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5. Immediate action: prevention and notification
The Regulations require some action from operators immediately when there is an imminent threat or reasonable grounds to suspect there is a case of 'damage'. Chapter 5 sets out when immediate action is required and what steps are required.
Immediate action for imminent threats
Where the operator becomes aware of imminent threats
5.1 Regulation 7 requires that where there is an imminent threat of 'damage', the operator shall take preventive measures and (unless the threat has been eliminated) notify all relevant details to the authority.
5.2 If an authority has reasonable grounds for believing that there is an imminent threat of environmental damage caused by an activity it may require the operator to take preventive measures. Failure to comply is an offence (Regulation 7(7)).
5.3 An 'imminent threat' of 'damage' means that there is a sufficient likelihood that 'damage' will occur in the near future. This may include circumstances where:
- A damaging event has not yet occurred but is sufficiently likely to in the future and lead to 'damage' if action is not taken. For example, where a tank containing dangerous substances, which is situated near a major aquifer, is in very poor condition and is likely to leak without action to secure the tank.
- An event has occurred and there is no damage yet but there is a sufficient likelihood that 'damage' will occur in the near future if action is not taken. Extending the tank example above, this is where the tank has already started to leak and the substances have entered the soil and are likely to migrate to the aquifer without action to contain the contamination.
- Damage has occurred which is not yet 'damage' but is sufficiently likely to become 'damage' if action is not taken. Further extending the tank example above, this is where the tank has leaked and the contamination has already started to enter the aquifer. The damage does not yet qualify as water damage but without action to control further migration of contamination into the aquifer the damage is likely to become water damage.
5.4 Some points to note:
- In terms of the order in which operators do things, if it is not possible to provide all relevant details of the incident immediately, priority should be given to preventing damage and notifying the authority that the imminent threat exists. Details of the incident and action taken should be provided to the authority as soon as possible thereafter.
- If there is an imminent threat of damage and there are reasonable grounds to suspect that it might be an imminent threat of 'damage' the operator must take the immediate action to prevent it and then notify the authority as soon as possible.
5.5 Guidance on which authority to notify is provided below. It would be helpful to the authority if the operator states that they are reporting an imminent threat under these Regulations, although authorities will consider which Regulations are relevant, if any. Operators should provide the following information:
- name and contact details;
- the date and time the threat of damage was discovered or suspected;
- a grid reference or description of the location of the activity giving rise to the imminent threat of damage;
- a factual description of the activity giving rise to the imminent threat of damage;
- a description of the location where the imminent threat of damage is likely to occur, if different to the location above;
- which type of damage the threat may cause;
- further details of the potential impact, e.g. substances potentially released, nearby vulnerable habitats and species;
- an indication of the scale of the potential impact;
- any useful supporting information ( e.g. sketch maps, photographs) of the imminent threat of damage;
- what health and safety precautions are needed.
5.6 The authority may ask the operator to provide further information about the imminent threat of damage. This may vary depending on the circumstances. The operator must co-operate any such request and failure to do so is an offence (Regulation 7(7)). Figure 5 sets out the steps where immediate action is required.
5.7 Authorities may become aware of possible imminent threats of 'damage' other than by being notified by responsible operators, for example as a result of a request for action by an interested party (Regulation 11 and chapter 13 of this document). Where this is the case the authority must consider the notification and inform the operator and complainant as to any action it intends to take.
5.8 If an officer of an authority has reasonable grounds for believing that there is an imminent threat he may require the responsible person to provide information and/or take preventive measures.
Immediate action for 'damage'
Where the operator become aware of the damage
5.9 Regulation 9 states:
9(1) In the event that environmental damage has occurred, an operator must immediately-
a) notify the competent authority of the circumstances of the damage;
b) take all practicable steps to control, contain, remove or otherwise manage any contaminants and/or any other damage factors in order to limit or prevent further on environmental damage, adverse effects on human health or further impairment of services; and
c) on approval being given by the competent authority, take the necessary remedial measures in accordance with Regulation 8.
2) The competent authority may, at any time-
a) require an operator to provide it with supplementary information on any environmental damage that has occurred following notification under paragraph 1(a);
(b) take, require the operator to take, or give the operator instructions concerning all practicable steps to immediately control, contain, remove or otherwise manage any contaminants and any other damage factors in order to limit of prevent further environmental damage, adverse effects on human health or further impairment of services;
c) require an operator to take all necessary remedial measures;
d) give instructions to an operator to be followed on the necessary remedial measures to be taken; or
e) take remedial measures.
(3) Where required by a competent authority an operator shall take remedial measures.
(4) Where an operator -
(a) fails to comply with the requirements of paragraphs (1), (2)(b), (c) or (d) or
(b) cannot be identified; or
(c) is not required to pay the costs of the remedial measures,
the competent authority instead of the operator may itself take remedial measures but only as a means of last resort.
(5) Failure by an operator to comply with the requirements of paragraphs (1), (2)(a) to (d) and (3) is an offence.
5.10 Chapters 2 and 3 of this guidance should help operators in deciding whether there is an imminent threat or 'damage' to which the Regulations apply.
5.11 There may be some level of uncertainty as to whether 'damage' exists and operators may not immediately have sufficient information to make a definitive judgement. Regulation 9 therefore specifies that action is required where there are reasonable grounds to believe that an activity has caused 'damage', taking account of the uncertainty. Where operators are in doubt they are advised to take a precautionary approach and take immediate action.
5.12 As for imminent threats of 'damage', if it is not possible to provide details immediately, priority should be given to preventing damage and notifying the authority that the possible 'environmental damage' exists and details should be provided as soon as possible thereafter.
5.13 Guidance is provided below under 'whom to notify' on who the appropriate authority is. It would be helpful to the authority if the operator states that they are reporting damage under the Environmental Liability Regulations. Operators should provide the following information:
- name and contact details
- the date and time damage was discovered
- a reference or description of the location of the activity that is causing, or has caused the damage
- a factual description of the activity that is causing, or has caused the damage
- a description of the location where the damage is occurring, or has occurred, if different to the location above
- the type of damage caused
- further details of the impact, e.g. substances potentially released, habitats or species affected
- an indication of the scale of the damage
- any useful supporting information ( e.g. sketch maps, photographs) of the damage
- what health and safety precautions are needed
5.14 The authority may ask the operator to provide further information about the possible 'damage'. This may vary, depending on the circumstances.
5.15 Where in the judgement of the authority additional measures are required to prevent further damage, the authority may then either issue instructions on measures to be taken or, as a measure of last resort, take steps itself to prevent damage at the operator's expense.
CHAPTER 5 FLOWCHART: IMMEDIATE ACTION
Whom to notify
5.16 Imminent threats of 'damage', or possible 'damage' should be reported to the appropriate authority. Table 4.1 in the previous chapter summarises who this is depending on the activity causing damage and the type of damage. Contact details for authorities can be found at Annex 3. If there is uncertainty over whom to contact any of the authorities may be contacted. The imperative is not to delay in reporting.
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