Environmental liability regulations
The Environmental Liability (Scotland) Regulations 2009 came
into force on 24 June 2009.
What do they do?
The regulations transpose the European Union Environmental
Liability Directive into Scots law and aim to establish a new kind
of civil law mechanism based on the 'polluter pays' principle.
The regulations oblige operators of certain activities to take
preventative measures where there is an imminent threat of
environmental damage, and to remediate any environmental damage
caused by their activities.
What is environmental damage?
The regulations identify three categories of environmental
damage: land damage, water damage and habitats and protected
species damage.
The regulations determine:
• land damage, as any land contamination creating a
significant risk of human health being adversely affected.;
• water damage as any damage causing: deterioration of the
ecological/chemical status of a body of surface water; the chemical
or quantitative status of a body of groundwater;.
• habitats and species damage as: any damage to protected
species and natural habitats; particularly if it has significant
adverse effects on reaching or maintaining the favourable
conservation status of the protected species or natural
habitat.
Protected species and natural habitats include any species
mentioned in Article 4(2) and listed in Annex I of the
Birds Directive and their habitats, any species listed in Annex
II of the
Habitats Directive and their habitats, any species listed in
Annex IV of the Habitats Directive and their breeding sites or
resting places and any habitats listed in Annex I of the Habitats
Directive.
Who are the competent
authorities?
SEPA is the competent authority for land damage and water
damage. Marine Scotland and Scottish Natural Heritage are the
competent authorities for damage to habitats and protected
species.
Which pollution incidents do the regulations apply
to?
The regulations apply only to significant environmental damage
or an imminent threat of significant environmental damage. They do
not replace any existing laws, therefore ordinary day-to-day
activities or incidents should continue to be dealt with under
existing legislation.
Incidents must be caused by one or more of the activities
specified in schedule 1 to the regulations to be considered under
land damage and water damage.
The regulations are not retrospective and apply to environmental
damage caused from June 24 2009 onwards.
The vast majority of pollution incidents attended by SEPA do not
result in sustained damage to the water environment causing
deterioration in status (ie a drop in class) of a water body and
hence water damage.
Land damage incidents are also expected to be very rare.
Nevertheless, as an easy marker, any incident likely to be
considered as land damage is likely to have a similar or a greater
impact than that of an incident likely to cause contaminated land
as covered by Part II A (EPA 1990).
What do operators do?
If you or your activities have caused or threaten to cause
environmental damage you must:
• take steps to prevent the damage or further damage
occurring;
• notify the relevant competent authority.
Who do I contact?
If you have been, or think you are likely to be, affected by an
environmental damage incident, or otherwise have sufficient
interest, please contact SEPA on our pollution hotline number:
0800 80 70 60.
Any third party requests for action will need to be followed up
by a written request to the relevant local officer.