Legal provisions of COM(2006)232 - Framework for the protection of soil

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dossier COM(2006)232 - Framework for the protection of soil.
document COM(2006)232 EN
date September 22, 2006

Contents

Chapter I - General provisions

Article 1 - Subject-matter and scope

1. This Directive establishes a framework for the protection of soil and the preservation of the capacity of soil to perform any of the following environmental, economic, social and cultural functions:

(a) biomass production, including in agriculture and forestry;

(b) storing, filtering and transforming nutrients, substances and water;

(c) biodiversity pool, such as habitats, species and genes;

(d) physical and cultural environment for humans and human activities;

(e) source of raw materials;

(f) acting as carbon pool;

(g) archive of geological and archeological heritage.

To that end, it lays down measures for the prevention of soil degradation processes, both occurring naturally and caused by a wide range of human activities, which undermine the capacity of a soil to perform those functions. Such measures include the mitigation of the effects of those processes, and the restoration and remediation of degraded soils to a level of functionality consistent at least with the current and approved future use.

2. This Directive shall apply to soil forming the top layer of the earth’s crust situated between the bedrock and the surface, excluding groundwater as defined in Article 2(2) of Directive 2000/60/EC of the European Parliament and of the Council.

Article 2 - Definitions

For the purposes of this Directive, the following definitions shall apply:

(1) ‘sealing’ means the permanent covering of the soil surface with an impermeable material;

(2) ‘dangerous substances’ means substances or preparations within the meaning of Council Directive 67/548/EC and Directive 1999/45/EC of the European Parliament and of the Council.

Article 3 - Integration

In the development of sectoral policies likely to exacerbate or reduce soil degradation processes, Member States shall identify, describe and assess the impacts of such policies on these processes, in particular in the areas of regional and urban spatial planning, transport, energy, agriculture, rural development, forestry, raw material extraction, trade and industry, product policy, tourism, climate change, environment, nature and landscape.

Member States shall make public those findings.

Article 4 - Precautionary measures

Member States shall ensure that any land user whose actions affect the soil in a way that can reasonably be expected to hamper significantly the soil functions referred to in Article 1(1) is obliged to take precautions to prevent or minimise such adverse effects.

Article 5 - Sealing

For the purposes of preserving the soil functions referred to in Article 1(1), Member States shall take appropriate measures to limit sealing or, where sealing is to be carried out, to mitigate its effects in particular by the use of construction techniques and products which will allow as many of those functions as possible to be maintained.

Chapter II - Risk prevention, mitigation and restoration

SECTION - ONE IDENTIFICATION OF RISK AREAS


Article 6 - Identification of risk areas of erosion, organic matter decline, compaction, salinisation and landslides

1. Within five years from [transposition date], Member States shall identify the areas in their national territory, at the appropriate level, where there is decisive evidence, or legitimate grounds for suspicion, that one or more of the following soil degradation processes has occurred or is likely to occur in the near future, hereinafter “the risk areas”:

(a) erosion by water or wind;

(b) organic matter decline brought about by a steady downward trend in the organic fraction of the soil, excluding undecayed plant and animal residues, their partial decomposition products, and the soil biomass;

(c) compaction through an increase in bulk density and a decrease in soil porosity;

(e) salinisation through the accumulation in soil of soluble salts;

(f) landslides brought about by the down-slope, moderately rapid to rapid movement of masses of soil and rock material.

For the purposes of that identification, Member States shall, in respect of each of those soil degradation processes, use at least the elements listed in Annex I and shall take into account the effects of those processes in exacerbating greenhouse gas emissions and desertification.

2. The risk areas identified pursuant to paragraph 1 shall be made public and reviewed at least every ten years.

Article 7 - Methodology

Member States may base the identification of risk areas on empirical evidence or on modelling. If modelling is used, the models must be validated by comparing the results on the basis of empirical data which have not been used for the development of the model itself.

SECTION - TWO ESTABLISHMENT OF TARGETS AND PROGRAMMES OF MEASURES


Article 8 - Programmes of measures to combat erosion, organic matter decline, compaction, salinisation and landslides

1. For the purposes of preserving the soil functions referred to in Article 1(1), Member States shall in respect of the risk areas identified in accordance with Article 6, draw up, at the appropriate level, a programme of measures including at least risk reduction targets, the appropriate measures for reaching those targets, a timetable for the implementation of those measures and an estimate of the allocation of private or public means for the funding of those measures.

2. When drawing up and revising the programmes of measures pursuant to paragraph 1, Member States shall give due consideration to the social and economic impacts of the measures envisaged.

