Is there or if not could there be a European SUPERFUND of some kind or other?

Inhaltsverzeichnis

STRUCTURE:

ACKNOWLEDGEMENTS:

STRUCTURE:

LIST OF ABBREVIATIONS:

CHAPTER 1: INTRODUCTION:
1. US Superfund:
Historical overview:
Explanation of the US Superfund model:
2. The pluses of the US Superfund system:
3. The minuses of the US Superfund model:

CHAPTER 3: CLEANUP PROCEDURES AND FUNDS IN SINGLE MEMBER STATES OF THE EUROPEAN UNION:
1. United Kingdom:
2. Germany:
3. The Netherlands:
4. Denmark:

CHAPTER 4: IS THERE OR IF NOT COULD THERE BE A SUPERFUND MODEL AT THE EUROPEAN LEVEL?
1. Do we already have a kind of Superfund model in Europe?
Is there a Superfund model in Europe with regard to soil contamination?:
Is there a Superfund model within the environmental civil liability system of the European Union?
Overall evaluation of whether the Superfund model is in Europe yet:
2. Four proposals for a fund system in Europe:
First possible solution: Creation of funds remains the task of the single Member States of the European Union:
Second possible solution: Existing European funds could provide a solution:
Third possible solution: Combination of different fund systems of the Member States:
Fourth possible solution: Europe takes over the system of the Superfund Trust Fund:
3. Discussion of the four different solutions:
4. The concept of a European Superfund apart from the fund system:

CHAPTER 5: CONCLUSION:
BIBLIOGRAPHY:
1. Books
2. Articles
3. Internet Sources
4. Legal instruments:
5. Report
6. Case

ACKNOWLEDGEMENTS:

I am especially grateful to my supervisor Dr. Ben Pontin who guided and supported me since January. He gave me extremely valuable comments during the preparation of this dissertation and helped me whenever I needed academic help. His comments and criticisms on my original drafts were of great value to me. His support is invaluable to me. Thank you very much Dr. Ben Pontin.

Finally I would like to express my thanks to my parents, Bärbel and Wolfgang, as well as to my brothers, André and Ralph, who supported me throughout the year.

LIST OF ABBREVIATIONS:

Abbildung in dieser Leseprobe nicht enthalten

CHAPTER 1: INTRODUCTION:

Superfund is the American Federal government’s program to clean up the uncontrolled hazardous waste sites in the USA. Over the past 25 years the Superfund program has located and analyzed tens of thousands of hazardous waste sites and protected human health and the environment from contamination.^[1] In its best years between 1997 to 2000 Superfund successfully completed on average 86 cleanup activities on previously contaminated sites.^[2] From 1992 to 1996 there were on average completed cleanups of 68 sites per year, whereas from 2001 to 2004 there were completed clean ups of on average only 42 sites per year.^[3] In 2005 not more than 8 completions of cleanups were carried out.^[4]

This dissertation deals with the question whether there is a similar model in Europe that treats contaminated sites and if there is not such a model at the European level the next question is whether such a model could be a good solution to clean up of hazardous waste sites in Europe in the future.

The following discussion will deal with the US model of Superfund in the first chapter. The Superfund model will be described. Moreover its advantages and flaws will be dealt with. In the second chapter, there will be an introduction to the system of environmental liability in Europe and the European fund systems which are relevant for soil contamination. The third chapter will provide a comparative analysis of the cleanup and fund systems in the United Kingdom, Germany, the Netherlands and Denmark. Finally the fifth chapter will analyse the question whether there could be a Superfund model at the European level. This chapter is divided into four parts. The first question is whether there is a Superfund model in Europe already now. In this context there will be looked at norms dealing with soil contamination at the European level and rules dealing with the environmental civil liability system in Europe. Furthermore there will be made four proposals for a fund system in Europe. These different solutions will be discussed and in the end there will be discussed the question whether the European Union could take over the whole system of the US Superfund model. In the end a conclusion will be drawn, arguing that there already is partially a Superfund system in Europe contained in Directive 2004/35/CE and that there will be a more comprehensive framework directive and daughter directives that will deal with soil contamination in the future.

CHAPTER 2: THE US MODEL OF SUPERFUND:

1. US Superfund:

Historical overview:

Superfund is the program for cleaning up toxic waste sites in the United States of America.^[5] Until the 1960s, there was paid little attention to the serious dangers posed by toxic chemicals and heavy metals which were released by industries into the environment. In the early 1970s, however, the first laws were passed concerning hazardous wastes.^[6] The story of Love Canal in Niagara Falls, New York, which was about a community destroyed by a forgotten and for some time invisible threat lead to a public outcry.^[7] In this case many families residing next to the toxic waste site needed to be evacuated because of the threat caused by the abandoned chemicals on the site.^[8] In response to this case, the Congress established the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, on December 11, 1980.^[9] CERCLA was enacted to address liability for the release of hazardous waste and to establish a trust fund when no responsible party can be held identified.^[10] This Act established the idea that the polluters should pay for cleaning up the toxic wastes they produced. That meant that individual companies had to clean up sites they had polluted. The Superfund program searches out potentially responsible parties who can be held liable for the costs of cleanup by using a system of retroactive, strict and joint and several liability.^[11] Strict liability means that individuals can be held responsible regardless of intent or negligence.^[12] Retroactive liability means that individuals can be held responsible for past actions, even if those actions were legal at the time. Joint and several liability means that any given individual may be held liable for the full cleanup, not just a proportionate share.^[13]

In case that the polluters did not care for the clean up they got a high clean up bill and a substantial penalty.^[14] However as many toxic waste sites had been polluted by companies that no longer existed or that were incapable of paying for cleanup, there was additionally created a fund. The fund was made up of taxes paid by potential polluters and thus by broad industrial sectors. Therefore the polluter-pays concept was kept insofar.^[15] That means that those industries that release hazardous substances into the environment and who probably caused the pollution themselves or whose predecessors polluted the environment pay for the clean up. The polluter-pays tax consisted of two components:

A petroleum tax based on crude oil production and imported petroleum products and

A “chemical feedstock” tax on a group of chemicals classified as hazardous or likely to generate hazardous wastes.^[16]

On October 17, 1986 the Superfund program was reauthorized and expanded by the Superfund Amendments and Reauthorizations Act of 1986 (SARA). SARA increased the Superfund Trust Fund to $ 8.5 billion and clarified and expanded enforcement authorities.^[17] SARA reflected the experience made with the Superfund program in its first six years.^[18] In addition, in 1986 a corporate environmental income tax on the profits of large corporations was added to the fund system.^[19]

In 1995 the polluter-pays tax expired.^[20]

Between 1980 and 2000 nearly 800 high-priority hazardous-waste sites were fully cleaned up.^[21] During the last years the number of cleaned up sites went down because of the bad financial situation of Superfund.

Explanation of the US Superfund model:

What is Superfund?

Superfund is the US Federal government’s program to clean up hazardous waste sites. In order to understand Superfund it is necessary to look at the two main laws in detail which were CERCLA and SARA.

CERCLA created a tax on the chemical and petroleum industries and provided broad Federal authority to respond directly to releases or threatened releases of hazardous substances that may endanger public health or the environment. Over five years, $ 1.6 billion was collected and the tax went to a trust fund for cleaning up abandoned or uncontrolled hazardous waste sites.^[22] In sum, CERCLA established prohibitions and requirements concerning closed and abandoned hazardous waste sites. The law provided for liability of persons responsible for releases of hazardous waste at these sites and it established a Trust Fund to provide for cleanup when no responsible party could be identified.^[23]

In addition, CERCLA established two kinds of actions that are taken in case that a hazardous waste site is discovered. Those were short-term removals and long-term remedial response actions. Short-term removals means that actions may be taken to address releases or threatened releases that require immediate action in order to avoid threats to human health and the environment.^[24] Long-term remedial actions are those that permanently and significantly reduce the dangers that come from releases or threats of releases of hazardous substances that are serious, but not immediately life threatening.^[25]

CERCLA was amended by SARA in 1986.

SARA made several important changes and additions to the program.^[26] Those were that SARA stressed the importance of permanent remedies and innovative treatment technologies in cleaning up hazardous waste sites. It required Superfund actions to consider the standards and requirements found in other State and Federal environmental laws and regulations. It provided new enforcement authorities and settlement tools. SARA increased state involvement in every phase of the Superfund program and increased the focus on human health problems posed by hazardous waste sites. It encouraged greater citizen participation in making decisions on how sites should be cleaned up and increased the size of the trust fund to $8.5 billion. Furthermore SARA required EPA to revise the Hazard Ranking System (HRS) to ensure that it accurately assessed the relative degree of risk to human health and the environment posed by uncontrolled hazardous waste sites that may be placed on the National Priorities List (NPL).^[27]

How does Superfund work?

The cleanup procedure which the Superfund programme introduced is very complex. It involves different stages. First, the site needs to be discovered. This can happen by a clue from a citizen, a reported accident or a planned search to discover sites.^[28] The discovery of the site is followed by a long evaluation process. First, EPA performs a Preliminary Assessment (PA) of the site. The PA is a short inspection conducted by EPA to determine whether the site presents a hazard to human health and the environment and to decide what needs to be done.^[29] The result of this first examination is that only some sites call for action by the Federal government. At those sites, EPA conducts a more detailed review of the site, a Site Inspection (SI).^[30] The SI includes tests to find out what hazardous substances are present and how serious the risks may be. The gathered data are used to score the site according to the Hazard Ranking System (HRS). The HRS determines whether or not the site should be added to the NPL. Only sites on the NPL can be cleaned up using the Superfund Trust Fund.^[31] The NPL is a list of the nation’s worst hazardous waste sites that qualify for extensive, long-term cleanup action. Once a site is placed on the NPL, a more detailed study follows that examines the cause and extent of contamination as well as the risks to human health and the environment. This information is used to find different ways to clean up the site. EPA lists these cleanup options in a proposed plan for long-term cleanup.^[32] The proposed plan describes different ways to clean up the site and the choice EPA prefers. The public can then comment on the plan.

After EPA answers the public’s concern, it publishes a Record of Decision that describes how it will clean up the site. The cleanup method is designed to address the unique conditions at the site.^[33] The design and actual cleanup is conducted either by EPA, a state or the people responsible for contaminating the site.

Who pays for the cleanup?

EPA makes the people pay for the cleanup that are responsible for the contamination. These are the so-called potentially responsible parties. The potentially responsible parties can be out of four specific groups. These are present owners and operators of a site, past owners, individuals who generated the waste at a site, and transporters who transported the waste to the site.^[34]

In the case that the responsible party cannot be identified or is insolvent the money that is needed for the cleanup is taken from the Superfund Trust Fund. The Trust Fund was originally financed by taxes on petroleum and specified chemical feedstocks and a corporate environmental income tax which was outlined above already in more detail.^[35] As the petroleum and chemical feedstocks taxes expired in 1995 since then cleanups were increasingly financed by the regular American taxpayer.^[36]

2. The pluses of the US Superfund system:

A big advantage of the Superfund system is that funds are available immediately: Superfund provides money as soon as the plans for cleanup are agreed upon. After that EPA tries to find the polluter or polluters for reimbursement.^[37] Furthermore Superfund gives an incentive to companies to handle hazardous materials properly and safely in order to avoid accidents and releases and consequently the costs of cleanups.^[38] The US Superfund system achieved to clean up a huge number of sites during the 25 years of its existence. In this way it helped to protect the health of human beings and to protect the environment.^[39]

The pluses of Superfund are clear looking at the many success stories it produced. Those are cases such as Publicker Industries in Pennsylvania, Brio Refining, Inc in Texas, Mc Coll Site in California, Stringfellow Site in California or Industri-Plex in Massachusetts.^[40] Those sites which were cleaned up because of the Superfund program otherwise would probably not have been cleaned up without the Superfund system.

In addition, nowadays companies possibly pay more attention not to leave polluted sites behind them because they know that the Superfund system makes them pay for the cleanup later on. Thus Superfund possibly strengthened the awareness of companies which potentially pollute the environment.

3. The minuses of the US Superfund model:

Some commentators^[41] however criticize the federal solution of Superfund. They held that local hazardous waste sites have to be treated on the local level. The critics say that it would be the best to turn most of Superfund over to the states.^[42] In contrast to the federal Superfund system the 40 states that have hazardous-waste cleanup programs do their work fairly quickly because the states work much more efficiently.^[43] Moreover they argue that Superfund is too bureaucratic.^[44] They say that it is the complex bureaucracy within the Superfund system that often creates delays.^[45] It is estimated that by the end of calendar year 2008 cleanups of only 85 % of the high-priority hazardous- waste sites will be completed.^[46]

In addition the critics put forward that the federal effort to create a centralized response to waste sites has resulted in mismanagement, excessive cleanup costs and tremendous litigation expenses.^[47]

Allowing the single states to develop their own approach to site identification and remediation would lead to cleanups that are suited to the specific circumstances of single states.^[48]

Another argument that speaks against Superfund is that this system has nowadays a financial problem because the polluter-pays tax expired in 1995.^[49] Before the polluter-pays tax expired in 1995, it provided the vast majority of funding to the Superfund Trust Fund. After 1995, income from the polluter-pays tax sharply declined.^[50] Some money still came in as EPA recovered past cleanup costs from responsible parties. Any expenses that were not paid for by the trust fund could also come out of Congress’s general appropriation to EPA. But in this case the money came from taxpayers and not from polluters.^[51] Therefore the burden of cleaning up orphan sites shifted from the potential polluter to the innocent regular taxpayer.

