1. Introduction

On 16 December 2008 the European Communities (Environmental Liability) Regulations 2008 (the Regulations) were finally published and are due to come into effect on 1 April 2009. The Regulations transpose the majority of the Environmental Liability Directive (2004/35/EC) (the Directive) which should have been transposed by 30 April, 2007. There is also currently a Draft Environmental Liability Bill 2008 (the Bill) which provides for the transposition of the remaining, discretionary, provisions contained in the Directive. This is in the process of being reviewed by the Attorney General's Office, a final draft of which is to be expected in the next couple of months, with a view to being enacted by April (in line with the coming into effect of the Regulations). 

  1. The Regulations

The purpose of the Directive is to establish a framework of environmental liability based on the 'polluter pays' principle, to prevent and remedy environmental damage, on a consistent basis throughout the EU. 

  1.  What do they Cover?

The Regulations (implementing the Directive in Ireland) aim to provide for the prevention and remediation of environmental damage i.e. irrespective of negligence, but see the comments on the Bill below. They aim to make operators whose activities have caused environmental damage strictly liable to pay to remedy that damage. They also aim to force remedied action where there is an imminent threat of damage.

The Regulations cover "environmental damage", defined as damage to:

  • Protected species and natural habitats, covered by the Habitats Directive (92-43-EEC) and the Wild Birds Directive (79-409-EEC)
  • Water, covered by the Water Framework Directive (2000/60/EC)
  • Land.
  1. Are they Retrospective?

The Regulations do not apply to:

  1. damage caused by an event which takes place before 1 April 2009;
  2. damage caused by an event after 1 April 2009 but which derives from a specific activity which has concluded before that date; and
  3. damage, if more than 30 years has passed since the incident that gave rise to the damage, occurred. It must be said however that it is not always straightforward to ascertain the date when environmental damage occurs.
  1. Who is Liable?

Operators of "occupational activities" (Operators) that cause environmental damage or where there is an imminent threat of such damage. "Occupational activities" are widely defined to include public and private activities, business and undertakings, irrespective of whether or not they are undertakings for profit. Most of these are envisaged to be activities that require an environmental operating licence.

  1. Exemption from liability

Under the Regulations, Operators may escape liability for prevention and remediation costs if the Operator can prove that the damage or threat of imminent damage:

  • was caused by a third party despite appropriate safety measures being put in place; or
  • resulted from compliance with an order or instruction of a public authority.

Ireland also intends to avail of other discretionary defences provided for in the Directive. These are included in the Bill and are discussed below.

  1. The operator is responsible for taking: 
  1. Preventative measures: i.e. action to prevent or minimise environmental damage where there is an imminent threat of it occurring. 'Imminent threat' is not defined in the Regulations: they state that Operators must, without delay, take necessary preventative measures where they are aware, or ought reasonably to be of the opinion, that there is an imminent threat of environmental damage.

In respect of preventative measures, there is an obligation on Operators to notify the Environmental Protection Agency (the EPA) if they cause environmental damage (as defined) and to make proposals to remediate such damage. It should be noted that there is no need for the EPA to do anything to trigger that duty, for example, to serve a notice.

  1. Remedial measures: i.e. action to restore, rehabilitate or replace damaged land, water, protected species or natural habitats and/or impaired functions performed by such natural resources. In respect of remedial measures, Operators are not only liable for remediation to a "base line condition", but also for "complementary" and "compensatory" remediation. In other words, it is not necessarily enough to repair the land to the condition it was in before the environmental damage, more may have to be done.
  1. Enforcement

The EPA has been nominated as the body that will be responsible for taking steps to ensure that environmental damage is prevented or remediated.

The Regulations also provide that the EPA may undertake preventative and/or remedial measures themselves in certain circumstances and recover the costs from Operators, although this power, available in other Irish environmental legislation, is not used. The Regulations also allow qualified NGOs and other members of the public to make observations to the EPA relating to any environmental damage and to request the EPA to take action. They can also request the Court to review the legality of the EPA's decisions, acts and/or failure to act, by judicial review or similar proceedings.

  1. The Register

 The EPA has certain reporting requirements to the EU Commission and must establish and maintain a register containing certain mandatory information i.e relating to the type of environmental damage, the date of occurrence of same on which proceedings were initiated etc. The EPA may also include on its register supplemental information i.e. costs incurred in relation to remediation and preventative measures.

  1. The Bill

As mentioned above, the Bill is envisaged to be enacted simultaneously with the coming into effect of the Regulations. The Bill:

  1. provides that the Minister for the Environment may extend the application of the Regulations to certain habitats and species not already covered by the Regulations;
  2. provides that Operators shall not bear the cost of remedial action where they prove that they were not at fault or negligent, and that the damage was caused by:
  • an emission or event expressly authorised by, and fully in accordance with the conditions of, for example an environmental permit ("the permit defence")

or

  • the activity was not considered likely to give rise to environmental damage at the time the activity took place (the "state of knowledge" defence).
  1. provides that, where it appears that a request for action relating to an instance of an imminent threat of environmental damage, as referred to at 2.f) above, is vexatious, frivolous, without substance or foundation, the EPA may dismiss such a request for action.
  2. substitutes a new Schedule for Schedule 3 of the Regulations in order to facilitate the correct transposition of the Directive and in order to avail of the discretion contained in the Directive in relation to the exclusion of the spreading of sewage sludge from urban waste water treatment plants, treated to an approved standard, for agricultural purposes.
  1. Conclusion

The Directive and its transposing Irish legislation introduce some novel and potentially onerous obligations on Operators, particularly in the case of the requirement to take preventative measures 'without delay' where there is an imminent threat of environmental damage, which essentially amounts to a 'self-executing' duty which is not reliant on any pro-active intervention by the EPA. The true extent and effects of the legislation however will very much depend on the amount of resources the EPA are given to enforce it.