New environmental regulations will speed up remedies
Article Type: Corporate law outlook From: Strategic Direction, Volume 25, Issue 9
Introduction
On March 1 this year the Environmental Damage (Prevention and Remediation)Regulations 2009 came into force in England in implementation of the European Directive on Environmental Liability.
The legislation brings into legal force the principle of “the polluter pays” and provides that those responsible prevent and remedy defined“environmental damage”.
The Regulations were deemed to be required due to the current legislation in place which necessitates formal prosecutions to be brought against polluters and which can take a long time to conclude. Whilst this process is being completed it is very difficult, if not impossible, to provide for the repair of any damage pollution may have caused.
By bringing in these Regulations, the relevant authorities can provide for environmental damage to be prevented and/or repaired much quicker and in a less expensive manner.
To whom and to what do the regulations apply?
The Regulations apply to all “economic activities” and includes all businesses and public sector activities. They are enforceable against“an operator” which is defined as the person or company who controls an activity or who is in charge of it. The Regulations do not cover domestic or recreational activities.
Environmental Damage under the Regulations refers to:
Any adverse effect on the integrity of a Site of Scientific Interest (SSSI)or on the conservation status of species and habitats protected by EU legislation outside SSSIs.
Any adverse effect on surface water or groundwater consistent with a deterioration in the water’s status (Water Framework Directive term).
Contamination of land that results in a significant risk of adverse effects on human health.
As such, this definition covers damage to water, land, sites of specific interest and protected species or natural habitats. The Regulations do not apply to any damage which was caused before the date the regulations came into force.
Under the Regulations, there is deemed to be “strict liability”(i.e without the need to show fault) for environmental damage caused for certain listed activities. These are fairly wide reaching and include all waste management operations; any activity which involves discharges requiring authorization; water abstraction; the manufacture, use storage and processing of dangerous substances or preparations and the transporting of dangerous goods. In addition, there is liability for all other operators where environmental damage is caused with intention or due to negligence (though this relates only to damage to SSSI’s or EU species or habitats)
In addition, the Regulations not only apply where damage has occurred but also where there is an imminent risk of it occurring.
Responsibilities and process
The Regulations place specific obligations on operators to:
take all practicable steps to prevent any environmental damage and/or any further damage and to notify the authority and provide information in respect of the same when caused (or when there is an imminent risk);
where environmental damage has occurred to submit proposals for remediation;
to undertake any preventative and remedial measures as required by the authority (served by them in a “Remediation Notice”); and
to pay any costs claimed by the authority in relation to the environmental damage caused.
The relevant authorities are obliged to:
establish whether damage is environmental damage and identify a responsible operator; and
in such circumstances to serve a remediation notice taking into account any measures proposed by the operator confirming what steps are required to deal with the damage caused.
In addition Authorities may take steps to prevent or remedy damage where the operator fails to act.
The relevant authority will be the local authority in respect of damage to land, the Environment Agency in respect of damage to water or where they have granted a permit for an activity and Natural England in respect of damage to natural habitats, protected species or a SSSI.
Appeal
Where an authority determines that there has been environmental damage and notifies the relevant operator, the operator has 28 days to appeal. The grounds for appeal include:
the activity did not cause the damage;
the authority has unreasonably decided the damage is ‘environmental damage’;
the damage was the result of any act of a third party; or
the operator was not at fault or negligent and the event was authorised in accordance with an environmental permit
Operators may also appeal against a remediation notice on the grounds that the contents of it are unreasonable.
Enforcement
If operators fail to comply with the obligations in a remediation notice then the authority has the power to carry out the relevant works itself and reclaim the costs of doing so from the operator.
In addition, it is an offence to not comply with the obligations in the Regulations and it is possible for a Court to impose a prison sentence or impose substantial penalties for such offences.
It should be also noted that the Regulations specifically allow operators who have been made to pay for remediation to make a claim against others who have been at fault in connection with the environmental damage caused.
Conclusion
These Regulations are potentially wide reaching in that they provide a much quicker and efficient way for authorities to procure the remedying of any environmental damage and, as such, they are likely to lead to action being brought much more regularly.
The Regulations not only place an obligation on operators to remedy any environmental damage but, in addition they widen the obligations so that they must also take steps to prevent any damage which is imminent and advise the relevant authority accordingly. This means there are now very definite obligations on an operator to keep the authorities informed on matters where there is a risk that environmental damage could be caused and take such steps as they reasonably require.
The Regulations also place a definite obligation on authorities to establish if there has been environmental damage and if so to serve a remediation notice requiring it to be made good.
As such the Regulations oblige both the Authority and the operator to become much more pro-active towards environmental damage and the risks of it being caused. Under these expanded powers and obligations it is more likely than ever that authorities will become aware of premises which are at risk to environmental damage and in addition then require appropriate action to be carried out.
If you wish to discuss the regulations outlined in this article, or any issues around environmental legislation, then please contact Phil Gregory on 0113 2270235 or e-mail: phil.gregory@gordonsllp.com
Phil GregoryPhil Gregory is a commercial property partner at Leeds and Bradford based law firm Gordons UK.
Acknowledgements
Issued on behalf of Gordons LLP by fuse8 Public Relations. For further information please contact Fran Longley. Tel: 0113 284 0686; Mobile: 07534 225 184; E-mail: frances.longley@fuse8.com
