Protection Agency Act, 1992). In the absence of rules on the remediation of contaminat ed soil required for the de-classification of such soil as waste, this would appear to be one of the few ways of drawing a line under the potential criminal

liability of the owners and occupiers of contami nated sites. Also, there is the possibility that any type of remedial measures or other site works tak ing place on a contaminated site might be regarded as a disposal operation which is prohibited under section 39(1) of the 1996 Act unless it is carried out under and in accordance with an appropriate waste or IPC licence. Further, under section 32(2), ‘IAI per transfer the control of waste to any son shall not 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’. In fact, not only would an owner who sells contaminated land effectively be transferring control of waste and quite possibly 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 sub section (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) re quires 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 ...

...

54 coMl2000} 66 final, February 9, 2000, para. 4.1. On the White t’aper generally, see McIntyre, ‘EU. Proposals on Environmental Liability: A Thorny Issue Revisited’, B Irish Planning and Envi ronmental Law Journal, 2001, p. 135; Bergkamp, ‘The Proposed EC Environmental Liability Regime and EC Law Principles’, 6 Environmental Liability, 200l,p. 251; Bergkamp, ‘The commis sinn’s White Paper on Environmental Liability: A Weak case for an EC Strict Liability Retime’, April 2000, p. 105; 3etlam, ‘White Paner on Envimnmen:al Liability’, 11 lournal of Environ mental Law, 2000. p.305. 55 Directive 20041331Cc on envirnr.mental liability with regard to

the prevention of and remedying of environmental damage, OJ 2003 L 143156. See fuiher, McIntyre, ‘The New European Directive on Enviror,mental Liability: Substantive content and Practcal Implications’, 11 Irish Planning and Environmental Law lournal, 2004, 99. .

55 For a Lane! roundup of the possible imnlication of the decision

for the t1,plicat.on of the Waste Management Act 1996. see Dcrnan.,’Do we need contaminated land ceislation after alit’. Groundwater .\‘ews!etter Geological Surt’ey”of Ireland), Decem ber 2304.

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(b) in the case of hazardous waste, both (lie said local authority and the Agency, of any loss, spillage, accident or other develop ment concerning that waste which causes, or is likely to cause, environmental pollution.’ Therefore, it would appear that owners or occupiers of contaminated sites are under a proactive duty to notify the appropriate authorities of almost any incident concerning that land. Generally speaking, there are likely to be many public and private sec tor 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. The Van de Walle decision would appear to raise more questions than it answers, particularly in relation to the lack of an appropriate mechanism for declassifying remediated soils as waste and the resulting potential for sites to be ‘blighted’ indefinitely. However, it does not appear that the relevant Irish enforcement authorities are commit ted to applying Irish waste management legisla tion entirely in line with the ECJ’s interpretation, as the prosecutions of occupiers of contaminated sites that one might have expected have not taken place. Also, as the European Commission has recently initiated a major revision of the general legal framework for European waste management, there is every possibility that the legislative defini tion of waste and the regulatory scope of waste law will be re-examined?’ In the light of such uncer tainty, it is hardly surprising that non-legislative measures are routinely employed in land transac lions to allocate any potential liability relating to soil contamination.

57 See further, Koc’&Reese, ‘Revising the Waste Framework Oirec. live: Basic Oeiiciencies of European Waste Law and Proposals for Reform’, 2 Journal for European Environmenlal & Planning Law, 2005, p. 441. 58 See, Fanagan, ‘Environmental Oue Oiligence’, 2 Irish Planning and Environmental Law Journal, 1995, p.3. 59 Ibid., at5. 60 See, for exampie, Atkinson, ‘Warranties and Indemnities: A ‘Cure All’ for EnvironmenIat Liability in the united Kingdom’ Environmental LiabiliI 1993, p. 93. 61 On current practice in reation to environmen:ai liability insu rance in the UK, see Sykes, ‘Environmental insurance solutions as a means of facilitating transactions involving contaminated and environmentally suspect land’, Environmental Law Review, 1999, p. 27.

