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Consultation on the proposed EU Soil Framework Directive and initial Regulatory Impact Assessment

Summary of the proposed EU Soil Framework Directive

In September 2006 the European Commission adopted the Soil Thematic Strategy, including a proposal for a Soil Framework Directive. Defra have carried out an initial Regulatory Impact Assessment ( RIA) of the proposal which indicates the potential for significant implementation and compliance costs.

The overall objective of the proposed Directive is to provide a framework for action by Member States, identifying threats to soil quality and resources and requiring measures to overcome identified issues.

The current proposal contains six main elements:

1. Impact of policies (Article 3) - Member States would be required in the development of policies, from agriculture to transport, to address the impacts of policies likely to exacerbate or reduce soil degradation processes.
   
   
2. Impact of other activities (Article 4) - Member States would be required to ensure that land users whose actions might hamper significantly soil functions like biomass production, storing of nutrients and water, supporting biodiversity and acting as a carbon pool, take precautions to prevent or minimise the impact.
3. Soil sealing (Article 5) - Member States would be required to take appropriate measures to limit soil sealing (which is the permanent covering of the soil surface with an impermeable material such as concrete) or where it is carried out mitigate the effects through the use of appropriate construction techniques.
4. Identification of risk areas and development of a programme of measures (Article 6-8) - Member States would be required to:

• identify risk areas with regard to soil erosion, loss of organic matter, compaction, salinisation and landslides; and
• set risk reduction targets and draw up a programme of measures for reaching those targets. These measures would need to be cost-effective.

5. Soil Contamination (Articles 9-14 and 23) - Member States would be required to:
   

• take appropriate action to prevent soil contamination (includes an amendment to the Environmental Liability Directive 2004/35);
• establish, using a detailed identification procedure, an inventory of contaminated sites;
• require sellers of land on which a potentially soil polluting activity has taken place to supply a soil status report;
• remediate all sites over a time period which they will need to set down; and
• set up mechanisms to fund remediation. The suggestion is that the costs are to be borne by the polluter but, where the polluter cannot be identified, costs are to be borne by the Member State.

6. Awareness raising, reporting and exchange of information (Articles 15-17) - Member States would be required to raise awareness of the importance of soils, and also report back to the Commission on measures taken.

Initial Regulatory Impact Assessment

Defra has carried out an initial analysis of the proposed Directive and prepared an initial Regulatory Impact Assessment ( RIA) in relation to this. In broad terms our views are:

• We strongly support the aims set out in the Soil Thematic Strategy and we recognise the need to address the threats to our soil.
• We are concerned to ensure that any additional legislation in this field is introduced only if necessary and that it is proportionate to the risks. We have concerns about the Commission's rationale for proposing this Directive and the impact assessment has many weaknesses.
• Any new Directive must build on existing legislation at EU and national level. It must not duplicate and cause confusion and we have some concerns in this respect for example in relation to Articles 8 and 9.
• Member States should be allowed sufficient scope to decide on precise arrangements and to take into account existing soil protection measures. This is not always clear in the proposed Directive.
• Requirements should be risk-based and proportionate and we are concerned that some provisions especially in relation to preparing an inventory of contaminated land, the provisions will be very onerous to implement.
• Any proposal should be well drafted and clear to avoid disputes.

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