Perhaps because it is a largely local issue with few trans-boundary implications, there is as yet no EU legislation dealing directly with the issue of contaminated land, although proposals for an environmental liability regime are in the pipeline. At present, therefore, contaminated land is an issue addressed mostly at a national level within the EU.
Interestingly, very few European countries have specific legislation dealing with contaminated land - it is usually covered under more general environmental law, or in legislation on waste or groundwater - and Slovakia is no exception.
Almost all national legislation in European countries follows the 'polluter pays principle', to the extent that a polluter can be identified. Since that is often not the case, however, other parties may be required to finance a clean-up: the current owner of polluted land, for instance (as in the UK), or more often the state or a combination of public and private sectors.
Some countries (such as Austria and France) have levied taxes on waste to pay for the remediation of waste dumps. The Czech Republic has used privatisation revenues to offset the costs of cleaning up past pollution at former state industries.
Under current Slovak law, there is a requirement to report any known contamination to the authorities, who may then require the owners of a contaminated site to remediate historical liabilities. This is based on an interpretation of water protection legislation dating back to the 1970s, which requires that the 'originator of an emergency' should remediate it.
The Water Act is due to be updated shortly to bring it into line with EU legislation, and current proposals would strengthen the principle that the current owner of a contaminated site is liable for its clean-up. Thus far, the existing law appears to have been applied rather inconsistently in practice, mainly because many Slovak companies do not have the resources to address historical contamination. Foreign investors, by contrast, are perceived as having 'deep pockets' and can therefore expect to be the focus of more rigorous enforcement activity.
There is one exception to this general situation, however: as part of the privatisation of state assets with contaminated land and groundwater, the law allows for the state to retain the environmental liabilities associated with the site, and there are a number of high-profile cases where this has been the case (such as Motorola, Volkswagen and US Steel). Each such deal has been negotiated on a case-by-case basis, however, and enacted through a government decision.
The Slovak Ministry of Environment has initiated a process to develop legislation in relation to contaminated land, with the support of a bilateral Canadian project intended to transfer Canadian experience of the development of such legislation to Slovakia.
This process is still at an early stage, but working groups have so far proposed two important principles for any legal regime: first, that the current user of a contaminated site should in principle be responsible for its remediation, regardless of who caused it, and second, that the extent of the remediation required should be based on an assessment of the risks caused by the site - and not, for instance, by the requirement to return it to some kind of 'virgin' state. It is also expected that Slovakia will follow the example of most EU states in developing a systematic inventory of contaminated sites.
Anyone buying land in Slovakia - or getting benefit from the use that land, even if they are not the direct owners of it - must therefore be aware of their legal responsibility to clean it up, if it turns out to be contaminated. The cost of ignorance may be very high.
Next month: Waste legislation - what will EU approximation mean for Slovakia and for companies operating here?
This article is the second of a monthly column providing a concise, up-to-date and informative insight into key environmental issues for the business community in Slovakia.
Tim Young heads AEA Technology's Bratislava office. He can be reached at email@example.com.