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Blighted Land, Indeed

This government's approach to legislation could seriously weaken Poland's negotiating position in the EU, say environmental consultants. They point, for example, to local legislation on soil contamination, which, for lack of appropriate consultation, has embraced impractical methods and needlessly high standards that are damaging to both individuals and industry. The lack of any clear policy on enforcement, lawyers add, provides an open invitation to corruption at the regulatory level. The result is that some could find the value of their property slashed by enormous clean-up costs. Meanwhile, vast ex-industrial sites could become no-go areas for investment, dubbed as 'blighted land,' with potential 'cover-ups' creating destructive time-bombs for Poland's economic future within the EU.

While Poland's accession neighbors have created state funds, often using revenue from privatization to finance environmental clean-up programs, the dominant aim of this country's legislation on contaminated soil seems to be to shift responsibility for clean-ups from the state to private entities, say lawyers. Legislation introduced in September 2001 meant that within weeks after that date, all landowners suddenly found themselves liable for contamination on their land.

Those who were already in possession of land on October 1, 2001 can only avoid liability for contamination that they can prove they didn't cause. And then only if that proof is presented in a report to the local authority (starosta) and filed before June 30, 2004. And since little has been done to publicize the legislation, many of those affected are probably not even aware of their situation. Anyone who has bought land after October 1, 2001 is entirely liable for any contamination on their land.

Though the legislation will inevitably hit property prices, environmental consultants differ over the legislation's implications for the population's purses.

Waleria Skarzynska, an attorney and head of environmental practice at Clifford Chance, another international law firm, is less breezy, pointing out that a lot of contamination is connected to ubiquitous fuel-related activities.

But all agree that the legislation ensures that clean-up in Poland will be unusually difficult and needlessly expensive. EU states are rapidly embracing a risk-assessment approach to clean-up, widely accepted as being the most practical and amenable method for business interests. But this government has implemented standards stringent beyond any requirement in a rigid benchmarking approach, despite the fact that bench-marking has now been abandoned as impractical, even by the Dutch who invented it. The resulting legislation, according to Jerzy Kollajtis, principal at the local branch of U.S. environmental consultancy Environ, "is an enormous headache for both individuals and business that simply need never have happened."

Both lawyers and consultants also point out inconsistencies in the legislation itself, which add to the difficulty of actually implementing it. Meanwhile, according to Skarzynska, the fact that there is no policy on enforcement of the legislation means that controls are likely to be arbitrary. There is nothing, she concedes, to prevent local authorities from issuing selective clean-up orders, or using the threat of such an order as a political bargaining tool.

Almost all involved point out the potentially disastrous effects for business: "We hear in the news that Poland wants to welcome new investors, but down on the ground, we see a different story," says Tomasz Patomir, environmental lawyer with international firm Baker and McKenzie.

Meanwhile, both Jerzy Kollajtis and Magdalena Trybuch, director of Environ, point to the implications for Polish businesses within the EU.

The law will also have a disastrous impact on the Intergrated Pollution Prevention and Control (IPPC) permit negotiations now ongoing within many businesses, argues Jerzy Kollajtis, who says that none of the IPPC documents include, to Environ's knowledge, full data on soil contamination.

How is it possible that the government could have landed its citizens with such a crippling package of legislation? Most point to the government's top-down approach to legislation, and ubiquitous patronage networks.

The prevailing political culture is, consultants say, not only incompatible with, but positively threatened by, open consultation and official lobbying.

(WBJ 26.iv.04)

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