Environmental News EU white paper pressures polluters
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white paper outlining how the polluter pays principle might best be applied in the European Union (EU) could have the effect of putting interest groups "into the shoes of public authorities" when the government fails to act in cases involving dam age to biodiversity. If this policy paper results in a legally binding framework directive, nongovern mental organizations would be able to bring direct liability claims company in court. Spurred on by such recent envi ronmental disasters as the Baia Mare gold mine spill in Romania (Environ. Scii Technol. 2000,34 (9), 202A-203A) and concerns over ge netically modified organisms, the In the future, companies causing significant damage to biodiversity could be held re white paper seeks to fill a void in sponsible under a liability regime being considered by the European Union. Ducks (above) member state liability regimes by struggle to survive after a holding dam at a mine burst in 1998 and polluted Spain's Donana addressing liability for damage to Park with heavy metals. nature—which is not typically cov ered by national regulatory pro grams dealing with traditional way, the transport of dangerous The closest analogy to such damage to persons and goods, as goods, and biotechnology. Nonan environmental liability re well as contaminated sites. hazardous activities would in gime in the United States is the clude any other activities not al infamous Superfund law. In an Under the proposed scheme, ready on the EU hazardous attempt to avoid some of the both traditional and environmental activity list—camping, for exam pitfalls of the U.S. approach, damage would be covered, with ple—so that essentially every however, the white paper lays the latter type applying to areas thing would be covered under out a control-based liability re and species falling under the soeither strict or fault-based liabil gime as opposed to Superfund's called Natura 2000 Network, which ity, according to Carla Devries, a generator-based ΟΓΪΘ. Under Su requires member states to desig principal administrator within the perfund's joint and several liabil nate certain areas for protection. European Commission's (EC) en ity provisions, anyone who ever This network was established by vironment directorate. handled a hazardous substance the Wild Birds and Habitats direc at a certain landfill or site could tives of 1979 and 1992, respectively, The parts of the white paper be liable for the full cost of a and will set aside some 10% to that would affect businesses most, multibillion dollar cleanup Un 15% of EU territory once it is fully however, are suggestions for giving der the control-based system implemented. public interest groups direct access being bandied about in the ET I to justice in cases involving biodi Coverage would be based on liability would fall on the actual versity damage where public au strict liability when damage is polluters that caused the dam thorities failed to act or did not act caused by hazardous activities age which would likelv result in properly. The white paper proposes and fault-based liability when less' ancillary litigation accord giving environmentalists the right damage is caused by a nonhazing to Rod Hunter a Brusselsto drive litigation, challenging deci ardous activity. The white paper based attornev with the law firm sions by public officials in court; defines hazardous activities as of Huntnn & Willlams ask courts for injunctions to avoid those already regulated by EU further damage to the environ legislation, such as toxic waste, Another important difference ment; and remediate sites and dangerous chemical substances, is that the EU legislation is not claim damages including their emissions or discharges of toxic likely to be made retroactive, al substances into the air or waterown though Hunter questioned operation costs. 2 9 0 A • JULY 1, 2000 / ENVIRONMENTAL SCIENCE & TECHNOLOGY / NEWS
© 2000 American Chemical Society
whether that would really be the outcome. Under the proposed scheme, a company would be held liable for incidents occurring only after the legislation comes into force, but Hunter pointed out that leaching could also be covered. Thus, even though a company would not be liable for abandoning 3. number of barrels containing hazardous materials some 15 years ago, for instance, if the contaminants moved into the groundwater or soil, the company could still be held liable. "So in reality fthe legislation] would catch a lot of old contamination and it will put the burden of proof onto operators and landowners to show that the contamination predated the law " Hunter said Both business groups and environmental organizations have criticized the proposals—industry, because the paper is too vague
and open-ended, environmentalists, because it does not go far enough. Erik Berggren, an adviser to the Union of Industrial and Employers' Confederations of Europe (UNICE), raised concerns that such a liability regime could create major legal uncertainty and reduce the competitive edge of European companies as a result of the rising costs of doing business. Berggren also noted that it is difficult for companies to assess the proposal's exact impact, because the Natura 2000 Network is still not in place, and it is not clear which sites or species will be protected UNICE, among other things, calls for the EC to define what constitutes "significant" biodiversity damage, the minimum threshold for triggering the liability regime; provide transparency on criteria to be used for quanti-
fying damage; refrain from giving interest groups the right to bring direct claims against companies; and place a ceiling cap on liability claims. Devries acknowledged that a lot of work needs to be carried out before a legislative proposal, the next step following the white paper, can be presented to the European parliament. The EC has launched a number of studies to clarify various points, she added. The EC adopted the white paper in February, and comments were due this month. Margot Wallstrom, commissioner for the environment directorate, said she intends to produce a proposal for a framework directive before the end of 2001. The liability white paper can be accessed on the Web at http://europa.eu.int/ comm/ environment/liability/ in(jex htm. KRIS CHRISTEN
World's most stringent arsenic standard proposed A U.S. EPA proposed rule would significantiy tighten the national standard for arsenic in drinking water from 50 ppb to 5 ppb, which is lower than a 1993 provisional World Health Organization (WHO) guideline set at 10 ppb. European Union member states adhere to the WHO guideline, whereas Canada's standard stands at 25 ppb. However, Health Canada has put arsenic on a priority list for revision as a result of EPAs move The tighter EPA standard follows a report by the U.S. National Academy of Sciences that concluded the old standard should be lowered "as promptly as possible" (Environ. Sci. Technol. .999, 33 (9), 188A). The report found that long-term exposure to concentrations of arsenic at the 50 ppb level in drinking water can lead to skin, bladder, lung, and prostate cancer. Noncancer effects of ingesting arsenic at this level include cardiovascular diseases diabetes and anemia as well as reproductive and developmental immunological and neurological effects Although ft c u t e
short-term exposures to high doses of arsenic also can cause adverse health effects, EPA noted that such exposures do not occur from U.S. public water supplies. WHO states on its Web site that its 10-ppb guideline is provisional because of the lack of suitable testing methods, but, "based on health concerns alone, [the guideline] would be lower still." Environmentalists had pushed for a standard of 0-3 ppb, asserting a cancer risk exists in the neighborhood of 1 in 1000 people at 5 ppb (Environ. Sci. Technol.. 2000, 34 (9), 208A). Nevertheless, "5 ppb is still a pretty significant improvement that would result in substantial public health gains," said Erik Olson, a senior attorney with the Natural Resources Defense Council. EPA typically sets drinking water standards within a target risk range of one in 10,000 to one in a million. The agency's calculations show that cancer risks from exposure to arsenic in drinking water fall within this range at 5 ppb. But Andrew Schulman of EPA's Office
of Ground Water and Drinking Water pointed out that a lot of uncertainty surrounds these risk estimates because of the lack of exposure and health effects data associated with the comparatively low levels of arsenic found in U.S. drinking water supplies. "The largest data set that's been exhaustively analyzed is from Taiwan, and the levels of arsenic there were closer to 400 ppb. What we did was estimate the risk there and extrapolated all the wav down to 5 ppb," Schulman said In addition to the proposed 5-ppb standard, EPA is also seeking comment on a 3-ppb level— the level it considers "technically feasible," as well as 10 ppb, and 20 ppb. For the first time, EPA chose to go with a standard higher than the technically feasible level because "we felt that the benefits better justify the cost at 5 ppb and that 5 ppb is still protective of public health," said Jim Taft of EPA's Office of Ground Water and Drinking Water. The American Water Works Association (AWWA), on the other
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