Member States shall ensure that measures are cost-effective, technically feasible and shall carry out impact assessments, including cost-benefit analyses, prior to the introduction of the programmes of measures.

Member States shall indicate in their programmes of measures how the measures are to be implemented and how they will contribute to achievement of the environmental targets established.

3. Where an area is at risk from different concurrent soil degradation processes, Member States may adopt a single programme in which appropriate risk reduction targets are to be set for all the risks identified together with the appropriate measures for reaching those targets.

4. The programme of measures shall be drawn up within seven years from [transposition date] and shall be in application no later than eight years after that date.

The programme of measures shall be made public and shall be reviewed at least every five years.

Chapter III - Soil contamination

SECTION - ONE PREVENTION AND INVENTORY


Article 9 - Prevention of soil contamination

For the purposes of preserving the soil functions referred to in Article 1(1), Member States shall take appropriate and proportionate measures to limit the intentional or unintentional introduction of dangerous substances on or in the soil, excluding those due to air deposition and those due to a natural phenomenon of exceptional, inevitable and irresistible character, in order to avoid accumulation that would hamper soil functions or give rise to significant risks to human health or the environment.

Article 10 - Inventory of contaminated sites

1. Member States shall, in accordance with the procedure laid down in Article 11, identify the sites in their national territory where there is a confirmed presence, caused by man, of dangerous substances of such a level that Member States consider they pose a significant risk to human health or the environment, hereinafter “contaminated sites”.

That risk shall be evaluated taking into account current and approved future use of the land.

2. Member States shall establish a national inventory of contaminated sites, hereinafter “the inventory”. The inventory shall be made public and reviewed at least every five years.

Article 11 - Identification procedure

1. Each Member State shall designate a competent authority to be responsible for the identification of contaminated sites.

2. Within five years from [transposition date], the competent authorities shall have identified the location of at least the sites where the potentially soil-polluting activities referred to in Annex II are taking place or have taken place in the past.

For those purposes, the activities referred to in point 2 of Annex II shall be considered independently of the thresholds specified in Annex I to Council Directive 96/61/EC, except for the activities carried out by micro-enterprises, as defined in point 3 of Article 2 in the Annex to Commission Recommendation 2003/361/EC, and those relative to the rearing of livestock.

The identification shall be reviewed at regular intervals.

3. In accordance with the following time-table, the competent authorities shall measure the concentration levels of dangerous substances in the sites identified in accordance with paragraph 2, and where the levels are such that there may be sufficient reasons to believe that they pose a significant risk to human health or the environment, an on-site risk assessment shall be carried out in relation to those sites:

(a) within five years from [transposition date], for at least 10% of the sites;

(b) within 15 years from [transposition date], for at least 60% of the sites;

(c) within 25 years from [transposition date], for the remaining sites.

Article 12 - Soil status report

1. Where a site is to be sold on which a potentially polluting activity listed in Annex II is taking place, or for which the official records, such as national registers, show that it has taken place, Member States shall ensure that the owner of that site or the prospective buyer makes a soil status report available to the competent authority referred to in Article 11 and to the other party in the transaction.

2. The soil status report shall be issued by an authorised body or person appointed by the Member State. It shall include at least the following details:

(a) the background history of the site, as available from official records;

(b) a chemical analysis determining the concentration levels of the dangerous substances in the soil, limited to those substances that are linked to the potentially polluting activity on the site;

(c) the concentration levels at which there are sufficient reasons to believe that the dangerous substances concerned pose a significant risk to human health or to the environment.

3. Member States shall establish the methodology necessary for determining the concentration levels referred to in paragraph 2(b).

4. The information contained in the soil status report shall be used by the competent authorities for the purposes of identifying contaminated sites in accordance with Article 10(1).

SECTION - TWO REMEDIATION


Article 13 - Remediation

1. Member States shall ensure that the contaminated sites listed in their inventories are remediated.

2. Remediation shall consist of actions on the soil aimed at the removal, control, containment or reduction of contaminants so that the contaminated site, taking account of its current use and approved future use, no longer poses any significant risk to human health or the environment.

3. Member States shall set up appropriate mechanisms to fund the remediation of the contaminated sites for which, subject to the polluter pays principle, the person responsible for the pollution cannot be identified or cannot be held liable under Community or national legislation or may not be made to bear the costs of remediation.

