Monday, June 14, 2010
environmental LIABILITY Directive
Firms from across the agricultural, waste, water and manufacturing sectors are being urged to ensure their policies for avoiding damage to biodiversity are up to date ahead of the introduction next month of new EU legislation that could see those firms responsible for environmental damage facing new criminal charges.
The EU Environmental Liability Directive (ELD) will come into effect in England from 1 March, some 20 months after the EU deadline for transposing the directive into UK law.
It will effectively extend the "polluter pays principle", which governs the bulk of the EU's environmental legislation, and will seek to more clearly establish environmental liability for firms that cause damage to protected species, natural habitats and sites of special scientific interest, or contaminate surface or ground water, or contaminate land that leads to a risk to human health.
Speaking to BusinessGreen.com, Jonathan Isted, head of the environmental planning and regulatory group at law firm Freshfields Bruckhaus Deringer, said that the new legislation would plug a gap between the contaminated land regime and rules governing damage to biodiversity.
Under the legislation, firms will be required to take preventative action to avoid damage to habitats, notify regulators if any damage is caused, and undertake remediation efforts to clean up any environmental damage that is caused.
Isted said that the need to notify officials in the event of damage being caused marked a significant extension on current UK biodiversity rules. "The main change is that there's now a positive duty to notify regulators of any damage caused, which we haven't had in the UK previously," he said. "You will have to notify them of a problem and how you plan to remediate it, or you could face criminal action."
The government's regulatory impact assessment suggested that the new legislation would give rise to an estimated 40 breaches a year, costing UK firms a total of £14m.
But Isted said that many firms remained unaware of the new liabilities they now face. "These rules have been a long time coming, but my impression is that a lot of firms are still unaware of them," he said. "Businesses should be familiar with the new regime and should assess whether their existing procedures for controlling, monitoring, identifying and reporting environmental damage are compliant."
The government's regulatory impact assessment predicted that the agricultural sector would be responsible for more than a third of incidents under the new regime, while the waste, water and manufacturing sectors could also be affected.