The position in relation to contaminated land is largely governed by common law, under which the polluter is responsible for any damage caused. Anyone who buys land will become jointly and severally liable with the seller for any such contamination. While the relevant local authority will be more likely to pursue the current owner or occupier for any damage caused, the new owner may also take action against the vendor (usually the former owner occupier) where the vendor had both knowledge of the presence of the polluting substance and the power to take remedial action, but failed to do so.

The general provisions regarding environmental protection set out in the Waste Management Acts 1996-2003 also apply. The Acts empower local authorities and the Environmental Protection Agency (EPA) to serve notices in respect of the holding, recovery or disposal of waste and to insist on specific measures and carry out such operations to prevent or limit environmental pollution and ensure compliance with environmental obligations. This includes the power to bill the operator of the site for the recovery or disposal of waste and to carry out on-site investigations and intrusive testing.

The European Communities (Environmental Liability) Regulations 2008 came into effect on 1 April 2009 to implement the Environmental Liability Directive. The 2008 Regulations will not apply to damage caused before this date. They provide that there is a statutory obligation on an operator to take preventative measures where environmental damage has not yet occurred but the operator is aware that there is an imminent threat that it will. If the operator is of the view that the preventative measures taken do not dispel the imminent threat, then he is required to inform the EPA as soon as possible. The EPA may then issue such directions and take such measures as it sees fit, including requiring the operator to take remedial measures to deal with the damage caused (which, again, can include investigative and intrusive testing).

The new Waste Framework Directive must be implemented by Member States by 12 December 2010. It will replace the existing Waste Framework Directive and update much of the existing law on waste in Ireland. The changes will include clarifications on the definitions of waste, recycling and recovery and the introduction of a new waste hierarchy to set the order of priority in which waste is to be treated and dealt with. A new concept of 'extended producer responsibility' (covered to some extent in existing legislation) is also be introduced to ensure that businesses which place products on the market take responsibility for those products once they have reached end of life, as well as new thresholds on incineration, waste reduction and waste management targets being introduced.

The 1999 EU Landfill Directive was transposed into Irish law by the Waste Management Licensing Regulations 2000, the Waste Management (Licensing) (Amendment) Regulations 2002 and the European Communities (Amendment of Waste Management (Licensing) Regulations 2002. The aim of the Directive is to improve landfill standards across the EU and reduce reliance on landfills as a disposal option.

While the Directive is quite specific on the requirements for maintenance and after-care operation of sites (as well as defining when and how a landfill should be closed), this is not dealt with in any detail in the national legislation. On-site inspections are contemplated under the Directive before closure of a site and it also says that the operator of the site is responsible for its maintenance, monitoring and control in the after-care phase for as long as may be required.

There has been considerable debate at a political level about Ireland's perceived failure to implement the Directive effectively and Ireland was among 14 Member States against whom the EU Commission took legal action for such failure.

This has led to the recent approval by the EU of the new Directive setting strict guidelines for landfill management, Directive 2008/99/EC (the 2008 Landfill Directive). This will require Member States by 26 December 2010 to apply significant criminal sanctions to breaches of a large number of EU Directives and Regulations where prohibitive measures are required at national level. It is not clear at this point whether the 2008 Landfill Directive will have any retrospective effect.

The provisions of the Waste Management (Certification of Historic Unlicensed Waste Disposal and Recovery Activity) Regulations 2008 are also relevant. These Regulations require local authorities to identify closed landfill sites in Ireland by 30 June 2009 and to carry out a risk assessment as to compliance with environmental obligations. The local authority will then issue a certificate of authorisation in respect of all compliant sites. Where a site is owned someone other than by a local authority, the local authority has the power to enter the property to prepare the risk assessment (and presumably carry out such testing as it needs to).

The main circumstances where an operator will have an affirmative obligation to investigate land for contamination under the current legislative framework are:

• Where directed to do so by the EPA or local authority;
  
  
• In respect of new sites, when applying for an IPPC licence (a site condition report must be submitted as part of the licence application);
  
  
• In respect of closed landfill sites, where such sites have been identified by the local authority as being unlicensed and such investigations are directed by the local authority in the context of its certification process;
  
  
• In respect of landfill sites about to be closed, prior to such closure; and
  
  
• Most recently under the 2008 Regulations where environmental damage has not
  yet occurred but an operator is aware that there is an imminent threat that it will occur, in which case the operator is required to take preventative measures and,
  if of the view that these will not dispel the imminent threat, to notify the EPA
  about the imminent threat as soon as possible so that it can carry out its own investigations.

For further information please contact Zelda Deasy.