Environmental liability refers to legal liability and/or clean up obligations in respect of existing or historical pollution or contamination. A comprehensive system of liability for contamination was introduced in England and Wales in 1995. This legislation allocated responsibilities for clean up and provided for procedures by which parties could be made liable.
European Community legislation has provided for environmental liability effective from 1st April 2009. However the legislation does not apply to damage caused by an emission, event or incident which takes place before 1st April 2009 or damage from an emission, event or incident which derives from an activity that took place and finished before that date. In respect of the pre-April 2009 incidences, emissions and events the existing legislation and common law principles apply.
There is considerable potential for liability for environmental contamination, emissions and escapes under common law. Where damage is caused to persons or property, there may be a liability in negligence. An unreasonable interference with an owner in the occupation of his land may be a ground for liability for nuisance. There is so-called “strict liability” where dangerous materials are accumulated on land and escape. Proof of negligence in relation to the escape is not required. See our sections in relation to civil liability.
There are statutory provisions which effectively create liability for pollution and obligations to clean up or remediate, in the context of water pollution, air pollution and waste legislation.
The Water Pollution Act provides for potential liability for pollution. The legislation gives a right to any person to whom loss or damage is caused. Where trade sewage or other pollutants enter water and cause injury to persons or property, the person may recover damages in respect of the loss or damage from the occupier of the premises from which the effluent originated.
There is a defence where the release is caused by an act of God, act or omission of a third party over whom the occupier had no control, being an act or omission, which such person could not reasonably have foreseen and guarded against. There is a defence where the emission takes place in accordance with a water pollution licence. The occupier or owner may still be liable under the law of civil wrongs.
The Air Pollution Act provides that where an emission causes injury, loss or damage to a person or property, that person may, without prejudice to other rights than he may have, may recover damages in respect of such injury, loss or damage from the occupier of the premises from which the emission originates.
As with water pollution legislation, where the emission is in accordance with an air pollution licence or an integrated pollution control licence, there is a defence to liability. There may however still be liability under another heading. There is also a defence where the pollution is caused by an act of God, an omission of a third party over whose conduct such occupier had no control, being an act of omission which he could not have reasonably foreseen or guarded against or is an act or omission which is in breach of the legislation.
The Waste Management legislation provides that certain parties remain owners of and responsible for waste, notwithstanding attempts to dispose of it, other than in accordance with permitted means. Holders of waste, have statutory duties not to permit any loss, spillage or accidents which cause orare likelyy to cause environmental pollution.
Offences and Remediation
There are fines for breach of water pollution, air pollution, fisheries and waste legislation. More serious offence can be tried on indictment with a jury with significant penalties and offences. Orders can be made to rectify pollution. For example, in the case of water pollution, fish can be ordered to be restocked and alternative unpolluted water may be required. Local authorities have powers to enter sites and undertake remedial works. The costs of such works can be levied on the persons responsible without limitation.
In common with much other regulatory legislation, officers such as directors and managers of companies and businesses may be subject to criminal liability. Where an offence has been committed by a company and it is proved to be committed with the consent, connivance, approval or facilitated by any neglect by a director, manager, secretary or other officer, that person may also be guilty of an offence.
The Courts have exercised powers to require remediation of sites which have been contaminated by hazardous waste. They have held the land owners or others responsible and have ordered them to pay clean up costs to the local authority. In some cases, the courts have made orders against directors of companies, personally, to carry out and complete works, if the company was failed to do so.
EU Environmental Liability Regulations
The EU environmental liability legislation applies to damage, emissions, events or incidences taking place after 1st April 2009, not deriving from activities which took place and finished before that date. The regulations provide for a 30 year time limit for potential liability, commencing from the date of the emission, event or incident. The EPA must maintain a register in relation to instances of environmental damage and liability arising from it.
Certain duties are placed on the so-called, operators of occupational activities. The operator is a person who operates or controls the activity or to whom decisive economic power over the activity has been delegated. This may be a permit or authorisation holder or the holder of licences under various legislation, such as dangerous substances legislation.
The Environmental damage or imminent threat of environmental damage must be caused by certain activities listed in the legislation. They include activities requiring environmental pollution licences. This covers all activities subject to licensing and control under environmental legislation and under the legislation, such as dangerous substances legislation.
The regulations are without prejudice to other legislation and common law rights. The regulations do not apply to natural phenomenon of exceptional, inevitable or irresistible character. Where environmental damage is caused by pollution of a diffuse character, the regulations do not apply unless it is possible to establish a causal link between the damages and the activities of the operator.
Where an operator is aware or ought to be aware of an imminent threat of environmental damage, it must take the necessary preventive measures without delay. Unless the measures dispel the risk, the operator must inform the Environmental Protection Agency of the threat, of the preventative measures taken and his opinion, that they do not dispel the threat. Failure to do so is an offence.
Where the EPA is aware of an imminent threat of environmental damage, it may issue a direction to an operator to provide information or take preventative measures. Failure to comply is an offence. Where there is an imminent threat, the EPA may take the necessary preventive measures, if the operator cannot be identified or if it fails to take the necessary steps.