Another point of criticism is that the cleanup process takes so long. It takes on average 12 years between identifying and remediating sites in America. This long span is caused by overlapping federal and state requirements and responsibilities; mandated joint, strict and several liability for potentially responsible parties; and inconsistent cleanup requirements.^[52]

Moreover it is criticized that Superfund resources are spend mainly on litigation and not on cleanup.^[53] There are high amounts of resources spend on legal fees, negotiations and administrative costs because there are so many cases brought to court because of the liability system.^[54] Particularly the concept of joint and several liability leads to a huge amount of lawsuits. Joint and several liability means that any individual may be held liable for the full cleanup and not just for a proportionate part of it. Whenever the EPA identifies potentially responsible parties and demands their participation in the cleanup process, the potentially responsible parties begin filing “contribution suits” to expand the number of parties that are held liable in order to reduce their share of the cleanup costs.^[55] This leads to high costs because of lengthy negotiations.

Moreover sites with more than 500 potentially responsible parties afford a much longer time to be cleaned up which shows a comparison with orphan sites.^[56]

In addition, under CERCLA too many different kinds of persons can be held liable. According to CERCLA potentially responsible parties are: present owners and operators, past owners, individuals who generated the waste at a site, and transporters who brought the waste to the site. However it would be at least necessary to exempt small (de minimis) and very small (de micromis) parties from the liability web.^[57] Particularly small transport firms cannot be held liable for hazardous waste site because it is disproportionate that they have to pay for the entire cleanup although they had a very little contribution to the hazard.

Another point of criticism is that there are not exempted sites such as landfills and recycling sites from the Superfund program.^[58] This is a surprising argument because it is not clear who could really suggest exemptions.

Furthermore the tax on oil and chemical companies does not distinguish between good and bad actors.^[59] Therefore it is not precise enough according to some commentators.

Some critics held that the system of retroactive liability is not always fair. They argue that this can be shown in cases in which potentially responsible parties are held liable for actions that have been perfectly legal and may have been considered as ecologically friendly at that time.^[60]

It is furthermore held that more accurate risk assessment could significantly reduce the costs of remediation.^[61] It is believed that EPA often bases its risk assessment on unrealistic assumptions about the future use of the site in question.^[62]

Moreover it can be seen critically that potentially responsible parties can also be banks. This was clearly shown in the case U.S. v. Fleet Factors Corporation^[63] in which the court held that even where a bank had not taken action to ensure environmental compliance by a borrowing company, if it had the capacity to influence the company, its failure to do so would be sufficient to make it liable under CERCLA. As the Superfund is under funded, banks and other lenders with a lot of money have become the targets for the Environmental Protection Agency.^[64] As a result, companies and their financiers have taken extreme measures to avoid unwittingly acquiring land or other companies that bring with them any responsibilities for clean up. Detailed and comprehensive management systems intended to minimise their chances of being liable for contaminating land have been introduced and there has been considerable litigation with insurers as to the extent of policy cover for clean up costs.^[65]

CHAPTER 3: CLEANUP PROCEDURES AND FUNDS IN SINGLE MEMBER STATES OF THE EUROPEAN UNION:

1. United Kingdom:

In the United Kingdom, the contaminated land regime was inserted as Part IIA of the Environmental Protection Act 1990 by section 57 of the Environment Act 1995.^[66] The new sections comprise section 78A to section 78YC. The contaminated land regime came into force in England on 1 April 2000. In Scotland, it came into force on 14 July 2000. In Wales, it came into force on 1 July 2001.^[67]

Part IIA^[68] introduced a regime of strict and retroactive liability for historic contamination.^[69] That means that liability can be imposed on persons for activities carried out many years ago and it is irrelevant whether or not the activities were negligent. The regime was introduced in order to identify and clean up land, where contamination poses unacceptable risks to human health or the environment.^[70]

The regime is jointly regulated by local authorities and the Environment Agency (or the Scottish Environmental Protection Agency in Scotland), while local authorities take the lead role.^[71]

Section 78A (2) provides a legal definition of contaminated land. According to this definition not all land affected by contamination is “contaminated land”. It is just the case if there is a significant pollutant linkage which means that there must be evidence of a contaminant-pathway-receptor relationship.^[72] This again means that there needs to be a contaminant and a receptor that could be harmed by the contaminant.

It is the task of the local authorities to inspect their areas to identify any land that meets the definition of contaminated land. Only the local authority can formally identify and determine a site as contaminated land.^[73] The cleanup of the site follows. Only in cases in which the Environment Agency is in the best place to deal with the issue on the site, the Environment Agency takes over the process. In these cases sites are called “special sites”.^[74]

Part IIA of the Environmental Protection Act 1990 follows the polluter pays principle, whilst ensuring that the cost burdens are proportionate and reasonable.^[75] That means that the appropriate person has to pay for the clean up. The appropriate person is the one that was identified by the authorities as bearing the responsibility. In this context there is distinguished between class A and class B persons.^[76] Class A persons are those who caused or knowingly permitted a substance to be in, on or under the land. If such a person cannot be found the current owner or occupier of the land (class B persons) has to pay.^[77] In the case that no class A or B persons can be found, the local authority has to take over the responsibility for remediation.^[78] In this case English local authorities are assisted by the Contaminated Land Supplementary Credit Approval Programme which is managed by the Department for Environment, Food and Rural Affairs.^[79] This programme is a Government fund.

In addition, in England there are different sources of funding that give financial support to local authorities. There are additions to the Revenue Support Grant of successful local authorities.^[80] Moreover there are English partnerships that contribute to reducing the legacy of land contamination and specific taxes that relate to a problem of a particular site such as the landfill tax^[81] that were introduced under the Finance Act 1996.^[82]

2. Germany:

In Germany there is a distinction between redevelopment of dangerous waste residues (Altlastensanierung) which is cleanup of contaminated sites such as hazardous closed down industrial and dump landfill sites on the one hand and soil protection (Bodenschutz) which consists in the prevention of damage to soil and the cleanup of soil pollution on the other hand.^[83]

These two different elements are regulated in a federal law on soil protection (Federal Soil Protection Act) of 1998 which is supplemented by a federal statutory instrument on soil protection and dangerous waste residues (Federal Soil Protection and Contaminated Sites Ordinance) of 1999.^[84] Furthermore there are laws on the level of the single federal states in Germany such as Northrine Westphalia, Rhineland Palatinate, Bavaria etc. which regulate the execution of the federal laws and provide additional regulations.

Dangerous waste residues are for instance dumps and former industrial sites, which cause hazards for the individual or the general public. A particular category of dangerous waste residues are military dangerous waste residues, dangerous waste residues of armament industries as well as dangerous waste residues of mining (brown coal, minerals and uranium).^[85]

Redevelopment means that there are administrative or technical measures that remove or reduce pollutants on the one hand (decontamination measures) and measures that prevent or reduce pollutants in the long run, without removing the pollutants on the other hand (safeguarding measures). These measures guarantee that the contamination does not cause hazards to life and health of human beings and to the environment. Moreover these measures are considered in the context of the present or future use of the site.^[86]

The procedure of redevelopment of dangerous waste residues is divided into different stages. The competent authority for these different phases is the competent federal ministry. In the first phase registering and a first evaluation takes place. The second phase is characterized by examination and evaluation of hazards arising from contaminations on the site. In the third phase redevelopment takes place which is followed by controlling whether the redevelopment was successful. In some cases a supervision of the success of redevelopment in the long run takes place.^[87] If there is an urgent danger, measures to reduce or even eliminate these dangers are taken immediately.

In Germany, first the polluter has to pay for the redevelopment, alternatively it could be also the property owner or the tenant. It is also possible that the former property owner has to pay. In the case of insolvency of the polluter or orphan sites the single federal states have to pay for the redevelopment.^[88]

For instance in Bavaria there are three different financial instruments that provide financial help for local authorities that redevelop dangerous waste residues. First, there is in Bavaria a fund for the redevelopment of dangerous waste residues. This fund provides loans for polluters that are companies of a smaller size. Second, in Bavaria there is a private limited company for redevelopment of dangerous waste residues. The two shareholders of this company are the Bavarian economy and the Bavarian state. While the Bavarian economy is represented by the registered society called community institution for redevelopment of dangerous waste residues in Bavaria, the Bavarian state is represented by Bavarian state ministry of finances.^[89] Third, local governments get money from the federal state in order to redevelop sites containing dangerous waste residues.^[90] These three financial instruments are supplemented by the European Regional Development Fund (ERDF).

In addition, soil protection is very important in Germany. Soil protection is necessary because soil is a non-renewable resource and it forms itself very slowly over millenniums.^[91] The objective of soil protection is the preservation of the natural function of soil such providing raw materials and providing an area for agriculture and forestry. The natural functions of soil are preserved by protecting land against pollution, against erosion and against transformation of natural areas into areas of settlement and traffic^[92].

3. The Netherlands:

The Netherlands has the oldest hazardous waste cleanup program in Europe.^[93] The Dutch Parliamentary history goes back to 1971 when a Preliminary Bill on Soil Contamination was introduced.^[94] In 1983, the Interim Soil Cleanup Act entered into force. In 1987, the Soil Protection Act entered into force which was amended in 1994. This Act regulates the prevention of new pollution and liability concerning costs raised by contaminated sites.^[95] The 1994 Act states that the purpose of clean up is the multifunctionality of soil.^[96] However this goal was very expensive and thus not feasible in practice. Therefore the principle of multifunctionality was abandoned and replaced by the principle of functional clean up in 1997.^[97] That means that clean up measures are related to the intended use of the land. Apart from national legislation, there are also voluntary agreements between industry and public authorities.^[98]

Regulatory responsibilities in the clean up process are divided between the central government, the twelve provinces and the local authorities. While the central government is responsible for the legal framework and its supervision, the provinces and local authorities regulate soil and groundwater protection in detail.^[99] Data on sites are compiled in registers. Site identification and investigation is divided into a preliminary survey (in order to substantiate the suspect of serious contamination), a preliminary investigation (in order to prove contamination) and the main site investigation (in order to assess the urgency of remediation and the type of remediation).^[100] The goal of soil remediation is to reach the target values. If target values are met, the soil is considered clean.^[101] Target values and intervention values have been established for about one hundred substances for soil and groundwater, in the Netherlands.^[102] In case that the intervention value is exceeded the contamination is classified as serious.

Furthermore there is made a distinction between urgent and non-urgent cases of serious soil contamination. In non-urgent cases the site is taken up in the provincial soil remediation program without a defined time for starting the remediation, whereas in urgent cases remediation has to be initiated within 20 years.^[103]

The strategy for clean up looks like as follows:

For new sites (contaminated during and after 1987) a total clean up should be performed

For old sites (contaminated before 1987) with mobile contaminants, the contamination should be removed as far as possible

For old sites with non-mobile contaminants, the contamination should be removed to the extent necessary, recognising the later use of the site.^[104]

The legislation requires that the polluter should pay for the costs of clean up. If this is not possible the owner or lessee has to pay. In cases of innocent owners or lessees^[105] or in cases of insolvency or orphan sites, the authorities provide for the clean up using public money.^[106] However in order to keep the public expenses low there are various financing instruments:

The Service Centre Soil Cleaning (SCG = Service Centrum Grondreiniging) was founded as a public company in 1989 and acts as an intermediary organisation for soil remediation requirements. The SCG was founded in order to have an unbiased organisation. The idea was to achieve clean up goals at reasonable costs. The SCG is a self-financing company. It charges a fee of 0.23 Euro per tonne treated soil and risk premium of 1.8 Euro respectively.^[107]

The BSB^[108] covenant is an agreement between the government and industry signed in 1991.^[109] Industry agreed on carrying out cleanups on its own and the government agreed on not intervening within a period of 25 years. Only companies that did not sign the agreement are reported to the provincial governments and risk to be obliged to undertake site investigation measures at any time.^[110]

In addition, there is the SUBAT^[111] covenant which is a voluntary agreement of the petrol industry. The objective is to fund remediation of out-of-service petrol stations. The remediation costs are covered by a fund which gets money from a fee included in the petrol price.^[112]

4. Denmark:

In 1974, the Environmental Protection Act entered into force which was the first Act in this field in Denmark.^[113] The Environmental Protection Act laid down the framework for controlling the polluting activities of active companies.

In 1983, the Contaminated Sites Act was enacted which was revised twice, in 1990 and 1996.^[114] This Act allowed the authorities to take and finance action at sites where contamination took place before the Act was implemented.^[115]

In 2000, the Soil Contamination Act was enforced. This Act replaced the previous legislation.^[116] It covers all contamination in soil, irrespective of the time and place of contamination. Moreover it includes a system of mapping of contaminated sites. It defines the priority areas for public financed remediation and establishes a system for management of excavated soil.

