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Roles and responsibilities
General
19. The key roles will be those of the operator and the supervising authority. The civil law approach imposes obligations to prevent damage or to make good damage actually caused. There is no registration, approval or direct enforcement. The authority's role is initially to be informed and, where necessary, to agree or direct the actions proposed by an operator.
20. The serious, and likely public, nature of events will be so 'significant' for an incident to trigger action under ELD, liability is unlikely to be challenged. However, ongoing disputes may be taken to the Sheriff.
Duty to take preventive measures
21. Where there is, or a reasonable suspicion of, an imminent threat of environmental damage, operators must take steps to prevent damage occurring. This may involve simply the operator's normal risk management or, in particular circumstances, may need additional work to secure the activity under threat. There is no leeway here and no defences: the operator must act. However this is also the key to the whole Regulations. There is still time to act to prevent damage occurring and so avoid extra work and costs. What information to give and to whom are detailed in the technical guidance.
22. Authorities may become aware of possible imminent threats of 'environmental damage' other than by being notified by responsible operators, for example, as a result of a request for action by an interested party. Where this is the case the operator may need to provide relevant information to the authority, depending on the circumstances.
Duty to take immediate action
23. Where prevention work has been overcome or otherwise there are reasonable grounds to believe that 'environmental damage' is occurring, operators must
- immediately take steps to control, contain and prevent further damage; and
- as soon as possible thereafter, notify the authority of all relevant details.
Duty to assess damage
24. In co-operation with the authority as required, operators must assess the facts and nature of damage or imminent threat and carry out any assessments directed by the authority. The operator knows his operation best and is expected to give full and frank information about events.
25. There may be some level of uncertainty as to whether 'environmental damage' exists or whether these Regulations apply to the operator. Operators may not immediately have sufficient information to make a definitive judgement. 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.
Duty to identify remedial measures
26. Where there is damage operators must identify the necessary remedial measures and submit them to the authority for approval.
Duty to undertake remedial action
27. The operators must carry out remedial measures in accordance with the Regulations and failure to apply is an offence.
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