§7 ‘LAND DAMAGE’

201. The definition of ‘land damage’ is more straight-forward than the definitions of ‘damage to protected species and natural habitats’ and ‘water damage’. In contrast to the latter, it contains no express references to other Union environmental legislation, no cross-references to further definitions related to its material scope, and no specific exclusions referring to other legislation. There are therefore fewer elements to consider for purposes of developing a common understanding. 202. However, the definition is restricted to ‘significant risk to human health being adversely affected’. It may be noted that some Member States use a broader definition, encompassing for example a risk to the environment or a risk of infringing limit values for certain pollutants. In such cases, the Member States concerned may maintain their more stringent soil protection legislation, but, as a minimum, they must also fulfil the requirements of the Directive with regard to land damage. Material and geographical scope of land 203. The Directive does not contain any definition of ‘land’. However, the references in the definition of ‘land damage’ to ‘in, on or under land’ means that the scope not only extends to the surface but the sub-surface of land. Soil is therefore included. This is confirmed by the reference to soil in the first paragraph of Annex II.2, which addresses the remediation of land damage. 204. One distinction of possible relevance concerns the definition of ‘groundwater’ referred to in Box 10 above. Land contamination and groundwater pollution may often coincide, and a damaging occurrence give rise to land damage and water damage at the same time. 205. The terms of the Directive specifying what is meant by protected species, natural habitats and waters all involve geographical qualifications which affect the geographical application of ‘damage to protected species and natural habitats’ and ‘water damage’. In contrast, there are no sub-categories of ‘land’ to consider. The scope of the definition is uniform for all land in the territory of the Member States. Reference concept for adverse effects 206. The reference concept for land damage is human health (and not damage to the environment, see, however, paragraph 202 above). Adverse effects are only covered when land contamination has the potential to harm human health. 207. ‘Human health’ is not defined in the Directive. The context indicates that it covers bodily well-being to the extent that this may be harmed by exposure to the contaminants comprised in the definition. These contaminants include toxins and pathogens. The assessment of significance Circumstances 208. The reference to ‘land contamination’ marks a distinction with the definitions of ‘damage to protected species and natural habitats’ and ‘water damage’. Its inclusion limits the possible range of damage factors that will trigger liability for land damage. There is no similar limitation with regard to the other forms of natural resource damage. 209. ‘Land contamination’ is not expressly defined but is linked in the definition of ‘land damage’ to ‘the direct or indirect introduction, in, on or under land, of substances, preparations, organisms or micro-organisms’. 210. Annex II.2 makes reference to ‘contaminants’. This, the use of the term ‘contamination’ itself, and the link to human health, indicates that, for land damage to arise, there must not only be a presence of ‘substances, preparations, organisms and micro-organisms’ which have intrinsic properties that may be directly or indirectly hazardous, but there must also be a significant risk for human health. The significance of the risk is assessed based on the known hazards and the level of human exposure to certain contaminants. Taking into account the list of occupational activities in Annex III of the Directive, the following may all be potentially relevant: — Substances naturally present in nature, such as heavy metals and nutrients; — Substances naturally present in nature, but which may have undergone some form of processing, as will be the case with petroleum products; — Purely man-made substances and preparations, such as manufactured chemicals; — Organisms or micro-organisms naturally present in nature, including human pathogens such as Salmonella or E-coli; — Genetically modified organisms. 211. The nature of the occupational activities set out in Annex III can be of assistance in understanding the circumstances in which land contamination can arise. By way of a non-exhaustive set of examples, the activities indicate that contamination can arise during mining or extraction, processing or manufacture, livestock production, pesticide use, transport of waste and chemicals, and the treatment of waste. The contamination may arise after an occupational activity has moved beyond an economic or active phase and entered a phase of after-care. For example, the regulatory requirements attaching to the management of landfills and mining waste facilities extend to post-closure conditions. 212. As for the manner in which contamination arises, the reference to ‘the … introduction, in, on or under land’, points to a wide range of possibilities, including the following: — The contamination may arise from substances found in situ. This may be the case where a mining or extraction operation brings to the land surface heavy metals found under the surface and leaves them to rest there in an unsafe manner. — The contamination may arise from a one-off accident or incident, for example linked to onsite transport of dangerous substances in pipelines or road transport of dangerous goods or polluting goods (188); — The contamination may arise from a continuous known or unknown cause (for example, a ruptured pipe that continues to leak dangerous substances). 