The Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009

Made: 29th June 2009

Coming into operation: 24th July 2009

These Regulations make provision for a purpose mentioned in section 2(2) of, and paragraph 1A of Schedule 2 to the European Communities Act 1972 and it appears to the Department of the Environment that it is expedient for the Community instruments referred to in these Regulations to be construed as references to those instruments as amended from time to time.

PART 1 — Introductory provisions

Citation and commencement

1

These Regulations may be cited as the Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009 and come into operation on 24th July 2009.

Interpretation

2

• (1) The Interpretation Act (Northern Ireland) 1954[^f00002] applies to these Regulations as it applies to an Act of the Northern Ireland Assembly.

• (2) In these Regulations—

• “activity” means any economic activity, whether public or private and whether or not carried out for profit;

• “area of special scientific interest” means an area declared under Article 28(1) of the Environment (Northern Ireland) Order 2002[^f00003];

• ”baseline” means the low-water line along the coast as defined in the Territorial Seas (Baseline) Order 2014

• “damage” means a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly;

• “groundwater” means all water which is below the surface of the ground in the saturation zone and in direct contact with the ground or subsoil;

• “imminent threat of damage” means a sufficient likelihood that environmental damage will occur in the near future;

• “marine installation” means any artificial island, installation, platform or other artificial structure at sea, other than a pipeline or a vessel;

• “natural habitats” means—the habitats of species mentioned in Article 4(1) of and Annex 1 to Directive 2009/147/EC of the European Parliament and of the Council on the conservation of wild birds[^f00004] or listed in Annex II to Directive Directive 97/62/EC on the conservation of natural habitats and of wild fauna and flora[^f00005];the natural habitats listed in Annex I to Council Directive 97/62/EC ; andthe breeding sites or resting places of the species listed in Annex IV to that Directive;

• “natural resource” means—protected species;natural habitats;species or habitat in an area of special scientific interest for which the site has been declared;water; andland;

• “operator” means any natural or legal, private or public person who operates or controls the activity by means of delegated authority or otherwise and includes the holder of a permit or authorisation for such an activity;

• “river basin management plan” has the same meaning as in the Water Environment (Water Framework Directive) Regulations (Northern Ireland) 2017.

• “Planning Appeals Commission” means the Planning Appeals Commission established under Article 110 of the Planning (Northern Ireland) Order 1991[^f00006];

• “protected species” means the species mentioned in Article 4(1) of Directive 2009/147/EC of the European Parliament and of the Council or listed in Annex I to that Directive or listed in Annex II to Council Directive 97/62/EC and Annex IV to Council Directive 92/43/EEC ;

• “services” means the functions performed by a natural resource for the benefit of another natural resource or the public;

• “vessel” means—hovercraft, andany other craft capable of travelling on, in or under water, whether or not self-propelled.

• (3) Unless otherwise defined in these Regulations, expressions used in Directive 2004/35/EC of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage[^f00007] as last amended by Directive 2013/30/EU of the European Parliament and of the Council have the same meaning in these Regulations.

• (4) A reference to Council Directive 1999/31/EC on the landfill of waste shall be construed as a reference to that Directive as it had effect immediately before exit day.

Meaning of “environmental damage”

3

• (1) Subject to regulations 5, 6 and 7, these Regulations apply to environmental damage to—

• (a) Protected species or natural habitats, or an area of special scientific interest;

• (b) Surface water or groundwater;

• (c) Marine waters; or

• (d) Land.

• (2) Environmental damage to protected species or natural habitats or an area of special scientific interest means damage of a kind specified in Schedule 1 if it is caused by—

• (a) an activity in Schedule 2; or

• (b) an activity where the operator was at fault or was negligent as to whether such damage would be caused.

