The Environmental Damage (Prevention and Remediation) Regulations (implementing the Environmental Liability Directive) have been introduced throughout the UK.
The Directive aims to prevent and remediate environmental damage to:
- surface or underground water
- natural habitats, species and protected sites (SSSIs)
- contamination of land where there is a significant risk to human health
It reinforces the Polluter Pays Principle – making operators financially liable for threats of or actual damage. The Regulations will not apply to damage that occurred before they come into force.
The Regulations supplement existing legislation including the Environmental Protection Act 1990 and the Water Resources Act 1991.
Who is affected?
- Construction and Demolition
- Waste Management
- Public Sector: schools, hospitals, Government Departments; Government Agencies
Voluntary and privately organised activities
If you carry out any activity that causes damage to land, water or biodiversity, you will have to remedy the damage without the need for prosecution; if there is a risk of damage from business activities, you must prevent such damage occurring.
Two types of Liability:
- Strict Liability: in respect of Environmental Damage caused by a specified range of ‘Occupational Activities’ (described in the Annex of the Directive)
- Fault-based Liability: in respect of Environmental Damage to protected species and natural habitats from all other occupational activities
Operators have to bear the cost of remedial actions but a Member State can decide against this if the operator can demonstrate no fault or negligence and show that the environmental damage was caused within the framework of an authorisation (permit) and the emission was released in the course of an activity not considered likely to cause environmental damage according to scientific and technical knowledge.
The Directive makes businesses financially responsible for:
- restoring the damage that they have caused to the environment
- restoring water damage and biodiversity damage to baseline (the state before the pollution incident) and removing the risk to public health in the case of land damage
- UK legislation generally requires remediation to baseline if it is reasonable to do so; where it is not possible to do this, the Directive requires Complementary Remediation (a similar level of natural resources at an alternative site such as planting more trees in a local forest)
- compensating for loss of environmental services (Compensatory Remediation) which has occurred from when the resource was damaged until it is restored
Under the Directive, the most environmentally risky businesses:
- Hold a permit in pursuance of IPPC
- Hold a Water Consent for discharge of dangerous substances into groundwater or into the aquatic environment
- Hold a Water Abstraction License
- Hold another consent in pursuance of the Water Framework Directive
- Hold Waste Management Licenses or use Consignment Notes for Hazardous Waste
- Operate a Landfill Site (under the Landfill Directive) or an Incinerator (under the Incineration Directive)
- Manufacture, use, store, transport or release dangerous substances and preparations, biocides or plant protection products
- Transport dangerous or polluting goods as defined in the Transport of Dangerous
- Goods by Road Directive, the Transport of Dangerous Goods by Rail Directive or the
- Vessels carrying Dangerous or Polluting Goods Directive
- Use, transport or deliberately release GMOs
- Environmental Damage: damage to protected species and natural habitats, damage to water and damage to land; damage caused by airborne elements causing damage to water, land, protected species and natural is also covered.
- Biodiversity damage: any damage that has significant adverse effects on reaching or maintaining the favourable conservation status of biodiversity
- Water damage: any damage that significantly adversely affects the ecological, chemical and/or Quantitative status and/or ecological potential
- Land damage: any damage that creates a significant risk of human health being adversely affected as a result of land contamination
- Damage: a measurable adverse change in a natural resource and/or measurable impairment of a natural resource service which may occur directly or indirectly.
- Biodiversity: natural habitats and species as listed
- Conservation Status: In respect of a natural habitat, the sum of the influences acting on a natural habitat and its typical species that may affect its long-term natural distribution, structure and functions as well as the long-term survival of its typical species within, as the case may be, the European territory of the Member States to which the Treaty applies or the territory of a Member State or the natural range of that habitat.
The Conservation Status of a Natural Habitat will be taken as favourable when:
- its natural range and areas…are stable or increasing
- specific structure and functions…necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future
- the conservation status of its typical species is favourable
In respect of a species, the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations within, as the case may be, the European territory of the Member States to which the Treaty applies or the territory of a Member State or the natural range of that species. The Conservation Status of a Species will be taken as favourable when:
- population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats
- the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future
- there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis
Explanation of Terms
Land Contamination: the direct or indirect introduction, as a result of human activity, of substances, preparations, organisms or micro-organisms harmful (or potentially harmful) to human health or natural resources in, on or under land
Waters: all waters covered by the Directive
Operator: any natural or legal, private or public person who operates or controls the occupational activity or, where this is provided for in national legislation, to whom decisive economic power over the technical functioning of such an activity has been delegated, including the holder of a permit or authorisation for such an activity and/or the person registering or notifying such an activity
Occupational Activity: any activity…carried out in the course of a business or undertaking (other than those carried out by an individual for personal purposes)
Emission: the release in the environment, as a result of human activities, of substances, preparations, organisms or micro-organisms
Imminent threat of damage: a sufficient likelihood that environmental damage will occur in the near future
Preventive Measures: any measures taken in response to an event, act or omission that has created an imminent threat of environmental damage, with a view to preventing or minimising that damage
Remediation: in the cases of Biodiversity and Water Damage: any action, or combination of actions, including mitigating or interim measures to restore, rehabilitate or replace damaged natural resources and/or impaired services, or to provide an equivalent alternative to those resources or services, including:
Primary Remediation: any remedial action which returns the damaged natural resources and/or impaired services to, or towards, baseline condition
Complementary Remediation: any remedial action taken in relation to natural resources and/or services in a different location from that in which the relevant natural resources and/or services have been damaged
Compensatory Remediation: any action taken to compensate for interim losses of natural resources and/or services that occur from the date of damage occurring until the return of damaged natural resources and/or impaired services to baseline condition
in the case of Land Damage: the necessary measures to ensure that the relevant contaminants are controlled, contained, diminished or removed so that the contaminated land, taking account of its current or plausible future use, no longer noses any significant risk of adversely affecting human health.
Natural Resource: biodiversity, water and land
Services (or Natural Resources Services): the functions performed by a natural resource for the benefit of another natural resource and/or the public
Baseline Condition: the condition of the natural resources and services that would have existed had the damage not occurred, estimated on the basis of the best information available including, inter alia, historical data, reference data, control data, or data on incremental changes alone or in combination, as appropriate
Recovery (including Natural Recovery): in the case of biodiversity and water the return of damaged natural resources and/or impaired services to baseline condition and in the case of land damage, the elimination of any significant risk of adversely affecting human health
Costs: costs which are justified by the need to ensure the proper and effective implementation of this Directive including the costs of assessing environmental damage, an imminent threat of such damage, alternatives for action as well as the administrative, legal, and enforcement costs, the costs of data collection and other general costs and monitoring and supervision costs
Qualified Entity: any legal or natural person who, according to criteria laid down in national law, has an interest in ensuring that environmental damage is remedied. Non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest
Following an assessment when the Directive has been in force for six years, the Commission will present a report on its effectiveness; based on the report and an Impact Assessment, the Commission will submit proposals for a system of harmonised mandatory financial security if appropriate.
Visit the DEFRA website to learn more, especially their PDF regarding Environmental Regulations for Preventing and Remedying Environmental Damage
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