Environmental Update (March 2009)
Environmental Liability now in place
The Environmental Damage (Prevention and Remediation)
Regulations 2009 came into force on the 1st of March implementing
the EU Environmental Liability Directive (2004/35/EC). The
objective of the Directive is to establish a framework of
environmental liability based on the 'polluter pays' principle to
prevent and remedy environmental damage.
The Regulations only apply to England, and where damage to
protected species or natural habitats is concerned, to the sea bed
as far as the limits of the Continental Shelf and to anywhere other
than the sea bed in the Renewable Energy Zone. Separate regulations
will be made by the devolved Governments in Scotland, Wales and
Northern Ireland which will provide protection for 12 nautical
miles around those areas.
Under the Regulations, operators of economic activities are
required to prevent, limit and remediate significant environmental
damage to protected species, natural habitats, sites of special
scientific interest, surface water, ground water and land.
Operators will be liable for any significant environmental
damage or negligence where they are found to be at fault (excluding
acts of terrorism, or resulting from the effects of exceptional
natural phenomena). The following activities are covered:
- the operation of permitted facilities (inc. waste management
operations);
- discharges to the water environment, water abstractions and
impoundments requiring authorisations;
- the manufacture, use, storage and other handling of dangerous
substances, plant protection products and biocides;
- the transportation of dangerous or polluting goods;
- the contained use and/or the deliberate release of genetically
modified organisms; and
- thetransboundary shipment of waste.
The regulations will not apply to certain incidents of damage
caused by oil pollution and radioactivity, where liability or
compensation falls with the scope of the relevant international
Treaty provisions covering those types of pollution.
Under the regulations, operators must take immediate steps to
prevent environmental damage where an activity poses an imminent
threat, and, where damage is occurring, take action to prevent
further damage.
Where damage has already been caused, it will be assessed by the
relevant enforcing authority. Operators are then required to submit
proposals setting out a suitable remediation strategy. The
enforcing authority will then serve a remediation notice on the
operator indicating the level and type of remediation package
necessary, which may, in certain circumstances, include primary,
complementary and compensatory remediation measures.
Although the regulations require the operator responsible for
causing the environmental damage to carry out the necessary
remediation, provision is made for the enforcing authority to carry
out the remediation work in circumstances where the responsible
operator cannot be found or otherwise fails to comply with the
remediation notice.
The regulations do not require an operator to carry out
remediation works where it can be shown that his activity did not
cause the damage, or where the damage was caused by an emission or
event expressly authorised under an environmental permit.
A person convicted of an offence under these Regulations is
liable to a fine or even imprisonment.
The regulations and explanatory memorandum can be found at:
-
http://www.opsi.gov.uk/si/si2009/em/uksiem_20090153_en.pdf
http://www.opsi.gov.uk/si/si2009/pdf/uksi_20090153_en.pdf
In 2010 the government will launch an energy saving scheme, the
Carbon Reduction Commitment (CRC), designed to reduce businesses'
CO2 emissions. The scheme will mainly affect large
private and public sector organisations. If the CRC applies to you,
you will have to trade carbon allowances and cut carbon emissions.
Ensure you understand the implications of this change; contact your
Mentor consultant or the Advice Service.