Where environmental damage has occurred, of which the operator is aware or ought reasonably to be aware, he must inform the EPA. He must also take all practicable steps to immediately control, contain, remove or manage the contaminants or the cause of damage, of which he is aware or ought reasonably to be aware, in order to prevent further environmental damage, damage to health or further impairment of services.
This provision applies where the relevant business is aware or ought to be aware that its activity has caused damage. The EPA may, as a last resort, take such measures, as it considers appropriate, if the operator fails to undertake the requisite remedial measures, or if it cannot identify the operator or the operator has a defence.
The EPA has undertake remedial measures in order to remediate the damage done. It may direct the operator of a business, which caused damage to identify and show what the appropriate remedial measures will be taken. It may consult with other interested parties and invite observations in deciding on the requisite measures. The EPA takes account of the relevant business’s proposals as well as the observations of third parties in respect of remedial measures.
Once the EPA decides what remedial measures should be undertaken, it issues a direction to the business which caused the environmental damage, notifying it of the damage concerned, the required remedial measures, the order in which they are to be taken and proposed monitoring and inspection by the EPA. Failure by the business to comply is an offence.
The business may appeal against the direction but this shall not have the effect of suspending the direction. The appeal is made to a District Court Judge. On appeal, the direction may be confirmed, varied or cancelled.
Third Party Complaint
A person or entity who is affected or likely to be affected by environmental damage or threatened damage has a sufficient interest in the decision, may submit observations to the EPA and request it to take action in relation to the damage concerned. An entity with sufficient interest includes organisations that promote the protection of the environment and have done so for at least 12 months.
If the EPA is satisfied that environmental damage exists, it shall consider the submission, observations and the request, consult with the business which is alleged to have caused the damage concerned and request its views. The EPA considers the observations and requests and may decide whether to accede to the request.
If there is no environmental damage or the person is not entitled to make the complaint, it shall be notified and given reasons. The person who made the request may bring judicial review proceedings to challenge it within eight weeks.
The general principle is that the business whose activity caused the damage which has occurred, is liable for the cost of preventative and remedial measures. The EPA may recover the costs it has incurred as a debt from the operator concerned. It may decide to recover less than the total cost. It may decide not to recover costs where the expenditure on recovery would be greater than the amount recovered or where the operator cannot be identified.
A business against whom costs are sought may defend the claim on the basis that the damage or threatened damage was caused by the act or omission of a third party and that the business has taken appropriate safety measures or that the business complied with the instructions of a public authority other than those directions arising from an incident or emission arising from the business activities.
Action by the EPA for the recovery of costs must be brought within five years from the date on which the preventative or remedial measures have been completed or if later, the date on which the EPA became aware of the operator’s identity.
The EPA may apply to the High Court or Circuit Court for an Injunction or other Order directing an operator/business to comply with its direction or requirement. The Court may make such order in relation to costs as the Court considers appropriate.
Authorised officers of the EPA have powers to enter premises, make enquiries, examine all plant premises and machinery, make inspections or examinations, require things be left undisturbed and do such things as may be required for fulfilment of the functions of the EPA. They may remove documents, samples, books and records. They may require the operator or his employers or persons in charge of the premises to produce books and documents. It may direct that things not be moved.
The EPA officers may be accompanied by a member of An Garda Siochana. They may only enter a dwelling with consent or with a Court warrant. It is an offence to interfere with EPA officers or the accompanying member of the Gardai exercising powers under the provision. Where an authorised officer believes a person has committed an offence under the legislation, he may require that the person provide him with details of his name and address.
Offences under the legislation may be prosecuted in the District Court with a maximum fine of €5,000 and six-month imprisonment. Alternatively, they may be prosecuted in the Circuit Court with a maximum fine of €500,000 or three years imprisonment. It is a defence that the accused took reasonable steps to avoid the commission of the offence. Where an offence is committed by a company, its officers, directors, managers and other persons acting in such capacity who consented to, connives or whose neglect caused the offence, may also be prosecuted.
Remediation of Damage
Primary remediation is designed to restore the damaged resources to their baseline condition. Complementary remediation is undertaken where the damaged resources or sources do not return to their baseline condition. It may be undertaken to compensate for the loss of resources and services pending remediation. It may consist of the improvement of the environment, so as to provide a similar level of natural resources or services.
Complimentary remediation may include the provision of an alternative site equivalent to that which would have been provided, if the affected site had been returned to its baseline condition. Where possible, it should be geographically linked to the affected site, taking account of the interests of the affected population. Compensatory remediation focuses on interim measures, rather than financial measures.
The legislation provides criteria for the identification of remedial measures both primary, complementary and compensatory. The principal focus should be given to primary remedial measures. The remedial measures should be considered and evaluated using best available technologies based on a range of criteria.
The relevant criteria include public health, cost, the likelihood of success, the extent to which future damage may be avoided, the extent to which each option benefits the natural resources. Also relevant are the extent to which each option takes account of social, economic and cultural concerns, length of time it will take to restore the environmental damage to be effective, extent to which option achieves the restoration of the site, the environmental damage and geographical linkage to the site.
In relation to land remediation, the necessary measures should ensure at a minimum, that the relevant contaminants are removed, controlled, contained or diminished. The land, taking account of current and approved future use, should not pose a significant risk of adversely affecting human health after the required measures are taken.