Environmental Liability Directive – How should industry prepare?

The Environmental Liability Directive was brought into force in Ireland through SI 547 of 2008. An Environmental Liabilities Bill has also been drafted. The following points need to be made;

• Existing legislation remains in place (IPPC and Waste licensing for instance)
• EPA is the Competent Authority (http://www.epa.ie/whatwedo/enforce/liab/)
• Directive defines ‘Environmental Damage’ and the types of remediation required.
• Requires that any damage is remediated.

There are 3 main types of ‘Environmental Damage’ under the legislation. These are quite specific and are not all encompassing by any means;

• Natural Habitats – Significant deterioration of species or habitat
• Waters – a change in status under the Water Framework Directive
• Land – contamination with a potential adverse impact on human health

For licensed activities (eg IPPC and Waste) there is strict liability, in other words fault or intent is not required.

The greatest potential liability for licensed activities would be where contamination impacts on a NHA, SPA or SAC or indeed candidate versions of these. Ireland has not been very good at mapping or baselining areas of ecological interest. In the event that one of these is impacted and requires remediation, how will it be decided what the remediation targets should be? Its quite possible that remediation targets could be set that go far beyond what would be required to return the area to pre-incident status.

In summary where a facility is situated in, or close to, a conservation area its vitally important that the area is adequately baselined, especially where there is any possibility that a facility might adversely impact such an area through an environmental incident in the future.

In summary a facility will need to ensure that an adequate baseline is undertaken to protect themselves.