Study of International Best Practices in Brownfield Management and Redevelopment Policy

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Table of Contents

• Summary
• 1. Introduction and background
• 2. Literature Review and International Practice
• 3. Main Issues
• 4. Lessons and Findings
• 5. Conclusion
• 6. Appendices
• 7. Bibliography
• 8. Endnotes

Note: This study, entitled Study of International Best Practices in Brownfield Redevelopment and Management Policy - Discussion Paper, is distributed for discussion purposes only. The opinions and conclusions expressed herein are those of the consultants and do not necessarily represent the views of Infrastructure Canada.

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Summary

This study gives an overview of brownfield management and redevelopment policies and practices among members of the Organisation for Economic Co-operation and Development (OECD) (other than Canada) considered leaders in this field. Based essentially on a review of recent literature, the study identifies certain common traits, issues and key success factors in the policies studied.

One of the general findings is that all the countries studied seem to favour an approach focused on risk management and use-based site remediation to reduce costs, clean up the largest possible number of sites and contribute to the economic and social development of local communities while limiting the pressure to develop green spaces. When it comes to owner liability, most countries follow the polluter pays principle, except in specific cases. The importance of preventing soil contamination is also a priority.

With regard to the production and management of information relating to contaminated or at-risk sites, the countries studied keep inventories of sites on their territory. As a general rule, regional authorities are responsible for providing central governments with information. In the United States, for instance, this information is required to receive financial assistance from the Environmental Protection Agency (EPA). The European Parliament recently adopted a directive that requires member states to identify sites at risk of contamination. Some databases are related to remediation activities undertaken, while others are related more to pollutants. However, all agree that identifying and classifying contaminated sites is a long-term project that is far from complete.

European countries lag behind in the development of policy performance measures. In the United States, agencies that offer programs linked to these activities have developed performance measures dealing with the number and area of sites evaluated, remediated or undergoing remediation.

The study also found that economic incentives are a deciding factor in promoting soil remediation and redevelopment, and are the key element in the approaches and strategies of public authorities. Europe seems to favour tax breaks and taxes, while in the United States the main sources of assistance are grants and loan guarantees.

With regards to policy integration, it seems that beyond “immediate” considerations relating to public health and environmental protection, most of the countries studied wish to capitalize on potential synergy by aligning brownfield-specific initiatives with various “urban initiatives” in areas such as promoting more sustainable urbanization management, economic revitalization and job creation, support for sustainable public transit, etc. For example, a recent European Union directive on brownfield remediation comes on the heels of a thematic strategy aiming to improve the urban environment. Germany has integrated an objective targeting the reversal of soil use trends (ie, reducing urban sprawl). In the United States, the EPA, in addition to expanding its mission to include urban redevelopment, offers and co-ordinates a wide range of initiatives with complementary objectives including support for the development of databases, increased community participation in the planning process, promoting Smart Growth and training specialized labour.

In terms of co-ordination and co-operation between the various stakeholders, most countries take advantage of soil remediation activities to promote and expand partnerships, either between the public and private sectors or between different levels of government, in order to ensure better co-ordination and promote information sharing. One example is the Federal/Länder Working Group on Soil Protection. Moreover, all central environmental protection agencies produce best practices manuals and guides for local authorities and individuals.

One of the issues identified as key to the current and future success of soil remediation policies is the achievement of sustainable soil management that would maximize the socioeconomic benefits of the efforts to remediate and reuse the sites while minimizing risks to public health and the environment. Such management is based on a comprehensive risk management approach, itself based on the efficient development and sharing of in-depth and tested scientific knowledge in the field.

Fully integrating brownfields policies with more comprehensive urban policies requires the use of strategic planning approaches at all levels of government. Other issues identified in the study have to do with harmonizing environmental legislation and legislation concerning the civil liability of the parties involved, developing site assessment and remediation policy control instruments, and ensuring effective communication between the parties.

We hope that the findings and issues identified and discussed in this study, seen as examples of “best practices,” will contribute to current and future research and reflection in Canada on policies and initiatives targeting the remediation and redevelopment of brownfields specifically, and sustainable infrastructures and urban development more generally.

1. Introduction and background

In both the United States and Europe, the legacy of land contamination is largely attributable to the lack of controls on industrial land use since the Industrial Revolution. With nearly half of today's population living in cities, it is becoming increasingly important to understand how urban centres develop and what their impacts are on the environment and public health.

The purpose of this study was to provide a general overview of brownfield remediation and management "best practices" in certain Organization for Economic Co-operation and Development (OECD) member countries that are considered leaders in the field. One of the goals of the study, which is essentially based on a review of recent literature, was to identify lessons from which Canada could learn. Because the study is intended for Infrastructure Canada (INFC) officials and other stakeholders across the country that are concerned about this issue, emphasis was placed on the initiatives of national governments and on the co-ordination of policies and initiatives carried out at different levels.

The study specifically sought to answer the three main questions that follow.

1. What major legislation and standards govern the management, risks and monitoring of brownfields? Are the sites inventoried? If so, by whom and how?
2. What policies and types of initiatives are most effective with respect to support for the remediation of contaminated sites that can be inventoried by the various levels of government? How is the performance of those policies evaluated? Are the policies included in holistic management plans?
3. What are the roles of each stakeholder and how are they structured? What are the overall objectives underlying policies on contaminated soil?

The final selection of the countries studied was made following a brief literature review that made it possible to determine which OECD countries are considered leaders in the field. Five countries were selected: France, Belgium, the United Kingdom, the United States and Germany. It should be noted that, in addition to the quality of the policies, another country selection criterion concerned their constitutional context; at least three of the countries selected had to be federations (in this case, Germany, Belgium and the United States) in order to expand the applicability and pertinence of the lessons learned from the study so that Canada can benefit from them.

The report first gives an overview of the public practices and policies studied. The overview is structured in accordance with the main issues of interest. The issues that emerge from the study are then discussed in Section 3, while the lessons learned from these experiences (eg, findings, success factors) are looked at in Sections 4 and 5.

2. Literature Review and International Practice

Institutional and legislative frameworks

In 1992, the United Nations Conference on Environment and Development (UNCED) proclaimed that "human beings are entitled to a healthy and productive life in harmony with nature." (UNCED, 2003:10) In December 1989, the European member states of the World Health Organization (WHO) adopted the European Charter on Environment and Health at the First Ministerial Conference on Environment and Health in Frankfurt, which led to the development of the National Environmental and Health Action Plan in 1994. (UNCED, 2003:10) At the third WHO conference in 1997, 90% of member states had adopted or were in the process of adopting their national action plans. During the same period, the OECD adopted an environmental strategy for the first decade of the 21st century, entitled "The social and environmental interface: Enhancing the quality of life." (OECD, 2001)

The strategy outlines specific, time-bound targets to achieve five main policy objectives (OECD, 2001).

1. Maintaining the integrity of ecosystems through the efficient management of natural resources.
2. Decoupling environmental pressures from economic growth.
3. Improving information for decision-making: measuring progress through indicators.
4. The social and environmental interface: enhancing the quality of life.
5. Global environmental interdependence: improving governance and co-operation.

At the national level, environmental protection agencies establish legislation and standards regarding contaminated soil. The section that follows looks at the approach and objectives adopted by the national governments, and the national policies and standards for managing risks related to land transactions and the disposal of soil for each of the countries studied. The responsibilities of previous owners and rules for protecting new investors and owners are also covered.

European Parliament

Soil contamination is a major issue for the European Community. (COM, 2002:179 Final)“This order governs the management of contaminated land with a view to phasing out, controlling, containing or reducing pollution so as to ensure that contaminated soil, given their current or future intended user, no longer poses a serious risk to human health or the environment.” (Europa, 2004)

Environmental accountability and soil contamination are the subject of a European Parliament directive. (COM, 2006:231 final) The directive establishes a framework for the protection of soil within the European Union (EU). It puts forward measures to protect soil and preserve its capacities from environmental, economic, social and cultural perspectives. (Europa, 2006) The proposal forces member states to identify sites that are at risk of contamination on the basis of set criteria, while enabling them to adopt legislation that reflects their respective situations. The new directive is also expected to help put an end to fragmented legal provisions resulting from the multitude of orders in council concerning soils, pesticides and environmental protection.

For its part, in February 2001, the European Commission adopted a Green Paper on Integrated Product Policy (IPP) and a White Paper on a strategy for a future community chemicals policy. The primary goal of the Green Paper is to improve the environmental performance of a wide range of products over their entire lifecycle; the White Paper is primarily intended to ensure a high level of protection for human health and the environment, while ensuring the efficient functioning of the internal market and the competitiveness of the chemicals industry.

United Kingdom

In the United Kingdom, the priority of the Department for Environment, Food and Rural Affairs (DEFRA) with regard to brownfields is to prevent the creation of new contaminated sites. The government has adopted the “suitable for use” principle, which consists of soil remediation based on the type and degree of contamination and the current or future use of the site. This approach ensures reasonable remediation criteria that are appropriate for the purposes of each site. DEFRA maintains that this principle helps reduce costs, thereby allowing for a greater number of sites to be remediated, boosting, economic, social and environmental gains and limiting the urbanization of natural areas and farmland on the outskirts of cities.

