LEGAL ASPECTS OF REMEDIATION OF OIL CONTAMINATED SOIL AND GROUND WATER IN FINLAND Pekka Huttula Finn

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LEGAL ASPECTS OF REMEDIATION OF OIL CONTAMINATED
SOIL AND GROUND WATER IN FINLANDPekka
HuttulaFinnish Oil and Gas Federation
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LEGAL ASPECTS OF REMEDIATION OF OIL CONTAMINATED
SOIL AND GROUND WATER IN FINLAND

• Mixture of legal and scientific issues gt a
  difficult equation
• Extensive legislation on soil and ground water
  protection
• No explicit provisions on site characterisation
  but general requirements in
• Environmental Protection Act
• Chemicals Act
• Environmental Liability Act
• Law gives the Government power to give binding
  directives
• on maximum contents of harmful substances in soil
• guidelines for assessment of soil contamination
  and need for restoration
• Preparation of directives still going on
  (continued for years)
• Earlier proposals are already applied in
  administrative practise

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PREVENTION AND DECONTAMINATION REQUIREMENTS IN
ADMINISTRATIVE LAW (1)

• Environmental Protection Act
• 1) Soil pollution prohibition (general definition
  to soil pollution)
• Waste or other substances shall not be left or
  discharged on the ground or in the soil
• so as to result in such deterioration of soil
  quality as may endanger or harm health or the
  environment,
• substantially impair the amenity of the site or
• cause comparable violation of the public or
  private good.

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PREVENTION AND DECONTAMINATION REQUIREMENTS IN
ADMINISTRATIVE LAW (2)

• Environmental Protection Act
• 2) Ground water pollution prohibition
  (unconditional)
• A substance shall not be deposited in or energy
  conducted to a place or handled in a way that
• 1) groundwater may become hazardous to health or
  its quality otherwise materially deteriorate in
  areas important to water supply or otherwise
  suitable for such use
• 2) groundwater on the property owned by a third
  party (neighbour) may become hazardous to health
  or otherwise unsuitable for usage or
• 3) the said action may otherwise violate the
  public or private good by affecting the quality
  of groundwater.
• The prohibition functions as a general definition
  to GW pollution

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ELABORATED DEFINITION TO SOIL CONTAMINATION

• Based on different studies and Government
  proposals the soil can be regarded polluted when
• the area can not be utilised to the original or
  planned purpose of use and
• the content of hazardous substance in soil
  considerably exceeds the natural content of the
  substance in the area and
• the total quantity of the substance in the soil
  is significant or the contamination causes
  significant immediate danger to human health or
  the environment.
• Risk based guideline values should be only one
  tool in assessment of soil contamination and
  restoration need In practise guideline values
  decisive factor at small sites

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GUIDELINE/TARGET VALUES

• Proposal from 1993
• Upper limit value indicates
• the contamination
• restricted land use (industrial without risk to
  humans or the environment)
• Lower guideline value indicates
• the restoration target
• multifunctional land use
• Widely used in administrative practise. Not
  legally binding. Deviations possible to both
  stricter and more lenient directions (although
  this possibility is not used at small sites)

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RESTORATION LIABILITY (1)

• General definition of clean-up need and the
  target level of clean-up
• the soil or groundwater has to be restored to a
  condition that will not cause harm to health or
  the environment or represent a hazard to the
  environment.
• Liable parties
• primarily the polluter
• secondarily holder of the polluted area in
  certain preconditions
• finally the local authority (municipality) if it
  is unreasonable to require the holder to restore
  the area (state subsidy possible)
• The liability is stimulated by
• duty to notify the authorities about pollution,
  duty to investigate obviously polluted site,
  authorities power to give orders on restoration
  responsibility, and duty to provide all available
  information about possible contamination risk to
  the new owner or tenant

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RESTORATION LIABILITY (2)

• Retrospective action and responsibility for
  decontamination
• Restrictive interpretation of retrospective
  cleaning responsibilities on basis of general
  principles of law.
• Strict responsibilities should not be allocated
  to persons or operators who have been entitled to
  believe that they have complied with all the
  norms and rules society might expect.
• In Finland especially operations carried out
  before 1980s
• legislation concerning old sites is not clear
  (almost missing)

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CIVIL LAW, STRICT ENVIRONMENTAL LIABILITY

• Strict environmental liability
• liability without negligence
• scope covering all activities carried out in
  certain area
• lowered causality requirements (probable link
  between activities and loss)
• Completes the administrative responsibilities
• Who is causing the damage is liable to pay
• Financial compensation to third party who is
  suffering from the environmental damage (full
  compensation or equitable)
• Also prevention and reinstatement costs caused to
  the authorities
• Strict environmental liability was combined to
  certain industrial activities in legal practise
  already before the ELA came into force

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ENVIRONMENTAL LIABILITY REGIME IN EU

• A proposal for a Directive on Environmental
  Liability (adopted January 2002)
• Aims to prevent and restore environmental damage
  including damage to biodiversity, land and water
  contamination
• Proposed directive will not contain civil
  liability elements (contrary to the White Paper)
• Environmental damage should cover those
  situations where serious potential or actual harm
  to human health exists when this serious harm
  results from land contamination

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ENVIRONMENTAL LIABILITY REGIME IN EU (2)

• The restoration objectives concerning soil
  contamination have been defined in the Annex to
  the directive proposal
• Where polluted soil or subsoil gives rise to a
  serious harm to human health or could pose such a
  risk, the necessary measures shall be taken to
  ensure that the relevant contaminants are
  controlled, contained, diminished or removed so
  that the polluted soil does not pose any serious
  harm or serious potential harm to human health
  which would be incompatible with the current or
  plausible future use of the land concerned.
  Plausible future use shall be ascertained on the
  basis of the land use regulations in force when
  the damage occurred.
• The approach emphasises the importance of site
  characterisation and is in line with the cost
  effectiveness requirements

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EU MTBE RISK REDUCTION RECOMMENDATIONS

• Based on MTBE risk assessment and risk reduction
  strategy prepared by the Finnish Environment
  Institute
• MTBE causes a risk to the quality of ground water
  
• Potential past release sites (service stations),
  located on critical areas, should be investigated
  and, where necessary, remediated
• Recommendation not legally binding but directs
  member countries to take preventive measures
• Implemented recommendation actualises at same
  time the prevention principle in proposed EU
  environmental liability directive

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FINNISH OIL COMPANIES SOIL REMEDIATION PROGRAMME

• One way to solve the past release problem
• Agreement between industry and administration
• An opportunity to the owners of closed-down
  service stations
• Restoration of several hundreds of sites
• The programme follows a detailed project managing
  methodology which aims to high level of
  environment protection and cost-effectiveness
  (more detailed description in the hand out paper)
• The clean-up targets in the programme usually
  based on the multiple land use principlegt the
  applicants want to get rid of the sites without
  fear of some residual liabilities

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QUESTIONS/CONCLUSIONS

• Most restoration projects started on voluntary
  basis
• Unwillingness of the administration to accept a
  real risk based approach at same time with heavy
  and very detailed permit procedure obstructs
  starting new projects
• Risk based approach necessary both in legislation
  and permit practise considering the limited
  resources
• Reasonable targets
• Cost-effectiveness
• Not restoration just for the sake of it
• Dispute in court not a solution but sometimes a
  necessity