Contaminated Land - The (unexpected) return of the site owner's default liability


On 26 October 2013, the upper house of Parliament adopted the Draft Law on housing and planning law. At the last minute and without any debates, an amendment was adopted incorporating significant changes to French environmental laws including regarding the creation of a priority list of liable persons for contaminated land.

According to this draft law, the regulator would be entitled to order remediation operations to the following persons, by order of priority,
(i)        the last operator of industrial facilities (ICPE) or nuclear installations (INB),
(ii)       the waste producer or waste holder, and
(iii)     the site owner, except in the (unlikely) event that such site owner can successfully evidence that (a) he has nothing to do with the site contamination, (b) the site contamination was not the result of his own negligence, AND that (iii) he could not have known of such contamination.
The return of the site owner’s default liability, more than five years after all French courts had condemned such idea, in contradiction with the polluter-pays principle, is troublesome from a legal point of view but also from a political point of view.
Whereas the creation of a priority list of liable persons for contaminated land may be considered as efficient (and was indeed implemented in several counties, including Germany), such creation should result from prior discussions with stakeholders (including site owners, industrial and property operators) and should be adopted by the Parliament further proper parliamentary work and not by an amendment supported by the Government and incorporated in an unrelated piece of legislation at the last minute.
Let’s hope that French MPs (in the coming next reading of the Draft Law), stakeholders and lobbyists work together in order to review, improve or suppress this unexpected and poorly drafted return of the site owner's default liability.

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