THE ENVIRONMENTAL LIABILITY DIRECTIVE 2004/35/CE (21st APRIL 2004) AND ITS

IMPLEMENTATION IN THE UK

FRIDAY 9TH NOVEMBER 2007

NWBLT CONFERENCE

RESPONDING TO THE CHALLENGE OF CLIMATE CHANGE

DENISE DOWEN

PARTNER

HILL DICKINSON LLP

PURPOSE OF THE DIRECTIVE

To bolster the polluter pays principle.

To impose legal responsibility for the prevention and

remediation of environmental damage.

Protection of ecologically sensitive sites, and the prevention

of water pollution and land contamination.

TWO TYPES OF LIABILITY

Strict liability for environmental damage to ecologically

sensitive areas, water and land caused by the occupational

activities listed in Annex III of the Directive.

Fault based liability for damage to protected species and

natural habitats from other occupational activities.

Note: Current uncertainty about the use of the ‘permit

defence’.

ANNEX III ACTIVITIES

IPPC INSTALLATIONS

WASTE MANAGEMENT

DISCHARGES TO INLAND WATER

DISCHARGES TO GROUNDWATER

WATER ABSTRACTION

DANGEROUS SUBSTANCES

PLANT PROTECTION PRODUCTS

BIOCIDES

TRANSPORT OF DANGEROUS GOODS

USE AND TRANSPORT OF GMOS

TRANSBOUNDARY SHIPMENT OF WASTE

STANDARD OF REMEDIATION

Where there is damage to water or ecologically sensitive

areas the environment must be returned to its original

condition.

The Directive is not retrospective. It does not apply to

damage caused by an emission, event or incident that took

place before 30th April 2007.

It does not apply to environmental damage that occurred

more than 30 years ago.

Environmental Liability Directive – Consultation document on options for implementing in England, Wales and Northern Ireland

Table 1 – Basic ELD requirements

Type of Damage Liability for operators of Annex III occupational activities

Liability of operators of other occupational activities

Standard of Remediation

Type of Remediation applicable

To Protected Species and Natural habitats

Strict Fault based Return the environment as a whole back to baseline condition, and remove any significant risk of an adverse effect on human health

Primary

Complementary

Compensatory

To Water Strict None Return the environment as a whole back to baseline condition, and remove any significant risk of an adverse effect on human health

Primary

Complementary

Compensatory

To Land Strict None The removal of any significant risk of an adverse effect on human health

Remove significant risk of adverse effects on human health, taking account of actual or planned future use

RESPONSIBILITIES OF AN OPERATOR

An operator is the person who controls the activity including

the holder of a permit or authorisation and has a duty under

the Directive to;

• Prevent imminent threat of environmental damage

• Notify regulator if those measures fail

• Notify regulator of environmental damage

• Remediate damage

Standard of Remediation of Water and Ecologically Sensitive Sites

“Primary Remediation” to return the environment to its base

line condition.

“Complementary Remediation” is a remedial measure taken

to compensate for the fact that primary remediation does

not fully restore the damaged environment.

“Compensatory Remediation” is action taken to

compensate for interim losses of natural resources and

services until primary remediation has achieved its full

effect.

IMPLICATIONS FOR BUSINESS

Increased monitoring

Preventative measures

Financial provision

Notification to regulators

Rights of third parties to seek action

Shortage of sites for complementary and compensatory

remediation

NATURAL RESOURCES DAMAGE ASSESSMENTS

The US experience

Case Study