In Denmark, the responsible bodies are the regional authorities and the national Environment Protection Agency. While the regional authorities are responsible for registration and investigation of contaminated sites, the national Environment Protection Agency provides guidance to regional and local authorities^[117]

Site identification is divided into different phases which are the preliminary survey, the preliminary investigation and the main site investigation.^[118] The preliminary survey comprises gathering of data on potentially contaminated sites and preliminary risk assessment. Preliminary investigation includes historical investigation, site visit, limited technical investigation as well as risk assessment considering the current and future land use. Furthermore in this stage there is carried out a site-specific risk assessment to assess the probability of leaching of contaminants to the groundwater. The aim of the main site investigation is to assess the need for remediation.^[119]

The site identification is in case that hazardous contamination on the site was identified followed by the remediation process.

In principle, it is the polluter who is liable and thus pays for the cleanup. However this applies only in cases where the soil pollution entirely or partially took place within the last 20 years, as was decided by the Supreme Court in a ruling in 1992.^[120] According to the ruling a polluter cannot be held liable for contamination that took place more than 20 years ago and it does not matter whether the polluter acted in bad faith or not. The innocent owner of a property is not held liable.^[121]

According to the Soil Contamination Act the government is held liable for orphan sites. Cleanup of these sites is fully funded by the public authorities.^[122]

In this context it is interesting to look at how the public funding works in Denmark. A special cleanup system for innocent landowners was introduced in 1993. It initiated a publicly financed cleanup if the innocent landowner paid a minor contribution.^[123] This shows that the protection of the innocent landowner is very important in Denmark. Whereas the landowner who caused the contamination or knew about the contamination at the time of purchase and thus paid a reduced price for the property does not receive public support.

In addition, since 1992 there is a fund which is financed by the petrol sales at a rate of 0.007 EURO per litre.^[124] This fund should cover the cleanup costs of about 10 000 filling stations over a period of 10 years.

CHAPTER 4: IS THERE OR IF NOT COULD THERE BE A SUPERFUND MODEL AT THE EUROPEAN LEVEL?

1. Do we already have a kind of Superfund model in Europe?

Is there a Superfund model in Europe with regard to soil contamination?:

Developments in Europe in relation to soil contamination:

The first concept of soil protection in Europe came up in 1972 when the Council of Europe adopted the Soil Charter.^[125] This Soil Charter called on states to promote a soil conservation policy. The Soil Charter was followed by several international agreements such as the World Soil Charter of the FAO of 1982, the World Soils Policy of UNEP of 1982 and the Agenda 21 framework of the Earth Summit in Rio de Janeiro in 1992.^[126]

In 2001, the Commission adopted the 6th Environmental Action Programme (EAP). The 6th EAP set out overall objectives to be achieved and identified a list of priority actions.^[127] According to the 6th EAP soil protection is one of the seven thematic strategies. Thematic strategies comprise those topics for which the Programme foresees actions. The concept of thematic strategies was introduced in order to tackle key environmental issues which are complex, which include diverse actors and which are in need of multiple and innovative solutions.^[128] The approach taken to achieve the seven strategies includes policy action and proposals.

In 2002, the Commission published a Communication “Towards a Thematic Strategy for Soil Protection”.^[129] This was the first time that the Commission addressed soil protection as a separate topic. Thus the Communication is broad and descriptive in approach and it outlines the future development.^[130] It is a first step in the development of a comprehensive European Union policy to protect soils against erosion and pollution. The Commission’s communication is a non-binding instrument.^[131]

The Communication describes the functions and policy-relevant features of soil, the main threats to land and relevant current European Union policy.^[132] The different functions of soil are: Food and other biomass production; storing, filtering and transformation; habitat and gene pool; physical and cultural environment for mankind and source of raw materials. The features of soil relevant for policy-making are described in the Communication as follows: Soil needs to be protected because of its diverse character; prevention, precaution and sustainable soil management are necessary because soil is a non-renewable resource; anticipatory policies based on monitoring and early warning systems are essential for keeping the storage and buffering capacity of soil; sustainable use and management of agricultural soils are important because agricultural soil is a precious and limited resource; soil biodiversity needs to be protected for precautionary reasons; land is generally submitted to property rights.

The main threats to soil are: Erosion, decline in organic matter, soil contamination, soil sealing, soil compaction, decline in soil biodiversity, salinisation, floods and landslides.

The current EU policies relevant to soil are: Environmental policy, the Common Agriculture Policy (CAP), regional policy including structural and cohesion funds, transport policy and research policy.

Moreover the Communication lists the existing soil data gathering systems and describes future developments.

Since the publication of the Commission’s Communication the European institutions (European Council, European Parliament, European Committee of the Regions, European Economic and Social Committee) have expressed their opinions on the Communication.^[133] Furthermore reports of several technical working groups were established.^[134] In addition, stakeholders formulated their positions on the Communication.^[135]

In July 2003, the Council of Europe adopted a revised European Charter for the Protection and Sustainable Management of Soil.^[136] This revised Charter comprises the definition and functions of soil, the issue of soil degradation, objectives to achieve fundamental principles, recommendations for the future management of soil and instruments for the sustainable management of soil.

On November 18 and 19, 2004, there was held a joint conference of the Dutch EU Presidency and the European Commission dealing with the Commission’s Communication and the next steps towards a European Soil Strategy.^[137] In preparation of the conference Ecologic (= Ecologic Institute Strengthening International Relations for Sustainable Development) prepared a background paper that presented the integration of soil protection into the environmental as well as other policies of the European Union and identified shortcomings and potentials.^[138] Furthermore there was sent a questionnaire to the Member States in preparation of the conference. The replies showed that the priority areas which were named in the 2002 Communication were at this time still the same. In addition, the Member States of the European Union agreed upon the necessity of a clear description of objectives and principles of soil protection and management.^[139] During the conference the European Manifesto on Earth Heritage and Geodiversity was presented by 11 European and International organizations. This paper requested of the Member States and the European Union to study, value and protect Europe’s rich geodiversity and earth heritage and to incorporate it in policy, planning and related procedures.^[140] Moreover during the conference the Commission representative explained the Commission’s reflection on the presentation of the thematic strategy and the various possibilities of its form including a framework.^[141]

The output of the conference comprised the following issues:

EU soil policy should be further developed building on the agreed policies and principles

The problem of soil degradation needs to be tackled

Soil protection must be integrated into all relevant EU policies

An EU soil protection policy framework needs to be established

Developing awareness for soil protection in public and policy terms

Working groups during the conference dealt with the following topics

Research

Soil erosion

Soil organic matter content

Need for a more intensive exchange of knowledge and good practice

Revision of the sewage sludge directive and the introduction of biowaste legislation

Monitoring system^[142]

A second Communication of the Commission and a framework directive on soil protection which were originally expected in 2004 are now scheduled by the end of 2005.^[143] A framework directive would aim at establishing a common strategy based on the principles to prevent threats to soil, to preserve soil functions and to ensure sustainable use of soil.^[144] Moreover in general, the work on legislation, recommendations, guidelines and voluntary agreements will continue.^[145]

Evaluation of the development with regard to soil contamination:

The discussion has shown that there are three instruments at the EU level concerning soil right now. These are the 6th EAP of 2001, the Commission’s Communication of 2002 and the revised Soil Charter of the Council of Europe of 2003. The question is whether they create a kind of Superfund model in Europe.

Neither the 6th EAP nor the Commission’s Communication nor the revised Soil Charter of the Council of Europe include a detailed cleanup program for contaminated sites and a trust fund system in case that the polluter cannot be identified. Furthermore these three instruments are non-legally binding^[146] in contrast to CERCLA and SARA in America. The 6th EAP is rather a tool to assist the development of environmental law, the Communication rather serves to recognise soil protection as a specific policy area in the European Union and the Soil Charter shall rather give an impetus to the European Union for its development in the area of soil protection and it sets out a framework of principles.

Therefore the discussion has shown that there is no Superfund model in Europe with relation to soil contamination yet.

Is there a Superfund model within the environmental civil liability system of the European Union?

However it could be possible that parts of the US Superfund model are already integrated within the system of environmental civil liability in Europe so that the Superfund system partly already exists in Europe.

Soil contamination rules compared to environmental civil liability legislation:

Environmental liability legislation in Europe is compared to the specific soil contamination developments broader in scope as it comprises different aspects of environmental damage. It comprises damage to protected species and natural habitats, water damage and land damage, whereas the instruments refering to soil contamination are much more narrowly focused on land damage.

In addition, the system of environmental liability is much further developed than the instruments dealing with soil contamination. The Directive on environmental liability^[147] leads to harmonised regulations in all the Member States of the European Union as soon as the directive is implemented. On the other hand a Commission’s Communication just provides incentives to further discussion and the revised Soil Charter of the Council of Europe as well as the 6th EAP also just give an incentive to further development.

Furthermore the final version of the Directive on environmental liability deals solely with the question of who is responsible for preventive and remedial actions. Whereas the instruments dealing with soil contamination, particularly the Commission’s Communication of 2002 treat soil contamination more extensively. The Communication includes the definition of soil, its functions, the threats to soil, Member States and candidate countries actions, Community policy relevant to soil, existing soil data gathering systems and plans for the future.

Therefore it is possible that some parts of the US Superfund system– especially the issues of who pays for the clean up and who pays in case of orphan sites or insolvency or inability to pay of the responsible party- has been involved within the Directive 2004/35/CE on environmental liability.

Development with regard to environmental civil liability in Europe:

In 1984, the first efforts were made to create an EU-wide regime on civil liability for environmental damage.^[148] In this year there was established Directive 84/631 on the Supervision and Control within the European Community of the Transfrontier Shipment of Hazardous Waste^[149]. Article 11 of this directive required the Council to take measures for implementing civil liability and take a decision on a system of insurance.

Initially the efforts to elaborate an EU-wide regime on civil liability were limited to establishing a liability regime for damage caused by waste.^[150] In 1989 this resulted in the Commission making a proposal for a directive on Civil Liability for Damage caused by Waste^[151].

However this proposal was abandoned in 1993 when the Commission proposed the Green Paper on Remedying Environmental Damage^[152]. The Green Paper showed that the Commission refocused its efforts on developing a broader liability regime.^[153] These efforts were supported by the European Parliament and the Economic and Social Committee. In June 1993 the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment^[154] was signed. Although nine of the 44 negotiating parties signed the Convention, none of them has ratified it until now. In February 2000, the Commission issued the White Paper on Environmental Liability.^[155] Because of the various comments to the White Paper, the Commission decided to limit the scope of the liability regime.^[156] In July 2001 the Commission issued a Working Paper on Prevention and Restoration of Significant Environmental Damage^[157] which specified and changed some of the options set out in the White Paper.

On 23rd January 2002 the Commission adopted its proposal for a Directive on Environmental Liability with regard to the Prevention and Restoration of Environmental Damage.^[158] The proposed Directive marks a change of emphasis from civil liability in private law, to public law.^[159] On 20 February 2004 there was reached agreement on the final version of the Directive on Environmental Liability with regard to the Prevention and Remedying of Environmental Damage^[160] in the Conciliation Committee between the Council, the European Parliament and the European Commission.^[161] On 30 and 31 March 2004 the Council and the European Parliament formally approved the final version of this directive.^[162] This Environmental Liability Directive must be transposed into domestic law of the Member States by 30 April 2007.^[163]

US Superfund within the main stages of the development of environmental liability:

The main stages of the evolution of environmental liability are: Green Paper on Remedying Environmental Damage, White Paper on Environmental Liability, Proposal for a Directive on Environmental Liability with regard to the Prevention and Restoration of Environmental Damage as well as Directive 2004/35/CE on Environmental Liability with regard to the Prevention and Remedying of Environmental Damage.

The Green Paper was created as a discussion paper so that all interested parties could form and express their opinion on it.^[164] This Green Paper already referred to the US Superfund system in two sections. First, there are seen various problems establishing a joint compensation system in order to remedy environmental damage. In order to find solutions it is looked at experiences made already in this area. One model which is presented in this context is the Superfund model which is funded by taxes on crude oil and chemical feedstocks as well as a general environmental tax on American corporations.^[165] Second, in Annex 2 the situation in the United States concerning civil liability for damage to the environment is described in more detail. The content of the federal law CERCLA is described and it is described how the US system works as well as the problems and criticisms.

After the publication of the Green Paper over 100 comments were submitted from Member States, industry, environment groups and other interested parties.^[166] One of the comments was made by the European chemical industry council. In this observation it was stated that the mistakes of the US Superfund system should be avoided.^[167]

In the White Paper there is looked at the example of the American Superfund system with regard to the annual total cleanup costs and the litigation costs within the Superfund system.^[168] These issues were taken up in the context of the overall economic impact of environmental liability at EC level. Moreover as the Commission announced further research in the area of economic and environmental impact of environmental liability there was made a study as a consequence of the White Paper requested by the Commission on the potential economic impact of environmental liability with regard to the American and European contexts.^[169] In this study there was first made an overview of Superfund, followed by the description of the economic impacts of Superfund and a comparison of the European Commission’s White Paper on environmental liability with Superfund. This shows that Superfund played an important role for the draft of the White Paper and its aftermath, especially through its perceived weaknesses. That means that it was looked at the American Superfund model very thoroughly in order to avoid the negative aspects of this model.

