The Environmental Damage (Prevention and Remediation) Regulations 2009 (“the Regulations”) imposed legal obligations on businesses, public bodies and charities to prevent and report threats or actual damage to the environment. Yet, despite the Regulations being in force for over 2 ½ years many operators are still unaware of there their potential liabilities under the regime.
Who is responsible?
The Regulations impose strict liability on all operators that undertake activities listed in Schedule 2 of the Regulations. These include:
- Any activity requiring an environmental permit;
- The storage, handling, use and transport of dangerous activities;
- Construction and demolition;
- Waste Management operations;
- Water abstraction and discharge.
Any such operator that causes ‘environmental damage’ or an ‘imminent threat of environmental damage’ is liable regardless of who was at fault, unless the operator was in compliance with a permit or used state of the art practice.
There is greater protection for SSSIs, species and habitats. Any operators of economic activities (ie no need to have a Schedule 2 Activity) are liable for environmental damage to protected species and habitats if they intended to cause the damage or were negligent so as to cause the damage.
In the event of environmental damage or an immediate threat of environmental damage, the operator must immediately:
- Take preventative action;
- Notify the regulator; and
- Carry out agreed remedial measures.
Failure to notify the authority of an imminent threat or actual damage, or failure to comply with the subsequent Prevention Notice or Remediation Notice is a criminal offence. Upon conviction a company can receive an unlimited financial penalty. Those with real authority of the business operations, such as directors and managers, may also face prosecution and upon conviction could be liable to an unlimited fine and up to two years imprisonment.
What constitutes Environmental Damage?
Environmental damage is considered as any of the following:
- Land contamination that results in a significant risk of adverse effects on human health;
- Water pollution that changes the status in the quality of surface water or groundwater;
- Harm to the integrity of a SSSI or conservation status of protected species or habitats.
Neighbouring landowners, environmental groups, bird watchers and ramblers can inform the regulators about actual or threatened environmental and therefore initiate enforcement proceedings. The interested parties also have rights of consultation to comment on the proposed remediation to be undertaken by the operator.
More expensive remediation
The Regulations impose new forms of remediation including Complimentary Remediation for interim losses and Compensatory Remediation where other sites can be cleaned up. The Environment Agency, local authority or Natural England can carry out work themselves and recover investigation, remediation and monitoring costs. The regulators can place a charge on properties to recover their costs.
Significance of the Regulations
The requirement to carry out immediate preventative action and remedial measures can be a great expense to the operator. For example, the clean-up costs of damage to a waterway can take several years and cost hundreds of thousands of pounds. Public liability insurance policies rarely cover such remediation costs and the associated legal and technical expenses. Failure to immediately notify the regulator about environmental damage can result in prosecution and fines.
Therefore this is a considerable risk management issue for every industrial business.
At the very minimum, businesses need to inform management and staff about the legal duties under the Regulations and review and improve risk management and reporting procedures. Depending on the sensitivity and use of individual sites, environmental audits should be considered or environmental insurance quotes obtained.