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IV. Non-legislative measures Despite tlse uncertainties surrounding liability for

contaminated soil at common law arid the frag mented nature of applicable statutory provisions, ii is quite clear that caveat ecnptor remains the gov erning principle in transactions involving the trans fer of interests in potentially contaminated land. Therefore, an environmental due diligence exercise will routinely be carried out by asset purchasers, share purchasers and lenders at the pre-contract/ pre-completion stage to ascertain whether such land might bring with it exposure to third-party claims or to enforcement action involving clean-up costs.50 Unlike the position in the UK under Part IJA of the Environmental Protection Act 1990, Irish environmental legislation provides no specific exemption from liability for secured creditors and, instead, imposes liability on owners, who are deliberately not defined, and on occupiers, who are defined under the Environmental Protection Agency Act 1992, to include ‘the owner, a lessee, any person entitled to occupy the premises and any other person having, for the time being, control of the premises’. It is common practice for agreements relating to asset purchase or share purchase trans actions to contain a separate environmental section listing extensive warranties.59 However, the uncer tainties inherent in the use of such contractual mechanisms for allocating liability, where the nature and extent of the underlying liabilities to which they are addressed remains uncertain, are well understood.6° Also, one could only conclude that the market in Ireland for environmental liabil ity insurance remains under-developed.61 Indeed, anecdotal evidence suggests that asset purchasers are increasingly seeking to employ innovative con tractual arrangements 10 ensure avoidance of future environmental liability in relation to con taminated sites. Examples include the lease of a three dimensional ‘box’ in order that ally contami nated material remaining in the ground below a site after clean-up would never come into the lessee’s possession save to the extent that he exer cises an option to acquire the freehold of the site from the lessor. However, notwithstanding the use of such arrangements, it is clear that legal uncer tainty in relation to liability might often present an insurmountable obstacle to land transactions and so hinder redevelopment of contaminated and potentially contaminated sites.

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V. Future developments The Irish authorities would not appear to have any plans for the introduction of a statutory scheme requiring the remediation of historical soil con tamination or allocating responsibility for such remediation. Indeed, a senior official within the Department of the Environment, speaking in the context of draft waste management legislation, has said that: lilt would have been inappropriate within the context of waste legislation to address the wider issue of contamination from, for instance, indus trial or transport activities’ and ‘[Accordingly, it was decided to await EU developments before considering any substantive development of Irish legislation in this area’.62 However, in keeping with its long established poli cy, the new EC Environmental Liability Directive is not intended to apply retrospectively. As the prob lems of establishing liability for remediation of con taminated land under Irish law discussed above relate to contamination caused by past activities, the introduction of the new EC regime is unlikely to produce significant benefits. Indeed, as a general rule of Irish law, legislation having retroactive effect would be presumed to he unconstitutional. Article 15.5 of the Irish Constitution provides quite clearly that: ‘The Oireachtas IParliamentl 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 pro vision as an expressed and unambiguous prohibi tion against the enactment of retrospective laws declaring acts to be an infringement of the law, whether of the civil or the criminal law’.63 Therelore, it might not be constitutionally permissible for the Irish authorities to introduce a statutory scheme of liability for historically contaminated land along the lines of the UK scheme established under Pt IIA of the Environmental Protection Act 1990. The Irish position contrasts with that under English law where, (lIt is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a con struction appears very clearly in terms of the Act, or arises by necessary and distinct implication’.64 Further, as a result of Art.15.5, ‘Irish policy in the field of transposition of Directives.., is generally inimical to the adoption of ex tunc measures which

