European Commission Environment Directorate General Unit ENV. A.3 Att. Mr Charles Pirotte Rue de la Loi 200 BU-5 6/153 B 1049 BRUSSELS Brussels, 14 September 2001 Dear Mr Pirotte, EFCA, the European Federation of Engineering Consultancy Associations would like to thank the Commission for having invited us to comment on the 'Environment Directorate General Working Paper on Prevention and Restoration of Significant Environmental Damage (Environmental Liability)' and attend the 10 September meeting which provided a useful opportunity to present our key concerns to you. EFCA would emphasise that the key objective of any EU environmental liability regime is the prevention of significant environmental damage (SED). Engineering consultants have the technical knowledge and the required experience to advise upon where, when and to what degree risks exist and they play a significant role in risk assessment and management. Furthermore, engineering consultants need to balance financial and commercial needs of the clients against the profession's standard for quality and responsibility to protect the public's health, safety and welfare. Engineering consultants believe that it is of major importance that the legal environment encourages that they themselves and their clients opt for the highest possible standards in the management of environmental risk. It is imperative that risk awareness and information is an integral element of the procurement process so that costs are balanced and SED avoided. Ultimately, engineering consultants are the best qualified and well-positioned professionals to advise on the environment and perform any necessary remediation activities in the case of a SED event. For the above reasons, we firmly believe that any EU environmental liability regime should not impose liability on those to whom we will need to turn in the event of SED. EUROPEAN FEDERATION OF ENGINEERING CONSULTANCY ASSOCIATIONS AVENUE DES ARTS 3/4/5 B 1210 BRUSSELS TEL : 0032 2 209 07 70 FAX : 0032 2 209 07 71 FORTISBANK : 210-0126255-13 VAT : BE 449.175.326 E-MAIL : efca@efca.be http://www.efcanet.org
General remarks 1. We greatly welcome the apparent departure from the original proposal for an environmental liability regime for traditional damage (damage to persons and goods). Referring to paragraphs 3 and 11 it would appear that the liability regime will relate only to the prevention and restoration of significant environmental damage rather than compensation for damage to persons or property which, as we have previously stated, should properly be dealt with in local systems, for example, under Member States' negligence laws. This represents a substantial step towards a more realistic and workable regime. 2. However, given that the consultation round was launched within the scope of summer holidays and the tight time schedule we would concentrate our comments on a number of outstanding concerns which, if not addressed, will result in an EU environmental liability regime which would be largely unclear, uncertain, incoherent and possibly inconsistent. Detailed key concerns 1. Definition of operator (paragraph 2 of the Working Paper) Paragraph 2 of the Working Paper adopts the White Paper's definition of liable party - the operator - who is "the natural or legal person who controls the activity concerned". We must repeat our objection to this definition which is wholly unsatisfactory, unclear and lacks meaning. Moreover, the definition does not consider situations in which various parties may exercise 'control' over large-scale and complex projects and act conflictingly. For example, the client/employer - with whom the ultimate decision making power lies - ignores the advice of the engineering consultant, and contamination follows subsequently. EFCA believes that contractual arrangements may not provide for a sufficient allocation of liabilities. The key concern therefore is that the proposed definition has the effect of splitting risk from reward. This may have the undesirable effect of projects being commissioned on a lowest price basis, without the adoption of the highest possible standards, thus increasing the risk of SED. Therefore, as we have previously submitted (cf. the 5 July 2000 EFCA Position Paper on the EC's White Paper concerning 'environmental liability'), the cost and risk inherent from SED must rest with the person who commissions the work and suppliers and/or other third parties should not bear primary liability with him. A more satisfactory definition would be "the natural or legal person who commissioned the activity concerned". At the stakeholder meeting on 10 September, our representative raised these concerns and it was confirmed that our proposals would be given consideration. It was also commented that our proposal represented a completely different approach to that of the Working Paper. EFCA believes that the approach is fundamental if any EU regime is to work. The commissioner of a relevant activity - in the knowledge of potential liability under the regime - will take greater care in the avoidance of SED by adopting the highest possible standards in the management of environmental risk.
