Environmental guidance for your business in Northern Ireland & Scotland
This guide gives an overview of what environmental damage is and how the Environmental Liability Regulations could affect you. It covers what action can be taken if you fail to remove a risk of environmental damage, or actually cause environmental damage.
You should also read the guide to pollution incidents and incident response planning.
Very serious cases of water pollution, land contamination and damage to biodiversity are classed as environmental damage, and dealt with through the Environmental Liability Regulations.
Most cases of pollution and damage will be covered by other legislation. For example, if you cause a less serious water pollution incident, you may be issued with a notice to remedy the pollution or be prosecuted.
The Environmental Liability Regulations require businesses to take action to prevent environmental damage and to clean up any damage that they cause, known as remediation.
If you carry out any of the strict liability activities listed in the regulations and you cause environmental damage, you will have to prevent further damage and/or remedy the damage even if you were not at fault or negligent; there are some exceptions. Strict liability activities include:
You are liable if your activity caused or is likely to cause environmental damage. You must prevent or remediate the damage. The regulations do not apply to any environmental damage that occurred before:
Pollution of the water environment is classed as environmental damage if it is serious enough to have a significant effect on the status of the water body in terms set by the European Union (EU) Water Framework Directive, eg changing the ecological status of surface water from good to moderate or poor, or causing a failure to improve status. You can find information on the EU Water Framework Directive definition of ecological status on the Europa website.
Europa: Water Framework Directive
If you pollute the water environment in a way which isn't serious enough to be classed as environmental damage you can still be prosecuted,under other regimes, if you:
For more information, see our guideline: Preventing water pollution.
Land contamination, eg contamination by fuels or other txic chemicals, may be classed as environmental damage if there is a significant risk that it could cause harm to human health.
Biodiversity damage is classed as environmental damage if it causes:
You can find out if your activities take place in or near a protected area:
The regulations do not apply to any environmental damage that occurred before:
There are a number of other exemptions.
If you cause environmental damage that is exempt from the Environmental Liability Regulations you can still be prosecuted under other legislation.
NIEA Water management unit: Tel 028 9262 3100
If your activities cause an imminent threat of environmental damage under the environmental liability regime you will be committing an offence if you do not:
To find out who your enforcing body is, see the page in this guideline on Remediating environmental damage.
For example, if you become aware of poorly maintained storage equipment that is at risk of leaking, or is already leaking, and could cause environmental damage, you must take action immediately to stop environmental damage. If your action does not succeed in reducing the risk, you must report it immediately:
You are committing an offence if you do not report environmental damage or remaining threats of environmental damage. It is also an offence if you do not take action to prevent further damage.
People who may be affected by possible damage may also report the risk to the enforcing body, and ask them to take action.
Your enforcing body may require you to take necessary action to prevent environmental damage, or to prevent further damage. If you do not comply you will be committing an offence.
You may need to ask the permission of any other landowners if you need access to their property to carry out the work.
The enforcing body can do the prevention work themselves and charge you for this if:
If you cause environmental damage under the environmental liability regime you may be responsible for remedying the damage. See the page in this guideline: What is environmental damage?
The Environmental Liability Regulations can be enforced by a number of organisations.
In Northern Ireland
Your local council is the enforcing body for damage, or risk of damage, to land. It is also the enforcing body for damage you cause carrying out activities covered by a pollution prevention and control permit it issued.
The NIEA is the enforcing body for damage, or risk of damage, to land, water and biodiversity.
The Scottish Environment Protection Agency (SEPA) is the enforcing body for damage or risk of damage, to the water environment or land.
Scottish Natural Heritage is the enforcing body for damage, or risk of damage, to protected species and habitats in the non-marine environment.
Marine Scotland is the enforcing body for damage, or risk of damage, to protected species and natural habitats in the marine environment and marine waters (from Summer 2015).
If your activities cause environmental damage you must:
People who may be affected by possible damage can also report damage:
Remediation of environmental damage means returning the environment as a whole to the condition it would have been in if the damage had not occurred.
Remediation must include primary remediation, which is work to repair the damaged site itself. If the primary remediation does not fully restore the damaged site then you may also need to carry out compensatory and complementary remediation.
Compensatory remediation is work to offset the loss of natural resources from the time you caused the damage to the time you fully remediate the damaged site.
Complementary remediation is additional work, possibly at another site, if the site you damaged cannot be completely restored. It is carried out to compensate for when primary remediation does not fully restore the damaged site.
In Northern Ireland
If the NIEA decides you have caused environmental damage, you must draw up remediation proposals and submit them for approval. If you don't do this the NIEA can issue a remediation notice requiring you to submit remediation proposals. Once the NIEA has decided which remediation proposals should be implemented you must implement them.
If the enforcing body decides you have caused environmental damage, you must draw up remediation proposals and submit them for approval. If you don't do this the enforcing body can issue a requirement for you to submit remediation proposals. Once the enforcing body has decided which remediation proposals should be implemented you must implement them.
You can appeal against a requirement to submit remediation proposals within 28 days of it being served on you.
This page provides links to the full text of key pieces of environmental legislation relating to preventing and dealing with pollution incidents and environmental damage. The websites hosting the legislation may list amendments separately.
If you are setting up an environmental management system (EMS) for your business, you can use this list to start compiling your legal register. Your legal adviser or environmental consultant will be able to tell you if other environmental legislation applies to your specific business.
Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) SR 2009/252.Brings into force rules to force polluters to prevent and repair damage to water systems, land quality, species and their habitats and protected sites. The polluter does not have to be prosecuted first, so remedying the damage should be faster.
Environmental Liability (Prevention and Remediation) (Amendment) Regulations (Northern Ireland) SR 2009/361. Amends 2009/252 to update how warrants can be issued and enforced, give magistrates more flexibility in the fines they can apply for conviction and to clarify that references to European legislation include any future amendments.
Environmental Liability (Prevention and Remediation) (Amendment) Regulations (Northern Ireland) 2011 SR210 Amends 2009/252 to include the geological storage of carbon dioxide as an activity for which operators will be liable if environmental damage is caused.
Environmental Liability (Scotland) Regulations SSI 2009/266. Brings into force rules to force polluters to prevent and repair damage to water systems, land quality, protected species and habitats.
Amend the 2009 Regulations to include environmental damage to the marine environment.
A new framework for tackling waste has been unveiled by the Scottish Environment Protection Agency (SEPA), focussing on how SEPA will support a circular economy in Scotland.
One Planet Prosperity – A Waste to Resources Framework
The Northern Ireland Environment Agency has published a short guide to the duty of care responsibilities including advice and information for waste producers, carriers and those accepting, storing and treating waste.
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We have recently updated and improved our guidance on Environmental Management Systems (EMS). You can find the guidance via the Environmental Topics tab or alternatively select the following link Environmental Management Systems (EMS).
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