• (3) Environmental damage to surface water means damage to a body of surface water classified as such pursuant to Annex II to Council Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy[^f00008] as last amended by Commission Directive 2014/101/EU, caused by an activity in Schedule 2 such that one of the—

• (a) biological quality elements listed in Annex V to that Directive;

• (b) level of one of the chemicals listed in the legislation in Annex IX or a chemical listed in Annex X to that Directive as amended by Directive 2013/39/EU of the European Parliament and of the Council; or

• (c) physicochemical quality elements (as listed in Annex V to that Directive),

is adversely affected in such a way that its value changes to a value consistent with the water being classified as a lower status than before the damage (whether or not the body of water is, in fact, reclassified).

• (4) Environmental damage to groundwater means any adverse effect on a body of groundwater as described in Annex II to Directive 2000/60/EC on—

• (a) its conductivity or its level (both of which are specified in Annex V to Directive 2000/60/EC); or

• (b) its concentration of pollutants (as specified in that Annex and in Directive 2006/118/EC of the European Parliament and of the Council on the protection of groundwater against pollution and deterioration[^f00009]) as amended by Commission Directive 2014/80/EU

in such a way that the value changes to a value consistent with the water being classified as a lower status than before the damage caused by an activity in Schedule 2 (whether or not the body of water is, in fact, reclassified).

• (4A) Environmental damage to marine waters means damage to marine waters classified as such pursuant to Directive 2008/56/EC of the European Parliament and of the Council establishing a framework for community action in the field of marine environmental policy, such that their environmental status is significantly adversely affected... .

• (5) Environmental damage to land means contamination of land by substances, preparations, organisms or micro-organisms arising out of an activity specified in Schedule 2 that results in a significant risk of adverse effects on human health.

• (6) This regulation extends to the foreshore, sea bed and subsoil and their natural resources.

Other legislation

4

Nothing in these Regulations shall be construed so as to affect the right of an operator to limit liability in accordance with the Convention on Limitation of Liability for Maritime Claims 1976[^f00010].

Exceptions

5

These Regulations shall not apply in relation to environmental damage, or imminent threat of damage, caused by—

• (a) an act of terrorism, armed conflict, civil war, insurrection or hostilities;

• (b) an exceptional natural phenomenon, provided the operator took all reasonable precautions to protect against damage being caused by such an event;

• (c) activities, the sole purpose of which is to protect from natural phenomena;

• (d) an incident in respect of which liability or compensation falls within the scope of—

• (i) the International Convention of 27 November 1992 on Civil Liability for Oil Pollution Damage([^f00011]);

• (ii) the International Convention of 27 November 1992 on the Establishment of an International Fund for Compensation for Oil Pollution Damage(a); or

• (iii) the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001[^f00012];

• (e) activities, the main purpose of which is to serve national defence or international security;

• (f) radioactivity from an activity covered by the Treaty establishing the European Atomic Energy Community or caused by an incident or activity in respect of which liability or compensation falls within the scope of the Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy and the Brussels Supplementary Convention of 31 January 1963;

• (g) pollution of a diffuse character if it is not possible to establish a causal link between the damage and the activities of individual operators; or

• (h) damage caused in the course of commercial sea fishing if all legislation relating to that fishing was complied with.

Temporal application

6

These Regulations shall not apply to—

• (a) damage caused by an incident, event or emission that finished before the coming into operation of these Regulations;

• (b) damage or imminent threat of damage caused by an incident, event or emission that occurs after that date if it derives from an activity that took place and finished before that date; or

• (c) damage caused by an emission, event or incident that took place 30 years or more before the damage.

Exception from environmental damage to surface water or groundwater

7

• (1) Environmental damage to water does not include—

• (a) damage caused by a new modification to the physical characteristics of a body of surface water;

• (b) an alteration to the level of a body of groundwater ...; or

• (c) deterioration from high status to good status of a body of surface water resulting from new sustainable human development activities...,

if all the conditions specified in paragraph (2) are fulfilled.

• (2) The conditions are—

• (a) all practicable steps are taken to mitigate the adverse impact on the status of the body of water;

• (b) the reasons for the modifications or alterations are specifically set out and explained in the river basin management plan ... and the objectives are reviewed every six years;

• (c) the reasons for the modifications or alterations are of overriding public interest, or the result of the damage is outweighed by the benefits of the new modifications or alterations to human health, to the maintenance of human safety or to sustainable development; and

• (d) the beneficial objectives served by the modifications or alterations of the body of water cannot for reasons of technical feasibility or disproportionate cost be achieved by other means.

