The Environmental Damage (Prevention and Remediation) (England) Regulations 2015 come into force on 19th July 2015. They replace the 2009 regulations and introduce marine damage to EDR powers.
An unreported Welsh case shows that regulators can investigate pollution incidents for other types of environmental damage dating back to April 2007.
With the demise of Part 2A enforcement, local authorities should reconsider their EDR enforcement powers for land contamination caused after 2007.
Environmental Damage Regulations – at a glance
- Applies to serious cases of environmental damage to land, surface water, groundwater, marine waters , protected species and habitats
Does not apply to historic contamination caused before April 2007
- Twin-track liability regime (1) strict liability for damage caused by environmental industry activities (2) extra protection for damage to species, SSSIs and habitats – damage can be caused by “any activities” provided there was fault
- Operators must take immediate action to carry out works and notify regulators
- Interested parties can force regulators to take action
- Liability is triggered when there is environmental damage or an “imminent threat” of environmental damage – ie damage is likely to occur unless action is taken promptly.
- Regulators can issue prevention notices, remediation notices and recover their costs by putting a charge on premises.
Demise of the contaminated land regime
It is not surprising that local authority contaminated land officers are fed up with Part 2A.
- In December 2013 the government announced the withdrawal of Part 2A funding. From April 2014 the Capital Grants Scheme is only available for ongoing remediation projects and absolute emergency cases. The Scheme will cease completely from 1 April 2017
- Cl:aire/ Cranfield University research published in March 2015 with data from 60% of English local authorities revealed that only 430 contaminated land sites had been fully remediated under Part 2A between April 2000 and 31 December 2013
- There is also the constant threat of legal action. Part2A legal tests are difficult to apply and there are 24 grounds of appeal if council officers get it wrong.
Is there a role for EDR enforcement ?
Although EDR does not apply to historic contamination, many pollution incidents and oil spills will have been caused after 2007.
Defra guidance states that regulators should consider whether EDR applies before taking action under Part 2A.
Did the environmental damage take place after April 2007?
The UK regulations state that EDR does not apply to damage that occurred before the following dates England – 1st March 2009, Wales – 6 May 2009, Scotland – 24 June 2009 and N.Ireland – 24 July 2009.
An unreported Welsh case R (on the application of Seiont Gwfrfai and Llynfi Anglers’ Society v Natural Resources Wales) 6 May 2014 however allowed Natural Resources Wales to take enforcement action for environmental damage caused after April 2007, the deadline for transposition of the environmental liability directive.
A lake in Snowdonia was designated as a SSSI due to the presence of Arctic charr, a rare species of fish. The water company Dwr Cymru Welsh Water discharged treated and untreated sewage into the lake killing almost most of the fish.
Although NRW found that Welsh Water had “caused” the environmental damage, it decided that the unfavourable conservation status of the lake had already occurred by May 2009. The Regulations exempt liability for any environmental damage that took place before the coming into force of the Regulations – 30 May 2009. The fish population had already declined from 2072 in 2007 to 815 in 2009.
Fish Legal brought a judicial review action against NRW for not ordering Welsh Water to remediate sewage discharged since 2007. They argued that ELD had direct effect and should apply from 2007, the date for transposition of the directive.
The issues were settled just before the hearing and Cardiff Administrative Court approved a consent order that liability for remediation should apply from 30 April 2007.
When does land contamination constitute “environmental damage”?
There is a lower threshold for initiating enforcement action under EDR.
Environmental damage is defined as “contamination of land…where the damage results in a significant risk of adverse effects”.
This EDR definition is more flexible and easier than Part 2A where there must be ‘unacceptable risks’ and significant contamination meeting the Category 1 and 2 human health definitions.
Advantages for local authorities
The majority of contaminated land will continue to be addressed through planning conditions and voluntary action.
For regulatory enforcement, EDR has a growing role to play alongside the environmental permitting regime and water pollution legislation.
There are several benefits for local authorities using the EDR regime
- Wider powers than Part 2A – officers can issue prevention notices where there is an imminent threat of damage or to prevent further environmental damage
- Higher standards of clean up including complementary and compensatory remediation
- Appeals against remediation notices can only be made on grounds that its contents are unreasonable
- Cost recovery can include reasonable costs assessing whether damage is environmental damage and establishing who is the responsible operator. Regulators can serve a charging notice on the operator’s premises and claim interest
Given the slow start of EDR enforcement, it is unlikely we will see changes overnight.
The contaminated land regime is not however fit for purpose and local authorities should take a refresher on EDR powers.
Even the threat of EDR action could achieve a better and faster environmental outcome than Part 2A.
ELM Law and RSK provide training courses on the Environmental Damage Regulations for local authorities and operators.