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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, 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 – which lists approximately 6,500 sites identified as “contaminated or potentially contaminated sites and soils requiring preventive or remedial action”;
- BASIAS – which lists approximately 300,000 sites identified as being or having been occupied for industrial purposes; and
- GEORISQUES, a database that is meant to consolidate available information on natural and industrial risks, as well as on the soil information sectors that are currently being delineated at local level.
If the seller’s information suggests that a potential source of soil or groundwater contamination was operated at or in close proximity of the site in the past, it is highly recommended that seller’s Phase I/II-type reports are obtained. Any consultant should fully understand the French national methodology on the management of contaminated land, especially since such methodology, initiated in 1999 and substantially reformed in 2007, was further updated 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, risk-based in its approach. There are no systematic remediation thresholds, but rather the methodology is based on an iterative approach, which is 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, in order that future occupants or redevelopers are aware of the land’s history and remediation. The updated methodology focuses on preventing contamination from current activities and on various recent technical developments (eg, the use of off-site impact assessments, on-site hot spots and the reuse of excavated soil).
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 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.
However, since 2015 a third-party applicant can voluntarily take the responsibility of the previous operator, carry out the remediation and officially become the new liable party vis-à-vis the authorities. This process is supervised by the authorities, which will review the remediation plan and also require that any third-party applicant provides financial securities to cover potential non-performance. While this amendment to the remediation procedure had long been anticipated, taking on such responsibilities requires significant financial, technical and legal resources, which only a limited number of applicants possess.
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