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11. Cost recovery
Chapter 11 sets out the circumstances in which the authority may seek to recover costs incurred in relation to any preventative and remedial actions taken pursuant to these Regulations.
11.1 The authority shall recover the costs it has incurred from the operator(s) or such others as it considers liable for the damage or the imminent threat of damage.
11.2 Costs include costs that are justified in ensuring the proper and effective enforcement of the Regulations. They include but are not limited to the costs of:
- Investigating damage or imminent threats;
- Assessing the damage or imminent threats;
- Establishing what preventive measures are appropriate;
- Establishing what remediation is appropriate. This includes costs incurred by the authority irrespective of whether the operator has proposed measures;
- Monitoring and supervising the remediation, both during and after the work;
- Administrative, legal and enforcement costs;
- Data collection and other general costs;
- Any steps the authority takes to prevent, contain or remedy the environmental damage;
- The costs of monitoring and supervision.
11.3 Costs can be recovered irrespective of how many authorities are involved in a particular case or whether authorities carry out work themselves or contract agents to work on their behalf for some or all elements of the work. In general one authority will recover costs from the operator on behalf of all the authorities or agents that have incurred costs.
11.4 In some cases certain costs cannot be recovered by the authority including the costs of:
- Assessing damage where the damage turns out not to be relevant for the purposes of the Regulations or assessing threats that turn out not to be imminent threats of 'damage';
- Damage which results from compliance with a compulsory order or instruction from a public authority (except an instruction relating to an emission or incident caused by the operator's own activities);
- Remediation measures, where it is demonstrated that the operator was not at fault or negligent and the damage was caused by:
(i) an emission or event expressly authorised by, and fully in accordance with the conditions of an authorisation granted in relation to an activity listed in Schedule 2 to the Regulations as at the date of the emission or event; or
(ii) an emission or activity or any manner of using a product in the course of an activity which the operator can demonstrate was not considered likely to cause environmental damage according to the state of scientific and technical knowledge at the time of the emission or activity other than where the damage was caused by release of GMOs.
11.5 Authorities may provide for flat-rate calculation of costs among other options. This would include for example hourly charge rates and rates for specific tasks.
Time limit for recovery of costs
11.6 No proceedings may be commenced by the authority under this Regulation after a period of 5 years has elapsed since the later of:
- the completion of the measures to which the proceedings relate; or
- the identification of the responsible operator or third party.
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