Environmental regs: how damaging can they be?
Simon Colvin and Gordon McCreath highlight some of the key considerations for local authorities in relation to the Environmental Damage Regulations
The Environmental Damage (Prevention & Remediation) Regul-ations 2009 came into force in England in March. Similar regulations came into force in Scotland in June. A recent straw poll of local authorities in England indicates that they are not equipped to enforce or comply with the new regulations. Defra funding that was made available for training in 2008 was not ringfenced and has been used for other purposes, with the result that none is left to educate councils on their new obligations.
This article highlights some of the key considerations in relation to the regulations for local authorities. Councils need to consider the potential for them to be liable for environmental damage, particularly in the waste sector, but also their role in England as an enforcing authority. So, what is environmental damage and who is the enforcing authority?
It is significant damage to one or more of the following:
- protected species, natural habitats or, in England, damage to SSSIs – the enforcing authority is Natural England or Scottish Natural Heritage
- Surface water or ground water – the enforcing authority is the Environment Agency or SEPA
- land – the enforcing authority is the local authority or SEPA.
Further direction on ‘significance’ is contained in the regulations and related guidance. Liability is not retrospective and the regulations do not apply to historic contamination, although there is a grey area in certain circumstances in relation to contamination which was ongoing at the time of implementation.
Where environmental damage is established to have resulted from a specific range of occupational activities – those covered by environmental permits – the operator of that activity is liable, whether or not it intended to cause, or was negligent in causing, the damage. Fault-based liability also exists where environmental damage occurs under the species and habitats heading, irrespective of the activity that caused it.
So what is the liability? If damage has been caused, the operator must submit proposals for remedial measures. On receipt of the proposal the authority needs to consult with interested parties and must serve a remediation notice specifying the required measures. Operators have the right of appeal. New, more onerous remedial measures are required by the regulations:
- primary – to remediate the actual damage and if possible put the site back into its original condition
- complementary – remediating or improving a separate site as compensation for any damage to the actual site that cannot be remediated
- compensatory – to compensate for the interim loss of amenity on site while the primary remediation is ongoing.
In terms of who is responsible and for what, where there is an imminent threat of damage or damage has occurred, an operator must immediately take all practical steps to prevent the damage/further damage and notify the relevant enforcing authority. The procedure applies in relation to the remediation itself. Where there is more than one operator it is open to the authority to pursue the operator with the deepest pockets to complete the remediation works.
When it comes to third party rights, the regulations introduce a right for any person affected or likely to be affected by the damage to notify the appropriate enforcing authority who is then required to consider the report and inform the reporting person of the action they propose to take. This promotes the ability of campaigners to police the environment and pressurise authorities into taking action.
As for the overlap with existing legal obligations, the regulations introduce an umbrella approach. They do not amend existing legislation, but sit above the existing framework. Where there is damage, the regulations must be applied in conjunction with the existing legislative framework. A failure to apply the regulations would leave an authority at risk of third party challenge.
So, what are the relevant practical and commercial considerations? Firstly, consider the impact of potential liability in terms of contractual indemnities, joint and several liability where there is more than one operator and the positive reporting obligations and how these relate to confidentiality requirements.
You should also review your environmental management system to define who decides whether the damage threshold has or is likely to be reached, what immediate action or remediation is required, and who has the responsibility for reporting to the appropriate regulator.
Simon Colvin is a senior associate and Gordon McCreath is a partner at Pinsent Masons
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