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What regime governs liability for soil pollution (including the allocation, transfer and limitation of liability)?
Reflecting the developments of case law, the recently amended Article L.556-3 of the Environmental Code clarifies the hierarchy of liable parties in case of soil pollution. The primary liable party is the last operator of the facility classified for environmental protection purposes (ICPE) that generated such pollution or, if soil pollution results from non-ICPE activities, the liable party is the waste producer that contributed to the pollution or the waste holder whose fault contributed to such pollution. Alternatively, in the absence of any such liable party, the real estate owner of the contaminated land can be held liable, but only if it evidenced that it was negligent or was not unrelated to such pollution.
What environmental due diligence measures are recommended before concluding land transactions?
Basic recommended measures consist of checking publicly available information from various online databases, in particular BASOL (listing approximately 6,500 sites identified as “contaminated or potentially contaminated sites and soils requiring preventive or remedial action”) and BASIAS (listing approximately 300,000 sites identified as being or having been occupied for industrial purposes). Local prefects are also expected to collect all existing information and delineate soil information sectors by the end of 2018.
If the seller’s information and/or BASOL or BASIAS data suggest that a potential source of soil (or groundwater) contamination was operated in the past at the site itself or even in close proximity, it is highly recommended to obtain a report on soil and groundwater condition taking into account the French national methodology on the management of contaminated land.. Any consultant used should be fully conversant with the French national methodology on the management of contaminated land, especially since such methodology, initiated in 1999 and substantially reformed in 2007, was further amended in April 2017.
What remediation and clean-up measures are typically applied and how can remediation costs be recovered?
The French national methodology on the management of contaminated land was, and remains after its update in April 2017, a risk-based approach: there are no systematic remediation thresholds, but rather an iterative approach designed to assess potential exposure based on the reality of land uses. Remediation is designed to ensure that such uses can be safely implemented, and specific post-remediation use restrictions or easements are provided for, so that future occupant or redevelopers are aware of the land’s history and remediation. The updated methodology focuses on preventing contamination from current activities and updated technical tools – for instance, on off-site impact assessments, on-site ‘hot spots’, reuse of excavated soil, etc.
When contamination is discovered, environmental authorities will turn to the liable party as identified according to the principles described above. The authorities will disregard any private contracts under which the liable party has transferred (or reassigned) the corresponding responsibilities and/or costs. The terms and conditions of a private law contract and/or the possible recovery of remediation costs may be discussed before civil courts only.
Since 2015, however, a third-party applicant can voluntarily step into the shoes of the last operator, carry out the remediation and officially become the new liable party vis-à-vis the authorities. While the procedure had long been waited for, few have taken advantage of it so far.
How are air emissions regulated? What air quality standards and emission limits apply?
Air discharges from industrial activities are generally regulated by the rules and permits applying to facilities classified for environmental protection purposes (ICPEs). Emission limits may be set at national level for specific activities (eg, waste incineration, surface treatment…) and depending on their size/regime, but site permits may set out different limit values.
What are the consequences of non-compliance with air emissions regulations?
Non-compliance with ICPE rules or permits can lead to criminal and/or administrative sanctions.
For example, non-compliance with a permit requirement is punishable by a €1,500 fine and may attract an administrative injunction (mise en demeure) to comply within a set timeframe. Persistent non-compliance is punishable by up to two years in prison and/or a €100,000 fine, and entitles the prefect to:
- request the payment of an amount corresponding to the cost of corrective measures;
- have those measures carried out at the operator’s cost;
- suspend operation until measures are carried out; and
- impose an administrative fine of €15,000 and a daily penalty of €1,500.
What rules govern the discharge of wastewater and the protection of water resources?
Wastewater discharges from industrial activities are generally regulated by the rules applying to facilities classified for environmental protection purposes (ICPEs). In addition, non-ICPE activities and equipment that require extraction of groundwater or superficial water, or modification of the level or drainage of such water, or generate water discharges (even non-polluting ones), fall under the water nomenclature known as IOTA. As of March 1 2017, for the purpose of simplification, a single procedure and permit (called the ‘environmental authorisation’) applies to all new ICPEs or IOTAs that are above authorisation thresholds.
The protection of water resources is taken into account in those rules and permits. Groundwater abstraction wells for drinking purposes are also subject to specific quality standards, additional protection areas, and reinforced monitoring programmes derived, among others, from Directive 2006/118/EC on the protection of groundwater against pollution and deterioration.
What are the consequences of non-compliance with water pollution regulations?
In addition to administrative and/or criminal sanctions that are applicable to any ICPE or IOTA permit holder in case of non-compliance with water regulations, the Environmental Code includes various provisions covering water pollution from various sources. For example, the direct or indirect release of any substance, the action or reaction of which has damaging effects on the flora or fauna (Article L.216-6 of the Environmental Code) or on fish species or their environment (Article L.432-2) is punishable by up to two years’ imprisonment and fines up to €75,000 or €18,000, respectively. Similarly, the discharge of any substance or good in public rivers or canals is punishable by a fine that can range from €150 to €12,000 (Article L.2132-7 of the General Code of Public Property).
The liability of the polluter can also be challenged before civil courts, based on tort, neighbourhood disturbance (trouble anormal de voisinage), or custodial possession (garde de la chose).
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