Article 14 - National Remediation Strategy

1. Member States shall, on the basis of the inventory and within seven years from [transposition date], draw up a National Remediation Strategy, including at least remediation targets, a prioritisation, starting with those sites which pose a significant risk to human health, a timetable for implementation, and the funds allocated by the authorities responsible for budgetary decisions in the Member States in accordance with their national procedures.

Where containment or natural recovery are applied, the evolution of the risk to human health or the environment shall be monitored.

2. The National Remediation Strategy shall be in application and be made public no later than eight years after [transposition date]. It shall be reviewed at least every five years.

Chapter IV - Awareness raising, reporting and exchange of information

Article 15 - Awareness raising and public participation

1. Member States shall take appropriate measures to raise awareness about the importance of soil for human and ecosystem survival, and promote the transfer of knowledge and experience for a sustainable use of soil.

2. Article 2(1), (2), (3) and (5) of Directive 2003/35/EC shall apply to the preparation, modification and review of the programmes of measures on risk areas referred to in Article 8 and the National Remediation Strategies referred to in Article 14.

Article 16 - Reporting

1. Member States shall make the following information available to the Commission within eight years from [transposition date], and every five years thereafter:

(a) a summary of the initiatives taken pursuant to Article 5;

(b) the risk areas established pursuant to Article 6(1);

(c) the methodology used for risk identification pursuant to Article 7;

(d) the programmes of measures adopted pursuant to Article 8 as well as an assessment of the efficiency of the measures to reduce the risk and occurrence of soil degradation processes;

(e) the outcome of the identification pursuant to Article 11(2) and (3) and the inventory of contaminated sites established pursuant to Article 10(2);

(f) the National Remediation Strategy adopted pursuant to Article 14;

(g) a summary of the initiatives taken pursuant to Article 15 as regards awareness raising.

2. The information referred to in paragraph 1(b) shall be accompanied by metadata and shall be made available as documented digital georeferenced data in a format that can be read by a geographic information system (GIS).

Article 17 - Exchange of information

Within one year from [entry into force], the Commission shall set up a platform for the exchange of information between Member States and stakeholders on the risk area identification pursuant to Article 6 and on risk assessment methodologies for contaminated sites currently in use or under development.

Chapter V - Final provisions

Article 18 - Implementation and adaptation to technical progress

1. The Commission may, in accordance with the regulatory procedure with scrutiny referred to in Article 19(3), adapt Annex I to technical and scientific progress.

2. Where, on the basis of the exchange of information referred to in Article 17, a need to harmonise the risk assessment methodologies for soil contamination is identified, the Commission shall adopt common criteria for soil contamination risk assessment in accordance with the regulatory procedure with scrutiny referred to in Article 19(3).

3. Within four years after [date of entry into force], the Commission shall adopt, in accordance with the regulatory procedure referred to in Article 19(2), the necessary provisions on data and metadata quality, utilisation of historical data, methods, access, and data-exchange formats for the implementation of the provisions of Article 16.

Article 19 - Committee

1. The Commission shall be assisted by a committee, hereinafter “the Committee”.

2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

3. Where reference is made to this paragraph, Article 5a, paragraphs 1 to 4 and Article 7 of Decision 1999/468/EC shall apply.

4. The Committee shall adopt its rules of procedure.

Article 20 - Commission report

1. The Commission shall publish a first evaluation report on the implementation of this Directive within two years of receiving the programmes of measures and National Remediation Strategies.

The Commission shall publish further reports every five years thereafter.

It shall submit the reports to the European Parliament and to the Council.

2. The reports provided for in paragraph 1 shall include a review of progress in the implementation of this Directive based on an assessments made by the Commission pursuant to Article 16.

Article 21 - Review

The Commission shall review this Directive at the latest [15 years after the date of entry into force] and shall, where appropriate, propose any necessary amendments.

Article 22 - Penalties

The Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission by the date specified in Article 24 at the latest and shall notify it without delay of any subsequent amendment affecting them.

Article 23 - Amendment to Directive 2004/35/EC

In Article 6 of Directive 2004/35/EC, paragraph 3 is replaced by the following:

“3. The competent authority shall require the remedial measures to be taken by the operator. Subject to Article 13(1) of Directive xx/xx/xx, if the operator fails to comply with the obligations laid down in paragraph 1 or 2(b), (c) or (d) of this Article, or cannot be identified or is not required to bear the costs under this Directive, those measures may be taken by the competent authority itself.”

Article 24 - Transposition

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [24 months after the date of entry into force] at the latest. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 25 - Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 26 - Addressees

This Directive is addressed to the Member States.