New regulations on environmental damage place the onus on the ‘operator’ to deal with contamination – both actual and threatened. Are your FM processes watertight?
25 March 2010
It’s now twelve months since the Environmental Damage (Prevention and Remediation) Regulations 2009 (SI 153) came into force.
The regulations are a result of the implementation of the European Directive on Environmental Liability (2004/35). They are based on the principle of ‘the polluter pays’, where those responsible for a pollution incident (rather than the taxpayer) are required to prevent and, where necessary, remedy any environmental damage caused.
The scope of the regulations is UK-wide; the emphasis on the ‘operator’ identifying where or when there is imminent threat or actual damage to the environment, and taking immediate action. Environmental damage is considered to be:
• Serious damage to surface or ground water.
• Serious damage to EU-protected natural habitats or species.
• Contamination of land with a significant risk of harm to human health.
The regulations are not retrospective and will only be applied to damage caused after their implementation.
Who is responsible?
Responsibility for enforcement is divided, with England and Wales, Scotland and Northern Ireland using primarily the EA, Sepa and NIEA, respectively.
An operator is identified as a business in its broadest sense: “operators of economic activities”. This would include, among others:
• Private businesses.
• Construction and demolition.
• Waste management.
• Charitable and voluntary organisations.
• The public sector (hospitals, schools, government departments, etc).
Within their undertakings, operators must:
1. Take steps to actively prevent damage to the environment.
2. Where damage has occurred:
• Prevent any further damage occurring.
• Notify and provide information to the relevant authority (the EA, Sepa or NIEA, depending on your area).
• Undertake any further preventative or remedial measures as instructed by the authority.
• Submit proposals for remediation.
• Be responsible for paying costs for the works.
If the damage occurs to water, a Site of Special Scientific Interest (SSSI) or EU species and habitat, three different remediation options could be imposed.
1. Primary The measures to restore the damage itself.
2. Complementary Where alternative sites may be needed. For example, if the primary remediation activities do not fully restore the initial environmental damage caused.
3. Compensatory In essence, measures to compensate for the damage caused while it is being resolved/restored.
The regulations contain grounds for appeal against a charge of environmental damage by an authority, but this must be carried out within 28 days of the initial notification.
Grounds for an appeal could include:
• The activity did not cause the damage.
• The authority has unreasonably decided the damage caused is ‘environmental’.
• The damage was the result of an act by a third party.
• The operator was not at fault or negligent and the emission was permit-authorised or in accordance with the state of scientific knowledge.
What’s the impact on FM?
When considering the effect these regulations have on your business you must look at your activities, their location, the potential for pollution and the potential damage that pollution could cause.
For those with formal environmental management systems in place (eg, 14001, EMAS) at least part of this should have been done. Your list of relevant legislation will need to be amended, however, to include these regulations.
For those with no formal environmental management processes in place, you will need to establish if and to what extent your activities could cause environmental damage. They will need to reflect not just the main business activities, but also potentially incidental aspects such as oil storage locations, interceptors, chemical use and waste materials.
Any EA permits or water discharge notices in place should also be considered and the information used to assess your current situation and future potential actions.
In summary, these regulations are designed to be a further deterrent for those who will not act proactively in fulfilling their environmental obligations. They are putting the financial driver at the heart of this deterrent, and one where the remediation costs could significantly outweigh any fines that might otherwise have been imposed.
What should I do?
• Identify your organisation’s activities and where they could lead to pollution.
• Establish what environments might be affected if pollution occurs.
• Consider the preventative measures you could put in place to eliminate risk.
• Consider the control measures you could put in place to reduce risk (change process, substitute chemicals, systems of work, etc).
• Make sure you have appropriate and sufficient control and emergency equipment (bunds, interceptors, spill kits, etc), in place and maintained correctly.
• Where required (eg, if you are 14001 accredited) ensure your legislation is up to date.
• Check any discharge notices or permits you have, and that you are up to date and in compliance with them.
• If you feel you may need specialist help, make sure you get it.
Greg Davies is head of service development at environmental consultancy Elementus