Was a classic example of ill-judged European legislation that could have imposed a huge unnecessary burden on the aggregates industry were it not for a cross-border campaign that halted it in its tracks....or so we thought. That was until recent efforts of the French Presidency to revive the ‘buried' draft Directive. UK minerals lawyer Robert Camp reflects on the current situation.
Few in our industry will look back fondly on the draft Soil Framework Directive, which was published in September 2006 by the European Commission.
The systematic approach suggested by the first draft Directive would have meant locating sites with former or present soil polluting activities; measuring concentrations of dangerous substances at those sites; performing an on-site assessment if concentrations were deemed ‘significant' and de-listing those sites pending remediation if there was a significant risk to human health and the environment.
The objective was to provide a framework that would enable each member state to decide how best to protect and use soil in their territory in a sustainable way. It required member states to identify areas at risk of soil degradation and to take measures to address those risks.
This led to co-ordinated industry-led action at European level to head off what was widely considered ill-conceived and detrimental proposals.
The basic issue was the same as that which besets so much draft EU legislation - it was a one-size-fits-all solution that would have led to an over-centralised policy wholly out of step with the industry it was attempting to regulate.
Following substantial industry pressure and after the failure at the Environment Council in December 2007 to find a compromise between Member States in terms of a common approach; industry campaigners had hoped it would be consigned to the scrap-heap of doomed EU legislation forever.
Just one month later the Slovenian Presidency signalled its intention to revisit the Directive. Although it made no significant progress during it's sixth-month term, France - which had originally voted against the Directive - took up the baton when it took over the Presidency last July, promising to move forward and re-open the debate during its term.
The European Environmental Bureau (EEB), a pan European alliance of local green groups, called on the French Presidency to not only put the Soil Directive back on the agenda but also to start formal negotiations to ensure the final outcome delivered significant improvements to soil protection.
Contrary to the open formal negotiations the EEB called for, France chose to circulate its proposals and hold meetings prior to the Environment Council, last October, with those member states that had originally blocked the Directive the previous year (Germany, Austria, the Netherlands and the UK).
In October last year the French EU presidency produced a new draft soil framework Directive. The revised draft does contain provisions on land contamination and soil sealing but both heavily stress subsidiary and voluntary action. Chapter III on soil contamination would give member states the discretion to decide whether a site should be determined as contaminated, something the UK has been keen to stress. The EEB has criticised this move, suggesting that it will shift the emphasis from a systematic approach to a market led approach.
The Non Energy Extractive Industries Panel (NEEIP) argued that the EU's approach to soil remediation should be risk-based rather than activity based because European extractive operations are legally obliged to ensure soil protection among many other obligations.
The revised draft would also allow consideration of the social, environmental and economic aspects in the event of remediation. This would create a risk based approach, favoured by a number of the blocking states including the UK. This new approach is in line with the view of the British Aggregates Association (BAA), which represents over 100 site operators in the UK. It lobbied for the first draft to be abandoned and called for more emphasis on the implementation and enforcement of existing policies.
Environmental Protection UK, the British charity, was encouraged by the efforts of the French Presidency to progress the draft. Their view is that while the first draft was too prescriptive, this revised draft is effectively ‘watered down' and lacks concrete requirements and timetables for contamination management or reporting. The EEB's main concern is that the revised draft Directive effectively removes the obligation for companies and authorities to decontaminate sites.
The Quarry Products Association (QPA), now the Mineral Products Association, lobbied against what it saw as an overly prescriptive approach in the first draft. However, as the revised draft is so light on prescription and vague in many areas it remains to be seen how the industry will react.
The first draft required remediation to be carried out in accordance with national strategies by priority, with human health having the highest priority, and the owners and prospective buyers of suspect sites had to provide a ‘soil status report' to the competent authorities. The new draft offers greater flexibility to Member States on the design of remediation measures. Once sites posing a risk are identified, Member States would be free to define their own approaches to remediation targets and measures. The EEB has been critical of this approach believing that this would give Member States too much freedom and leave soils without adequate protection.
Discussions between the blocking Member States led to formal European Council debates in October. However, it is unclear what this process signals for the revised draft Directive. Although the EU Czech Presidency is reported to have revived negotiations, there is no certainty that the other 22 Member States will accept a significantly weakened proposal or that the European Parliament will accept the proposed changes. Therefore, it is still not clear whether a weakened version of the first draft Directive will ultimately be adopted, or whether the revised draft Directive will hang in political limbo and ultimately be abandoned.
The European Aggregates industry will have to remain active in monitoring developments. Depending on the eventual outcome of this revised draft Directive, our industry will need to work together to ensure that this and future policies are fit for purpose and realistically applied.
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