In the Proposal for a Directive on environmental liability the US Superfund model is analysed very detailed under the headline “the economic assessment of the proposal, its benefits and costs”.^[170] First, the financial assurance of environmental liabilities is examined by looking at the insurance system within the Superfund model. The US experience in this area is seen as very helpful for the European Union. Particularly the US experience of the insurability of biodiversity damage is considered a good test case for the European Union. In addition, the US experience on the issue of whether liability should be limited to specified amounts is seen as useful for the proposal’s answer to this matter. The proposal does not set any limit to liability because of the bad American experience. In America environmental liability is generally subject to limits^[171] which are regarded as being too low and thus result in reducing deterrence and making cost recovery more difficult. Second, the estimate of the financial expenditure coming with the proposal was derived from the US Superfund model because Superfund has a long history and there were accumulated a lot of valuable data, the US and EU economies are likely to have similar environmental contamination intensities and there are different sources of data and analysis for the US data in contrast to European data. Superfund is considered to be a good reference model for the purposes of cost extrapolation. Furthermore in the proposal the differences between the proposal and the Superfund model are considered in detail as the differences need to be taken into consideration for the expected annual financial expenditures associated with the proposal based on Superfund data.^[172]

The main features of the Environmental liability Directive can be described as follows:

According to the directive the liable person is the operator of an occupational activity. There are two categories of operators which can be held liable. These are the operators of occupational activity conducted under specified EC legislation, and operators of non-specified occupational activities.^[173]

In case that there are more than one operator that caused environmental damage or is likely to cause environmental damage, the cost of remedying that damage is allocated among the operators according to the domestic laws of the Member States.^[174] Thus it is up to the Member State to impose either joint and several liability or proportionate liability on the operators.

Liability is prospective only.^[175] That means that it does not comprise environmental damage caused by an emission, event, incident or activity that occurs before 30 April 2007.

The Directive contains two limitation periods. First, the operator is not liable for environmental damage caused by an emission, event or incident that took place more than 30 years before the damage. Second, there is a limit of five years in which the operator has to pay back the costs which the competent authority has had to spend on the remediation or prevention.^[176]

Furthermore there is a duty of the operator towards the competent authority to notify and provide information on environmental damage or an imminent threat of it.^[177]

The operator is obliged to carry out preventive and remedial measures.

In case that land has to be remediated it does not need to be remediated to its baseline condition but rather the level of remediation is based on land use or the expected land use.^[178]

Article 4 of the Directive 2004/35/CE lists exceptional cases in which liability will not be imposed on the operator. Article 8 names possible defences of the operator in order not to be held liable.^[179]

In addition, another important matter of the Directive is the aspect of financial security.^[180] According to Article 14 of the Directive the Member States shall take measures to encourage the development of financial security instruments and markets by the appropriate economic and financial operators in order to enable operators to use financial guarantees to cover their responsibilities under the Directive. Thus the Directive does not provide for any kind of mandatory insurance or a fund solution. Rather it provides for the voluntary use of financial security and requires Member States to take measures to encourage the development of financial security instruments and markets.^[181]

Therefore it can be stated that the system of the Directive 2004/35/CE and the Superfund model have many similarities but also differences. The Superfund model can be considered as the role model for the Directive.^[182] However it is also necessary to have a look at the main differences of the two systems: The liable person according to the Directive can be only the operator of an occupational activity, whereas in the Superfund system there are four different categories of liable persons (present owners and operators of a site, past owners, people who are generating the waste at a site and the transporters of waste). Moreover while the Directive leaves it to the Member States to decide about a system of joint and several liability or a system of proportionate liability, in the United States joint and several liability is the only answer. Furthermore in America, potentially responsible parties can be held liable retrospectively, whereas according to Directive 2004/35/CE liability is prospective only. In addition, while financial security is voluntary and not existing at the level of the European Union, the Superfund model created a fund system in case of orphan sites and insolvent parties in 1980. This last main difference is one of the most important ones. Therefore it will be further examined in the following discussion.

Political process leading to Directive 2004/35/CE especially with regard to Article 14 dealing with financial security:

Directive 2004/35/CE leaves it to the Member States to provide financial security instruments and markets. Thus the question is why the European institutions could not agree on a system of compulsory insurance. In this context it is necessary to look at the legislative procedure which led to Directive 2004/35/CE.

After the publication of the proposal for a European Parliament and Council Directive on environmental liability with regard to the prevention and remedying of environmental damage^[183] there followed a legislative procedure in which the different opinions of the European institutions were discussed. With regard to the aspect of financial security the European Parliament and the European Economic and Social Committee on the one hand and the Council of the European Union and the Commission on the other hand held two contrasting opinions.

In its first reading on 14 May 2003, the European Parliament proposed the introduction of compulsory insurance or other forms of financial security, which would be progressively introduced within three to six years.^[184] This proposal was made in the 49th amendment of the Commission’s proposal. The Economic and Social Committee also held that financial security needs to be compulsory in order to avoid problems with the repair of damage in case of insolvency of the operator.^[185] It particularly proposed an insurance system and additionally national or regional funds.

During the Council discussions, Member States were evenly divided on this question. There were seven Member States supporting a mandatory system to create financial security.^[186] In order to reach a compromise between the different opinions, the Council suggested, in its Common Position on 18 September 2003^[187], a system whose outcome may be a mandatory financial security system. The first paragraph of Article 14 had the same wording as Article 14 (1) of the latter adopted Directive 2004/35/CE, which includes an optional financial security system. However paragraph 2 presented for the first time the idea that the Commission should present a report on the effectiveness of the Directive after eight years and because of the report the Commission may submit proposals for mandatory financial security. The second paragraph was a compromise between the two contrasting opinions.

In its second reading^[188], the European Parliament agreed mainly on the wording of the first paragraph of Article 14 as it was proposed by the Common Position of the Council. However in paragraph 2 of Article 14 the European Parliament suggested a five-year period for the Commission’s report. Furthermore the European Parliament suggested in case that no appropriate instruments or markets for insurance or other forms of financial security have been established that the Commission shall submit proposals on a harmonised compulsory financial guarantee. In addition, the European Parliament added that Member States may consider thresholds in relation to any insurance requirements under these provisions. Thus the European Parliament also made a compromise in Article 14 (1), but it wanted to achieve a compulsory system of financial security after a five-year period in case that the voluntary system does not work. On the other hand the European Parliament also wanted to allow thresholds in relation to insurance requirements.

The Commission stated in its opinion which followed the second reading of the European Parliament^[189] that it did not accept the proposals of the European Parliament regarding Article 14. Therefore the Commission sided with the Council.

Because of the disagreement of the European Parliament and the Council a conciliation procedure followed. With regard to harmonised mandatory financial security three issues were dealt with which were the timetable of the report, the extent of discretionary powers of the Commission concerning the submission or not of legislative proposals for harmonised mandatory financial security instruments and the specific details. The reached compromise was that the report has to be submitted after 6 years, the specific details, which were a gradual approach, a ceiling for the financial guarantee and the exclusion of low risk activities were fully included. However the Commission shall, if appropriate, submit proposals for a system of harmonised mandatory financial security in the light of the report.^[190] Therefore the proposal of a harmonised mandatory financial security only shall be submitted if it is appropriate.

The European Parliament finally approved this compromise.

As the Council and the Commission have a strong institutional position in the decision-making procedure, the Parliament had little chance of introducing its proposal for the introduction of compulsory insurance in the final version of Directive 2004/35/CE. It was not only the Council and the Commission who were against it but also the European insurance industry.^[191] Furthermore it is the Commission who has the monopoly on making legislative proposals and itself decides if and what proposals it submits to the other institutions. Thus Parliament’s formulation of Article 14 would therefore have had more of a political than legal meaning.^[192]

Evaluation concerning the civil liability system in Europe:

The discussion concerning the European environmental civil liability system and Superfund has shown that the US Superfund model served in various aspects as a role model for the European system. Some aspects were taken over from the US model and others were considered critically and in the end not taken over. Nevertheless the American system was during the development of Directive 2004/35/CE again and again looked at in various ways.

However Directive 2004/35/CE did not go that far that it took over the model of the American Trust Fund. Rather it introduced solely a voluntary system of financial security.

Overall evaluation of whether the Superfund model is in Europe yet:

The question whether there is already a kind of Superfund model in Europe can be partially answered in the affirmative. The system of environmental civil liability prescribed by Directive 2004/35/CE provides a kind of Superfund model. It contains inter alia remedial actions in case of inter alia land damage which has to be carried out by the polluter. Therefore it introduces the polluter-pays principle. Nevertheless Directive 2004/35/CE does not contain a solution who pays in case of contaminated sites whose polluter cannot be identified or whose polluter is insolvent. Therefore the following discussion will focus on the issue of funds in Europe as a possible solution in this case.

2. Four proposals for a fund system in Europe:

The following proposals will suggest different fund systems that could be a solution in case of orphan sites and insolvency of the polluter in Europe.

First possible solution: Creation of funds remains the task of the single Member States of the European Union:

One possible solution would be that each Member State would create or keep its own fund system which could provide resources in case of orphan sites. This solution would be preferred by those Member States which are afraid of loosing their sovereignty because of more and more harmonised legislation in Europe.

The advantage of small scale funds which would be at the level of the Member States or even at the regional level would be that they are easier to administer. They encourage local involvement and they can be considered more equitable because companies contributing to the fund would be able to enjoy the localised benefits of the clean up program for which they have paid.^[193]

But a solution on the level of the single Member States means that every Member State would need to fulfil the task of creating a fund system which is similar to the fund systems in the other Member States. Only in the case of nearly harmonised fund systems in all of the 25 Member States of the European Union, the task of creating a fund scheme could remain at the level of the single Member States. Otherwise countries with less high costs for a fund system in case of orphan sites would give a competitive advantage to the companies in their territory.^[194] As a consequence many companies would move to the Member States with the least contribution to a fund system in case of orphan sites or even without fund systems. Other arguments in favour of a harmonised fund system would be that this leads to a higher degree of environmental protection and that it guarantees one basic environmental quality in Europe^[195] which is desirable.

However the fact that there would remain big differences between the fund systems of the different Member States and that thus harmonised rules are necessary in Europe gets clear when looking at the division of the European countries into three broad categories concerning contaminated land policy and legislation. There are the leading countries, the laggard states and the countries between the two extremes:

The leading countries with regard to policy and legislation in the area of soil contamination are Denmark, the Netherlands, Germany, Austria and Finland. While Denmark and the Netherlands were the first “leader” states, which have encouraged the other Member States of the European Union to create policy and legislation on contaminated land.^[196] Germany has joined the leaders with federal policy and legislation, after several of the single states instituted measures of their own. Moreover Austria and Finland belong to a group that gives high priority to environmental concerns. They have environmental legislation over a wide range of areas.^[197] Austria and Finland have been concerned that their entry into the European Union in 1995 could reduce environmental protection within their states, and have been prepared to support the leaders in pulling the rest of the European Community towards increasing levels of environmental protection.

The unconcerned or laggard states do not have policy on contaminated land at all.^[198] This category includes Ireland, Portugal, Italy and Greece.At the time of drafting the Proposal for a Directive on environmental liability with regard to the prevention and remedying of environmental damage, in 2002, Portugal and Greece did not have specific legislation on contaminated sites.^[199] And they still do not have a regime to establish liability for contaminated land.^[200] Thus their current regulations are limited.

Between these two extremes are the other Member States of the European Union, which have been pulled by the leader states into recognizing the problems that arise from contaminated land. These countries are not in the forefront of environmental policy-making, but are concerned to maintain their competitive advantage.^[201]

Although the political systems in this group are very varied, all of these countries have started, to a greater or lesser extent, to have serious policy and to use legislation for regulating contaminated land.

In which category the new Member States fall is not yet examined. But as in 2004 there was an accession of Central and Eastern European states which do not have such highly developed environmental standards,^[202] it is likely that they either fall into the category of the laggard states or the so-called states between the two extremes.

These differences between the Member States with regard to policy and legislation on soil contamination show that the basis for a fund system differs from Member State to Member State. Therefore it is very likely that these differences will continue to exist in the different fund systems of the Member States. Thus it is not a good solution to leave the task of creating a fund system in case of orphan sites to the single Member States. There would probably be Member States without a fund system at all. However a fund system in case that the polluter cannot be identified or is insolvent is of great importance because only with the help of such a system can a comprehensive cleanup of all contaminated sites which pose a threat to human health and the environment be ensured.

The following proposals will therefore present solutions which take place at the level of the European Union.

Second possible solution: Existing European funds could provide a solution:

At the European level there are three different kinds of funds that could possibly take over the fund system: The Cohesion Fund, the Structural funds and the LIFE Programme.

Cohesion Fund:

Since 1994^[203] the Cohesion Fund helps Member States to reduce economic and social disparities and to stabilise their economies. The Cohesion Fund finances projects involving the environment and transport infrastructure.^[204] Some projects which were financed by the Cohesion Fund aimed at soil decontamination. Eligible are the least prosperous Member States of the European Union whose gross national product per capita is below 90 %.^[205] Since May 2004, Greece, Portugal, Spain, Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia are eligible.

In Spain, the Cohesion Fund was used to subsidize remediations of contaminated sites.^[206] Thus it could be possible that the Cohesion Fund takes over the European fund system which is necessary in case of orphan sites in general. However the Cohesion Fund is designed for the least prosperous countries of the European Union. That means that only the above-mentioned eligible countries can receive money from the fund. Therefore the Cohesion Fund could not take over the task of providing a fund system for all the Member States of the European Union. Moreover just some of the supported measures under the Cohesion Fund have direct or indirect impact on soils.^[207] Therefore the Cohesion Fund is also not particularly set up to clean up soil contamination. Thus the Cohesion Fund could not take over the task of providing a fund system in Europe in case of contaminated orphan sites.

