Environmental guidance for your business in Northern Ireland & Scotland

Environmental damage

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.

Pollution incident response planning

Additional resources

   

 

Video Case Study: How to Prepare an Emergency Response for Your Business

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:

  • waste management operations needing a permit or registration - such as collecting, transporting, recovering and disposing of waste and hazardous waste
  • operating landfill sites
  • managing extractive mining waste
  • making discharges to surface water and groundwater that require an authorisation
  • abstracting and storing water in a way that requires a licence
  • activities involving dangerous substances, pesticides and biocides
  • transporting dangerous and polluting goods
  • activities involving genetically modified organisms
  • activities requiring a pollution prevention and control permit
  • importing and exporting waste
  • carbon capture and storage.

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:

  • 24 July 2009 in Northern Ireland
  • 24 June 2009 in Scotland.

Environmental damage to water

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:

  • cause harm to human health
  • damage natural ecosystems
  • interfere with drinking water, recreational activities and any other use of the water environment
  • cause pollution.

For more information, see our guideline: Preventing water pollution.

Environmental damage to land

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.

Environmental damage to biodiversity

Biodiversity damage is classed as environmental damage if it causes:

  • a significant harmful effect on the conservation status of an EU protected species - eg bats, freshwater pearl mussels - or natural habitat - eg Natura 2000 sites
  • a harmful effect on the ecological structure and function of an area of special scientific interest, eg manure spreading on protected grassland (in Northern Ireland only).

You can find out if your activities take place in or near a protected area:

NIEA: Protected areas

Scottish National Heritage: Protected areas

Scottish National Heritage: Protected species

Exemptions from the Environmental Liability Regulations

The regulations do not apply to any environmental damage that occurred before:

  • 24 July 2009 in Northern Ireland
  • 24 June 2009 in Scotland.

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.

Further information

SEPA: Environmental liability regulations

Northern Ireland: DOENI: Environmental liability

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:

  • take all practical steps to prevent damage
  • report the details to the enforcing body if the threat remains.

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:

  • In Northern Ireland to the Northern Ireland Environment Agency (NIEA)
  • In Scotland to the relevant enforcing authority.

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:

  • there is an imminent threat of environmental damage, they have advised you that is considered an emergency, and you don't take preventive action
  • you don't comply with a requirement to take preventive action
  • the site operator cannot be found.

Further information

NetRegs e-learning tools

COMAH

Preventing water pollution

Contaminated land

Nature conservation

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?

Enforcing bodies

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.

Contact your local council

The NIEA is the enforcing body for damage, or risk of damage, to land, water and biodiversity.

Contact your environmental regulator

In Scotland

The Scottish Environment Protection Agency (SEPA) is the enforcing body for damage or risk of damage, to the water environment or land.

SEPA: Environmental liability regulations

Scottish Natural Heritage is the enforcing body for damage, or risk of damage, to protected species and habitats in the non-marine environment.

SNH: Environmental liability guidance

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).

Scottish Government: Marine Scotland

What you must do

If your activities cause environmental damage you must:

  • take all practical steps to prevent further damage
  • in Northern Ireland report details of the damage to the Northern Ireland Environment Agency (NIEA)
  • in Scotland, report details of the damage to the relevant enforcing body
  • remediate the environmental damage.

People who may be affected by possible damage can also report damage:

  • In Northern Ireland to the NIEA
  • In Scotland to the relevant enforcing body.

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.

Notices for remediation

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.

In Scotland

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.

Appeals against liability for environmental damage

You can appeal against a requirement to submit remediation proposals within 28 days of it being served on you.

Further information

Northern Ireland: DOENI: Environmental liability

SEPA: Environmental liability guidance

COMAH

Preventing water pollution

Contaminated land

Nature conservation

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 management systems and environmental reports

Northern Ireland – environmental liability legislation

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.

Scotland - environmental liability legislation

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.

The Environmental Liability (Scotland) Amendment Regulations 2015

Amend the 2009 Regulations to include environmental damage to the marine environment.

Further information

Environmental legislation on NetRegs

Contact your environmental regulator

Chemical storage

COMAH

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