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Environmental Damage (Prevention and Remediation) Regulations 2009

06 May 2009

The regulations transpose the requirements of Directive 2004/35 on environmental liability with regard to the prevention and remedying of environmental damage. They introduce new obligations to ensure that the polluter pays for damage caused, and will supplement existing legislation in this area.

The Regulations came into force on 1st March 2009. They do not apply to damage which takes place before that date, or to damage taking place after that date if it is caused by an emission or event which takes place before that date, or if it results from an activity which finished before that date.

These regulations apply to England, together with the marine area beyond 12 miles around the UK. Scotland, Wales and Northern Ireland will have their own regulations shortly.

The regulations apply to three types of environmental damage: these are specific types of damage to water, land damage and damage to biodiversity.

Damage to water covers two types of water: surface water and groundwater. In the case of surface water, it is any damage which would be sufficient to lower the status of the water body, whether or not that status is actually lowered. This links across to the obligations under the Water Framework Directive to monitor and report status of water bodies, and takes into account a number of different factors including the ecology of the water or the presence of dangerous chemicals.

Land damage is any contamination by substances or organisms which creates a significant risk of adverse effects on human health.

Biodiversity damage in the regulations covers two different things: on a SSSI (site of special scientific interest) the regulations will cover damage to any of the species or habitats for which the site has been notified under the Wildlife and Countryside Act 1981, or species and habitats protected under EU legislation, if the integrity of the site is damaged. In the case of species and habitats outside the boundary of a SSSI, the regulations will cover any damage which has a significant effect on reaching or maintaining the conservation status of species or habitats protected under EU legislation.

The regulations do not impose any requirements unless there is an incident which may be covered. If there is an imminent threat of environmental damage, operators will be required to take immediate steps to prevent damage. If damage is being caused and there are reasonable grounds to believe that it is, or may become, environmental damage, then operators will be required to prevent further damage. If environmental damage is caused, operators will have to carry out remediation. Operators may, however, wish to take additional measures to assess and manage the risks they pose to the environment to reduce the chances of incurring liability.

In certain cases, the enforcing authority will be able to serve a notice on more than one operator, or only on one operator even if the damage has also been caused by other operators. Any operator in this situation may be able to reclaim contribution from any other liable operator if he thinks it appropriate to do so.
If operators fail to comply with a remediation notice, then the enforcing authority will have power to carry out works and to reclaim the costs from the operator.

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