213. The circumstances in which land damage arises may involve operators having to fulfil parallel obligations to prevent and remediate adverse effects under other Union legislation, and to inform the competent authorities. Provisions of the Industrial Emissions Directive are especially relevant (189). It is important, nevertheless, to ensure that such parallel obligations are not treated as a substitute for the obligations of the Environmental Liability Directive, since in scope, purpose and results they are not necessarily identical. Focus and carrying out of the assessment 214. The assessment of the significance of land damage relates to the risk of human health being adversely affected. It is an assessment of whether that risk is significant. 215. While the definition of ‘land damage’ does not itself define how the risk is to be assessed, Annex II.2 of the Directive on the remediation of land damage gives clear indications of what the risk assessment needs to cover in situations where the land contamination has already arisen. Box 16: Text of Annex II.2 of the Directive on the remediation of land damage. ‘The necessary measures shall be taken to ensure, as a minimum, that the relevant contaminants are removed, controlled, contained or diminished so that the contaminated land, taking account of its current use or approved future use at the time of the damage, no longer poses any significant risk of adversely affecting human health. The presence of such risks shall be assessed through risk-assessment procedures taking into account the characteristic and function of the soil, the type and concentration of the harmful substances, preparations, organisms or micro-organisms, their risk and the possibility of their dispersion. Use shall be ascertained on the basis of the land use regulations, or other relevant regulations, in force, if any, when the damage occurred. If the use of the land is changed, all necessary measures shall be taken to prevent any adverse effects on human health. If land use regulations, or other relevant regulations, are lacking, the nature of the relevant area where the damage occurred, taking into account its expected development, shall determine the use of the specific area. A natural recovery option, that is to say an option in which no direct human intervention in the recovery process would be taken, shall be considered.’ 216. While the definition of ‘baseline condition’ relates to all natural resources and their services, it provides limited assistance for the purpose of assessing the significance of the risk to human health. Where there is an imminent threat of land damage occurring, but land contamination has not yet actually occurred, the baseline condition may be relevant for purposes of measuring the risks to human health that could arise without preventive measures. Where contamination is in the process of occurring, the baseline condition may similarly be relevant for purposes of measuring the risks to human health that could arise if the factors causing the contamination are not immediately managed. When it comes to remediation of land damage, however, the purpose of the Directive is to remove any significant risk to human health rather than restore the land to the condition it was in before contamination. Such restoration may, of course, be appropriate or necessary in some situations in order to address the human-health risk. Contaminants can be removed, controlled, contained or diminished with remediation techniques like excavation, in-situ or ex-situ soil treatment or bioremediation, and control and containment measures like capping, construction of barriers or fencing. It may be noted that the Industrial Emissions Directive requires operators of permitted facilities to prepare a baseline report (190). Apart from its role under the Industrial Emissions Directive, this baseline report may provide valuable information for purposes of addressing land damage under the Environmental Liability Directive. 217. As Annex II.2 of the Directive shows, a key consideration is the current or approved future use of the land concerned at the time of the damage, since this will affect likely human exposure to the relevant contaminants. The temporal dimension is important. For example, land damage may concern land not currently used for human habitation but approved for future habitation. The approved future land-use needs to be factored into the assessment of significance. Annex II.2 indicates that use is to be ascertained by reference to existing land use or other regulations where these exist. 