The proposed definition of the Working Paper also poses particular difficulties for implementation in individual Member States. 2. Burden of Proof (paragraph 4 of the Working Paper) The Commission's departure from the original idea of alleviating the burden of proof is greatly welcomed. However, we are concerned with paragraph 4 of the Working Paper the effect of which is to reverse the burden of proof by requiring the 'operator' to establish that the cause of the damage (i.e. the activity giving rise to SED) occurred before the environmental liability regime was implemented. It must be for the enforcing authority to prove the cause of the damage and the time of its occurrence. An additional concern is in relation to the application of the regime, which should only take effect if the activity giving rise to SED took place after the regime becomes effective - not when the SED manifests itself. 3. Activities subject to strict liability (paragraph 5 of the Working Paper) EFCA would encourage a clarification - possibly an inventory- of the activities whereto strict liability would apply. 4. Duty to prevent an imminent threat of SED (paragraph 5 of the Working Paper) EFCA would suggest that the Commission clarifies both to whom this duty should be owed and sanctions for failure to meet this duty. If it is not intended that the duty be dealt with in more detail (as was suggested at the 10 September meeting) it should be removed from the proposed legislation. 5. Type of Liability (paragraph 12 of the Working Paper) Whilst we have previously acknowledged the imposition of strict liability in certain circumstances on the commissioner of an activity which causes SED, we remain concerned over the proposal to incorporate provision for joint and several liability. As discussed at the 10 September meeting, if the Commission were to adopt our proposed definition of operator (cf. item 1 above) the likelihood of the multiple party issue arising is substantially reduced. It will be the commissioner of the activity - and not the variety of parties in its 'control' - who would be held accountable in the event of SED. Where the issue of proportionate liability does arise, it should be determined by the courts in the local regimes of Member States and not by EU legislation.
6. Defences It is disappointing to find that the Working Paper does not further develop the proposed defences to liability. We would repeat our call for the inclusion of a state-of-the-art defence whereby "an operator should not be liable for remediation costs where the state of scientific, technical and professional knowledge at the time is such that the operator could not reasonably have foreseen such damage would result from his acts or omissions". If the principal objective of any EU regime - that is, the prevention of pollution - is to be achieved, such a defence must be incorporated so as to positively encourage the use of the highest possible available standards in the management of environmental risk. We understand that the Commission is concerned that the introduction of such a defence would break down the regime into one of fault-based liability. This is not so: the state of the art defence would apply in limited circumstances only. However, in the knowledge that such a defence may be available if the risks involved were unknown to him at the time, the commissioner of an activity is more likely to operate the highest possible standards in the management of environmental risk. We therefore urge the Commission to further explore the possibility of introducing such a defence. 7. Activities Subject to Strict Liability (paragraph 20 of the Working Paper) It remains unclear how the proposals relate to existing EU regimes. For example, whilst the wording "discharge of dangerous substances into air and water/ground water; waste management operations" could potentially capture a very wide range of operations, the existing EU legislation may in fact place a more restrictive interpretation on what could otherwise be a dangerously "catch all" activity. More detail as to the Commission s intention in this regard is highly desirable if misinterpretation/inconsistency is to be avoided. We would welcome a more simplified approach as was suggested at the 10 September meeting. 8. Objectives of Restoration (paragraph 21 of the Working Paper) In paragraph 21.1, the clean up objective for contaminated land would be the restoration of land "having regard to present and plausible future land uses as resulting from the land use regulations in force at the time of the damage". As previously stated this is likely to be interpreted far more widely than would necessarily be reasonable and with specific reference to the term "plausible" is likely to give rise to inconsistency and uncertainty. By way of example, whilst it is perfectly "plausible" to envisage a gas works in an urban area being demolished to make way for a children s playground, it would be wholly impracticable to maintain a gas works site in an appropriate condition to that "plausible" future land use. It is fundamental that any EU regime is clear on its clean up objectives. We therefore repeat our belief that, where the use of the land is to be changed, the objective of any remediation should be to make the land suitable for actual or any future use permitted
by current planning controls. Such remediation being the responsibility of the person commissioning the actual and/or change in use, not any previous operator. Further information would also be welcome on the amount of guidance that will be available in the legislation concerning remediation and biodiversity. The greater the guidance the less likelihood there would be of possible inconsistency in Member States. We do hope our comments are of assistance and would greatly welcome the opportunity to discuss our concerns in more detail at any future stakeholder meetings. Yours sincerely, Jan Van der Putten Secretary General