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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