Structural funds:

There are four Structural funds which are the European Regional Development Fund (ERDF), the European Social Fund (ESF), the European Agricultural Guidance and Guarantee Fund (EAGGF) and the Financial Instrument for Fisheries Guidance.^[208] Relevant for soil contamination are especially the ERDF and the EAGGF.^[209] The ERDF and the EAGGF could take over the task of a fund system in Europe. Up to now these funds financed in some cases the cleanups of former industrial sites, for instance described in the 1994-99 Objective 2 programmes.^[210] Examples are: Interventions to clean up former industrial sites and related environmental measures aimed at enhancing the attractiveness of the zone in Luxembourg; cleaning up of contaminated industrial sites in Belgium; regeneration of industrial sites in Spain; development of a new business park on a previously polluted industrial site in the German North Rhine-Westphalia.^[211] Therefore there were already several instances in the past in which the Structural funds provided money in order to finance the cleanup of contaminated sites. However the principal purpose of the Structural funds is to promote the economic and social development of disadvantaged regions, sectors and social groups within the European Union.^[212] That means that not all the contaminated sites of all the Member States could be covered by these funds. For this reason also the Structural funds could not take over the task of providing a fund system for orphan sites.

LIFE Programme:

The first phase of LIFE ran from 1992 to 1995. One of its tasks was the decontamination of polluted sites.^[213] The second phase of LIFE ran from 1996 to 1999. During this period the programme was divided into three categories which were LIFE-Nature, LIFE-Environment and LIFE-Third countries. The LIFE-Environment projects had to contribute to innovation or policy implementation in the area of inter alia identification and rehabilitation of contaminated sites.^[214] The third phase of LIFE ran from 2000 to 2004 and was extended until the end of 2006. In this phase there were also developed techniques to decontaminate soils.^[215]

In September 2004 there was already adopted a proposal for a new phase of LIFE, which will be called LIFE plus. LIFE plus will run from 2007 to 2013. LIFE plus should closely support the priority areas of the 6th Environmental Action Programme. The 6th Environmental Action Programme also comprises soil protection as a thematic Strategy. LIFE plus is designed to contribute to the development, implementation, monitoring, evaluation and communication of EU environment policy.^[216] It includes two components which are implementation and governance as well as information and communication. The strand “implementation and governance” serves to consolidate the knowledge base and help Member States get better and quicker results in applying EU environment policy. The second strand “information and communication” serves to raise environmental awareness and share best practices.^[217]

The LIFE Programme could take over the task of providing a fund in case that the polluter of a site cannot be identified. Also with regard to the LIFE Programme there were several projects in the past which already dealt with soil decontamination. Thus the current third phase of the LIFE Programme and the following phase of LIFE plus will certainly finance some projects which deal with soil decontamination. However there are many other projects which need to be funded by the LIFE Programme and which do not comprise soil protection. As also the budget for the LIFE plus programme until 2013 is agreed upon, it seems to be not possible that the LIFE Programme covers all the necessary cleanup projects for soils in the European Union as well. This would lead to a grossly under-funding of other important projects also funded by the LIFE programme.

This discussion has shown that it is not possible that the existing fund systems in Europe, especially the ones mentioned above, take over the task of providing a fund system in the area of soil contamination.

Third possible solution: Combination of different fund systems of the Member States:

Another solution would be to create a new fund system which includes various elements of the different fund systems of the Member States of the European Union. The best elements of all the funding system could form the financial basis for a fund which would operate Europe-wide.

To give an idea of how this fund could be financed, the following discussion will take out the best solutions of the financing systems for soil decontamination of the United Kingdom, Germany, the Netherlands and Denmark which were introduced above.

A good idea which is used in England is to levy taxes on owners of particular sites such as landfill sites.^[218] It would be good to have a Europe-wide harmonised tax in form of a landfill tax or in connection with other particular sites or even or additionally taxes on particular substances which certain companies release into the environment.

Second, it would be good to develop a European company whose shareholders would be the European companies on the one hand and the Member States on the other hand like it is one of the models in the German Bavaria.^[219]

In Bavaria, the private limited company for redevelopment of dangerous waste residues is funded by its two shareholders (the Bavarian economy and the Bavarian state) which provide 1.5 million EURO over a period of ten years so that dangerous waste residues of industrial origin can be examined and redeveloped. The Bavarian companies obliged themselves to this act of solidarity until 2009.^[220] The private limited company provides money for detailed examination of sites which are potentially contaminated and for the necessary measures until the end of the redevelopment if the responsible party cannot be found or is insolvent. In addition, the private limited company for redevelopment of dangerous waste residues does not only provide financial support but also technical support.^[221]

This would mean that the companies in Europe would need to agree on such a deal. Various industry sectors would need to show such an act of solidarity. But it would be easier for them to find such an agreement as they would know that they share the burden with the states.

Another very good concept used in the Netherlands and Denmark is to levy a fee on the petrol industry in order to remediate out-of service petrol stations.^[222] In the Netherlands and Denmark this fund receives money from a fee included in the petrol price.

These concepts from the United Kingdom, Germany, the Netherlands and Denmark as well as the funding system of these Member States described above (for instance the BSB covenant in the Netherlands^[223] which is an agreement between the companies and the state that the companies clean up their sites on their own and that the state is not allowed to intervene) show that there is very often a social aspect included. It is mostly not the polluting or potentially polluting industries which pay for the cleanup alone but the government supports the financing in most cases. Therefore in Europe the polluting companies are not overburdened.

Fourth possible solution: Europe takes over the system of the Superfund Trust Fund:

A fourth solution could be that Europe takes over the fund system of the US Superfund. Originally, the Trust Fund in America was financed by different taxes, which were a petroleum tax based on crude oil production and imported petroleum products, a chemical feedstock tax on a group of chemicals classified as hazardous or likely to generate hazardous wastes and a corporate environmental income tax on the profits of large corporations. Thus this fund system represented absolutely the polluter-pays principle. However in 1995 the petroleum and chemical feedstock taxes expired and were not renewed for political reasons. Congress got intense pressure from special interest groups which supported the chemical industries and the petroleum producers.^[224] For this reason the Trust Fund in America is in great financial difficulties now. Since 2003 the Superfund trust fund ran out of polluter contributed funds and the American regular taxpayers have to pay for the clean ups since then entirely.^[225]

For the purpose of this study it will be assumed that the American Trust Fund is still financed by the original three types of taxes. The question is whether such a fund could provide a good solution for Europe as well. If the fund could be financed solely by a tax that potential polluters have to pay, this would be certainly the best solution. The taxes would not necessarily be levied on petroleum crude oil production and imported petroleum and certain chemical feedstocks as well as on large corporations as an income tax. Rather it would be necessary to look at the main polluters of soil in Europe. The European main polluters could be for instance petrol stations and chemical industries in a broad sense. But it is very likely that the potential polluter groups would put a lot of pressure on the political actors of the European Union as they did it in America so that such a solution could be either not initiated or not upheld for a longer period of time. That means that the American Trust Fund solution would be politically a big problem in Europe as it was in America. Therefore it could be very likely that also the regular taxpayer would have to pay in the end for the cleanups.

3. Discussion of the four different solutions:

The discussion of the single possible solutions of a fund model has shown that it would not be a good solution to leave the task of creating funds to the Member States as this would create too big differences. Furthermore it is not possible that existing European fund systems take over the task of creating a fund for orphan sites. In addition, the pure taking over of the US Trust Fund system seems to be not a good solution because this would very likely cause the same problems as we have in America now. Thus the best solution for Europe seems to be a fund system which is made up of various elements taken from the different Member States of the European Union. In this way there could be taken into consideration the social aspect that potential polluters should not be treated equally as real polluters. Therefore the burden of paying for cleanup of orphan sites should not lie on the potential polluters alone. A fund which is financed additionally by the governments of the Member States seems to be more acceptable for the European companies.

Despite the preference of this solution the Superfund Trust Fund could nevertheless lead the way to introduce especially taxes on companies that produce potentially hazardous substances for soil. However these kinds of taxes should not be the only source of resources of such a fund. Thus Europe can learn from the US Trust Fund model but it needs to be seen that the US system has also some negative aspects.

4. The concept of a European Superfund apart from the fund system:

The entire discussion has shown that the US Superfund model served in several aspects as a role model during the process of developing a system of civil environmental liability. During the different phases of this process it was looked at very closely at the American model. Therefore Directive 2004/35/CE on Environmental Liability contains elements of the American model. The main aspect which was taken over ist he polluter-pays principle.

Nevertheless the Environmental Liability Directive also differs in several aspects from the American model. For instance according to the Directive liability is prospective only whereas the Superfund system comprises retroactive liability.

This shows that Europe should not simply overtake the American model because there are differences between America and Europe and these differences need to be taken into consideration. That means that those parts which Directive 2004/35/CE on Environmental Liability such as for example the detailed cleanup process should not be simply overtaken from the American model.

The analysis of the cleanup systems in the United Kingdom, Germany, the Netherlands and Denmark has also shown that there are already solutions at the level of the Member States.

It seems to bet he best solution that the European Union looks at the experience made by the single Member States like it was suggested with regard to a fund system in case of orphan sites. In addition, the principle of subsidiarity needs to be taken into consideration. Moreover the American model can serve as a further experience which can be included into the drafting of a European model for cleanup contaminated sites. Nevertheless the discussion of whether the fund system should remain at the level of the Member States has shown that a European solution is necessary to protect soil effectively.

CHAPTER 5: CONCLUSION:

The entire discussion has shown that the answer to the question whether there is a Superfund model in Europe already has to be answered partially in the affirmative. There are parts included in Directive 2004/35/CE on Environmental Liability. However there is no regulation within the instruments relating to soil contamination until now. Nevertheless most of the Member States of the European Union have a comprehensive system of cleaning up contaminated sites. Some of these systems were examined in chapter 3. This examination gave a picture of the potential of the European Union in this area. The contaminated land regimes of the different Member States show also that soil contamination is recognized as a big problem in Europe that needs to be solved. However a solution at the level of the Member States is not enough. It is necessary to have harmonised rules with regard to soil contamination Europe-wide in order to avoid inter alia competition between the Member States that would endanger the functioning of the internal market of the European Union.

At the end of this year there is expected a 2nd Communication of the European Commission on soil contamination and a framework directive in this field. The next step will be that one or several daughter directives in the field of soil contamination will be enacted. The expected future development as outlined could be more successful than the American legislation, namely CERCLA and SARA. The instrument of a directive leaves discretion to the Member States concerning the choice of form and methods and is only binding as regards the result to be achieved.^[226] Therefore there could still remain some differences between the Member States.

For future research different aspects could be of interest in the area of soil contamination. The further development of soil contamination in Europe could be examined and it could be looked at the question of how the European system differs from the American model. It could be very interesting to look particularly at the issue whether the Europeans develop a kind of European Trust Fund model in case of orphan sites or insolvency of the polluter and how it will be financed. In addition, it would be interesting to look at the implementation of the Member States of the future framework and daughter directive(s) on soil contamination but also on the implementation of Directive 2004/35/CE on Environmental Liability. A comprehensive comparative analysis of the cleanup systems in the different Member States of the European Union would be of great interest in this context.

