The EU Soil Framework Directive could impose a huge unnecessary burden on the aggregates industry despite a cross-border campaign to halt it. UK minerals lawyer Robert Camp reflects on the current situation Few in the quarrying industry will look back fondly on the draft Soil Framework Directive, which was published in September 2006 by the European Commission. 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 sust
The EU Soil Framework Directive could impose a huge unnecessary burden on the aggregates industry despite a cross-border campaign to halt it. UK minerals lawyer Robert Camp reflects on the current situation
Few in the quarrying industry will look back fondly on the draft Soil Framework Directive, which was published in September 2006 by the European Commission.
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 that 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 its six-month term, France – which had originally voted against the directive – took up the baton when it started its 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 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 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.
Many organisations lobbied against what was seen 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.
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. n
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
Contact
Robert Camp heads the minerals team at Stephens Scown solicitors in the UK which has more than 70 years’ experience representing mining and minerals clients. He can be contacted on +44 (0)1392 210700 or email