To this end, the Department announced, as early as 1990, its first policy on brownfields management, the Integrated Pollution Control Part I, which is part of the Environmental Protection Act 1990. In August 2006, DEFRA tabled the Waste Management Licensing Part 2 of the 1990 Act, which stipulates the rules for controlling, managing and treating contaminants and which specifies brownfield management rules.The Contaminated Land Regulations, developed as part of Part 2A, define certain specific parameters, such as the description of "special" sites, the content and procedure of remediation notices and specific notices that must be included in registers compiled by the local authorities.

With regard to legal liability for contaminated sites, the United Kingdom applies the polluter-pay principle. The current owner of the land is responsible for the site when the polluter cannot be identified (except when the pollution causes or results from water pollution; in such cases, the environmental protection agency assumes responsibility). (DEFRA, 2006)

France

Up until 1996, the purpose of contaminated land management in France was to systematically remediate all sites by taking into account intrinsic pollution levels only. As in other countries, the objective is now focused on a policy whereby risks are managed based on use, ie, the use of land is determined on the basis of residual pollution. (MEDD, 2003)

Furthermore, "legislation is passed at the national level and is enforced locally under the supervision of the central government." (UNEP and ADEME, 2005) The July 30, 2003 Act, developed by the Ministry of Ecology and Sustainable Development (MEDD), establishes the conditions for managing contaminated soil and stipulates, as mentioned above, that contaminated land is to be remediated in accordance with the future use of the site. Rules in effect relating to drinking water, food and air are used to assess risks and priorities for action.

In terms of soil remediation, "the degree of treatment selected gives the land a property value based on the intended use. It is obvious that if someone is fully aware that the land they are acquiring is limited to an industrial use, they are responsible for the costs related to any change in its use in the future.” (BASOL). However, the seller is also legally required to inform the buyer of any potential risks in writing. In addition, following the cessation of operations, the operator must prepare, and submit to the mayor, an environmental, economic and social report that sets out acceptable safety measures. In the event of the site's deterioration following the cessation of operations, "operators cannot be held responsible for a change in use that they did not cause after the cessation of operations." (UNEP and ADEME, 2005)

Lastly, "when the party in charge of a site defaults (eg, insolvency, death) and the site's pollution poses a risk to the environment and the safety of individuals, the government may intervene at the expense of the party in charge to ensure the site's safety. Such interventions are funded using the general tax on polluting activities (TGAP) and always involve legal action against the party responsible." (MEDD. 2003: Appendix 1)

United States

The Environmental Protection Agency (EPA) of the United States maintains that brownfield remediation and urban redevelopment go hand in hand. The Agency promotes remediation initiatives that take into account the future uses of sites. A wide range of initiatives are proposed so as to promote the remediation and reuse of contaminated sites, for either productive economic or green space use. The initiatives involve developing databases and statistical databases, increasing community participation in the remediation process, training specialized labour, facilitating co-ordination between stakeholders and forging partnerships. (EPA, 2007)

The EPA's Brownfields Program is designed to empower local authorities to prevent, assess, clean up and reuse contaminated sites in an effective and timely manner. The EPA's preferred approach is based on four goals:

• Ensure the health and well-being of Americans and the environment;
• Promote partnerships and enhance stakeholder co-operation and communication;
• Support the private sector and strengthen the marketplace;
• Enhance and ensure the sustainability of quality of life in communities.

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) or "Superfund" came into effect in 1980. The purpose of the Act is to reduce the number of contaminated sites. The Act stipulates that site owners or operators may be held liable for site remediation costs even if they are not directly responsible for the pollution.

In 1995, the EPA tabled the Brownfields Program, under which brownfield management was entirely reviewed and improved. The new approach is solution- and result-oriented. The EPA maintains that investing in the remediation of contaminated sites helps increase local tax bases, facilitates job growth, optimizes the use of existing infrastructure and reduces pressure to develop green space. The EPA estimates that there are more than 450,000 brownfields in the United States. (EPA, 2007)

In 2002, the Small Business Liability Relief and Brownfields Revitalization Act increased annual funding and the number of sites eligible for funding with a view to encouraging the redevelopment of abandoned urban sites. (OECD, 2005) The Act provides for a limitation on liability of property owners meeting certain criteria, ie, bona fide prospective purchasers (1) , owners of neighbouring land who are not responsible for the contamination or owners who can prove that they were unaware of the contamination, despite having requested assessments of the site before they acquired it. This law authorizes the federal government to impose a "windfall lien" on remediated sites whose market value has increased in order to recover response costs. (EPA, 2007)

A bona fide prospective purchaser is defined as a person (or tenant of that person) who acquires ownership of a facility after the date of enactment of the Brownfields Amendments, January 11, 2002, and by a preponderance of evidence establishes the following:

1. The disposal of contaminants at the facility occurred prior to acquisition;
2. An inquiry was made into previous ownership and uses of the site;
3. All legally required notices with respect to hazardous substances found on the site were provided;
4. Appropriate measures were taken to stop and prevent contamination and human and environmental exposure;
5. The buyer fully co-operates and allows authorized persons to access the site;
6. Existing institutional standards and regulations are complied with;
7. Authorities are provided with the information they request;
8. The buyer is not in a family, contractual or financial relationship with the party responsible for the contamination.

Belgium

Since the early 1990s, Belgium has undergone a number of constitutional changes. The country became a federation comprised of three regions (Flanders, Wallonia and Brussels), with environmental rules clearly defined at the federal, regional and municipal levels. Since Belgium became a federation, authorities have made considerable effort to reduce pollution and protect the environment. However, Belgium's environmental legacy is significant.

The Service Fédéral pour les Affaires Environnementales co-ordinates initiatives between federal and regional bodies, and plays a role in extending international agreements and co-ordinating initiatives between international players and regional authorities. It presides over the secretariat of the Comité de Coordination de la Politique Internationale de l'Environnement (CCPIE), part of the Groupe de coordination gaz à effets de serre and the ICE. The Intercommunale de développement économique et d'aménagement du territoire (IDEA) conducts fact-finding, planning and area development missions.

Environmental policy falls under regional jurisdiction. Regions exercise their jurisdiction on their own territory in compliance with European and international standards and federal rules. In order to ensure co-operation among entities, interdepartmental conferences on the environment (ICE) are held regularly.

In 2000, the ministers responsible for the environment, the economy and land planning implemented a strategic brownfield redevelopment plan. The purpose of the initiative was to reduce pressure on green space, revitalize the economy of communties and redevelop derelict industrial sites (SAEDs).

At this time, Flanders and Wallonia have adopted a policy on soil contamination. Although Wallonia's decree is dated April1,2004, its execution order has yet to be issued. (CCW, 2007). In 2004, the number of industrial sites to be restored (SAERs) in Wallonia was estimated at 1,200, covering some 2,600 hectares. In light of the changes in the methods used and the number of sites, it is currently difficult to specify the true number of contaminated sites.

The Flemish decree relating to soil remediation was ratified in February 1995 and applies to soil and groundwater. It includes a certain number of contaminated soil management principles, namely that a register of polluted sites be kept with the possibility of obtaining copies of the register by subdivision, and makes a distinction between historical and new pollution and between the ideas of remediation responsibility and obligation. There is an independent duty to immediately clean up pollution that occurred prior to September 20, 1995. With regard to contamination that occurred after 1995, the decision to decontaminate falls on the government and is based on analyses conducted by OVAM, a state-owned corporation in Flanders that oversees the policy on waste and soil remediation. In addition, the Flemish people have introduced a strictly non-retroactive concept: all sites contaminated prior to 1995 are automatically considered historical sites. However, after 1995, the parties that caused the contamination are deemed accountable for it.

Germany

In Germany, the Federal Soil Protection Act distinguishes between two types of contaminated sites: former waste disposal sites and former industrial sites. The government manages contaminated soils according to the precaution principle, which calls for the prevention of soil degradation caused by pollutant loading. With respect to contaminated soil management, the German government applies the subsidiarity rule (2).