purport to have retroactive effect’.°5 At any rate, while the substantive provisions of the Directive are well known and understood, it is not yet possi ble to reach any conclusions as to how the Irish authorities will elect to transpose this measure into Irish law. Though Community initiatives to create a Com munity-wide regime of environmental liability can be traced back to proposals for a Directive on Civil Liability for Damage Caused by Waste,66 the regime eventually adopted in April 200467 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 tinder Com munity law and listed in Annex III to the Directive. Significantly, Annex III includes waste manage ment 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 conser vation status of such habitats or species’6° and ‘water damage’ as ‘any damage that significantly adversely affects the ecological status, ecological, chemical and/or quantitative status and/or ecologi cal potential, as defined in Directive zooo/6o/EC, of the waters concerned’.69 Therefore, it is perfectly 62 Bill Whelan, presenting a paper entitled ‘An Overview of the \,Vaste Management Bill 1995’ presented to the Irish Environ mental Law Association, February 27, 1996, cited by Gill, supra note 39, pp. 110-111. 63 Magee v cutligan 199211 t.L.R.M. 223 at 272, per Finlay Cl. See further, Hamilton v Hamilton 11982I .R. 466, per O’Higgins Cl. at 474. 64 Maxwell’s Interpretation of Statutes 112th ed), p. 215. See further, the dicta of Lord O’Hagan in Gardner v Lucas (1878) P)enary 582 at 601 and Bowen J. in Reid v Reid (1886) Ch 0. 402 408. OS See Scannell, ‘The Influence of the General rrinciples of com munity Law on Rules of Procedure ann Rules of Substance in Ireland’, 1 Judicial Studies Institute lournal, 2001, p. 64(94). 66 COM(89) 282 final, 011989 C 251/1 ann] COM(91) 219, 011991 c 1 92/6. 67 Supra note 55. 68 Article 20 (a). 69 Article 2{1)Ib).

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possible that soil contaminated by material or sub stances 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’!° The significance of the Van de Walle decision for the operation of this regime lies in the fact that there is, as yet, no Community leg islation concerned primarily with the regulation of soil contamination which might have been includ ed in Annex Ill, 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, pro cessing, filling, release into the environmettt and on-site treatment of dangerous substances as defined in the Classification, Packaging and Label ling of Dangerous Substances Directive,71 danger ous preparations as defined in the Classification, Packaging and Labelling of Dangerous Preparations Directive,72 plant protection products as defined in the Plant Protection Products Directive,’3 and bio cidal products as defined in the Biocidal Products Directive!4 Of course, fault-based liability might still arise for damage to protected species and natu ral habitats caused by soil contamination resulting

70 Article 211 tIc). 71 Directive 67/546/EEC. 72 Directive 1999/45/Ec. 73 Directive 91/414/EEC. 74 Directive 98,WEC. 75 Decision 1 Loo/2002/EC, OJ 2002 L 242/1 76 coM)2002) 179 final, 16 April 2002.

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77 Council Directive 69/62/EC on ambient air quality assessment and monitoring, Oil 996 L 296/55. 78 Council Directive 86/278/EEC on the orotection of the environ ment, and in panicular of the soil, when sew-age sludge is used in agriculture, Oji 986 L 161/6, 79 Since published as COM(2003) 319, 2 June 2003. 80 See furthe Doak, ‘The future for excavated contaminated / brownfield site materials: new poticy and practice across the EU’, 12/4 Land Contamination and Reclamation, 2004, p309; Marmo, ‘Developments on Soil Protection in the EU’, in Onida fed.), Europe and the Environment: Legal Essays in Honour of Ludwig Kramer, Groningen 2004, p. 175; Vanheusden, ‘Towards a Legal Framework in the EU for Brownfield Development’, 12 European Environmental Law Review, 2003, p.178. 81 Sunra nme 55.

