Duty to notify under proposed Environmental Damage Regulations

In February 2008, the Government (Defra) launched a consultation on the draft Environmental Damage (Prevention and Remediation) Regulations for both England and Wales. The consultation ends on 27 May 2008. The Regulations will transpose the provisions of the EU Environmental Liability Directive into law in England and Wales (Scotland and Northern Ireland will be consulting separately on their draft regulations).

The Directive should have been transposed into law by the UK by April 2007, but it has proved difficult to dovetail the Directive with existing environment protection regimes. The Regulations will be based on the ‘polluter pays’ principle. A principal aim is to prevent environment damage by the operator identifying imminent environment threats and proactively putting in place appropriate pollution prevention measures. This article focuses on a new duty imposed by the Regulations to notify competent authorities in certain circumstances.

To date, unless required by the provisions of a permit, there is no legal duty to inform any competent authority of any polluting incident. These Regulations place new notification obligations on the operator, in specified circumstances, to inform the competent authority of environment threat and harm. The Regulations will only apply to damage caused or damage threatened after the Regulations come into force (i.e. prospective pollution and not historic contamination). Defra aims to bring the Regulations into force by December 2008.

Who will the Regulations apply to?

The Regulations will apply to operators of “activities”. The Regulations define activity as any commercial activity, whether public or private and whether or not carried out for profit. Schedule 2 sets out a list of particular activities about which more obligations apply. These activities are generally permitted (see further below).

When will the Regulations apply?

There are two situations in which the Regulations will apply.
The first will be if any of the Schedule 2 activities cause “environmental damage” or if there is an “imminent threat” of environmental damage.

Environmental damage is damage to:

• protected species or natural habitats, or to SSSIs;
• surface water or ground water; or
• land.

An imminent threat of environmental damage means that there is a sufficient likelihood that damage will occur in the near future, for example where a fault in equipment has occurred which might give rise to a leak. A threat can include situations where (1) an event has not yet occurred but is likely to, or (2) an event has occurred but there is no damage yet, but there is likely soon to be damage.

Activities listed in Schedule 2 to the Regulations include operations subject to Environmental Permits (formerly PPC Permits), water discharge consents, waste management operations, groundwater authorisations or water abstraction and impoundment, the manufacture, use, transport and storage of dangerous substances or polluting goods, the use and release of GMOs and transboundary shipment of waste. An operator will include the holder of a permit, consent or authorisation for the activity or the person registering or notifying the activity.

The second situation will be where, in addition to those listed in Schedule 2, an operator of any other commercial activity intentionally or negligently causes environmental damage (or an imminent threat of such damage), to protected species, natural habitats or SSSIs (i.e. often referred to as biodiversity damage). Note this does not apply where only land and water pollution is involved.

Duty to Notify

Amongst other obligations, the Regulations will place a new duty on the operator to notify competent authorities. When an operator identifies that environmental damage has occurred (for which it may be responsible – see above), or there is an imminent threat of it occurring, they must take steps to prevent any damage or any further damage. Once the damage or threat has been identified, the operator must (unless the threat has been eliminated) send a notification to the competent authority stating that it is reporting pursuant to the Regulations and providing all relevant details of the damage or the threat. Details to provide in the notification include:

• name and contact details;
• date and time that the threat or damage was discovered or suspected;
• a grid reference of the location of the activity giving rise to the damage or threat;
• a factual description of the activity;
• which type of damage has occurred or may occur and details of any potential impacts;
• an indication of the scale of the damage or threatened damage;
• any useful supporting information (e.g. sketch maps or photographs); and
• what health and safety precautions are needed.

A remediation notice may then be served on the operator by the competent authority requiring the operator to take any steps to deal with the damage or threat (these will be preventative or remedial measures). The operator has a right of appeal against the remediation notice (28 days to appeal). The operator will also have to pay any costs of the competent authority in relation to the damage or threat.

Competent Authority

The competent authority for notification will depend upon the type and location of the damage. Damage to water and damage to protected species or natural habitats in inland waters will be dealt with by the Environment Agency; damage to protected species or natural habitats on land and damage to flora and fauna in SSSIs will be dealt with in England by Natural England and in Wales by the Countryside Council for Wales; damage to protected species or natural habitats in the sea will be dealt with by the Secretary of State; and damage to land is to be dealt with by the relevant local authority.

An operator’s failure to comply with its obligations under the Regulations will be an offence. Operators may be liable to an unlimited fine and/or a maximum prison term of up to 2 years on indictment and on a summary conviction to a fine not exceeding the statutory maximum (presently £5,000) and/or up to 3 months imprisonment.

The Regulations will not replace any liability under existing environment legislation. There will therefore be overlaps. Competent Authorities are to exercise judgement so as not to duplicate requirements of the Regulations and other legislation.

Consultation documents can be viewed here.