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2. When do the Environmental Liability Regulations apply?
Chapter 2 provides guidance on when the Regulations apply, in particular:
- where the Regulations apply
- what 'damage' means
- what activities are covered
- who is liable
- what exemptions there are
Where the Regulations apply
2.1 The regulations will apply in Scotland which, of course, includes the water out to 12 nautical miles from the baselines around Scotland.
What 'damage' means
2.2 The Regulations do not cover all types of damage to the environment. They only cover damage which is one or more of: 'damage to protected species and natural habitats', 'damage to water' and 'land damage' as defined below. The guidance in Chapter 3 explains more precisely what is meant by these three definitions of damage and how they are to be interpreted and applied . The Regulations also apply where there are 'imminent threats' of 'damage'.
Damage to 'protected species and natural habitats'
2.3 'Damage to European protected species or natural habitats' is:
damage must be such that it has a significant adverse effect on reaching or maintaining the favourable conservation status of the protected species and natural habitat
Damage to water
2.4 'Damage to water' is:
A activity which results in a deterioration :
(i) of status;
(ii) of a biological quality element, a chemical quality element or a physicochemical quality element such that the condition of the quality element is consistent with the conditions defined in accordance with Annex V to Directive 2000/60/ EC for a lower status class than was the case prior to the deterioration; or
(iii) such that any value or condition required of a parameter for the classification of groundwater chemical status or groundwater quantitative status as good in accordance with Annex V to Directive 2000/60/ EC and Directive 2006/118/ EC is no longer achieved; and in relation to which, paragraph 7 of Article 4 of Directive 2000/60/ EC is not applicable.
'Status' has the same meanings as in Annex V to Directive 2000/60/ EC and includes,:
(a) the ecological status of a body of surface water other than a body of surface water designated as heavily modified or artificial under that Directive;
(b) the ecological potential of a body of surface water designated as heavily modified or artificial under that Directive;
(c) the surface water chemical status of a body of surface water;
(d) the groundwater chemical status of a body of groundwater; or
(e) the quantitative status of a body of groundwater
Land damage
2.5 'Damage to land' is:
contamination that creates a significant risk of human health being adversely affected as a result of direct or indirect introduction in, on or under land, of substances, preparations, organisms or micro-organisms caused by a relevant activity.
What activities are covered
2.6 Regulation 3 determines the activities to which the Regulations apply. They apply to:
i) The activities listed in Schedule 2 if they cause any of damage to protected species or natural habitats, damage to water and land damage (or an imminent threat of such damage), irrespective of whether the operator intended to cause damage or was negligent.
ii) Any other activities if they cause damage to protected species and natural habitats (or an imminent threat of such damage), only where the operator intended to cause the damage or was negligent.
2.7 Schedule 2 lists activities by reference to European legislation.
Who is liable
2.8 The Regulations apply liability to operators (Regulation 2).
2.9 An operator of an activity is taken to include any natural or legal, private or public person who operates or controls the activity. This includes the holder of a permit, consent or authorisation for the activity or the person registering or notifying the activity.
2.10 Someone who undertakes an activity in a purely domestic context would not normally be considered to be an operator. The liability of operators cannot revert to authorities in any circumstances although authorities may take action as a last resort.
Exemptions
2.11 There are some specific circumstances where the Regulations do not apply. None of them affects the application of other legislation. These exemptions are listed below.
Emissions, events or incidents that took place before the Regulations come into force
2.12 The Regulations apply only to damage that arises on or after the date that the Regulations come into force. (Regulation 4(f) and (g))
Authorised activities
2.13 The Regulations do not apply where previously identified adverse effects to protected species or habitats was expressly authorised under the existing law (Regulation 4(a)).
Armed conflict, civil war, insurrection or hostilities
2.14 The Regulations do not apply where 'environmental damage' or an imminent threat of such damage is caused by an act of armed conflict, civil war, insurrection or hostilities. (Regulation 4(b)(i))
Natural Disasters
2.15 The Regulations do not apply where 'environmental damage' or an imminent threat of damage is caused by a natural phenomenon of exceptional, inevitable and irresistible character. (Regulation 4(b)(ii)))
2.16 The Regulations do not apply where 'damage' or an imminent threat of such damage is caused by activities the sole purpose of which is to protect from natural disasters. (Regulation 4(e)(ii)).
Diffuse pollution
2.17 The Regulations apply to 'damage' or to an imminent threat of such damage caused by pollution of a diffuse character only if it is possible to establish a causal link between the damage and the activities of individual operators. (Regulation 4(b)(iii)).
International Conventions
2.18 The Regulations do not apply to 'damage' or an imminent threat of such damage where there is already liability under:
- the Civil Liability Convention for Oil Pollutiont 1
- the International Oil Pollution Compensation Fund Convention 2 (Regulation 4(c)(i) and (ii))
2.19 The Regulations do not apply to activities regulated under the Nuclear Installations Act 1965. (Regulation 4(d)).
National defence and international security activities
2.20 The Regulations do not apply where 'damage' or an imminent threat of such damage is caused by activities the main purpose of which is to serve national defence or international security. (Regulation 4(e)(i)).
Emissions, events or incidents that took place 30 (or 75) years before
2.21 The Regulations do not apply to relevant damage caused by an emission, event or incident that took place 30 years or more before the damage takes place, or 75 years in the case of GMOs. (Regulation 4(h) and 4(i)).
Deciding whether the Regulations apply
2.22 The following decision tree is designed to help decide whether any action under the Regulations is required. Chapters 5, 6, 7 and 8 provide detail on what is required and the necessary processes where the Regulations do apply.
DECISION TREE FOR THE APPLICATION OF THE REGULATIONS
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