ENVIRONMENTAL DAMAGE (PREVENTION AND REMEDIATION) REGULATIONS 2009, AS AMENDED

These Regulations implement the Environmental Liability Directive 2004/35/EC in England, which seeks to prevent and remedy environmental damage to protected species, natural habitats, sites of special scientific interest, water resources and land.

Damage to water bodies is defined in the regulations as:

• sufficiently lowering the biological, chemical or physiochemical status of surface water;
• sufficiently lowering the conductivity, level or concentration of pollutants in groundwater to lower its status

in accordance with the Water Framework Directive (2000/60/EC).

Damage to species and habitats is defined as:

• having a significant adverse effect on reaching or maintaining the favourable conservation status of a protected species or natural habitat; or
• for SSSIs, occurring to the notified or a protected species or habitat and having an adverse effect on the integrity of the site.

Environmental damage to land means contamination of land by substances, preparations, organisms or micro-organisms that results in a significant risk of adverse effects on human health.

Where there is an imminent threat of environmental damage, the operator must immediately take all practicable steps to prevent the damage. Where damage has occurred, the operator must immediately take all practicable steps to prevent further damage. In both instances the operator must notify the authority of all relevant details.

The regulator will decide whether the damage is environmental damage and can then serve notice on the operator to take specific measures to prevent the damage, or prevent further damage. In an emergency situation, or where the operator cannot be notified, or does not comply with a notice, the regulator must carry out the enforcing measures.

Operators have the right to appeal against a regulator’s notice to implement improvement measures. Where an operator is at fault, the operator is liable for any costs including the regulator’s cost such as: assessing the damage; carrying out consultation; and, monitoring the areas both before and after remediation.

Remediation to land must ensure that the relevant contaminants are removed, controlled, contained or diminished so that the land no longer poses any significant risk of adverse effects on human health. Remediation other than to land must remove any significant risk to human health and achieve the same level of natural resource or services as would have existed if the damage had not occurred. The choice of remediation method must be based on its effectiveness, cost, impact on health and safety and time.

The regulations allow any person to notify the regulator of any environmental damage which is being, or has been caused or of which there is an imminent threat. The regulations extend the regulators’ inspection powers to include a ship or marine installation in UK territorial water or a UK ship or marine installation in renewable energy zone.

The regulations apply to damage caused by:

• Sites permitted under the Pollution Prevention and Control Directive (2008/1/EC);
• Waste management operations under the Waste (2006/12/EC); Hazardous Waste (91/689/EC); Landfill (1999/31/EC); Waste Incineration (2000/76/EC); Mining Waste (2006/21/EC); and Transfrontier Shipment of Waste (1013/2006/EC) Directives;
• Discharges to surface water requiring prior authorisation under the Dangerous Substances Directive (2006/11/EC); discharges to groundwater requiring prior notification under the Groundwater Directive (80/68/EEC); discharges to, or abstraction or impoundment from, surface or groundwater requiring authorisation under the Water Framework Directive (2000/60/EC);
• Manufacture, use, storage, processing, filling, release into the environment and onsite transport of: Dangerous substances, dangerous preparations, plant protection products and biocidal products as defined in Directives 67/548/EEC; 1999/45/EC; 91/414/EEC and 98/8/EC respectively;
• Transportation of dangerous goods by road, rail as defined under Directives 94/55/EEC and 96/49/EC respectively; and transportation of dangerous and polluting goods in vessels under Directive 93/75/EEC; and
• Use, or deliberate release, transport or placing on the market of genetically modified organisms as defined under Directives 90/219/EEC and 2001/18/EC respectively.

In the case of environmental damage to protected species, natural habitats or a site of special scientific interest (SSSI), the Regulations also apply in relation to environmental damage caused by any other activity if the operator intended to cause environmental damage; or was negligent as to whether environmental damage would be caused. Therefore, any site can be prosecuted if proven to have caused damage deliberately or negligently.

A number exemptions are listed including: damage that took place prior to the regulations coming into force; defence activities; an incident for which compensation is covered by the International Convention Fund for Oil Pollution Damage or Civil Liability for Bunker Oil Pollution Damage.

The regulations are enforced by the Environment Agency, Natural England, the Local Authority and the Secretary of State depending on the damage. DEFRA guidance is available here.

A 2009 amendment correct the application of the regulations with regard to the sea adjoining the England.

A 2010 amendment alters the enforcement of these regulations if the damage caused is caused by an activity that does not require a permit or registration under the Environmental Permitting (England and Wales) Regulations. The area to which these regulations apply is extended for Damage to protected species or natural habitats or a site of special scientific interest, to include land, water, and any part of the continental shelf or in the sea up to the limit of the renewable energy zone which lies within the Scottish zone. Enforcing authorities are also specified for various activities resulting the damage.

Applicability

Fabricated Examples should be aware that these regulations introduce strict liability for damage caused to the environment by permitted sites, such as the Fabricated Examples' site.  The combination of the permits and discharge consents held by the company and the proximity of the neighbouring Site of Special Scientific Interest (SSSI) and brook make the company vulnerable to prosecution under these regulations should an incident occur that caused damage to the environment.  Fabricated Examples should continue to be vigilant and ensure a high standard of housekeeping, effluent management and waste management is maintained.

Related Aspects
Flooding