The Environmental Damage (Prevention and Remediation) Regulations 2009, give the authorities (Environment Agency, Natural England or local authorities, depending on the type of damage) powers to ensure that action is taken to put problems right, rather than to prosecute those responsible with the intention that costs will be borne by the polluter and not the taxpayer.
What is environmental damage?
The Regulations only apply to damage which is caused after the date that the regulations come into force and the damage caused has to have had an adverse effect on protected species, natural habitats or a Site of Special Scientific Interest (SSSI) which is above a specific threshold. If the damage has caused a deterioration in the quality of surface water or ground water or has caused contamination of land resulting in a significant risk to human health, then the Regulations will also apply. However, not all types of environmental damage is covered by the Regulations, for example damage caused by natural disasters or acts of terrorism does not fall under the remit of the Regulations.
What do the Regulations do?
The Regulations place responsibility for environmental damage on anyone carrying out a commercial activity whether public, private or ‘not for profit’.
If environmental damage occurs or there is an imminent threat of it, operators are required to take immediate steps to notify the relevant authority, undertake preventative and remedial measures and take steps specified in a notice from the authority.
The Regulations therefore emphasise environmental ‘precaution’ as well as ‘reaction’.
Anyone affected or likely to be affected by environmental damage (including non-governmental organisations), may notify the authority and require them to take action. If no action is taken, a legal challenge could be brought against the authority’s decision to not act.
Clean-up
Once the authority is aware of a potential case of environmental damage it must determine whether such damage exists and if it does, advise the operator of its decision. The authority is then responsible for determining what remedial measures will be implemented, in consultation with interested parties and taking account of any measures proposed by the operator.
The authority will then serve a remediation notice on the operator who must carry out the remedial measures specified - failure to do so is a criminal offence.
The authorities may also take steps themselves to prevent, contain or remedy environmental damage and recover the costs from the polluter.
Offences
The Regulations also create a number of offences which are punishable by a £5,000 fine and/or up to three months imprisonment. Senior officers of an organisation can also be prosecuted where an offence is committed with their ‘consent, connivance or neglect’. These punishable offences include failure to take immediate action to prevent an imminent threat of environmental damage, failure to notify the authority about damage or the threat of it and failure to comply with a remediation notice.
The effect of these Regulations on property owners and developers will be to increase the scope for environmental clean-up obligations and associated liabilities on anyone causing environmental damage. Importantly, owners and occupiers of premises could also find themselves liable for allowing environmental damage to occur in circumstances where they did not cause the original damage, for example where pollution continues to migrate from a site damaging ecosystems, water resources or causing a risk to health.
The new law is likely to put an increased onus on property owners and developers to monitor their operations and identify potential environmental damage. It is also likely to result in even more rigorous environmental investigations being carried out on the acquisition of property and prior to development works.
Jennifer Stephens is a solicitor in the Environment & Safety Team at Dickinson Dees LLP. For more information regarding this article, please contact Jennifer at jennifer.stephens@dickinson-dees.com