B8.8 Environmental Damage & Liability

 

Environmental Damage and Liability Regulations 2009

A new suite of regulations have been introduced to force polluters to prevent and remedy environmental damage that they have caused, using the ‘polluter pays’ principle.

These regulations are:

  • Environmental Damage (Prevention and Remediation) Regulations 2009 [SI 153]
  • Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009 [SI 995]
  • Environmental Liability (Scotland) Regulations 2009 [SSI 266]
  • Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009 [SR 252]

 

The key principle is that if a person or organisation conducts an activity that causes environmental damage they will have to remedy the damage. If there is a risk of damage from business activities, actions must be taken to prevent such damage occurring.

The regulations do not apply to environmental damage caused before the regulations came into force.

Under the regulations, environmental damage is:

  • Serious damage to surface or ground water.
  • Contamination of land where there is a significant risk to human health.
  • Serious damage to EU protected natural habitats and species or damage to Sites of Special Scientific Interest (SSSIs) or Areas of Special Scientific Interest (ASSIs) in Northern Ireland.

 

The regulations should rectify the fact that even when a prosecution occurs, they take a long time and may not result in the damage being rectified.

If you cause (or it is considered that your activities will cause) environmental damage, you may have to:

  • Take steps to prevent the damage (or further damage) occurring.
  • Inform the Enforcing Authority who will tell you what you must do to prevent and/or remedy the damage.
  • If the Enforcing Authority has to remedy the damage for you, you will have to pay the costs.

 

The regulations will be enforced by:

  • In England and Wales – the Environment Agency, Natural England and local councils.
  • In Scotland – SEPA, Scottish Ministers (as Marine Scotland) and Scottish Natural Heritage are responsible for administering and enforcing the regulations, depending on the type of damage involved.
  • In Northern Ireland, the Northern Ireland Environment Agency (NIEA) are responsible for administering and enforcing the regulations.

 

A DEFRA Guidance document is available here: DEFRA Environmental Liability Regs Guidance РShort

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