Jordi Boronat, Biologist, M.Sc., MediTerra Consultors Ambientals, S.L., Vía Laietana, 47, 3er, 2ª E-08003, Barcelona, Spain, Tel: +34972358536, Email: boronat@mediterra.es
Miriam Sala, Environmental Lawyer, LL.M., MediTerra Consultors Ambientals, S.L., Vía Laietana, 47, 3er, 2ª E-08003, Barcelona, Spain, Email: sala@mediterra.es

MediTerra Consultors Ambientals, S.L. is an independent company which activity is oriented to the investigation and remediation of contaminated soils and groundwater and the performance of Environmental Audits and Due Diligences.

From our experience, soil is one of the most sensitive and vulnerable contamination receptors in Spain and the growing number of contaminated sites is jeopardizing both the human health and the environment.

Despite the ecological vulnerability of soil, since Law 10/1998 of 21 April on Waste, Spain had no legal rules that favour the protection of soil against contamination. Such regulation was incomplete and it was of highly importance a more defined regime as well as the practice of legal disciplinary measures enforcing the compliance with soil contamination regulation and sanctioning its infringement.

Not until January 14th 2005, when Royal Decree 9/2005 is approved, which establishes a list of potentially soil polluting activities and the criteria and standards to declare a soil as contaminated, the current legal regulations on contaminated soil are provided with the necessary tools for their effective application.

Basically, the new legal regime on contaminated soils pursues to identify soils under the condition of contaminated and proceed to their remediation as a last resort.

In order to achieve such objectives, a number of phases have been established in which the parties involved will have to comply with a number of procedures and legal requirements:

• Information to the competent authorities.
  
• Declaration of a soil as contaminated. Based upon the information received, a soil will be declared as contaminated, according to the criteria and standards set on the rule (Generic Reference Values and Environmental Risk Assessment).
  
• Obligation to remediate a contaminated soil.
  
• Publicity of soil contamination situations.

Under this scenario, the affected parties (industry, land owners and organizations that operate in land acquisition transaction, among others) should be informed and comply with the legal requirements in order to prevent further liabilities and costs for future remediation works.

Environmental Insurance: Wave of The Future or Washout?

John G. Nevius, Esq., P.E., Anderson Kill & Olick, P.C., 1251 Avenue of the Americas, New York, New York 10020-1128, Tel: (212) 278-1508, Fax: (212) 278-1733,
E-mail:  jnevius@AndersonKill.com

A number of large insurance companies offer a variety of insurance products, including Pollution Legal Liability insurance to off-set the risk of unknown or unanticipated additional contamination costs and provide financial assurance.  Whether this approach to risk transfer will continue to be attractive into the future and how the inevitable claims will be handled remain open questions.

There are a number of sites throughout the nation where environmental insurance has played a part in facilitating settlements or transactions and certain players in the insurance industry aggressively market these services.  Is this the wave of the future or just another insurance business opportunity that will generate more litigation than insurance payments?  Another source of potential clean-up funding may be historic general liability insurance policies that provide coverage for an “occurrence” that may have resulted in contamination many years ago.

Potential policyholders, regulators and environmental professionals of all stripes need to understand the pitfalls inherent in any insurance policy contract as well as what to negotiate for upfront before considering purchasing “environmental” coverage or bringing an insurance company into any settlement or transaction.  They also need to know what to consider when trying to obtain Brownfield funding in the form of coverage for environmental liabilities under modern or historic insurance policies.  In obtaining “Cost Cap” coverage or other financial assurances going forward, stakeholders may be subject to requirements imposed under contract which they did not anticipate, including more stringent review of what is to be spent and why.  In addition, off-site contamination, bankruptcy of PRPs, orphan shares, contamination discovered after remedy implementation or outside of areas of concern originally identified, Remedial Plan modifications and use of unapproved contractors may not be covered.

This presentation will provide information on the recent use of environmental liability insurance at various sites, including the Iron Mountain site in California and several other smaller sites, and then discuss the pros and cons of this emerging approach to facilitating mining site remediation and Brownfield transactions, including tips on things to look out for from an experienced environmental insurance attorney. 

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