BIBLIOGRAPHY:

1. Books

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Barnett H C (1990), “Political Environments and Implementation Failures: The Case of Superfund Enforcement”, Law and Policy, vol. 12, pt. 3, pp. 225 - 246

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Hansell D (1995), “USA: Superfund: Pollution liability, case comment”, International Insurance Law Review, 3 (12), G 260 -621

Harwood R (2000), “The new contaminated land regime in England”, Due Diligence & Risk Management, 1.1 (19)

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Hollins M and Percy S (1998), “Environmental liability for contaminated land – towards a European consensus”, Land Use Policy, vol. 15, pp. 119 – 133

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Morelli L (1998), “Cleaning up Superfund: the state of Superfund reauthorization”, Environmental Liability 6 (2), pp. 27 - 38

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3. Internet Sources

http://www.epa.gov/superfund/welcome.htm [US Environmental Protection Agency(EPA), “Welcome to the Superfund Web Site”]

http://www.epa.gov/superfund/sites/query/queryhtm/nplfly.htm [EPA, “Number of NPL Site Actions and Milestones”]

http://www.net.org/Superfund/Superfund_Report.pdf [National Environmental Trust, “Superfund and the polluter pays tax”, 2004]

http://www.freedomworks.org/informed/issues_template.php?issue_id=456 [Brough W T, “Issue analysis 70 – Superfund: The Good, the Bad and the Broken”]

http://www.cato.org/pubs/regulation/reg17n1-jeffreys.html [Jeffreys K, “Amending Superfund: Reform or Revanche?]

http://www.epa.gov/superfund/action/law/cercla.htm [EPA, “CERCLA Overview”]

http://www.law.gmu.edu/faculty/papers/docs/05-01.pdf [Dari Mattiaci G and Mangan B, “Law and economics working paper series 05-01”]

http://www.smallbiz-enviroweb.org/pub_video/epadocs/ddocs/d15.pdf [EPA, “The Superfund Enforcement Process: How it Works?”]

http://www.epa.gov/superfund/action/law/sara.htm [EPA, “SARA Overview”]

http://www.asce.org/reportcard/index.cfm?reaction=factsheet&page=10 [American Society of Civil Engineers (ASCE), “Hazardous Waste”]

http://www.epa.gov/superfund/students/clas_act/haz-ed/ff_02.htm [EPA, “Fact Flash”]

http://epa.custhelp.com/cgi-bin/epa.cfg/php/enduser/std_alp.php [EPA, “How does EPA decide whether or not to clean up a site?”]

http://glenninstitute.osu.edu/washington/DavidMess.htm [Mess D, “Renewal of Superfund’s Polluter Pays Tax: The need to Lighten the Economic and Health Burdens of Toxic Waste Sites on the Shoulders of Individual Taxpayers”, 2003]

http://www.wsn.org/cwac/FoxRiver.html [Leighton Katers R, “Fox River Nominated To Superfund Priority List”]

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http://www.winporter.com/op-ed14.html [Porter J W, “Let States Clean Up Superfund’s Mess”, 1994]

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http://www-bsdglobal.com/banking/sus_timeline.asp

http://www.field.org.uk/PDF/Full%20liability%20paper%20(final).pdf [Lefevere J, “Interactions of the EU Environmental Liability Regime”]

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http://www.dti.gov.uk/europe/structuralfunds/chapter1.doc [Department of Trade and Industry, “Structural Funds”]

http://www.cses.co.uk/?id=1&pg=.000000007&kid=2&tev=7 [Centre for Strategy and Evaluation Studies, CSES (2003): Ex-post evaluation of 1994-99 Objective 2 programmes. Synthesis Report. Study commissioned by the European Commission, DG Regional Policy”]

http://europa.eu.int/comm/environment/life/life/historyoflife.htm [European Commission, “The LIFE Programme – brief history of EU environmental financing”]

http://uespirg.org/uspirgnewsroom.asp?id2=10679&id3=USPIRGnewsroom& [Wolk J, “Superfund money runs dry: Taxpayers to foot the bill for toxic cleanups”, 2003]

http://www.sierraclub.org/toxics/Superfund [Kean L, “Taxpayers, not polluters, paying for toxic cleanups”]

4. Legal instruments:

http://bundesrecht.juris.de/bundesrecht/bbodschg/gesamt.pdf [= German Bundesbodenschutzgesetz]

http://bundesrecht.juris.de/bundesrecht/bbodschv/gesamt.pdf [= German Bundesbodenschutz-Verordnung]

http://europa.eu.int/eur-lex/eu/com/pdf/2002/com2002_0179en01.pdf [= COM (2002) 179 final]

http://www.biosafety.be/PDF/2004_35.pdf [= Directive 2004/35/CE]

http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/c_24120021007en01620167.pdf [= opinion of the Economic and Social Committee on the proposal for a Directive of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage]

http://europa.eu.int/eur-lex/pri/en/oj/dat/2003/ce277/ce27720033111Ben00100030.pdf [= Common position (EC) No 58/2003]

http://europa.eu.int/eur-lex/LexUriServ/site/en/com/2004/com2004_0055en01.pdf [= Opinion of the European Parliament on 16.01.2004]

http://www.ius-software.si/EUII/Eurovoc/transfrontier_transport.htm [= Directive 84/631]

http://aei.pitt.edu/archive/00000950/01/environmental_damage_gp_COM_93_47.pdf [= Green Paper on Remedying Environmental Damage, COM (93) 47]

http://conventions.coe.int/Treaty/EN/Treaties/Html/150.htm [= Convention on civil liability, 1993]

http://europa.eu.int/comm/environment/liability/el_full.pdf [= White Paper on Environmental Liability, COM (2000) 66 final]

http://europa.eu.int/comm/environmental/liability/consultation_en.pdf [= Commission’s Working Paper, 2001]

http://europa.eu.int/eur-lex/en/com/pdf/2002/en_502PC0017.pdf [= Proposal for a Directive on environmental liability with regard to the prevention and remedying of environmental damage, COM (2002) 17 final]

5. Report

House of Lords, Session 1993-94, 3rd report, select committee on the European Communities, Remedying environment damage with evidence, London, 1993

6. Case

U.S. v. Fleet Factors Corporation, 901 F.2d 1550 (11th Cir. 1990), cert. denied, 498 US 1046

[...]

---

^[1] See the US Environmental Protection Agency (EPA), “Welcome to the Superfund Web Site”, http://www.epa.gov/superfund/welcome.htm [accessed on: 08.08.2005]

^[2] EPA, “Number of NPL Site Actions and Milestones“, http://www.epa.gov/ superfund/ sites/ query/queryhtm/nplfly.htm [accessed on: 08.08.2005]

^[3] ibid

^[4] ibid

^[5] National Environmental Trust, “Superfund and the “polluter pays” tax”, 2004, see: http://www.net.org/Superfund/Superfund_Report.pdf, p. 1 [accessed on: 07.05.2005]

^[6] ibid, p. 1

^[7] Farer D (1990), “International – Superfund law cleans up the States”, Law Society’s Gazette 87.35 (18); National Environmental Trust, Op. cit., n. 5, p. 10

^[8] Brough W T, “Issue analysis 70 – Superfund: The Good, the Bad and the Broken”, in: http://www.freedomworks.org/informed/issues_template.php?issue_id=456 [accessed on: 03.06.2005]

^[9] Jeffreys K, “Amending Superfund: Reform or Revanche?”, The Cato Review of Business & Government, in: http://www.cato.org/pubs/regulation/reg17n1-jeffreys.html [accessed on: 05.06.2005]; EPA, “CERCLA Overview”, in: http://www.epa.gov/superfund/action/law/cercla.htm [accessed on: 02.08.2005]

^[10] Dari Mattiaci G and Mangan B, “Law and economics working paper series 05-01”, in: http://www.law.gmu.edu/faculty/papers/docs/05-01.pdf [accessed on: 03.06.2005]

^[11] Brough W T, Op. cit., n. 8

^[12] Fink S (1998), “Hazardous waste legislation”, Solicitors Journal, p. 246; Barnett H C (1990), “Political Environments and Implementation Failures: The Case of Superfund Enforcement”, Law and Policy, vol. 12, pt. 3, p. 229

^[13] Brough W T, Op. cit., n. 8; see further to extent of liability: Jacus J R and Miller D C (1999), “Coming full CERCLA: an update on Superfund developments”, Environmental Liability 7 (3), pp. 77 - 80

^[14] Fink S (1998), “Hazardous waste legislation”, Solicitors Journal, p. 246; National Environmental Trust, Op. cit., n. 5, p.5

^[15] critical to this point: Hird J A, “Environmental Policy and Equity: The Case of Superfund”, Journal of Policy Analysis and Management, vol. 12, pp. 326 -328

^[16] National Environmental Trust, Op. cit., n. 5, p.5

^[17] EPA, “The Superfund Enforcement Process: How It Works”, in: http://www.smallbiz-enviroweb.org/pub_video/epadocs/ddocs/d15.pdf, p. 3 [accessed on: 04.06.2005]

^[18] EPA, “SARA Overview”, in: http://www.epa.gov/superfund/action/law/sara.htm [accessed on: 02.08.2005]

^[19] National Environmental Trust, Op. cit., n. 5, p.5

^[20] ibid

^[21] American Society of Civil Engineers (ASCE), “Hazardous Waste”, in: http://www.asce. org/ reportcard/index.cfm?reaction=factsheet&page=10 [accessed on: 04.06.2005]

^[22] EPA, “CERCLA Overview”, Op. cit., n. 9

^[23] ibid

^[24] ibid

^[25] ibid

^[26] EPA, “SARA Overview”, Op. cit., n. 17

^[27] ibid

^[28] EPA, “Fact Flash”, in: http://www.epa.gov/superfund/students/clas_act/haz-ed/ff_02.htm [accessed on: 28.07.2005]

^[29] EPA, “How does EPA decide whether or not to clean up a site?”, http://epa.custhelp.com/cgi-bin/epa.cfg/php/enduser/std_alp.php and click question number 4 [accessed on: 28.07.2005]

^[30] ibid

^[31] ibid

^[32] EPA, “Fact Flash”, Op. cit., n. 27

^[33] ibid

^[34] Fink S (1998), “Hazardous waste legislation”, Solicitors Journal, p. 246; Brough W T, Op. cit., n. 8

^[35] see page 4

^[36] Mess D, “Renewal of Superfund’s Polluter Pays Tax: The Need to Lighten the Economic and Health Burdens of Toxic Waste Sites on the Shoulders of Individual Taxpayers”, 2003, in: http://glennistitute.osu.edu/washington/DavidMess.htm [accessed on: 13.06.2005]

^[37] Leighton Katers R, “Fox River Nominated To Superfund Priority List”, in: http://www.wsn.org/ cwac/FoxRiver.html [accessed on: 13.06.2005]

^[38] http://www.nemw.org/cmcleanb.htm [accessed on: 14.06.2005]

^[39] National Environmental Trust, Op. cit., n. 5, p. 12

^[40] ibid, p. 12 -14

^[41] Porter J W, “Let States Clean Up Superfund’s Mess“, 1994, in: http://www.winporter.com/op-ed14.html [accessed on: 14.06.2005]; Jeffreys K, Op. cit., n. 9

^[42] Porter J W, Op. cit., n. 39

^[43] ibid

^[44] Brough W T, Op. cit., n. 8

^[45] Porter J W. Op. cit., n. 39

^[46] ASCE, Op. cit., n. 21

^[47] Jeffreys K, Op. cit., n. 9

^[48] Brough W T, Op. cit., n. 8

^[49] National Environmental Trust, Op. cit., n. 5, p. 1; see further: Morelli L (1998), “Cleaning up Superfund: the state of Superfund reauthorization”, Environmental Liability 6 (2), pp. 27 - 38

^[50] General Accounting Office, Superfund Program: Current status and future fiscal challenges, GAO-03-850, pp. 8-10, in http://www.gao.gov/atext/d03850.txt [accessed on: 14.06.2005]

^[51] National Environmental Trust, Op. cit., n. 5, p. 5; General Accounting Office, Superfund Programm, GAO-03-850, pp. 10-11 and 26, in: http://www.gao.gov/atext/d03850.txt

^[52] ASCE, Op. cit., n. 20

^[53] Shanhan J, “How to Rescue Superfund: Bringing Common Sense to the Process”, 1995, in: http://www.heritage.org/Research/EnergyandEnvironment/bg1047.cfm [accessed on: 05.06.2005]; Brough W T, Op. cit., n. 8; see further: Chen J (1994), “Superfund reform: an attempt to reduce transaction costs involved in environmental clean-ups”, Insurance Law & Practice 4 (3), pp. 79 - 83

^[54] Burnett-Hall R (1995), “The clean-up clause”, Law Society’s Guardian Gazette, 92.16 (18)

^[55] Brough W T, Op. cit., n. 8; see further: Stirling D A (2002), “Minimising Environmental Liability Using Historical Research: A US Perspective”, Environmental Liability, 3, p. 119

^[56] Brough W T, Op. cit., n. 8

^[57] ibid; Hird J A (1993), “Environmental Policy and Equity: The Case of Superfund”, Journal of Policy Analysis and Management, vol. 12, p. 327

^[58] Brough W T, Op. cit., n. 8

^[59] ibid

^[60] ibid

^[61] ibid

^[62] ibid

^[63] U.S. v. Fleet Factors Corporation, 901 F.2d 1550 (11th Cir. 1990), cert. denied, 498 US 1046; see further: Hansell D (1995), “USA: Superfund: Pollution Liability, case comment”, International Insurance Law Review, 3 (12), G 260 – 261; Tester P L and Whitehead G M (1992), “The EC Directive on Civil Liability by Waste: Lessons from the Superfund Law”, European Environmental Law Review, June, pp. 29 f.

^[64] Hollins M and Percy S (1998), “Environmental liability for contaminated land – towards a European consensus”, Land Use Policy, vol. 15, p. 120; see further: Frye R and Bradley E (1996), “US Congress amends Superfund”, Environmental Law, 10 (3), pp. 10 - 12

^[65] Hollins M and Percy S (1998), “Environmental liability for contaminated land – towards a European consensus”, Land Use Policy, vol. 15, p. 120

^[66] Harwood R (2000), “The new contaminated land regime in England”, Due Diligence & Risk Management, 1.1 (19)

^[67] Hartley D and Goddard T (2000), “The statutory contaminated land regime- Considerations for lenders”, Finance & Credit Law 2.9 (1); Environment Agency, “Contaminated Land Regime (Part IIA), in: http://www.environment-agency.gov.uk/subjects/landquality/113813/ 781510/781635 [accessed on: 20.06.2005]

^[68] See for a comprehensive analysis: Tromans S and Turrall-Clarke R, Contaminated Land - The New Regime (London: Sweet & Maxwell, 2000), particularly Chapter 2 and 20; Tromans S and Turrall-Clarke R, Contaminated Land First Supplement (London: Sweet & Maxwell, 1999), pp. 4 – 22; see further concerning enforcement of Part IIA: Pontin B and Willmore C (2006), “Displacing remdies from environmental to planning law: The enforcement of contaminated land legislation in Britain”, Yearbook of European Environmental Law, vol. 6, pp. 1 – 26 from the transcript provided by the authors

^[69] Cripps A (2004), “Contaminated land – who’s responsible?“, New Law Journal, 154.7152 (1678); Sheppard C, Hartley D and Goddard T (2000), “The statutory contaminated land regime – Considerations for lenders”, Finance & Credit Law, 2.9 (1)

^[70] Environment Agency, “Contaminated Land Regime – Part IIA of the Environmental Protection Act 1990”, in: http://www.environment-agency.gov.uk/commondata/105385/intro_to_part_iia_881403.pdf [accessed on: 20.06.2005]

^[71] ibid

^[72] ibid; Cripps A (2004), “Contaminated land – who’s responsible?”, New Law Journal, 154.7152 (1678)

^[73] Environment Agency, Op. cit., n. 70; see further: Lee R G (2002), “Local Authority Inspection Strategies For Contaminated Land: Questions For Due Diligence”, Due Diligence & Risk Management 3 (4), 7

^[74] Environment Agency, Op. cit, n. 70; Thornton J and Beckwith S, “Environmental Law”, 2nd edition (London: Sweet & Maxwell, 2004), pp. 165 f.

