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Environmental Damage Regulations

Introduction

You have a legal responsibility for the impact your business has on the environment. For example, it's up to you to ensure that your waste is treated and disposed of properly.

Going beyond environmental compliance can also bring business benefits. Many businesses have realised that acting in a socially and environmentally responsible way is more than just a legal duty. It can positively affect the long-term success of your business, especially if you market yourself as environmentally sound.

The Environmental Damage (Prevention and Remediation) Regulations come into force in England on 1 March 2009. There are separate Regulations for Northern Ireland, Scotland and Wales which will come into force during 2009.

This article briefly explains the regulations, when they apply, who they apply to and what to do to aid compliance. It will be useful reading for farmers, agricultural businesses, manufacturers, construction, demolition, mineral extraction, utility suppliers, waste, recycling and other similar businesses in England.

What are the Environmental Damage Regulations?

The Environmental Damage Regulations implement the European Directive on Environmental Liability. They are based on the ‘polluter pays principle’ so those responsible prevent and remedy environmental damage, rather than the taxpayer paying. ‘Environmental damage’ has a specific meaning in the Regulations, covering only the most serious cases. Existing legislation with provisions for environmental liability remains in place.

The emphasis, in the first instance, is on the business or other ‘operator’ identifying when there is an imminent threat or actual damage and taking immediate action. Enforcing authorities must determine whether there is environmental damage and decide on the necessary remedial measures. Environmental liability is only a ‘backstop’. The emphasis should be on proactively putting in place appropriate pollution prevention measures so that imminent threats and damage do not arise.

When do the Regulations apply?

The Regulations only apply to damage after the Regulations come into force, and they only apply to operators of economic activities. ‘Environmental damage’ only refers to:

  • Adverse effects on the integrity of a Site of Special Scientific Interest (SSSI) or on the conservation status of species and habitats protected by EU legislation outside SSSIs;
  • Adverse effects on surface water or groundwater consistent with a deterioration in the water’s status (Water Framework Directive term);
  • Contamination of land that results in a significant risk of adverse effects on human health.

There is liability without the need to show fault for activities in Schedule 2 of the Regulations.

Broadly, these include: activities requiring Environmental Permits (EP); discharges to water; groundwater discharges; water abstraction or impoundment; using pesticides, biocides or dangerous substances; using and releasing Genetically Modified Organisms; transporting dangerous goods. There is also liability where an operator has intended to cause damage or has been negligent but only for damage to SSSIs or EU species or habitats. There are certain exemptions such as damage caused by acts of terrorism or natural disasters or damage falling within certain international conventions (e.g. oil pollution).

Roles and responsibilities

Operators must:

  • Take steps to prevent damage or further damage and notify the authority;
  • Provide information and undertake preventive and remedial measures as required by the authority;
  • Submit proposals for remediation;
  • Pay costs claimed by the authority in relation to ‘environmental damage’.

Authorities must:

  • Establish whether damage is ‘environmental damage’ and identify a responsible operator;
  • Serve a remediation notice taking account of any measures proposed by the operator.

The remedy?

For damage to SSSIs or EU species and habitats and damage to water, the approach is more comprehensive than in existing legislation. It consists of:

  • primary remediation: measures to restore the damage itself
  • complementary remediation: measures, including at alternative sites, to compensate for where primary remediation does not fully restore the damage
  • compensatory remediation: measures to compensate for the losses of natural resources while the damage is being restored. For damage to land remediation consists of removing or controlling contaminants so that the land no longer poses any significant risk of adversely affecting human health.

Can I make an appeal?

If you have been reported, the relevant authority will check to determine whether there is ‘environmental damage’. If they believe you are causing environmental damage, they will notify you. You may appeal within 28 days. Grounds for appeal include that:

  • the activity did not cause the damage
  • the authority has unreasonably decided that the damage is ‘environmental damage’
  • the damage was the result of an act of a third party
  • you were not at fault or negligent and the emission or event was: authorised and in accordance with a permit, or in accordance with the state of scientific knowledge (this ground for appeal is not available in Wales for damage caused by GMOs). Operators may also appeal against a remediation notice on the grounds that the contents of the remediation notice are unreasonable.

Please note that the information provided on this page:

  • Does not provide a complete or authoritative statement of the law;
  • Does not constitute legal advice by Net Lawman;
  • Does not create a contractual relationship;
  • Does not form part of any other advice, whether paid or free.

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