FRANCE Law and Practice Contributed by: Carine Le Roy-Gleizes, Corentin Chevallier, Alice Messin-Roizard and Antoine Juquin, UGGC Avocats
12.3 Determining Liability Each operator is liable for the impacts of the activities of the facilities that they have operated, as well as for the impacts caused by the operators whom they suc- ceed in the same activity. If impacts on the same site arise from different activities, the administration must identify each operator as far as it is concerned (see 5.2 Liability for Historical Environmental Incidents or Damage ). 12.4 Proceedings Against Polluters The rules governing locus standi require that a legal action must be useful to the plaintiff. More precisely, people affected by contaminated land must prove that they have a direct and personal interest to bringing proceedings against polluters/landowners/occupiers, and that this interest is legitimate and present. Asso- ciations, for their part, must prove that the contamina- tion directly affects the interests they have set out to defend, in accordance with their statutes. The application of these requirements may vary depending on the courts (civil, administrative or crimi- nal). However, the requirements are generally consid- ered to be broadly construed and easily met. 12.5 Investigating Environmental Accidents In France, following an environmental accident, a clas- sified facility’s operator must report to the classified facilities inspector and the prefect. The report must analyse the causes of the accident, and the effects and consequences thereof on the environment and the population. The operator must also report the measures undertaken to prevent any similar future accident or incident and the measures carried out to overcome the accident’s impacts in the medium to long term. Public prosecutors play a special role in investigat- ing environmental accidents. If the public prosecutor decides to pursue the case, the victim or complain- ant is informed, and an investigation may take place. Furthermore, the OFB may investigate a site and issue fines for offences. Criminal investigations are carried out by the OFB under the authority of the public pros- ecutor.
Remediation is mandatory at the end of the facility operations. Remediation goals are devised in a man- ner consistent with the expected future use of the site. Usually, the mayor and the landowner (if different from the operator) are consulted on the use suggested by the operator, and the prefect makes the final deci- sion on the future use. Several operators can be held responsible for parts of the remediation where differ- ent activities have generated pollution on the same site. Secondly, on sites where pollution that poses a threat to public health or safety occurs – or might occur – the authority may implement the necessary remediation works at the expense of the person responsible for the remediation. The regulatory authority may also charge a deposit until the remediation works are finalised. When remediation has been carried out properly, the person who changes the use must provide measures to manage the pollution to ensure that the land is compatible with public safety or health. Consultancy firms are increasingly involved in cessation of activi- ties procedures: they must deliver several certifica- tions for the operator of an industrial site in order to prove to the authorities that they complied with their requirements. A December 2022 Decree defines eight types of use for the management of polluted soils and also defines the concept of change in use. The uses include, among others, industrial, residential, outdoor recrea- Traditionally, the last operator of an industrial site would only be responsible for the remediation nec- essary to allow the safe continued operation of the site for industrial purposes, while a person seeking to change the use of the site would be responsible for the additional remediation needed to permit the change of use. As detailed in 5.1 Key Types of Lia- bility and 5.3 Key Defences , when neither the last operator or stakeholders can be identified, the owner of the land may be held responsible if their negligence or participation in the pollution can be proven. tional, agricultural and renaturation. 12.2 Clearing Contaminated Land
225 CHAMBERS.COM
Powered by FlippingBook