New benchmarks determining land contamination – continuing the changes initiated in 2014

Land contamination may occur anywhere – due to an industrial accident at a factory, or at a brownfield property purchased for the development of a housing estate. As a result, the changes to the Polish regulations on land contamination that started in 2014 potentially affect every sector of the economy.

The previous regulations, which required the full clean-up of every contamination – irrespective of the actual threat to human health or the environment as well as the financial and environmental costs of the clean-up – have been replaced by a much more reasonable and flexible approach. The new way of managing land contamination, called “remediation” is based on a risk-based approach. Now, remedial actions concentrate on removing the threat to human health and the environment, which does not necessarily mean that contaminated land must always be fully cleaned up. It may even happen that a given contamination is so insignificant that it causes practically no threat. If so, the relevant authority may completely release the person liable for dealing with the contamination from the clean-up obligation.

The new regulations on land contamination give opportunities for owners of contaminated land who were afraid of approaching the authorities for fear of enormous clean-up costs. Well-prepared documentation pointing to actual risks and arguing for limited remediation or even proving that remediation is not required may save a lot of money and, in turn, allow the legal closure of some contamination.

However, the amendments implemented in 2014 were only the starting point. New regulations on the identification of land contamination were recently adopted in an ordinance of the Minister of the Environment that came into force on 5 September 2016. So what else is new?

• Land is now divided into four main categories according to how it is used, e.g. housing areas are category I and industrial land is category IV. The permissible level of contamination is different for each category of land. The category of land is established pursuant to the land register or the local zoning plan (if there is one) – in previous regulations there was no such reference, which caused doubts about the classification of certain locations (e.g. brownfield sites).
• The list of contaminants as well as their permissible concentrations has been partially changed – some values have been tightened and some relaxed.
• Permissible concentrations of contaminants regarding industrial land (previously category C, now category IV) remain almost unchanged. However, the previous regulations generally had stricter standards for land 2m below ground level or lower as compared to upper layers. The new regulations significantly raised this border – to 0.25m below ground. So in many cases industrial land must now comply with stricter standards at a much more shallow level than before.
• The new regulations set a very detailed and complex procedure for investigating contaminated land, e.g. determining the minimal number of soil samples to be collected. These stricter requirements may lead to a significant increase in the average cost of a site assessment. However, those who reported land contamination and instituted proceedings before 5 September 2016 can submit results from site assessments prepared under the former laws within a year from that date.

In light of the new benchmarks, some locations considered not contaminated under the old laws may gain the status of contaminated land, but in other cases the situation may be the opposite. As a result, many site assessment reports could become out of date. In addition, the way some land investigations were conducted could be found to be inconsistent with current requirements.