|
|
Environmental Liability Regulations
The Environmental Liability Regulations1, which
came into operation on 1st April 2009, have the central aim of
holding operators financially liable for remedying environmental damage
caused by their activities.
Operators are also liable for taking preventative actions if their
activities cause an imminent threat of environmental damage. The Regulations therefore go further
than the ‘polluter pays’ principle in that they also seek to prevent
environmental damage from occurring.
The term ‘Environmental Damage’ is a new term in Irish legislation
and has specific meaning. The term
means:
•
Damage to protected species and natural habitats
•
Damage to the ecological status or ecological potential of
water (ground water and surface water)
•
Damage to land that creates a significant risk to human
health
A key point is that the damage must have a significant adverse
affect. It is the responsibility
of the Competent Authority (in this case the EPA) to provide guidance on
what are significant adverse affects.
The Regulations apply to damage or the threat of damage caused by
a wide range of operational activities which include, for example, IPPC
licensed sites, waste management facilities, and the transport of
dangerous substances.
The regulatory process from the point of view of the operator is
as follows:
|
Environmental
damage occurs, or there is an imminent threat of environmental damage
|
|
↓
|
|
Notify
Damage to EPA
|
|
↓
|
|
Identify
Remedial Measures
|
|
↓
|
|
Implement
Remedial Measures
|
|
↓
|
|
Meet
Costs
|
The EPA as the Competent Authority will either direct the
operator to take the remedial measures identified by the operator or it
will specify the measures to be undertaken. Third parties have a right to inform
the EPA of incidents or the threat of environmental damage and to request
action from the Agency.
The EPA has recently established an Environmental Liability Unit
dedicated to the implementation and enforcement of environmental
liability legislation in Ireland.
The Agency is undertaking the preparation of a Guidance and
Research Briefing Note in relation to the implementation of the new
Regulations. It is expected that
the guidance document will outline criteria for assessing environmental
damage for each of the three types of environmental damage, and provide a
risk ranking of the activities most likely to result in environmental
damage.
The guidance will assist the Agency in integrating the Regulations
with existing enforcement regimes in Ireland. Licensed activities such as IPPC
licensed sites could expect direction and guidance from the Agency on
environmental liability compliance in early 2010. However, even though the Agency’s
guidance is awaited, it is important to note that the obligations on the operator
under the Regulations apply now as outlined above.
A measure of the possible impact of implementing the Environmental
Liability Regulations in Ireland may be gauged at this stage from
research conducted on behalf of the UK’s Department for Environment, Food
and Rural Affairs (Defra) on similar regulations which implement the
Environmental Liability Directive in England, Wales and Northern Ireland.
That research indicates that the UK regulations are expected to cover
less than 1% of the 30,000 cases of environmental damage that occur each
year on average. The research also
estimates the cost of implementing the regulations in England, Wales and
Northern Ireland at ~£14 million per year, which includes risk reduction
measures, insurance and remediation, with manufacturing businesses accounting
for ~11% of this estimate.
If you are
interested in the content of this article, and would like to discuss it
further, please contact Mr. Ambrose Clarke on +353-1-474
1535 or email Ambrose.Clarke@boc.ie.
_______
1. SI 547 of
2008, which gives effect to European Communities Directive 2004/35/EC
|
|