The German Federal Government Soil Protection Strategy, Germany's first soil management policy, was tabled in 1985 and was intended to ensure the compilation and assessment of all factors that could impact soil. The goals relating to this strategy were to reverse soil use trends, reduce pollutant loading and make soil protection an initiative in and of itself in the environmental protection policy. The strategy proposes a normative framework to meet various needs, prevent deterioration and avoid risks and long-term damage. The Soil Protection Action Plan was adopted by the German Cabinet in 1987. The Federal Soil Protection Act came into effect in March 1999, followed by the Federal Soil Protection and Contaminated Sites Ordinance in July of the

same year. When the strategy was tabled, the parties stressed the importance of emphasizing the prevention of contamination and secure remediation. The rules set out in the regulations include the assessment and identification of sites, sampling and quality criteria, prevention and decontamination criteria, criteria for preventing soil degradation, and lastly, levels of performance with respect to pollution and prevention. Furthermore, the regulations stipulate that site owners must provide compensation if the value of their sites has increased as a result of a remedial measure carried out by a public authority. (Germany, Federal Department of the Environment, 2002)

To conclude, the study revealed that the countries studied have national legislative frameworks whose main purpose is to ensure human and environmental health. Emphasis is also put on prevention with a view to limiting, or even eliminating, the contamination of new sites. Generally, the principles and approaches adopted at the national level are very similar from one country to another. The departments of the environment and environmental protection agencies offer support to regions and communities wishing to remediate their contaminated sites and co-ordinate various environmental protection programs. They draw up their regulations and recommend solutions based on the suitable-for-use remediation principle, rather than an approach that involves systematically remediating all sites entirely. In the United Kingdom, DEFRA maintains that the principle helps reduce costs, thereby making it possible to remediate a greater number of sites, increase economic, social and environmental benefits and minimize the urbanization of green spaces. With respect to the liability of site owners and new investors, most of them adhere to the polluter-pays principle, except for exceptional sites for which the federal government takes charge, either because water on the site is contaminated (United Kingdom) or because the owner is in default (France). In the United States, owners are responsible for remediation costs, regardless of whether or not they polluted the site, except if the site was acquired after 2002 and under certain other conditions. In France, sellers must inform buyers of the potential risks and prepare an environmental, economic and social assessment, which sets out the safety measures taken, except if they can prove they were not aware of the risks. The roles and responsibilities of stakeholders and the assistance programs offered to stakeholders are outlined below.

Assistance programs and co-ordination between levels of government

According to the International Economic Development Council (IEDC), 80% of a site's decontamination is relatively affordable and costs rise sharply when decontaminating the remaining 20%, which is more difficult to do. Environmental protection agencies are currently investigating whether the remaining 20% of the site needs to be remediated and are seeking to establish standards with regard to acceptable decontamination levels for contaminated sites, in accordance with the uses of the sites.

With respect to environmental renewal, the public sector offers a wide range of programs and incentives. All of the countries studied have framework policies, investment funds, research groups, and legal and economic incentives to support remediation initiatives. Economic incentives are thought to be among the best tools for promoting the remediation of contaminated sites, notably by helping to offset drawbacks related to additional (decontamination) development costs pertaining to contaminated urban sites, which is not the case for sites located in green spaces. However, in order to fulfil their purpose, incentives must be applied consistenly so as to avoid bias and must be sufficient and effective. (Rescue Consortium, 2005:112) This section of the report discusses the co-ordination between financial assistance programs and legal and economic incentives, and initiatives carried out at differenct levels of government in each of the countries studied.

European Parliament

The European Union (EU) plays an increasingly important role with respect to the environment. Up until very recently, the EU usually focused on the issues of air and water pollution and waste, paying little attention to soil contamination. However, the EU plays the role of an advisory board in information transfer, co-ordination and centralization between local communities. The Contaminated Land Rehabilitation Network (CLARINET), the Network for Industrially Contaminated Land in Europe (NICOLE), the Academic Network for Contaminated Land Research in Europe (ANCORE) and the Concerted Action on Brownfield and Economic Regeneration Network (CABERNET), which are all public networks, benefit from the direct involvement of the EU.

NICOLE advocates the management of polluted sites so as to make the risks they generate acceptable. The significant progress made in managing sites based on the risk they present has led EU member states to include the concept of risk control in their policies. This management strategy is beneficial in that it is systematic and objective and provides a solid basis for taking uncertainties into account, facilitating decision-making and convincing various parties of the interest in pursuing initiatives.

CLARINET is an interdisciplinary advisory organization within the EU that addresses the main issues related to sustainable development and the management of contaminated land. It forms working groups made up of academics, politicians, scientists and consultants with the objective of developing perennial measures for contaminated soil management.

The EU offers financial assistance through the European Bank for Reconstruction and Development and a number of funds outlined in the EU Structural Fund Programmes handbook, such as the European Regional Development Fund and the European Social Fund. With respect to technical assistance, the organization publishes the Handbook on Environmental Assessment of Regional Development Plans.

The recent adoption of a directive of the European Parliament and of the Council of the European Union that establishes a framework for soil protection (2004/35/CE) obliges member states to identify places that could be contaminated, based on set criteria. The inventory of the sites must make it possible to identify sites where activities were carried out in the past and sites that pose a significant risk to human health.

In order to facilitate the timely identification of contaminated sites, owners or potential buyers of a site where a polluting activity was or is carried out (based on official documents, such as national registers or cadastres) must, prior to the sale of the site, provide pertinent information on the condition of the soil for the competent authority and the other party involved in the transaction. The provision of such information in a land transaction helps speed up the inventory of contaminated sites. Furthermore, the potential buyer will be aware of the condition of the soil and will thus be able to make an informed decision. (COM 2004/35/CE)

According to the EU, member states must ensure that measures are taken to clean up inventoried contaminated sites within their borders, based on the polluter-pays principle. A national remediation strategy must be established, so as to be able to set remediation objectives and determine the priority in which sites should be remediated. In the event the polluter of a site cannot be located, held accountable for the pollution under national or community legislation, or forced to cover remediation costs, the EU maintains that it is the duty of member states to reduce risks to human health and the environment that these “orphan sites” pose. To that end, member states should implement specific funding mechanisms to guarantee a sustainable source of revenue for the remediation of such sites. (COM 2004/35/CE).

Prior to the directive, soil had not been subject to a specific protection policy at the EU level. Provisions for soil protection are spread across many areas, either under environmental protection or other policy areas, such as agricultural and urban development. These provisions did not provide sufficient protection for soil, owing to their diverse objectives and their scope.

This EU directive follows the Thematic Strategy on the Urban Environment, intended to improve the quality of the urban environment. The main measures set out in the strategy are as follows (Europa, 2005):

The publication of guidelines for the integration of environmental issues into urban policies. The guidelines will be based on best practice and expert advice. Integrated environmental management will make it possible to improve planning and avoid conflicts between the different measures.

The publication of guidelines for sustainable urban transport plans. The guidelines will be based on best practice and expert advice. Effective transport planning should embrace both passengers and goods and promote safe and efficient use of less polluting, high-quality modes.

Broadening the range of information for local authorities via the Internet and of training on urban management issues for people working in regional and local government.

Drawing on Community support programmes in the context of cohesion policy or research.

United Kingdom

In the United Kingdom, Part 2A of the Environmental Protection Act was added for the purpose of guiding companies in risk assessment, remediation planning and the development of investment programs on their land. Although site remediation may be imposed under the policy, site redevelopment may not. Owners must therefore remove the contaminants, but cannot be forced to sell or reuse the land for other purposes. The government believes the policy will reduce the residual liabilities of proponents. A standard under the Public Health Act of 1936 designates the local authorities responsible for identifying and managing contaminated sites on their territory. The standard was maintained in the drafting of the Environmental Protection Act of 1990. DEFRA delegated the four tasks that follow to the local authorities:

• Establish who is responsible for the remediation of the land (these are called "appropriate persons");
• Decide what type of remediation is required in each case, ensure that this remediation is carried out, notify the parties responsible for the contamination and, in some cases, carry out the remediation;
• Determine the proportion of costs each of the “appropriate persons” is responsible for so that the entire cost of the remediation is covered;
• Update the information kept in public registers.

Generally, when the contamination of a site is decreed by a local authority, a notice stipulating the conditions and timelines for the site's remediation is delivered to all parties who caused or authorized the use of a water-contaminating pollutant. When the situation is too urgent or when the party responsible cannot be identified, the environmental protection agency may take the necessary measures itself. (DEFRA, 2006)

At the national level, over a dozen framework policies (including a number of funds) are applied in contaminated land management. Although these policies are applicable at different levels of government, they promote partnerships and initiatives taken at the local level. The main economic incentives adopted by the government are tax exemptions, such as the tax on the added value of sites or the tax on waste discharge. With respect to legal requirements, local authorities must comply with a certain number of obligations issued by the federal government and set out in various documents, including the Strong Local Leadership Quality Public Services white book published in 2001 or even the Town and Country Planning Act 1990. Several best practice handbooks, such as the Comprehensive National Brownfield Strategy, are made available to them. At the regional level, agencies responsible for regional or sub-regional development offer subsidies, but do not have the authority to collect taxes, nor the means to form research or assistance groups. From a legal standpoint, the regions are required to develop a regional action plan for contaminated sites, as well as regional economic and residential development strategies. (Rescue Consortium, 2005:112)

France

At the regional level, contaminated land inspections are co-ordinated by the Directions Régionales de l'Industrie, de la Recherche et de l'Environnement (DRIREs), under the sponsorship of department prefects. The DRIREs also ensure communication and co-ordination between the various environmental stakeholders, including air quality monitoring, the prevention of industrial pollution, and local information and monitoring committees. According to the MEDD, the main impact of contaminated land is the pollution of drinking water, an issue that directly affects the public and ecosystems.