218. It is important to note the reference to land-use change in the second paragraph of Annex II.2. This is not time-bound. It continues to have relevance after the initial risk assessment takes place. It is possible, for example, that at the time of risk assessment, current and approved future land uses involve limited human exposure to the relevant contaminants, but that, at a subsequent point in time, the land-use changes in a manner that increases the level of human exposure and thus the risk for human health. Disused industrial land previously contaminated by an Annex III occupational activity may be approved for a residential development, for instance. In such circumstances, there is an obligation on Member States to take into account any adverse effects arising from the contamination in the decision to change the land-use in order to prevent any increase in exposure and risk for human health. An updating of the risk assessment cannot therefore be excluded in the context of the necessary remedial measures. (191) It is advisable that this is made known to authorities with competence to approve land-use changes in respect of contaminated land. 219. Annex II.2 refers to the use of risk-assessment procedures, and refers to a number of matters to be taken into account with regard to the presence of the risk: — The characteristics and function of the soil. Soil characteristics may have an influence on risk. For example, porous soils may be more likely to transfer pathogens present in waste-water to groundwater or surface water. The soil may serve or be intended to serve relevant functions. In the case of an individual appropriate system for treating waste-water, for instance, the soil may be intended to purify waste-water discharges – i.e. render the contaminants they contain harmless – before they reach a water body. In the case of a landfill or other waste disposal site, surface soil may serve to seal in waste materials underneath and reduce the risk of their dispersion; — The type and concentration of the harmful substances, preparations, organisms or micro-organisms. This reference relates to the specific contaminants present in the contaminated land. It is necessary not only to know what these are, but also to know their specific risks. A toxicity risk associated with heavy metals will be quite distinct from an infectious disease risk associated with a pathogen. Furthermore, risk must be considered in terms of the possible different exposure routes – for example, dermal contact, ingestion via hand-to-mouth contact, and consumption of contaminated food or water. For food and water, there may be applicable standards that can be used to assess the risks – for example, the mandatory drinking water standards found in the Drinking Water Directive. (192) In addition, there are no excluded categories of persons: the exposure of workers on the contaminated land, neighbours and members of the public at large must all be considered; — The risk and the possibility of their dispersion. Dispersion may occur through the soil itself, as where contaminants enter the food-chain through cultivation of plants or raising of livestock on the contaminated land. Dispersion may also involve another environmental medium, i.e. air or water. This will be the case, for example, where toxic dust blows from contaminated land, passes through the air, and is deposited on neighbouring human habitations, or on agricultural land (once again creating a possibility of human exposure through the food-chain). It will also be the case, for example, when pathogens present in a waste-water treatment system pass through the soil into groundwater to reach a well that is used to abstract water for human consumption. 220. The UNEP Guidance on the management of sites contaminated by mercury (193) illustrates how, for one pollutant, risk assessments can be used, how risk assessments are generally carried out and decisions are made. (194) Different Member States use their own soil screening values and procedures, methodologies and models (195) for risk assessment, which deviate from each other, due to geographical, sociocultural, regulatory, political or scientific differences. (196) The determination of significance 221. The focus of the determination is the human-health risk posed by the contaminated land – or, for purposes of preventive measures and measures to immediately manage damage factors, of land threatened with contamination or increased contamination. 222. For purposes of preventive measures and measures to immediately manage damage factors, the risk of human health being adversely affected will be significant if there is any reasonable doubt as to the absence of a measurable possibility that an imminent threat or damage factors may cause human beings to be directly or indirectly exposed to contaminants to an extent that is harmful to their health, taking account of the current or approved future use of the land. 223. Similarly, for the purpose of remedial measures, the risk of human health being adversely affected will be significant if there is any reasonable doubt as to the absence of a measurable possibility of substances, preparations, organisms or micro-organisms directly or indirectly introduced in, on or under land causing human beings to be directly or indirectly exposed to the contaminants to an extent that is harmful to their health, taking account of the current or approved future use of the land. 224. The determination of significance does not require that the risk will have manifested itself in actual harm. Actual harm to human health does not need to be shown for the definition of land damage to apply; nor does it need to be shown that, through dispersion, the risk has already manifested itself in contamination of another environmental medium such as water. Thus, if an individual waste-water treatment system poses, by reason of defective design, location or operation, a measurable risk of human pathogens passing through the soil to reach an already contaminated drinking water source, the definition of land damage will apply without the need to prove that the deficient treatment system has caused the actual pollution of the well.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07