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The Environmental Liability (Prevention and Remediation) (Scotland) Regulations 2008
3. Many activities are regulated so as to protect the environment, often based upon European-wide rules applied by all Member States. Some such rules control or enforce certain actions or behaviour and some can require repair of damage done to the environment. The Environmental Liability (Prevention and Remediation) (Scotland) Regulations 2008 add remediation requirements for the most significant cases.
4. The obligation to repair damage is put upon those causing it and they are expected to honour that obligation responsibly as a matter of course - as if paying a debt owed to the environment itself. They must put right what has gone wrong or, if that is not possible, provide some equivalent benefit. During the period until damage is repaired in full, some interim effort may be required as well.
5. An important point to note is that the Regulations are a 'backstop', only applying when something has 'gone wrong' and there is an imminent threat or actual 'environmental damage' within the scope of the Regulations. The emphasis should be on reducing risks to the environment so that imminent threats and environmental damage do not arise. Those running businesses and other operations can reduce the likelihood of ever falling under the Regulations' requirements by effective management of environmental risks.
6. Every year there are thousands of cases of damage to the environment. The Regulations require action in response to the most significant cases, covering specific types of damage to protected species and natural habitats, damage to water or risks to human health from contamination of land. They apply to both imminent threats and actual cases of damage. Where threats arise, those responsible must take immediate action to prevent the damage occurring; and they must put right significant damage where it does occur.
7. The Regulations get damage put right rather than penalise those responsible. Those responsible for damaging activities are required to meet the cost of prevention and repair. The onus is on the responsible person to take action in the first place and to report relevant details to the competent authority ("the authority"). The authorities are responsible for overseeing the effective operation of the regulations and have powers under the Regulations to take action and recover their costs.
8. Existing legislation that also addresses damage to the environment remains in place. Operators should ensure they are aware of their responsibilities under existing legislation as well as the new Regulations.
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