^[75] Scottish Environment Protection Agency, “Contaminated Land Provisions, Part IIA, Environmental Protection Act 1990”, in: http://www.sepa.org.uk/pdf/cont_land/partii/appropriate_person.pdf [accessed on: 21.06.2005]

^[76] ibid

^[77] ibid; Harwood R (2000), “The New Contaminated Land Regime in England”, Due Diligence & Risk Management, 1.1 (19); see further (critical): Townsend M (2001), “Practice Points - Contaminated Land Regime”, Law Society Gazette 98.46 (40)

^[78] Tameside MBC, Council Offices, “Regulatory Review”, in: http://www.tameside.gov.uk/tmbc/ contamination1.htm [accessed on: 21.06.2005]; Lane P and Peto M, Blackstone’s Guide to the Environment Act 1995 (London: Blackstone Press Limited, 1995), p. 147

^[79] Scottish Environment Protection Agency, Op. cit., n. 75

^[80] Department for Environment, Food and Rural Affairs (defra), “Funds available to clean up contaminated sites”, in: http://www.defra.gov.uk/news/2005/050322c.htm [accessed on: 22.06.2005]

^[81] See further to the landfill tax: Park P (2000), “An evaluation of the landfill tax”, Journal of Planning & Environmental Law, Jan, pp. 3 - 13

^[82] defra, “Contaminated Land”, in: http://www.defra.gov.uk/environment/land/contaminated/ funding.htm[accessed on: 22.06.2005]

^[83] Franzius V (1995), “Perspectives on the remediation of contaminated land in Germany“, Chemistry & Industry, 3, p. 505

^[84] http://bundesrecht.juris.de/bundesrecht/bbodschg/gesamt.pdf; http://bundesrecht.juris.de/ bundesrecht/bbodschv/gesamt.pdf [accessed on: 25.06.2005]

^[85] Meyer-Bornkamp C, “Gemeinschaftliches Förderkonzept, Ziel 1 – Übergangsunterstüztung in Deutschland 2000 – 2006“,http://www1.europa.sachsen-anhalt.de/vademecum/GFK/GFK-aktuell.pdf [accessed on: 25.06.2005]

^[86] Bundesministerium für Verkehr, Bau- und Wohnungswesen, “Richtlinien für die Planung und Ausführung der Sanierung von schädlichen Bodenveränderungen und Grundwasserverunreinigungen“, in: http.//www.ofd-hannover.de/BGWS/BGWSDocs/Downloads/ Arbeitshilfen_Altlasten/bfrbodengw. pdf [accessed on: 25.06.2005]

^[87] ibid

^[88] Gesellschaft zur Altlastensanierung in Bayern mbH, “Die Finanzierung von Altlasten in Bayern“, in: http://altlasten-bayern.de/showartikel.asp?ID=86 [accessed on: 25.06.2005]

^[89] Gesellschaft zur Altlastensanierung in Bayern mbH, “Altlasten und Flächenrecycling“, in: http://www.altlasten-bayern.de/default_1.htm [accessed on: 26.06.2005]

^[90] Gesellschaft zur Altlastensanierung in Bayern mbH, Op. cit., n.88

^[91] Jaeger M, “Altlastensanierung im Norden“, in: http://www.umwelt.schleswig-holstein.de/ servlet/is/23289/grundsaetzliches.htm [accessed on: 26.06.2005]

^[92] Weppelmann D, “Bodenschutz“, http://www.umweltdatenbank.de/bodenschutz.htm [accessed on: 25.06.2005]

^[93] Church T W and Nakamura R T(1994), “Beyond Superfund: Hazardous Waste Cleanup in Europe and the United States”, Georgetown International Environmental Law Review, vol 7, p. 29

^[94] Betlem G (1995), “The Dutch Soil Protection Act 1994“, European Environmental Law Review, p. 232

^[95] European Environment Agency, “Management of contaminated sites in Western Europe”, in: http://reports.eea.eu.int/Topic_report_No_131999/eu/topic_13_1999.pdf [accessed on: 04.05.2005]

^[96] van der Wilt C (1998), “Multifuncitonality of soil: The rise and fall of a dutch principle”, Environmental Liability, 1, p. 19

^[97] Tromans S and Turrall-Clarke R, Contaminated land (London: Sweet & Maxwell, 1999), p. 124

^[98] European Environment Agency, Op. cit., n. 95, p. 87

^[99] ibid, p. 89

^[100] ibid, p. 90

^[101] Ferguson C C (1999), “Assessing risks from contaminated sites: policy and practice in 16 European countries“, Land Contamination & Reclamation, 7 (2), p. 46

^[102] Clarinet, “The Netherlands”, 2000, http://www.clarinet.at/policy/nl_approach.htm [accessed on: 30.06.2005], p. 3

^[103] ibid, p. 4

^[104] ibid, p. 5

^[105] “innocent” means that the owners or lessees neither polluted the land nor knew about the contamination at the time of purchase

^[106] Ferguson C C (1999), “Assessing risks from contaminated sites: policy and practice in 16 European countries”, Land Contamination & Reclamation, 7 (2), p. 46; http://www.clarinet.at/policy/ nl_approach.htm, p. 1 [accessed on: 30.06.2005]

^[107] European Environment Agency, Op. cit., n. 95, p. 92

^[108] BSB = Bodemsanering van in gebruik zijinde bedrijfsterreinen, cleanup of present industrial sites

^[109] European Environment Agency, Op. cit., n. 95, p. 93

^[110] European Environment Agency, Op. cit. n. 95, p. 93

^[111] SUBAT = Stichting Uitfoering Bodemsanering Amovering Tankstations, Voluntary fund created by the petrol industry for the cleanup of out-of-service stations

^[112] European Environment Agency, Op. cit., n. 95, p. 93

^[113] Skovgaard I-M (1995), “Contaminated land policy in Denmark”, Chemistry & Industry, p. 509

^[114] Ferguson C C (1999),“Assessing risks from contaminated sites: policy and practice in 16 European countries”, Land contamination & Reclamation 7 (2), p. 36

^[115] Skovgaard I-M (1995), “Contaminated land policy in Denmark”, Chemistry & Industry, p. 509; Committee on the challenges of modern society, “Evaluation of Demonstrated and Emerging Technologies for the Treatment of Contaminated Land and Groundwater”, in: http://www.nato.int/ccms/pilot-studies/pilot007/98annual.pdf, p. 57 [accessed on: 04.07.2005]

^[116] European Environment Agency, Op. cit., n. 95, p. 32

^[117] ibid, p. 32

^[118] ibid, pp. 34/35

^[119] ibid, pp. 34/35

^[120] Clarinet, “Denmark”, in: http://www.clarinet.at/policy/dk_approach.htm, p. 1

^[121] European Environment Agency, Op. cit., n. 95, p. 35

^[122] ibid, p. 35

^[123] ibid, p. 36

^[124] ibid

^[125] Lokke H, „From science to soil framework directive“, in: http://recetox. chemi.muni.cz/coe/sources/workshop_3_soil_sed/Lokke.pdf [accessed on: 05.07.2005]

^[126] COM (2002) 179 final, see: http://europa.eu.int/eur-lex/eu/com/pdf/2002/com2002_0179en01.pdf, p. 19 [accessed on: 08.07.2005]

^[127] Europäische Kommission, “Kommission schlägt neues Umweltaktionsprogramm vor“, in: http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/01/102&format=HTML&aged=0& language=EN&gui&Language=en [accessed on: 08.07.2005]

^[128] European Commission, “Environment 2010: Our Future, Our Choice“, in: http://europa.eu.int/ comm/environment/newprg/index.htm [accessed on: 08.07.2005]

^[129] COM (2002) 179 final, see: http://europa.eu.int/eur-lex/eu/com/pdf/2002/com2002_0179en01.pdf [accessed on: 09.07.2005]

^[130] European Commission, “Soil Policy Development”, in: http://europa.eu.int/comm/environment/soil [accessed on: 08.07.2005]

^[131] Lokke H, Op. cit. n. 125

^[132] European Commission, Op. cit. n. 130

^[133] see: http://forum.europa.eu.int/Public/irc/env/soil/library?l=/soil_policy_basic/ europeansunionssoilspoli/opinions&vm=detailed&sb=Title [accessed on: 10.07.2005]

^[134] http://eusoils.jrc.it/ESDB_Archive/Policies/STSWeb/vol1.pdf [accessed on: 10.07.2005]

^[135] http://forum.europa.eu.int/Public/irc/env/soil/library?l=?stakeholder_positions&vm=detailed&sb =Title [accessed on: 11.07.2005]

^[136] http://forum.europa.eu.int/Public/irc/env/soil/library?l=/soil_policy_basic/othersdocuments/ councilsofeurope&vm=detailed&sb=Title [accessed on: 11.07.2005]

^[137] Vital Soil, “The Next Step towards a European Soil Strategy”, in: http://www.biowaste.at/ downloads_pdf/asp_041220_fa_vital-soil-concl.pdf [accessed on: 28.06.2005]

^[138] Ecologic, “Project: The Next Step towards a European Soil Strategy”, in: http://www.ecologic.de/ modules.php?name=News&file=article&sid=1323 [accessed on: 28.06.2005]

^[139] Vital Soil, Op. cit, n. 137

^[140] ibid

^[141] ibid

^[142] ibid

^[143] defra, “EU Initiatives on Soil Protection”, in: http://www.defra.gov.uk/environment/land/soil/eu-initiatives.htm; European Environmental Press, “First Soil Atlas of Europe”, in: http://www.eep.org/newletters/ newsletter060505.htm [accessed on: 11.07.2005]

^[144] http://eurosils.jrc.it/projects/soter/Meetings/Digital_Function/7 [accessed on: 11.07.2005]

^[145] Lokke H, Op. cit., n. 125

^[146] 6th EAP: Kiss A and Shelton D, Manual of European environmental law, 2nd edition (Cambridge: Cambridge University Press, 1997), p. 25; Commission’s Communication: see Lokke H, Op. cit., n. 117; Soil Charter: see revised European Charter for the protection and sustainable management of soil, p. 8

^[147] Directive 2004/35/CE, see: http://www.biosafety.be/PDF/2004_35.pdf [accessed on: 12.04.2005]

^[148] Lefevere J, “Interactions of the EU Environmental Liability Regime”, in: http://www.field.org.uk/ PDF/Full%20liability%20paper%20(final).pdf [accessed on: 13.07.2005]; House of Lords, Session 1993-94, 3rd report, select committee on the European Communities, Remedying envionment damage with evidence, London, 1993, p. 9

^[149] See http://www.ius-software.si/EUII/Eurovoc/transfrontier_transport.htm [accessed on: 13.07.2005]

^[150] Lefevere J, Op. cit., n. 148

^[151] COM (89) 282 final, Official Journal C 251,04/10/1989 P.0003

^[152] COM (93) 47, 14 May 1993, see: http://aei.pitt.edu/archive/00000950/01/environmental_ damage_gp_COM_93_47.pdf [accessed on: 13.07.2005]

^[153] Lefevere J, Op. cit., n. 148

^[154] http://conventions.coe.int/Treaty/EN/Treaties/Html/150.htm [accessed on: 13.07.2005]

^[155] COM (2000) 66 final, see: http://europa.eu.int/comm/environment/liability/el_full.pdf [accessed on: 14.07.2005]

^[156] Lefevere J, Op. cit., n. 148

^[157] http://europa.eu.int/comm/environment/liability/consultation_en.pdf [accessed on: 14.07.2005]

^[158] Proposal for a Directive on environmental liability with regard to the prevention and remedying of environmental damage, COM (2002) 17 final, see: http://europa.eu.int/eur-lex/en/com/pdf/2002/en_ 502PC0017.pdf [accessed on: 11.07.2005]

^[159] Pontin B and Willmore C (2006), “Displacing remedies from environmental to planning law: The enforcement of contaminated land legislation in Britain”, Yearbook of European Environmental Law, 6, page 25 from the transcript provided by the authors; Hawke N and Hargreaves P (2003), “Environmental funds, compensation and liability“, Environmental liability, 2, p. 41

^[160] Directive 2004/35/CE, see: http://www.biosafety.be/PDF/2004_35.pdf

^[161] Fogleman V (2004), ”The Environmental Liability Directive“, Environmental liability, 3, p. 103

^[162] ibid, p. 103

^[163] see Article 19 (1) of Directive 2004/35/CE on Environmental Liability with regard to the prevention and remedying of environmental damage, see: http://www.biosafety.be/PDF/2004_35.pdf [accessed on: 16.07.2005]

^[164] http://www.bsdglobal.com/banking/sus_timeline.asp [accessed on: 17.07.2005]

^[165] See Commission’s Green Paper on remedying environmental damage, COM (93) 47 final, point 3.2.2

^[166] see White Paper on environmental liability, COM (2000) 66 final, point 1.3.1

^[167] European Chemical Industry Council, “CEFIC Position on the Commission’s Green Paper on Remedying Environmental Damage”, http://www.cefic.be/position/Sec/pp_sec03.htm [accessed on: 17.07.2005]

^[168] see White Paper on environmental liability, COM (2000) 66 final, point 7

^[169] Stone Mc Guigan J, “The Potential Economic Impact of Environmental Liability: The American and European Contexts”, http://europa.eu.int/comm/environment/liability/competitiveness_finalrep. pdf [accessed on: 17.07.2005]

^[170] Proposal for a Directive on environmental liability, COM (2002) 17 final, point 4

^[171] The limits are generally set for releases of hazardous substances or incidents involving a release. However in practice these limits are not so significant for operators because contamination and damages are often caused by more than one release.

