Parliament has finally enacted regulations to implement the European Environmental Liability Directive that were due to be in place by 30th April 2007. The Environmental Damage (Prevention and Remediation) Regulations 2009 came into force on 1 March 2009.
In relation to water resources, the Regulations apply where damage is caused or threatened to surface or groundwater resources which is sufficient to trigger a drop in the status of that water body using the criteria established by the Water Framework Directive. (For these purposes, surface water includes coastal waters up to one nautical mile around England and Wales.)
The regulations also apply to damage and threatened damage to protected species and habitats (including SSSI's) and in respect of health risks presented by land contamination. Liability is strict (ie, does not require fault to be shown) and is imposed on operators of certain regulated activities, such as persons operating or controlling facilities regulated under the pollution prevention and control regime and waste management facilities, as well as for those discharging under licence to surface or groundwater, abstracting water and/or operating reservoirs. However, as is explained below, there are important exceptions where the operator can show it was acting in accordance with the terms of its permits. The Regulations also do not apply to persons spreading sewage sludge on agricultural land.
The core requirements of the new regulations are:
For operators causing an imminent threat of environmental damage:
- to take all practicable steps to prevent the damage;
- if the threat is not thereby removed, to notify the relevant environmental authority; and
- to carry out the measures specified by the authority (or something equally effective) to prevent the damage materialising.
DEFRA has provided guidance as to when a threat is to be considered to be imminent. It includes where an event is sufficiently likely to occur and to lead to environmental damage. Operators may in practice face tough decisions as to whether immediate notification is necessary.
Where damage has happened the operator must:
- take all practicable steps to stop it getting worse/reoccurring;
- provide the details to the authorities; and
- take the measures specified by the authority (or something equally effective) to prevent further damage.
Failure to do any of these things is a criminal offence with a maximum sentence of an unlimited fine or two years imprisonment. Apart from under certain regimes (such as pollution prevention and control), there has to date been no requirement for polluters pro-actively to inform the environmental regulators of environmental damage caused.
The type and extent of environmental remediation that an operator will have to carry out is guided by the regulations and, for damage to water resources, may consist of three types: primary (to address the damage caused), compensatory (where some or all of the damage cannot be repaired) and complementary (to compensate for the existence of the damage until remediation is complete).
NGOs and pressure groups will undoubtedly seek to make use of the right in the regulations for interested parties to notify the regulator of actual or threatened environmental damage. So long as the person notifying has provided sufficient information, the regulator is obliged to consider the tip off and let that person know what (if any) action it proposes to take. The person alleged to have caused the damage/threat will (if practicable) be contacted and given an opportunity to comment.
Where the regulator becomes aware, either through its own intelligence, or as a result of being notified of damage by a responsible operator, it is then under a duty to investigate and to require the responsible operator to submit its remediation proposals. Following any necessary consultations, the authority must serve a remediation notice specifying measures to be taken within a specific timeframe. It is a criminal offence to fail to comply unless the notice has been appealed.
The fact that responsibility for remediation has been attributed to a particular operator does not stop that operator from pursuing third parties who it believes contributed to the cause of the damage. Knowing this, the regulator may be expected to pursue the operator with the deepest pockets and leave that operator at risk if it is unable to recover from others also responsible, perhaps because they have since gone out of business or insufficient proof is available to the operator (who of course does not have the same powers of inspection and interview as the regulator).
Important exceptions apply to liability under the regulations including:
- They do not apply retrospectively, ie, to damage caused or flowing from events or activities occurring before 1 March 2009 (despite the fact this is at odds with the requirement of the Directive for application to damage caused after the April 2007 implementation deadline) or where the regulator has failed to take action over the course of 30 years.
- Where it cannot be proved that the damage was caused by a specific polluter.
- Operators will not be responsible for damage caused by terrorism, or where damage is caused by an exceptional natural phenomenon against which the operator took all reasonable precautions.
Certain major projects which would cause environmental damage to water bodies that are included in river basin management plans and justified on the grounds of overriding public interest or insurmountable benefits to human safety or sustainable development, will escape the application of the regulations if it is possible to show that it is not technically feasible to achieve the same benefits another way so as to avoid environmental damage, or where the alternative methods would be disproportionately expensive. Additionally, grounds of appeal against liability imposed by the regulator are provided. These include where the operator can show it is (i) not at fault or negligent and (ii) the damage was caused by an emission or event expressly authorised by, and fully in accordance with, the terms of certain types of permit. The list of permits includes drought orders and drought permits under the Water Resources Act 1991, as well as discharge, abstraction and impoundment licences.
Other notable grounds of appeal are that the damage was caused by vandalism (so long as the operator had taken all appropriate safety measures), complying with the regulator's instructions, or where (provided the operator is not at fault or negligent) it was operating on the basis of the best knowledge available at the time.
These regulations overlay but do not replace existing law, such that the regulator will be able to choose whether it suits its purpose to, for example serve an anti-pollution works notice under the Water Resources Act requiring clean-up or a notice under these regulations. It will be instructive to see which in practice it chooses.
For a copy of the Regulations click here.
For a copy of our more general note on the Regulations please click here