Enforcing authority

8

These Regulations shall be enforced by the Department of the Environment.

PART 2 — Preventing environmental damage

Preventing environmental damage

9

• (1) An operator of an activity that creates an imminent threat of environmental damage, or an imminent threat of damage which there are reasonable grounds to believe will become environmental damage, shall immediately—

• (a) take all necessary steps to prevent the damage; and

• (b) in any case where the threat has not been dispelled despite the preventative measures taken, inform the enforcing authority of all relevant details.

• (2) The enforcing authority may assess the threat and may serve a notice on the operator that—

• (a) describes the threat;

• (b) specifies the measures required to prevent the damage; and

• (c) requires the operator to take those measures, or measures at least equivalent to them, within the period specified in the notice.

• (3) Failure to comply with paragraph (1) or a notice served under paragraph (2) is an offence.

Preventing further environmental damage

10

• (1) An operator of an activity that has caused environmental damage, or has caused damage where there are reasonable grounds to believe that the damage is or will become environmental damage, shall immediately—

• (a) take all necessary steps to prevent further damage, and

• (b) inform the enforcing authority of all relevant details.

• (2) The enforcing authority may assess the damage and may serve a notice on the operator that—

• (a) describes the damage;

• (b) requires the operator to provide additional information on any damage that has occurred;

• (c) specifies the measures required to prevent further damage; and

• (d) requires the operator to take those measures, or measures at least equivalent to them, within the period specified in the notice.

• (3) Failure to comply with paragraph (1) or a notice served under paragraph (2) is an offence.

Action by the enforcing authority

11

Any duty in this Part on the operator of an activity may be carried out by the enforcing authority instead of the operator—

• (a) in an emergency;

• (b) if the operator cannot be ascertained;

• (c) if the operator fails to comply with a notice; or

• (d) if the operator is not required to bear the costs under these Regulations.

Costs

12

• (1) An operator is liable for any reasonable costs incurred by the enforcing authority in taking any reasonable action to discharge any duty under regulation 11.

• (2) An operator is also liable for the reasonable costs incurred by the enforcing authority in preparing any notice under this Part, or in monitoring compliance with such notice.

Following instructions from a public authority

13

When an operator acts in accordance with the instructions of a public authority, and as a result causes or threatens to cause environmental damage, and accordingly is obliged to take action under regulations 9 or 10, or if the enforcing authority takes action under regulation 11, then, unless the instruction related to an emission or incident caused by the operator’s own activities, the operator or the enforcing authority may recover the costs of actions under those Regulations from that public authority.

PART 3 — Remediation

Assessment of damage

14

Where the enforcing authority becomes aware that damage has occurred and there are reasonable grounds for believing that it is, or may be, environmental damage, the enforcing authority shall establish whether or not it is environmental damage.

Determining liability to remediate

15

• (1) If the enforcing authority decides that the damage is environmental damage it shall identify an operator of any activity that caused or contributed to the damage and notify the operator that—

• (a) the damage is environmental damage;

• (b) the damage was caused or contributed to by the activity of the operator;

• (c) the operator shall, within a time specified by the enforcing authority, submit proposals, including time limits, for measures that will achieve the remediation of the environmental damage in accordance with Schedule 4.

• (2) The enforcing authority may withdraw the notification if it is satisfied that the notification should not have been served or that an appeal under regulation 16 is likely to succeed.

Appeals against liability to remediate

16

• (1) Subject to regulation 19, an operator served with a notification under 15(1) may appeal it to the Planning Appeals Commission within 28 days of the date of the notification.

• (2) The grounds of appeal are—

• (a) the operator’s activity did not cause or contribute to the damage;

• (b) the enforcing authority has acted unreasonably in deciding that the damage is environmental damage;