The French government gives prefects the legal means to force parties responsible for polluted land and sites to treat and remediate the sites. According to the law, the operator must provide financial securities (from a bank or an insurance company) to cover accidents, pollution and the reclamation of the site in the event of insolvency. Furthermore, operators are now required to notify the prefect at least one month before the cessation of operations and provide an assessment of the soil and a remediation plan, when necessary. (BASOL, 2007) Operators must also inform site buyers, in writing, about what they know about the state of the site, and hazards and inconveniences resulting from their operations.

With respect to financial incentives, France adopts the polluter-pays principle for all polluting activities. This translates into a general tax on polluting activities (includes the tax on household and industrial waste, TGAP, 1998). (MEDD, 2007) Tax credits are offered to businesses that use equipment that produces renewable or environmentally friendly energy; valued added tax reductions are also offered for remediated land. The ADEME and other national organizations offer subsidies to owners to facilitate site remediation and to communities to promote integrated urban planning. At the regional level, the Fonds national d'aménagement et de développement du territoire (FNADT) offers subsidies to local authorities; departments collect a dwelling/housing tax, an occupation and business tax and the departmental tax on sensitive natural areas (TDENS); and municipalities offer tax breaks on properties in order to promote local development. Numerous national laws apply to contaminated land management, mainly concerning mining activities and urban planning management. It does not appear that the national government issued handbooks or methods other than those set out in the schedules of the September 30, 2003 act (guide for identifying sites and existing management tools). (Rescue Consortium, 2005:112)

United States

As mentioned above, the EPA's mission is no longer simply to remediate sites, but also to ensure that the sites are redeveloped for similar or other purposes. To this end, the EPA offers a wide range of assistance programs to US states and local communities so as to promote partnerships between the public and private sectors. The programs offer technical, financial or legal assistance. In light of the many federal programs (there are over 20), the EPA developed the One Cleanup Program, under which the Agency seeks to co-ordinate initiatives, facilitate information sharing and improve the performance measurement of actions taken. In 1995, the EPA introduced the Brownfields Program, under which the Agency offers subsidies to local governments to help cover the costs of remediation, thereby making it possible for those sites to be sold. The program is in line with the Smart Growth approach, which opposes urban sprawl and the development of green space. The program covers all of the costs related to the remediation of future green space or recreation activity areas. (EPA, 2007)

The Brownfield Law stipulates that local authorities are entirely responsible for contaminated land that is excluded from the Superfund. To this end, the EPA implemented state voluntary cleanup programs in 1996 with a view to promoting the remediation of such land by facilitating co-operation between itself and local authorities.

Institutional and legal incentives

With a view to including remediation activities under the principle of smart growth, US states have access to control mechanisms. These tools, developed in collaboration with promoters, not only make it possible to reduce remediation costs, but also facilitate large-scale land use planning in a given region. The mechanisms consist of clauses included in titles of ownership or even amendments to zoning by-laws or building codes. By stretching the rules, it becomes possible to redevelop a site that otherwise could not have been developed, owing to its location. For example, the remediation efforts needed to redevelop a site for residential purposes are much stricter than those for a commercial zone, which discourages private investors. In order to encourage the remediation of such land, local authorities can, for example, amend zoning and reduce the need for decontamination. In order to be effective, such changes have to be in line with the smart growth principle, by promoting high-density, multi-purpose neighbourhoods. (EPA, 2007 and Heberle, 2006)

At the municipal level, the Brownfields Showcase Community Network research project, developed by the National Association of Local Government Environmental Professionals (NALGEP), has helped 28 local communities identify their priority needs and inform the government agencies involved about them in order to demonstrate the potential impact that land remediation can have on community development. (EPA, 2007)

Financial incentives

Funding sources offered by the federal government fall into one of two categories: direct sources, such as grants and loans, and indirect sources, such as tax credits, loan guarantees and other forms of tax relief. In order to have access to federal funding, US states must keep updated brownfield inventories. The United States Conference of Mayors also keeps a register of contaminated land, called the United States Conference of Mayors National Brownfields Database, in which participating cities identified the number and type of brownfields and measures that have been or that are to be taken. (The United States Conference of Mayors, 2006)

The EPA's Brownfields Program offers four types of grants to help communities and promote the revitalization of brownfields. Some grants are offered for brownfield inventories and assessments, while others are offered for training an environmental workforce. Direct funding is also granted for site remediation, and loan guarantees are given to support promoters. According to the EPA, the program has helped create more than 25,000 jobs to date. (EPA, 2007)

With respect to indirect funding sources, the EPA established the Brownfields Tax Incentive in 1997, which helps owners reduce the total cost of the remediation during the current year, instead of spreading it out over a given period. Owners who are responsible for the contamination and who remediate their sites without changing the site's purpose have always been able to deduct such costs. The program now makes it possible to deduct remediation costs if the site is redeveloped for other commercial purposes (that generate income). (EPA, 2007)

Belgium

In Belgium, where authority in environmental matters is delegated to the three regions, a group of organizations work in various environment-related fields of jurisdiction. In Flanders, OVAM, the public waste agency, is responsible for the policy on waste and soil remediation. It prepares sectoral action plans and organizes control initiatives in accordance with European directives and monitors prevention and clean-up policies. OVAM identifies, inventories, analyses and remediates contaminated land that poses and environmental risk. It also has the power to levy taxes. Accordingly, it raises public awareness and informs citizens and collects taxes.

In the Brussels–Capital Region (BCR), the Brussels Institute for Environmental Management (IBGE), established in 1989, serves as a research, planning, advisory and information organization and as an authorization, monitoring and regulatory body. Its mission is to develop all of the tools needed for environmental administration in the BCR. The IBGE promotes an integrated approach by encouraging partnerships with businesses, associations and residents. It remains transparent by disseminating information in its environmental data observatory.

Wallonia has an SAED fund made possible through property taxes (brownfields). In Flanders, a soil remediation fund is financed through various environmental taxes. The Walloon and Flemish funds are dedicated to the remediation of priority sites. The two regions have adopted funding strategies for each major industry sector.

The Marshall Plan set out many priority measures for developing Wallonia, including the SAED remediation. (Walloon government, 2006) The €343 million is divided among polluted and non-polluted sites (€243 million and €100 million, respectively). These amounts were allocated as a priority to 50 polluted sites in urban and suburban areas. The budget allocated to non-polluted sites essentially serves to restore the visual aspect of sites. (IDEA, 2006)

In addition to the Marshall Plan, the SPAQuE benefits from national funding and revenue generated by taxes on more than 0.5 ha of SAEDs. Between 2000 and 2005, SPAQuE's budgetary allocation increased from €5.5 million to €11 million. (BOFAS, 2007b) The Direction générale des Technologies, de la Recherche et de l'Énergie (DGTRE) introduced a co-operation agreement for carrying out and funding the clean-up of service station soil, which led to the creation of the BOFAS (Fund for the Clean-up of Polluted Service Station Soil) in December 2002. The fund is financed equally by the oil industry and motorists, in accordance with the polluter-pays principle. Motorists' contribution consists of a tax on motor fuels that is paid at the pump. The tax is €0.002 per litre for diesel fuel and €0.003 per litre for gasoline. (BOFAS, 2007)

Germany

In Germany, co-operation between the various levels of government is ensured through the establishment of working groups made up of ministers from all levels of government. With respect to environmental protection, various groups look at specific aspects, such as water management, waste, nature conservation, etc. Brownfield management is covered by the Federal/Länder(3) Working Group on Soil Protection (LABO), created in 1991. LABO's main task is to ensure the law is applied consistently in German. The working group prepares memoranda that it then posts on its Web site to explain the link between the various laws applicable to the environment and urban planning. These documents are useful to local planning agencies in that, under the federal building code, the agencies are required to incorporate national environmental conservation objectives into their planning and urban development approaches. The department of the environment ensures that all working groups co-operate with one another.

In 2001, the Conference of German Federal and Länder Building Ministers (ARGEBAU) adopted a decree to help local authorities with planning the use of sites highly contaminated with hazardous chemicals in accordance with federal laws related to building and soil protection. Urban planning departments can now find out about the degree of decontamination required and about potential initiatives for remediating sites for specific purposes.

At the regional and local levels, some authorities already include land use strategies prioritizing the development of urban centres versus outlying areas. To this end, some municipalities adopt integrated land management systems, through which they compile various information, such as vacant sites. At the local level, Germans have also introduced Project Development Companies, which consist of small teams of various stakeholder representatives (public and private sectors). These groups are formed for every remediation project, with members being involved for the entire duration of the project. The limited number of people in the groups facilitates communication, co-operation and decision-making. The roles and responsibilities of each members are clearly defined and cover leadership, supervision, public relations and marketing. (Germany, Federal Department of the Environment, 2002)

The Department of the Environment maintains that subsidies and tax breaks are important tools in promoting urban development. To that end, the government recently increased funding allocated as subsidies to revitalize residential properties located in urban centres. (Germany, Department of the Environment, 2002) With regard to legislation, Germany applies the above-mentioned Soil Protection Act, which includes the national sustainable development strategy and legislation on mining activities.

