New regulations requiring remediation of environmental damage came into force on 1 March 2009 in England. The Environmental Damage (Prevention and Remediation) Regulations implement European law. The Regulations pretty much do what it says on the tin – they are concerned with the prevention and remediation of environmental damage. They do not impose penalties or fines and it is intended that they nestle alongside existing environmental legislation in this regard.
At first read, the Regulations seem rather toothless and restrictive. They only apply to damage caused after 1 March 2009 and to restricted classes of damage. Only damage to Sites of Special Scientific Interest (“SSSIs”), to protected species / habitats or to water is covered. Even then, other criteria must be met, such as a change
in the water’s legal classification. Contamination of land that results in a significant risk of adverse effects to human health is also covered.
However, when applied, the Regulations could have a much more valuable effect than the traditional UK approach to legislation of “don’t do that or you’ll get fined”. Fines, of course, going into the public purse and not necessarily to anyone suffering from the damage.
The first obligation is to report an imminent threat of Environmental Damage or actual damage and take immediate action to stop that damage. The Environment Agency must also be notified.
A remediation plan must then be put into effect. The pollution must be cleaned up so that significant risks to health are removed. But other requirements can be imposed, and this is where things get interesting.
For damage other than to land, the affected receptor is returned to pre damage state. “Complementary Remediation” can be imposed if other remediation does not fully restore damage caused. “Compensatory Remediation” (non financial) may also be ordered, compensating for losses of natural resources whilst the damage is being restored.
For example – a manufacturer discharges a concentrated acid into a stream. The stream flows through a country estate and feeds a number of trout ponds. The estate has an active angling society and red kites were recently released on the estate.
The acid effectively “wipes clean” the ecosystem. The fish are killed and three red kites are found dead having eaten the poisoned fish. Until this new legislation came into effect, the manufacturer would have had to do very little apart from pay a fine. It would possibly have been ordered to pay compensation to the estate. But under the new scheme, the manufacturer could be required to actively put the damage right. As “Complementary Remediation”, the manufacturer may have to restock the stream with trout and enter into a program to replace the red kites. But the ecosystem will not recover over night. Until that time, the anglers cannot fish on the river.
As “Compensatory Remediation”, the manufacturer may therefore be required to fund the anglers pursuing their hobby elsewhere. There are “traditional style” fines for failing to comply with requirements of the Regulations such as not notifying the Environment Agency of damage and failing to comply with a Notice issued by the Agency.
Operators are therefore advised to:
- Consider whether their systems (including Environmental Management Systems) are set up to identify and report an issue.
- Consider whether their activities could affect an environmentally sensitive area and review procedures accordingly.
- Review their insurance provisions. In a recent insurance case, a Court held that a company could not recover all its costs of an environmental incident. Given that the costs can easily run to six figures, this is a call worth making.
The Regulations are by no means perfect. But they are a step in the right direction. Whether offenders forced to carry out remediation will have to wear orange fluorescent jackets remains to be seen!