Dealing with past pollution

Companies in today's chemical industry can usually take pride in the strict environmental controls which they apply to their processes. However, many are operating on sites where such controls were not applied so strictly in the past.

Up and down the country there are large numbers of industrial sites that are, in a general sense, contaminated. This has not been a significant problem because, although in this country there is legislation that can require those responsible for the contamination to clean it up, it is likely to apply only where the contamination creates either significant harm to human health or the environment, or a significant risk of such harm. However, a recent case in the European Court of Justice (ECJ) in Luxembourg may change this.

Legal obligation The case involved contamination from a petrol station in Brussels. Hydrocarbons had leaked from pipes and a tank at the petrol station and had contaminated the surrounding land. In Belgium there is no specific contaminated land legislation, but the Brussels regional authorities brought proceedings against the oil company that had owned a lease on the petrol station, which had then been run on its behalf by a service station agency. The authority argued that the contaminated land on the site was "waste" under the EU Waste Framework Directive, and that the oil company had a duty to clean it up under the Directive. This argument was upheld by the Court, which said that under national legislation implementing the Directive the waste producer or holder, i.e. the oil company, should ensure that the waste was recovered or disposed of in accordance with the Directive's requirements. In other words it could be compelled to clean up the site. The case has caused quite a stir, and not only among oil companies, as it has applications for all businesses operating on sites that may be contaminated by previous operations. This will include any chemical or pharmaceutical business operating on a site with a history. Previously it was generally assumed that excavated contaminated soil arising from remediation of land would be waste, but not necessarily the land itself. However the EJC decided that all contaminated land is "waste". If this were applied literally and consistently, there would be significant consequences for many companies, who may have a concealed legacy of contamination from the past on-site. While the implications of the ruling are not as dramatic in the UK, because this country has contaminated land legislation that goes some way towards meeting the requirements of the Directive as interpreted by the ECJ, they are nevertheless uncomfortable. It can be argued that there is an obligation under waste law to clean up all contamination, even if it is comparatively minor. It remains to be seen what implications the ruling will have in practice. Other important recent decisions of the ECJ on waste law also have significant implications. A trio of recent rulings have appeared on the distinction between byproducts and waste. Genuine byproducts are not subject to waste management regulation, but production residues that fall within the definition of waste are. The distinction is quite a subtle one, and companies need to be certain as to whether arisings from their processes fall on one side of the line or another. Hitherto, companies may have assumed that any output from the production process that has a potentially beneficial use and is not immediately disposed of as waste was a byproduct, but regulators may now scrutinise the position more closely in the light of the recent judgement.

Duty of care If substances fall within the definition of waste, then subject to certain exceptions, their storage, recovery and disposal are subject to control, and an onerous duty of care applies if they are to be sent off-site. Penalties can be severe, and it is in general not an excuse that the contravention was the fault of an individual manager. Companies need to have personnel who are well-versed in the detail of waste regulation law. Some formal training in this area is essential. It is also important that the knowledge of managers in this area is up to date. Tools such as online learning systems can be very effective as a supplement to formal training. Good record keeping is also essential to demonstrate compliance.