THE ENVIRONMENTAL LIABILITY DIRECTIVE 2004/35/CE (21 st APRIL 2004) AND ITS IMPLEMENTATION IN THE UK FRIDAY 9 TH 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 30 th April 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 DamageLiability 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 StrictFault basedReturn 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 WaterStrictNoneReturn 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 LandStrictNoneThe 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