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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 purposes of tile waste managemetit operations listed under Annex Ill, damage caused by virtue of contaminants in soil will almost certainly be covered by the regime of strict liability created under tile Directive. More over, though the Directive is not intended to apply retrospectively, the designation of contaminated soil as waste might permit tiae possession of coil taminated soil to be regarded as a current and ongo ing waste activity. The Community’s 2002 Sixth Environment Action Programme (LAP)75 sets out seven thematic strategies, or priority areas for action, including one on soil protection, and, as a first step in tiae devel opment of an integrated and comprehensive strate gy on the protection of soils, the Commission pub lished a Communication entitled ‘Towards a Thematic Strategy for Soil Protection’ in April of the same year.76 This Communication recognises the problem of soii contamination and makes a dis tinction between local and diffuse soil contamina tion, 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 exist ing environmental protection regimes. For exam pIe, it proposes the adoption of a fourth daughter directive under the Air Quality Framework Direc tive7’ relating to heavy metals and a revision of the Sewage Sludge Directive,’8 as well the introduction of new directives on mining waste,’9 on compost and other biowaste, and on soil monitoring.80 in addition, it is quite clear that the new Com munity Directive on Environmental Liability 81 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 fol lowed 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 healih. This risk’sha]l be

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assessed through risk-assessment procedures tak ing into account the characteristics and function of the soil, the type and concentration of the harmful substances, preparations, organisms or micro-or ganisms, their risk and the possibility of their dis persion Even in the absence of the Van de Walle decision uncertainties were likely to persist in rela tion to contaminated soil 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 quali ty of enforcement. In addition, in determining appropriate remedial measures, the competent authority is required to invite those persons enti tled 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.82 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,83 which explicitly aim to facilitate con taminated land remediation. These guidelines re place former guidelines issued in 1994,84 under which aid For brownfield redevelopment did not receive express mention and could only be as sessed on a case-by-case basis.85 The new guide lines contain a specific subsection E.i8, under the heading of investment aid, which concerns the rehabilitation of polluted industrial sites where the person responsible for the pollution is not identi lied or cannot be made to bear the cost. The rele vant subsection provides: Interventions made by firms repairing environ mental damage by rehabilitating polluted in dustrial 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 [or the pollu tion is clearly identified, that person must fi nance 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 adoption of Community rules in the matter.

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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 industri al sites may amount to up to ioo % of the eligi ble 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.i.8, including the Dutch Soil Protection Agreement, or Bedrijven regeling,86 concerning a voluntary environmental agreement promoted by the Dutch authorities whereby they would reimburse up to 70% of the eligible costs of remediation where at least So % 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 Region8’ and another Dutch measure to provide financial support to ensure the remediation of polluted former gas sites in the province of South Holland.88 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 —

82 Article 7(4). Article 12(1) refers to ‘I Nlatural or legal persons: Ia) affected or likely lobe affected by environmental damage or ci,) having a sufficient interest in environmental decision-making relating to the damage or,alternatively, (c) alleging the impair ment of a right, where administrative procedural law of a Mem ber State requires this as a precondition.’ 83 01 2001 C 37. 84 01 1994C72. 85 Only one application to provide State aid for brownfield redeve. lnpment was approved by the Commission under the 1994 Gui. delines, i.e. tlte UK G.cp funding case, Commission Decision of 22 December 1999 oi rid scheme C 39/99 e E 2/971. ‘EP,VlP Scheme, 012000 L 15. See further, Vanheuseen, supra note 80, pp. 182-183. 86 Commission Decison of 27 February, State aid N 520,2001 Netherlands, 0)2002 C 146,

—

37 Commission Decsior of 15 November 2002, State aid N 424/2031 Italy Tusrany Region, 0) 2003 C 78. —

88 Commission Decision of) December 2002, State aid N 414/ 2002— Netherland Prnvince of South Holland, 0)2003 C 82. —

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such soil contamination under Community a s [or as maximum permissible concentration soil. range of commonly occurring contaminants in Such maximum permissible concentrations might be graduated, depending on the current or planned use of a particular contaminated site. If such stan dards 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’,90 Currently, it would not appear that there exists any possibility for consid ering partially remediated soil as anything other than waste,91 with the result that the owners or occupiers of remediated sites would remain subject to the licensing requirements and attendant crimi nal or civil liability outlined above. In terms of pol icy outcomes, this fact is likely to create a major dis incentive for the redevelopment and reutilisation of brownfield sites, thereby increasing development pressure on greenfield sites. In the absence of detailed technical Community soil standards, how ever, resohotion of this difficulty could be achieved through judicial reinterpretation of the Waste Framework Directive to the effect that oniy unexca vated contaminated soil which, according to the lat est 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 estab

