After many years of debate, in February the European Commission published its long-awaited white paper on environmental liability.

Many of its provisions will overlap with the equally long awaited implementation in the UK of the statutory contaminated land regime.

There are, however, many distinguishing factors which no doubt will generate keen interest.

The consultation period closes on 30 June 2000.The white paper concludes that an EU liability regime is required for a number of reasons, and that a directive is the best means of implementation.

Some of the key features of the White Paper's proposals are:-- Operation of the regime will be triggered by two central factors, activity and type of damage.-- Activities will fall into two categories: (1) dangerous and potentially dangerous activities (those regulated by EU environment related laws) and (2) non-dangerous activities (everything else).-- Damage will be split into three types: (1) traditional (i.e.

property damage and personal injury), (2) contaminated sites, and (3) biodiversity damage (i.e.

Natura 2000 areas, based on the Habitat and Wild Birds Directive).

Damages (2) and (3) are referred to as environment damages and to be actionable they must pass a 'significance' threshold.-- It is the operator of the activity that will be liable (and not directors and officers, or lenders -- save where lenders are in 'operational' control).-- Operators of dangerous and potentially dangerous activities will be subject to strict liability in respect of any of the three types of damage (there will be limited defences such as act of God and third party intervention).

Fault based liability will attach to operators of non-dangerous activities in respect of biodiversity damage.

The regime will not cover traditional and contaminated site types damages caused by non-dangerous activities.-- The regime will not be retrospective.-- There may be some alleviation of the claimant's burden of proof.-- With respect to environment damage consideration is given to greater access to justice for interested parties.-- Criteria will need to be established for assessing and dealing with environment damage.-- Compensation in respect of environment damage must be spent against environment restoration.

Indeed where restoration is not feasible for technical or economic (cost-benefit) reasons, the compensation that would otherwise have been spent should be spent on comparable restoration projects.-- Clean-up objectives are to be qualitative and where possible quantitative.

The main objective is to remove any serious threat to man or the environment.

Thresholds (using best available techniques under economically and viable conditions) are to be determined.

Otherwise the soil should be made fit for actual and plausible future use of the site.-- Special consideration needs to be given to how to deal with damage caused by genetically modified organisms.-- In the case of traditional damage, if there is an overlap with the Product Liability Directive, the Product Liability Directive is to prevail.-- Consideration must be given to encouraging greater insurability of these liabilities (including consideration of a potential cap on biodiversity damage).Not surprisingly, much attention will need to be given to the detail of any future legislative regime.