The new regulation on contaminated sites and soils

27 October 2021
Philippe Mathurin and Fahima Gasmi

Law n°2020-1525 of 7 December 2020 “to accelerate and simplify public action“, known as the “ASAP” law, was published in the Official Journal on 8 December 2020.

Most of the new rules will come into force on 1 June 2022.

Regarding the environment part of this law, Article 57 has modified the rules relating to polluted sites and soils and to the cessation of activity of Installations Classified for the Protection of the Environment (ICPE).

The application decree was published in the Official Journal on 21 August 2021.

What are the main points to remember about this decree?

1. Information on polluted sites and soils (SIS)

It should already be noted that this addition was not provided for in the ASAP law and that it has been integrated into the Environmental Code by the decree.

It should be remembered that Article R.125-43 of the Environmental Code excluded from the perimeter of the soil information sectors (hereinafter SIS), the land within the boundaries of ICPEs in operation and in the process of being closed.

This article has been amended and allows the said land to be included in the SIS when the operator of the classified installation has disappeared or is insolvent and the installation has been made safe in accordance with the ICPE regulations.

Also new, mines in operation, including those in the process of being closed, are now listed in the SIS exclusions.

2. Decontamination of polluted sites and soils (articles R.512-39-3 for ICPEs subject to authorisation and R.512-46-27 for installations subject to the registration regime)

The operator has a period of six months from the final shutdown of its plant to send the prefect a decontamination report specifying the measures taken or planned to ensure the protection of the environment and/or public health.

The decree’s contribution is to allow the operator to postpone, upon express and justified request, the decontamination as well as the operations to determine the future use of the site.

Thus, the operator must notify the prefect of its intention to postpone the decontamination and transmit a statement of the justifications associated with this request within a certain period.

The prefect will then rule on this request, specifying in particular

• The measures conditioning the release of the land concerned.

• The prior information required before the implementation of the decontamination operation.

• The periodic re-evaluation of the justification for the postponement.

It should be noted that the absence of a response from the prefect within four months is equivalent to a refusal of the request.

3. The submission of a certificate by a certified company

From now on, the operator must have the remediation work carried out by a company certified in the field of polluted sites and soils or with equivalent skills in providing services in this field.

A decree will define the reference system with which this company must comply, and the audit procedures implemented by the certifying bodies as well as their accreditation conditions.

The text specifies that the company providing the attestation of the adequacy of the measures proposed for the decontamination of the area may be the same as the one that produced the decontamination report but not the one that carried out the work.

4. Substitution of the third-party applicant by another third party applicant

From now on, another interested third party may substitute itself for the third-party applicant with the agreement of the latter and the operator by sending a request to the prefect.

The decree adds a paragraph to the current Article R.512-76 of the Environmental Code, which details the applicable procedure and specifies that the silence of the prefect for more than two months after receipt of the request for substitution of the third-party applicant is deemed to be a rejection.

5. Safety certificate for certain ICPEs subject to declaration

For ICPEs subject to declaration, the obligation to provide an attestation by a certified company is limited to making the site safe.

The list of headings concerned is set out in the new article R.512-66-3 of the Environmental Code “these have been selected mainly on the basis of the dangerousness of the substances used and the feedback from the DREALs“.

6. Review of future use in the event of unforeseen technical impossibility

Concerning installations subject to authorisation and registration, from now on, in the event of technical impossibility resulting in manifestly excessive additional costs for the rehabilitation of the land, the operator may send the prefect a memorandum presenting the work carried out, the planned work not carried out and the difficulties encountered.

This statement will also set out the justifications for the impossibility of meeting the requirements.

After consultation with the mayor or the president of the EPCI competent in urban planning matters and the owners of the land concerned, the prefect may revise the use determined and modify the applicable requirements accordingly.

Finally, it should be noted that the decree specifies that “after the rehabilitation work has been carried out, the Prefect may, if necessary, take measures to monitor and preserve the memory of the site, as well as restrictions on use“.

Thus, the decree shows the will of the Ministry of Ecological Transition not to call into question the police power of the Prefect who can intervene at any time in the rehabilitation operations of polluted sites and soils.

Philippe Mathurin, Partner and Fahima Gasmi, Counsel in Environment.