^[172] see Proposal for a Directive on environmental liability, COM (2002) 17 final, table on p. 15

^[173] Fogleman V (2004), “The Environmental Liability Directive“, Environmental Liability, 3, pp. 103

^[174] ibid, p. 103

^[175] ibid

^[176] ibid

^[177] ibid

^[178] ibid

^[179] ibid

^[180] see Article 14 of the Directive 2004/35/CE on Environmental Liability

^[181] Freshfields Bruckhaus Deringer (2004), “The polluter finally pays? The new Environmental Liability Directive”, In-House Lawyer, 120 (May) p. 55

^[182] Ecologic, “European strategy for soil protection”, http://www.ecologic.de/download/projekte/900-949/929_prec_prin.PDF [accessed on: 18.07.2005]

^[183] COM (2002) 17 final

^[184] Article 17 (1) of the European Parliament legislative resolution on the proposal for a European Parliament and Council Directive on environmental liability with regard to the prevention and remedying of environmental damage; Official Journal C067 17.03.2004, p 0137-0185 E

^[185] Point “proposed amendments 4.4“ of the Opinion of the Economic and Social Committee on the proposal for a Directive of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage; see: http://europa.eu.int/eur-lex/pri/ en/oj/dat/2002/c_24120021007en01620167.pdf [accessed on: 19.07.2005]

^[186] Krämer L (2004), “Directive 2004/35/EC on Environmental Liability“, Environmental Law & Management, 16, p. 11

^[187] Common Position (EC) No 58/2003; see: http://europa.eu.int/eur-lex/pri/en/oj/dat/2003/ce277/ce 2772003111Ben00100030.pdf [accessed on: 19.07.2005]

^[188] Official Journal C091 15.04.2004, p. 0132-0232E, second reading of the European Parliament of 17. December 2003

^[189] Opinion of the European Parliament, 16.01.2004; see: http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2004/com 2004_0055en01.pdf [accessed on: 19.07.2005]

^[190] FINAL AS-0139/2004

^[191] Freshfields Bruckhaus Deringer (2004), “The polluter finally pays? The new Environmental Liability Directive”, In-House Lawyer, 120 (May), p. 55; Krämer L (2004), “Directive 2004/35/EC on Environmental Liability“, Environmental Law & Management, 16, p. 12

^[192] Krämer L (2004), “Directive 2004/35/EC on Environmental Liability“, Environmental Law & Management, 16, p. 12

^[193] Hawke N and Hargreaves P (2003), “Environmental funds, compensation and liability”, Environmental Liablity, 2, p. 47; ERM Economics, Economics Aspects of Liability and Joint Compensation Schemes for Remedying Environmental Damage (London, 1996), at 97

^[194] Atkinson N (1995), “A legal regime for the clean-up of contaminated land: Lessons from Europe”, European Environmental Law Review, p. 141; Green Paper on Remedying Environmental Damage para 2.1.5 (iii)

^[195] Faure M and De Smedt K (2001), “Should Europe harmonise environmental liability legislation?”, Environmental Liability, 5, pp. 217 and 229/230

^[196] Christie S and Teeuw R M (1998), “Varied policy of European Union states on contaminated land”, Environmental Impact Assessment Review, p. 176, 177

^[197] ibid, p. 176, 177

^[198] ibid, p. 177

^[199] Proposal for a Directive on environmental liability with regard to the prevention and remedying of environmental damage, point 3, p. 5

^[200] Environmental Consultancy Directory, “Environmental Liability Directive”, 2005, in: http://www. endsdirectory.com/articles/index.cfm?action=200404

^[201] Christie S and Teeuw R M, Op. cit., n. 196, p. 177

^[202] there are many transitional arrangements that help ensure the environment acquis, see: http:// europa.eu.int/comm/enlargement/negotiations/chapters/chap22

^[203] set up by the Council of European Union Regulation No 1164/EC of 16 May 1994

^[204] Ministry of Economic Affairs & Labour, “Cohesion Fund”, in: http://www.funduszestrukturalne. gov.pl/English/Cohesion+Fund [accessed on: 25.07.2005]

^[205] European Commission, “The Cohesion Fund”, in: http://europa.eu.int/comm/regional_policy/ funds/procf/cf_en.htm [accessed on: 25.07.2005]

^[206] Christie S and Teeuw R M, Op. cit., n. 196, p. 192

^[207] Ecologic, “EU Soil Protection Policy: Current Status and the Way Forward, Background paper to the conference on 18 – 19 November 2004”, in: http://www.ecologic.de/download/projekte/1950-1999/1965/1965_background_paper.pdf, p. 56 [accessed on: 26.07.2005]

^[208] Department of Trade and Industry, “Strucural Funds”, http://www.dti.gov.uk/europe/ structuralfunds/chapter1.doc [accessed on: 25.07.2005]

^[209] Ecologic, “EU soil protection policy: Current status and the way forward, Background paper to the conference on 18-19 November 2004 in the Netherlands”, see: http://www.ecologic.de/download/ projekte/1950-1999/1965/1965_background_paper.pdf, p. 57

^[210] Centre for Strategy and Evaluation Studies, CSES (2003): Ex-post evaluation of 1994-99 Objective 2 programmes. Synthesis Report. Study commissioned by the European Commission, DG Regional Policy, see: http://www.cses.co.uk/?id=1&pg=.000000007&kid=2&tev=7

^[211] Ecologic, Op.cit., n. 197, pp. 57/58; Centre for Strategy and Evaluation Studies, CSES, Op. cit, n. 210

^[212] Department of Trade and Industry, Op. cit., n. 198

^[213] European Commission, “The Life Programme – brief history of EU environmental financing”, in: http://europa.eu.int/comm/environment/life/life/historyoflife.htm, p.2 [accessed on: 28.07.2005]

^[214] ibid, p. 3

^[215] see for example LIFE-Environment projects for 2002-2003, German project EbeBoBo, see: http:// europa.eu.int/comm/environment/life/news/life-env_press.02.htm [accessed on: 28.07.2005]

^[216] “LIFE- Commission proposes new streamlined funding programme for the environment”, http://europa-eu-un.org/articles/de/article_3846_de.htm [accessed on: 28.07.2005]

^[217] ibid

^[218] see in England’s system: defra, Op. cit., n. 77

^[219] see system in German Bavaria: Gesellschaft zur Altlastensanierung in Bayern mbH, Op. cit., n. 83

^[220] Gesellschaft zur Altlastensanierung in Bayern mbH, Op. cit., n. 84

^[221] ibid

^[222] see system in the Netherlands: European Environment Agency, Op. cit., n. 90, p. 93; see system in Denmark: ibid, p. 36

^[223] ibid, p. 93

^[224] ibid, p. 1

^[225] Wolk J, “Superfund money runs dry: Taxpayers to foot the bill for toxic cleanups”, 2003, http://uspirg.org/uspirgnewsroom.asp?id2=10679&id3=USPIRGnewsroom& [accessed on: 29.07.2005]; Kean L, “Taxpayers, not polluters, paying for toxic cleanups”, http://www. sierraclub.org/toxics/Superfund [accessed on: 29.07.2005]

Häufig gestellte Fragen zum Thema Superfund

Was ist der US Superfund?

Superfund ist das Programm der amerikanischen Bundesregierung zur Sanierung unkontrollierter Standorte mit gefährlichen Abfällen in den USA. Es wurde 1980 ins Leben gerufen, um die Haftung für die Freisetzung gefährlicher Abfälle zu regeln und einen Treuhandfonds einzurichten, wenn keine verantwortliche Partei identifiziert werden kann.

Wie funktioniert das Superfund-Modell in den USA?

Das Superfund-Verfahren umfasst verschiedene Phasen, beginnend mit der Entdeckung eines Standorts. Darauf folgt ein Bewertungsprozess, einschließlich einer vorläufigen Bewertung (PA) und einer Standortinspektion (SI). Die gesammelten Daten werden verwendet, um den Standort gemäß dem Hazard Ranking System (HRS) zu bewerten. Nur Standorte auf der National Priorities List (NPL) können mit dem Superfund Trust Fund saniert werden. Nach der Aufnahme in die NPL folgt eine detailliertere Studie, die die Ursache und das Ausmaß der Kontamination sowie die Risiken für die menschliche Gesundheit und die Umwelt untersucht.

Wer bezahlt die Sanierung im Rahmen des US Superfund?

Die EPA (Environmental Protection Agency) lässt die Personen bezahlen, die für die Kontamination verantwortlich sind, die sogenannten potenziell verantwortlichen Parteien. Wenn die verantwortliche Partei nicht identifiziert werden kann oder zahlungsunfähig ist, werden die für die Sanierung benötigten Mittel aus dem Superfund Trust Fund entnommen.

Was sind die Vorteile des US Superfund-Systems?

Ein großer Vorteil des Superfund-Systems ist, dass Mittel sofort verfügbar sind, sobald die Sanierungspläne vereinbart sind. Superfund gibt Unternehmen auch einen Anreiz, mit gefährlichen Stoffen ordnungsgemäß und sicher umzugehen, um Unfälle und Freisetzungen und damit die Sanierungskosten zu vermeiden. Das US-Superfund-System hat während seines 25-jährigen Bestehens eine große Anzahl von Standorten saniert.

Was sind die Nachteile des US Superfund-Modells?

Kritiker bemängeln die föderale Lösung von Superfund und argumentieren, dass lokale Standorte mit gefährlichen Abfällen auf lokaler Ebene behandelt werden sollten. Sie behaupten, dass Superfund zu bürokratisch sei und dass die Bemühungen des Bundes zu einer zentralisierten Reaktion zu Missmanagement, übermäßigen Sanierungskosten und enormen Prozesskosten geführt hätten. Ein weiteres Argument ist, dass das System heutzutage ein finanzielles Problem hat, da die Steuer für die Verursacher im Jahr 1995 ausgelaufen ist.

Gibt es ein ähnliches Superfund-Modell in Europa?

Es gibt noch kein umfassendes Superfund-Modell in Europa, das dem US-amerikanischen Modell vollständig entspricht. Es gibt jedoch Elemente in der Richtlinie 2004/35/EG über Umwelthaftung. Die Diskussion hat gezeigt, dass Teile des US-Superfund-Modells bereits in das System der Umwelthaftung in Europa integriert sind.

Welche Entwicklungen gibt es in Europa im Bereich der Bodenkontamination?

Erste Konzepte zum Bodenschutz in Europa gab es 1972 mit der Verabschiedung der Bodencharta durch den Europarat. Im Jahr 2001 verabschiedete die Kommission das 6. Umweltaktionsprogramm (UAP). Im Jahr 2002 veröffentlichte die Kommission eine Mitteilung „Auf dem Weg zu einer thematischen Strategie für den Bodenschutz“.

Gibt es einen Superfund im Rahmen der Umwelthaftung der Europäischen Union?

Es ist möglich, dass Teile des US-Superfund-Systems, insbesondere die Fragen, wer für die Sanierung zahlt und wer im Falle von verwaisten Standorten oder Zahlungsunfähigkeit des verantwortlichen Unternehmens zahlt, in die Richtlinie 2004/35/EG über Umwelthaftung einbezogen wurden.

Welche Finanzierungsmöglichkeiten gibt es für ein europäisches Superfund-Modell?

Es gibt verschiedene Vorschläge für ein Fondssystem in Europa. Eine Möglichkeit besteht darin, dass die Schaffung von Fonds weiterhin Aufgabe der einzelnen Mitgliedstaaten der Europäischen Union bleibt. Eine andere Möglichkeit besteht darin, dass bestehende europäische Fonds wie der Kohäsionsfonds, die Strukturfonds oder das LIFE-Programm eine Lösung bieten. Eine dritte Möglichkeit ist die Kombination verschiedener Fondssysteme der Mitgliedstaaten. Eine vierte Möglichkeit ist, dass Europa das System des Superfund Trust Fund übernimmt.