In short, central governments co-ordinate national and international programs and establish financial program allocation rules and budgets. Local and regional authorities are responsible for inventories, urban planning and the remediation of land under their jurisdiction. Most of the countries also take advantage of remediation initiatives to promote partnerships, either between the public and private sectors, different levels of government or environmental protection agencies. With regard to assistance programs and other incentives, economic incentives outnumber legal incentives and most of them stem from the central governments. Europe seems to favour tax breaks and taxes, whereas in the United States, the main sources of assistance consist of grants and loan guarantees. All environmental protection agencies produce best practice handbooks and guides that are available on line to guide local authorities and individuals. The Rescue Consortium (2005) published an exhaustive list of existing economic and legal incentives in Europe, France, the United Kingdom and Germany. For their part, UNEP and ADEME published a table setting out the roles and responsibilities of stakeholders (the table is included in Appendix B). Databases containing information on contaminated land are discussed in the section that follows.

Information management measures for brownfields

Central governments keep inventories of known information on brownfields on their territory. In certain cases, regions are obliged to provide this information in order to have access to financial assistance. The following section presents information management mechanisms, site identification and characterization procedures, site evaluation methods, and databases and their administrators.

United Kingdom

The four main roles of the British environmental protection agency are: assisting local authorities in identifying contaminated soils (especially where water is contaminated), providing specific guidance to local authorities for site decontamination, administering “special” sites, and publishing periodic reports on soil decontamination. Best Value Performance Indicators were introduced in 2005 to make it easier to assess the progress made in identifying and rehabilitating contaminated sites.

In order to establish how contaminated a site is, the local authority is supposed to refer to the pollutant linkage protocol issued by the Secretary of State. This is used to determine the relationship between the contaminant, the receptor and the pathway by which the contaminant got to the receptor. The local authority then has to determine whether or not this linkage is significant in order to establish a hierarchy of lands on the basis of the risk to human health and the environment (the effects of pollutants on the main receptors are listed in Table A. 1 of Appendix A.)

As mentioned above, certain sites once used for industrial activities are managed by the environmental protection agency. These sites are termed “special” either because their remediation is problematic or because they are subject to other environmental protection legislation. These sites include waste acid tar lagoons, petroleum refining and explosives facilities, sites subject to integrated pollution control and sites subject to the Pollution Prevention and Control Act 2000 (DEFRA, 2006).

In the United Kingdom, DEFRA and the environmental protection agency have published standards (Soil Guideline Values, SGVs) for determining the contaminant load of polluted soils and the potential adverse effects on human health. These standards are derived from the Contaminated Land Exposure Assessment model. Data on vacant or abandoned sites are collected in a national database, the National Land Use Database (NLUD). The data are provided annually by local planning agencies and are managed jointly with several government bodies and English Partnerships(4). The information gathered on contaminated soils and buildings is classified under the following five headings: site location, contaminated soil area, length of time vacant or unused, ownership, and constraints (Rescue Consortium, 2005: 44). Pursuant to the Act (Section 78R), local authorities are responsible for inspecting and identifying contaminated sites, except for those polluted with radioactive matter. The local authorities are urged to develop a strategic approach so that they can effectively identify and assign priority to sites, incorporating information held by other interested parties; they are also required to keep public records of remediation measures taken and of data on the status of the sites (DEFRA, 2006).

DEFRA bases its action on the principle of risk assessment for defining contaminated sites, ie: the probability or frequency of a contaminant's occurrence and the scale and magnitude of the consequences.

France

In France, identification takes place in two stages. First, the site is conceptually mapped on the basis of documentary studies; then there are field inspections, followed by in-depth diagnosis and a detailed assessment of the risks (human health, water resources, ecosystems and material assets). Every ten years, the Réseau de mesures de la qualité des sols (soil quality measurement network) takes and analyses soil samples at over 1,600 sites nationwide. These samples are not only analysed, they are stored to preserve a record of soil quality trends. Since 1994, the DPPR (Pollution and Risk Prevention Branch) of the Ministry of Ecology and Sustainable Development has furnished the available information on sites subject to management measures in its BASOL database. The information in this database specifies the site location, technical situation, nature of pollutants, the impact of the site on human beings and ecosystems, what triggered the response of the authorities, and monitoring of groundwater quality. Since 1998, BASIAS (database of former industrial sites and service operations), run by BRGM (Bureau of Geological and Mining Research), has inventoried sites where industrial or service operations used to take place and those with a potential contamination risk (180,000 sites inventoried so far).

United States

In the United States, contaminated and abandoned sites and those representing a risk to the environment or to neighbouring communities are taken in hand by the Superfund (or CERCLA) and are inventoried and prioritized on a national list. The Envirofacts Brownfields Management System database, run by the EPA, provides up-to-date information on contaminated soils, while EnviroMapper allows for mapping of sites where remediation programs are in effect. The information in this database covers location, ownership, jurisdiction, and the type of grant or program applicable to the sites listed. CERCLA applies to sites deemed a national priority and compiled in the National Priorities List, based on a risk assessment (Hazard Ranking System) and public consultations. Priority for action is determined on the basis of the standards and practices in the National Contingency Plan.

The EPA has developed an index, Risk-Based Corrective Action, that makes it possible to calculate the minimum level of decontamination needed, depending on future uses and alternatives, neighbouring communities and the urgency of remediation. Feasibility studies are thus founded on practical and economical scenarios.

The EPA also has monitoring mechanisms and performance yardsticks for its contaminated site management policies, specifically for integrating soil revitalization into the remediation process. There are proposed performance yardsticks under both the Superfund and the Brownfields Program, but OSWER (Office of Solid Waste and Emergency Response) has also published guidelines intended to standardize the measurements used in all revitalization programs to make it easier to compare them. Among these proposals is a universal indicator for the total number of regenerated sites and acres of land in all of OSWER's programs.

The Office of Superfund Remediation and Technology Innovation has developed three indices for measuring the performance of its programs. These are as follows:

• Number of Acres of Land at Superfund Sites that are Ready for Reuse;
• Number of Superfund Sites with Land that is Ready for Reuse;
• Sitewide Ready for Reuse.

The Office of Brownfields Cleanup and Redevelopment has also developed performance yardsticks for the Brownfields Program. The data come from the various kinds of funding offered under the program. The data gathered cover the number of assessments undertaken, the number of decontaminations completed, the acreage of green space created and the number of jobs created.

Belgium

In Belgium, both assessment and soil remediation are dealt with in regulations. The process takes place in the following stages:

1. identification – soil characterization and historical investigation of the economic uses made of the site;
2. descriptive soil study – risk analysis and scale of the pollution;
3. remediation project – study of the remediation alternatives;
4. remediation operations; and
5. post-remediation monitoring.

This is complemented by decision-making support tools, depending on the pollution history.

Inventory data are validated by DGATLP (for land use aspects), by OVAM in Flanders and by SPAQuE in Wallonia, while the AUDISOL – Wallon program gauges the socio-economic relevance of rehabilitating land on the basis of target values, depending on the planned occupancy of the land.

OVAM's mandate is to inventory contaminated sites, to obtain environmental clearance certificates for title transfer, and to distinguish between new and pre-existing contamination. If there is contamination, no transaction can be effected unless OVAM is given details of a remediation plan.

Since the register of contaminated sites is open to public scrutiny, potential buyers can obtain crucial information about the state of the property. The certificate, together with an extract from the register, give new buyers a history of the use made of the land and all details of previous investigations, the nature and source of pollutants, and any obligation to rehabilitate.

Germany

In Germany, the Länder are responsible for identifying and monitoring pollutants. They send their data to the federal environmental agency, which publishes them in national registers (German Environmental Specimen Bank, for example). The site parameters measured, selected on the basis of soil type, land use and level of contamination, are exhaustively documented in a program that brings to bear expertise in chemistry, biology and soil physics.

The national soil information system, BIS, was established to facilitate application of soil protection legislation. The information in this database covers functions, quality, pollution and input/output of chemical substances in the soil. This system encompasses various secondary information systems and integrates information from various national databases such as ALIS, Transfer, STARS and the Environmental Data Catalogue (UKD). The Transfer database was created to gather empirical data on the contaminant content of soils to identify performance thresholds. Transfer pools data from both the Länder and the federal environmental agency by means of data compatibility standards. STARS contains information on toxic and hazardous substances found at contaminated sites. Data are also extracted from general or scientific databases (geology, agriculture, remote sensing system) in order to triangulate the information gathered. The Environmental Data Catalogue (UDK) (1996, available on line since 2001) allows authorities to locate available information from the all the individual databases. Lastly, the German Environmental Information Network is a search engine that can browse all existing German databases simultaneously.

In 1998, the federal environment department created the Scientific Advisory Council on Soil Protection, consisting of recognized scientists in the fields of geology, agriculture, soil biology, toxicology and water management to support and inform stakeholders. The Council's mandate is to establish indicators, trigger values and methods for measuring the levels and nature of pollutants, which it consigns to two manuals to guide the Länder in identifying links between soil and human health (soil-human health (direct contact) pathways). Target values vary according to the use of the site, and when contaminant concentrations found at a site exceed those values, an assessment must be made.