89 Though Oerham, supra note 56, suggests that for certain cases the criteria in council Oecision 2003/33/EC on waste accep tance criteria might be considered in the absence of an alterna tive. 90 Doak, supra note 80, details the difficulties itiherent in seeking legal recognition that waste soils /spoil treated by means of ther mat/ physical’ biotogirat procc generntly produce an nec material chat can be reutitised for aggregates. 91 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. 92 coMt200J)3n;.

93 Ibid., at 39, (emphasis added) See further, Ooak, supra note 80, pp. 312-313. See also, Koch/Reese, supra note 57. 94 See further, ooak, ibid., pp. 310-311.


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lislaing a threshold relating to tlte risk of Itarm 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 ol the Environmental Liability Directive and this threshold would inevitably become clearer over time with accumulated prac tice and, possibly, judicial deliberation. Alternative ly, legislative amendment of the Waste Framework Directive would be necessary Such amendment might, for example, involve modification of the cat egories of waste set out under Annex I to expressly include only unexcavated contaminated soil posing such a risk. Indeed, moves to consider such ao amendment had already been underway and are likely to enjoy a certain urgency as a result of the Van de Walle decision. In May 2003, the Com mission published a Communication9’ discussing, inter ahia, 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 compliance costs. Tins could include (a) the development of objective criteria to establish when certain products become waste or to establish that recovery of cer ‘!5 tain wastes has been completed In addition, the Van de Wahle decision highlights a number of ongoing practical problems relating to the future management of waste materials arising from contaminated land remediation or redevelop ment 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 major ity of contaminated soil would be classed as haz ardous waste, it would now be required to be dis posed of in hazardous landfills or, if possible, treat ed 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 recovery94 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/aggre gate that can be reused widely’ and, further, that ‘the law restricts the outlet for treated soil to land-

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fill for cover materiaL95 The ECJ decision will do nothing to promote soil treatment methods and reduce demands on scarce European landfill capac ity. 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.96

VI. Conclusion There exists, therefore, in Irish law a lacuna in rela tion to the issue of liability for damage arising by virtue of historical soil contamination. Though the Irish courts would appear ready to apply common law rules on liability with a greater degree of flexi bility than the English courts, it nevertheless remains very difficult to establish foreseeability of damage in relation to activities carried out in the distant past. While a number of statutory provi sions might be applied to require the remediation of contaminated soil, or at least mitigation of its most damaging impacts, they can only be applied in an incidental and haphazard manner and could never be used to tackle the problem in a compre hensive and co-ordinated manner. Indeed, the

recent decision of the ECJ in Van de Walle would appear to bring the issue of soil contamination squarely within the scope of waste management legislation ‘without examining the functional lim its of the WFD and its supplementary legisla tion’.97 This observation is equally true in relation to the functional limits of Irish waste management legislation. Legal uncertainty continues to impede the rede velopment and reuse of brownfield sites at a time of unprecedented economic activity in Ireland and related demand for development land. While these factors suggest the desirability of introducing a statutory regime of strict liability along the lines of that introduced in the UK, it appears unlikely that such a regime would be constitutionally permissi ble in Ireland. Therefore, responsibility would ulti mately be likely to pass to the public sector, perhaps explaining the Irish authorities’ lack of resolve to tackle the problem.

95 Ibid., at 312. 96 European Environment Agency, Management of contaminated sites in Western Europe, Topic Report No. 13/1999 (June 2000). See, httpJ/reports.eea.eu.invropic_report_No_131 999/en. 97 Koch/Reese, supra note 57, p.442.