According to the environmental protection agency, the biggest challenge facing it is data compatibility. The challenge can be met, but it may take several years before a representative picture of soil quality throughout Germany is available and useable (federal environment department, 2002)

To summarize: the countries studied all inventory contaminated sites within their jurisdiction. The information thus inventoried varies somewhat, but in general the information collected comes from regional authorities. Some databases cover sites and remediation operations, while others focus more on polluting substances. In the United States, these databases are a prerequisite for access to financial assistance from the EPA.

Specific cases of “best practices”

This section presents a brief overview of various solutions and specific initiatiaves put forward in some of the countries studied. Cases of “best practices” were chosen to provide concrete examples of initiatives involving various aspects, such as governance, information sharing, on-site technical assistance and support for innovative technologies. Project prioritization criteria, policy performance indicators, prevention programs and the successes and challenges identified by environmental authorities are also presented.

United Kingdom

The United Kingdom developed the cluster concept as applied to the management of contaminated sites. Following the remediation of a contaminated site, the same equipment, materials and methods are used to treat adjoining contaminated sites. This method, first of all, limits the propagation of contaminants and, above all, allows for the rediation of sites which would otherwise not be treated, since their low concentration of pollutants does not justify the investment required to clean them up. Such economies of scale increase the number of sites treated. Management of such practices is quite complicated, but, at the end of the day, allows for the remediation of sites which would not otherwise have been cleaned up (Rescue Consortium, 2005: 19).

France

In terms of a holistic approach, the French Environment and Energy Management Agency (ADEME) is responsible for taking action to protect the soil and clean up polluted sites in France. These actions include prevention of soil pollution, long-term management of agricultural land, and securement and remediation of polluted sites and soils, usually as a result of industrial activities. Their aim is to assess the extent of the contamination and related health and environmental impacts and prevent soil pollution. (ADEME, 2007) ADEME supports stakeholders throughout the process, providing funding, technical assistance and management advice and disseminating best practices.

United States

The EPA has adopted two strategies to respond to the Government Performance Results Act, which provides for measurement of the performance of activities undertaken with regard to the management of contaminated soil. First, the Office of Brownfields Cleanup and Redevelopment measures performance using information collected from applications for EPA grants. The Office of Superfund Remediation and Technology Innovation measures the accomplishments of the Superfund in three ways: number of acres of land at Superfund sites that are ready for reuse; number of Superfund sites with land that is ready for reuse; and sitewide ready for reuse (EPA, 2007). However, in 2004, the Office of Solid Waste and Emergency Response (OSWER) mandated a task force to examine opportunities for working together and, possibly, developing a systematic intersectoral approach to measuring the performance of revitalization efforts and making it easier for stakeholders to understand. The indicators used to measure performance should reflect the EPA's objectives, that is, the protection of human health and the environment. In this regard, three indicators are proposed: the universe indicator (number and acreage of sites); the status of use indicator (current and future use) and the type of use indicator (commercial, industrial, residential, etc) (EPA, 2007).

With regard to innovation in the field of biotechnology, Michigan State University, in co-operation with DaimlerChrysler and NextEnergy, is currently studying the possibility of growing crops (soybeans, corn, canola and switchgrass) on contaminated soil for use in biofuel production. The research is intended to determine whether the crops can do two jobs at once, that is, help with phytoremediation while contributing to biofuel or ethanol production. (Office of Biobased Technologies, 2007)

Germany and the United States

In order to guide stakeholders in making decisions and evaluating the available funding and remediation options, Germany and the United States have initiated Sustainable Management Approaches and Revitalization Tools - electronic (SMARTe)(5). The program is intended to make it easier to analyse the cost benefits of available remediation options. The program also improves the dissemination of information on financial assistance programs. (EPA, 2007)

In conclusion, this chapter shed light on the similarities and differences among the policies of the various governments studied, as well as on the way in which regulations and incentives are used. It would appear that the main objective of the management of contaminated sites is the same worldwide—human and environmental health. Moreover, all the countries favour an approach focussed on use-based remediation to reduce costs, clean up the largest possible number of sites and contribute to the economic and social development of local communities while limiting the pressure to develop green spaces. All the countries keep inventories of their sites, the activities they have undertaken and the types of pollutant found. However, they are united in saying that identifying and classifying polluted sites is a long-term project which is far from completed. By creating partnerships, authorities are able to co-ordinate the needs and requirements of stakeholders and, above all, encourage communication and the exchange of relevant information.

3. Main Issues

Soil management

In the early 80s, contamination incidents were viewed as very serious, but not very frequent. We were not really aware, at that time, of their consequences and potential impact on human health. This situation resulted in a desire to reduce contamination to a minumum at all costs. Since then, knowledge and perception of the problem of contaminated sites has increased substantially. Contaminated sites are now seen as a widespread infrastructure problem with a variable impact. Authorities and industries now understand that it is unnecessary to try and eliminate contamination totally on every site if they take into consideration the risks for current and future site users.

For the sustainable management of contaminated sites, CLARINET and NICOLE favour risk control, and try to identify the economic and ecological impact of contamination. In their view, it is essential to use selection criteria to identify which type and degree of remediation are commesurate with reasonable and sustainable land use and protection of the environment. The new initiative is intended to develop economically viable, sustainable remediation techniques and transferrable knowledge bases for the attainment of best practices in remediation. A good risk assessment defines the possible consequences of an incident and the probability of it occuring.

A risk assessment with regard to contaminated soil is usually based on the probability of contaminant transfer or migration from a source to a receptor along a variey of pathways, that is, a pollutant linkage. The purpose of the assessment is to find a compromise between the risk of negative impact and the excessive cost of complete remediation. The risks associated with contamination are estimated according to the toxicity of a pollutant, its additive effect and the existence of synergy or antagonists. If there is no pollutant linkage, the risk related to contamination is greatly decreased. All in all, it is a matter of keeping risk within acceptable limits. This particular approach is favoured by the United Kingdom and Germany.

Owing to the traditionally high cost of remediation, a considerable number of brownfields remain unused. Their remediation depends mainly on the remediation objectives to be attained and the ultimate use to which they are to be put. Using the risk assessment method can facilitate their cleanup.

Harmonization of legislation and regulations

In April 2004, the European Parliament and the Council adopted the Environmental Liability Directive, which ensures application of the “polluter pays” principle. It came in the wake of major disasters in Europe during the 80s and 90s and was intended to remedy the problem of the loss of biodiversity as a result of environmental damage. The legislation, which came into force on April 30, 2007, is intended to prevent or remedy environmental damage. Enforcement of the directive requires government authorities to play a more important role; they are required to encourage the development of financial security instruments and markets, including financial mechanisms in case of insolvency. They are also responsible for ensuring that the operators in question take any prevention or remediation measures required.

Through the concept of environmental responsibility, authorities seek to protect natural habitats, water and soil. The directive deals with two types of liability, that is, liability resulting directly from the activity of the operator and liability resulting from negligence, fraud or wilful default. Three remdiation standards are provided for: restoration of the environment to its baseline condition, complementary remediation when primary remediation does not return the site to its baseline condition; and compensatory remediation to offset interim losses until primary remediation has achieved its full effect.

The scope of this directive is quite broad, since it has to take into consideration a variety of concerns expressed by interest groups in the Member States. It leaves considerable room for subtle differences in the legal obligations adopted by each Member State. Member states must find a balance between environmental protection and economic impact. They are responsible for defining what constitutes “significant damage” and “imminent threat”. It is not clear whether a company can be held liable for damage where it is demonstrated that, at the time it obtained an operating permit, the company was operating according to accepted practices and complying with emission quotas.

Strategies for integrated urban planning

As already mentioned, the countries will henceforth favour use-based remediation. This approach sometimes creates problems in redeveloping contaminated sites for residential purposes, for which decontamination standards are more stringent than for industrial or commercial use. In the United States, to encourage the redevelopment of contaminated sites, states are relaxing zoning and parking regulations and building codes. (Heberle, 2006: 6) These changes are, in general, made in the context of “Smart Growth”, which promotes the development of medium and high density multi-use neighbourhoods. Such decisions are usually made jointly with promoters. For example, increasing density and diversifying land use allows site preparation and infrastructure costs to be shared by a number of entities. When their profits are increased and the risk associated with the investment required to remediate the soil is reduced, promoters are less reluctant to invest in the remediation of residential areas. Similarly, the minimum number of parking spaces required in some neighbourhoods also blocks redevelopment by increasing construction costs and decreasing the promoter's return on investment. This means that where the community favours active or mass transit, local authorities and promoters can agree to reduce the minimum number of parking spots. The flexibility that promoters enjoy in designing these neighbourhoods enables them to respond better to the goals and preferences of local communities and supports sustainable development.

Civil liability and insurance

According to Van-Camp et al (2004), the prevention of soil pollution from point sources is not sufficiently addressed in Europe, compared with the effort made to control atmospheric emissions. This same research group feels that environmental liability in the case of soil pollution is very limited and that the financial obligations of polluters are inadequate.

After an environmental disaster in 1998, the Government of Spain established the concept of civil liability stemming from activities with environmental incidence, thus moving well ahead of other Member States. It stipulates that the environmental authorization required to carry out an activity targeted by the directive is conditional on the provision of financial security or a guarantee. This enables the operator to deal with the environmental liability resulting from its activity (MEDD, 2006). The amount of security is established according to the level of risk of the activity in question.

Under this system, private entities use the civil and penal code to undertake proceedings against polluters and make them pay. During this same period, the EU was proposing a system of public liability for environmental damage. The Spanish improved on this system by extending the concept of damage to biodiversity, not limiting the area of damage to a specific region but including all of Spain, introducing a financial security system that obliged operators carrying out an economic activity with a risk of damage exceeding €2M to provide bank security and proof of liability insurance. Owing to the difficulty of estimating the cost of remediation associated with environmental incidents, the European insurance industry warned that it might not be able to insure some industries.

The fact that third parties can take action against a polluter is one of the strengths of this policy. However, it also has some weaknesses: liability does not apply in the same way to other EU members and the proposal is not retroactive and does not affect nuclear or oil-related incidents.

In Germany, because the federal government has jurisdiction over environmental regulation, legislation is relatively concise with regard to financial security. It governs who must have prior financial security, the scope, the procedure and the jurisdiction of the authorities responsible for oversight and the duties of the various parties to the security. The provinces (Länder) are responsible for implementing the legislation. A weakness of the German system lies in the jurisdiction of the provinces over the issuance of permits. They can include exceptions when best practices are used.

In France, most civil liability insurance policies provide limited coverage for sudden or accidental disaster, with no specific coverage for the cost of site remediation. Risks must be covered by a specific contract, but this market is expected to develop gradually, owing to changes in regulations in this regard for the EU. Since early 2007, Aee Europe has been offering coverage for gradual pollution, but it is limited to 10 years for historical pollution.

Control and monitoring instruments

Very little information is available at present on methods for monitoring and controlling assessment and remediation policies. According to the OECD, the concept of control and monitoring instruments is not well enough developed. Control and monitoring mechanisms cannot be used effectively until the Member States earmark specific budgets. The OECD recommends an allocation of 1% of the state budget and the establishment of legal methods or a structure at the highest political level. The OECD also recommends that supervision tasks be delegated to competent NGOs with the relevant experience. (CIDCE, 2002) 

Communication: obligations and legislation

Communication is a key component of the management of contaminated sites, since it affects a number of components of the overall process. In terms of risk management, communication can have a number of goals, from the simple transmission of information to the solving of problems. The goals and objectives of communication must be clear and specific. First of all, it is important that the legislation be well understood by everyone. A sound knowledge of the rights and obligations of the stakeholders makes it easier to manage contaminated sites. Second, it is important that each stakeholder be identified, since they play a distinct and often changing role in the process. Decisions made during an activity should be based on a consensus among all stakeholders and must reflect best practices, standards, budgets and any other stakeholder constraint. Lastly, good communication, which can seem arduous, expensive and excessive at the start of the assessment, will minimize the risk of future problems due to disagreement and will often lead to significant results.

In conclusion, an issue specifically related to the challenge of harmonizing the policies of European Union member countries with regard to the new directive of theEuropean Parliament on contaminated soil, is presented below.

European directive and the reaction of Member States

The European Parliament's COM(2006) 231 final directive requires Member States to establish a national soil protection strategy, if they have not already done so. The directive calls for the implementation of a process for identifying and inventorying sites posing a risk and development of an action plan, monitoring mechanisms and national objectives to be attained with regard to soil quality.

Chapter III on soil contamination is the key element of the proposed directive. It requires each Member State to develop an exhaustive inventory of potentially contaminated sites in the seven years following adoption of the directive. At the same time, Member States must diagnose each potentially contaminated site and ensure that sites proving to be contaminated are remediated under the national remediation strategy established in the nine years following adoption of the directive.

Costs associated with the identification of areas at risk are estimated at 2 million euros annually in the EU as a whole, and the cost of the inventory of contaminated sites at 240 million euros over 25 years. (France, Assemblée Nationale, 2006)

Many Member States, including the Netherlands, want to implement a European soil protection strategy. However, the implementation of new guidelines adds to the administrative costs which citizens, organizations and even the various levels of government, must bear. It is important to target common objectives while limiting costs.

To get under way, it would appear essential to understand that soil is an irreplaceable, limited resource which must be used effectively to ensure its sustainability and allow for the ongoing economic and social development of Member States. Harmonizing the capacity of the soil with its vulnerability in terms of the use made of it by humans requires sound land use planning and management. It is clear that, at the European level, there is a need for soil conservation. As is the case elsewhere in the world, soil in Europe is facing threats with potentially irreversable consequences. Owing to the heterogeneous nature of soil and local contexts, policies must be applied locally or, at least, regionally. Some countries, including Germany, use the principle of subsidiarity, meaning that the federal government calls on local communities to take action when they are better placed to do so.

Soil degradation can affect the prosperity and competitiveness of the enitre European Community. The impact of soil degradation knows no geographic boundaries. This means that erosion and sediment (often polluted) upstream can cause flooding in villages downstream and substantial damage in neighbouring countries. In addition, some legislation must be enforced Europe-wide, if it is not to result in distortions.

The Netherlands suggests that the European Parliament should confine itself to measures that bring value-added to local policies. It favours the development of framework programs or strategies, rather than a directive. While land management policies are mainly a national responsibility, there are situations where a European policy would be advantageous, such as the discharge of waste into soil or rivers. A European policy could also be highly effective if it promoted the transfer of technology and know-how among the regions. From this standpoiont, Spain, the Netherlands and Belgium maintain that management policies must be strategic and composed of general, Europe-wide measures, with specific measures by each Member State to allow for a response to local prerogatives.

In a context where countries are faced with a large number of requests for remediation, nations are seeking to develop common and standardized decision-making processes, while remediation depends on the individual conditions of each site. A number of countries, including France, want to make their decision-making processes transparent and reproduceable.

From this standpoint, decision-making tools must:

• Provide realistic management mechanisms;
• Allow for the consolidation of information into a coherent analysis framework that makes it easy to distinguish among the various types of information and make decisions;
• Provide a set of transparent rules related to approved parameters, hypotheses and sources of information to suppot decision making;
• Allow for the consolidation of knowledge from a variety of specialists involved in the analysis process.

4. Lessons and Findings

Common objectives and approaches

The main objective of the countries studied is to ensure the health of humans and the environment. The prevention and assessment of risk is also given priority so as to limit, if not prevent, the contamination of new sites.

In general, regulations and the proposed solutions favour the use-based remediation approach, rather than the complete and systematic remediation of sites, so as to support the economic and social development of local communities while limiting the pressure brought to bear to develop green spaces. In the United Kingdom, DEFRA maintains that this principle of site remediation based on degree of contamination and use of the site (suitable for use principle) reduces costs and increases the number of sites remediated. At the same time, it is generally recognized that the remediation of a larger number of sites located in urban areas helps to reduce sprawl.

When it comes to the responsibilities of owners and new investors, most countries follow the polluter pays principle, except for exceptional sites of which the federal governemnt takes charge, either because they contain contaminated water (United Kingdom), because the owner is in default (France) or because historical pollution is involved (Belgium).

Organizational structure

In Europe, the European Parliament has issued a directive on environmental and soil contamination liability, which proposes measures to protect soil and preserve its environmental, economic, social and cultural functions. In order to fulfill its role as governing council for centralization, co-ordination and information transfer among local communities, the EU co-ordinates public bodies such as CLARINET, NICOLE, ANCORE and CABERNET. In April 2004, the Council and the European Parliament adopted the Directive on Environmental Liability, which ensures compliance with the “polluter pays” principle. The directive is broad enough to leave room for the legal obligations which already exist in Member States.

At the national level, the central governments act as co-ordinators for national and international programs and allocate budgets and staffing grants from budget envelopes. However, the governments are trying to develop common, standardized decision-making processes. The environmental protection agencies define legislation and standards for the management of contaminated soil.

Local and regional authorities are responsible for inventories, urban planning and the remediation of sites within their jurisdictions. This information is then sent to the environmental protection agencies or other bodies, which enter them into national databases. Some databases are related to sites and the remediation activities undertaken on them, while others are related more to pollutants. In the United States, for example, these databases are necessary to receive financial assistance from the EPA.

Owner's liability

In the United States, owners are liable for remediation costs, whether or not they are responsible for pollution of the site. In France, the vendor is required to inform the purchaser of potential hazards and to produce a report on the environmental, economic and social impact on the community, providing details of security measures. In Flanders, landowners must obtain a soil certificate from OVAM before they can transfer the title of ownership. The German government manages contaminated soil according to the precautionary principle, which requires the prevention of soil degradation caused by pollutants. In general, sites that have been contaminated through the illegal activities of the owner (in violation of the law or an environmental permit) must be completely cleaned up at the owner's expense.

Risk management

The goal of risk management is to support the decision on the acceptabiity of the risk associated with a situation and to determine what should be done to remedy the situation. Risk management is based on the concept of the probability of contaminant transfer or migration from a source to a receptor along a variey of pathways. If there is no transfer, the risk of contamination is greatly reduced. The United Kingdom, Germany and Belgium favour this pollutant linkage approach.

Creation of partnerships

Most countries also use remediation activities to promote partnerships between the public and private sectors, between levels of government or between the various agencies involved in protection of the environment. By creating partnerships, the authorities are able to co-ordinate the needs and requirements of the various stakeholders and, above all, to encourage communication and the exchange of relevant information.

Funding

During the 1990s, nations sought to remediate sites completely. Today, it is more usual to set a level of remediation based on the expected use of the site, which means that more sites can be remediated for the same amount of money.

European governments use tax mesures more than the United States. Using taxes or tax incentives, they apply the polluter pays principle by placing the burden on industries carrying out activites with a high risk of environmental contamination. In general, technical feasibility studies of decontamination and soil characterization are funded publicly or through public-private partnerships. It should be noted that very few financial incentives are offered to private entrepreneurs wanting to use brownfields rather than green space. In 2005, money spent on remediation totalled €2.1 billionfor Europe as a whole (EEA, 2005). In France, only 7% of the money is from public funding. In Flanders, public funding totals 25% of expenditures. The table below shows the distribution of funding by source of funding and country.

• Source: EEA 2007

Figure 4.1: Distribution pf public/private funding by country

In contrast, in the United States, the EPA offers a wide range of support programs for states and local communities to promote partnership between the public and private sectors. The EPA's Brownfields Program offers four types of grant to help communities and encourage the revitalization of contaminated sites. Some grants are provided for site inventory and assessment; others are intended for environmental job training; direct funding is also available for site remediation; and, lastly, loan fund grants are provided to support promoters.

5. Conclusion: Success Factors and Ongoing Challenges

Synthesis and analysis of information from secondary sources enables us to answer the following three questions:

What major legislation and standards govern the management, risks and monitoring of brownfields? Are the sites inventoried? If so, by whom and how?

Legislation and standards for the management of contaminated soil vary greatly from country to country.

The differences lie in the application of general principles, the use of analytical processes and techniques, environmental priorities, administrative approaches and local soil characterization and social and economic use. These differences mean that decision-making processes are not easily transferred from one region to another.

As a rule, the agencies responsible for soil management keep a current inventory of identified contaminated sites. The agencies report to the federal, provincial or regional government, depending on the country.

In many instances, despite the existence of remediation policies, a large number of sites have not been inventoried or targeted, owing to the lack of owner or because they are not used. In addition, it is becoming essential to take all the measures necessary to identify polluted soil, because of its potential impact on the health of abutting owners.

Which policies and types of activity are most effective with respect to support for the remediation of contaminated sites inventoried by the various levels of government ?

• The cluster approach favoured by the United Kingdom allows for economies of scale;
• The creation of horizontal and vertical partnerships involves players from all stakeholder groups in Germany;
• The array of programs provided by the EPA (United States) provides technical support and financial incentives for all the stages necessary to redevelopment;
• The creation of a bilateral agreement between the United States and Germany provides for the sharing of information on methods and applied technologies.

How is the performance of these policies evaluated? Are the policies included in holistic management plans? What are the roles of each stakeholder and how are they structured? What are the overall objectives underlying policies on contaminated soil?

The review of the literature did not reveal a process for evaluating the performance of policies for the management of contaminated soil in European countries. In this regard, the OECD recommends the establishment of mechanisms for evaluating these policies. In the United States, the three agencies which offer programs linked to these activities have developed performance measures dealing with the number and area of sites evaluated, remediated or undergoing remediation. The monitoring committees take their data from the grant request processing files and site inventories.

The roles of the agents vary according to country and policy. Notwithstanding the structural differences noted, management of contaminated soil is a priority and economic incentives are a key factor in soil remediation.

In European countries, legislation favours the polluter pays principle, while in the United States, legislation favours the implementation of funding mechanisms for remediation.

Since the 1990s, a time when stakeholders wanted to remediate all contaminated spaces, regardless of the associated costs, the trend in terms of remediation has greatly changed. Today, owing to the magnitude of contaminated soil and the money and effort required to achieve complete remediation, stakeholders are opting instead for contamination risk management policies and remediation based on planned use. As stated by NICOLE (2002), "one would expect a hospital operating room to be cleaner than one's kitchen, which in turn one would expect to be cleaner than one's garage, although all three would be fit for purpose”.

6. Apendix

A. Contamination quantification method

This table was developed by DEFRA as part of creation of the national contaminated soil management policy. The information it contains is related to the effect of pollution on receptors.

Table A. 1: Pollutants and their impact on receptors

Type of Receptor	Description of harm to that type of receptor that is to be regarded as significant harm
1. Human Beings	Death, disease, serious injury, genetic mutation, birth defects, or the impairment of reproductive function. For these purposes, disease is to be taken to mean an unhealthy condition of the body or a part of it and can include, for example, cancer, liver dysfunction or extensive skin ailments. Mental dysfunction is included only insofar as it is attributable to the effects of a pollutant on the body of the person concerned. In this chapter, this description of significant harm is referred to as a "human health effect"
Any ecological system, or living organism forming part of such a system, within a location which is: an area notified as an area of special scientific interest under section 28 of the Wildlife and Countryside Act 1981; any land declared a national nature reserve under section 35 of that Act; Any area designated as a marine nature reserve under section 36 of that Act; An area of special protection for birds established under section 3 of that Act; Any European site within the meaning of regulation 10 of the Conservation (Natural Habitats etc) Regulations 1994 (i.e. Special Areas of Conservation and Special Protection Areas); Any candidate Special Areas of Consercvation or potential Special Protection Areas given equivalent protection; Any habitat or site afforded policy protection under paragraph 6 of Planning Policy Statement (PPS 9) on nature conservation (i.e. candidate Special Areas of Conservation, potential Special Protection Areas and listed Ramsar sites); or Any nature reserve established under section 21 of the National Parks and Access to the Countryside Act 1949.	For any protected location: harm which results in an irreversible adverse change, or in some other substantial adverse change, in the functioning of the ecological system within any substantial part of that location; or harm which affects any species of special interest within that location and which endangers the long-term maintenance of the population of that species at that location. In addition, in the case of a protected location which is a European Site (or a candidate Special Area of Conservation or a potential Special Protection Area), harm which is incompatible with the favourable conservation status or natural habitats at that location or species typically found there. In determining what constitutes such harm, the local authority should have regard to the advice of English Nature and to the requirements of the Conservation (Natural Habitats etc) Regulations 1994. In this Chapter, the description of significant harm is referred to as an “ecological system effect”.
Property in the form of: crops, including timber; produce grown domestically or on allotments, for consumption; livestock; other owned or domesticated animals; wild animals which are the subject of shooting or fishing rights.	For crops, a substantial diminution in yield or other substantial loss in their value resulting from death, disease or other physical damage. For domestic pets, death, serious disease, or serious physical damage. For other property in this category, a substantial loss in its value resulting from death, disease or other serious physical damage. The local authority should regard a substantial loss in value as occurring only when a substantial proportion of the animals or crops are dead or otherwise no longer fit for their intended purpose. Food should be regarded as being no longer fit for purpose when it fails to comply with the provisions of the Food Safety Act 1990. Where a diminution in yield or loss in value is caused by a pollutant linkage, a 20% diminution or loss should be regarded as a benchmark for what constitutes a substantial diminution or loss. In this chapter, this description of significant harm is referred to as an “animal or crop effect”.
Property in the form of buildings. For this purpose, “building” means any structure or erection, and any part of a building including any part below ground level, but does not include plant or machinery comprised in a building.	Structural failure, substantial damage or substantial interference with any right of occupation. For this purpose, the local authority should regard substantial damage or substantial interference as occurring when any part of the building ceases to be capable of being used for the purpose for which it is or was intended. Additionally, in the case of a scheduled Ancient Monument, substantial damage should be regarded as occurring when the damage significantly impairs the historic, architectural, traditional, artistic or archaeological interest by reason of which the monument was scheduled. In this chapter, this description of significant harm is referred to as a “building effect”

B. Stakeholder roles and responsibilities

Table B. 1 summarizes the involvement of public authorities and those responsible for sites, based on the various phases of activity. The table is taken from a document published by UNEP and ADEME (2005), intended as a guide for developing countries. The information contained in this document is taken from best practices used in countries with significant experience in the management of contaminated soil.

7. Bibliography

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8. Endnotes

• (1) For more information, consult the EPA's Bona Fide Prospective Purchasers and the New Amendments to CERCLA document, which is available in .pdf format, May 31, 2002
• (2) The principle according to which the Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein. In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or the effects of the proposed action, be better achieved by the Community. (Treaty Establishing the European Community)
• (3) Länder: the federated states of the Federal Republic of Germany.
• (4) English Partnershipsis described as a national regeneration agency. Its sponsor government department is Communities and Local Government. Its objective is to promote sustainable development in England. For more information on the agency's operations, go to Supporting high quality sustainable growth in England.
• (5) See: www.smarte.org