The Environmental Damage Regulations (EDRs) are wide-ranging government regulations that can potentially apply to many businesses.
The regulations are the UK government’s implementation of the EU Environmental Liability Directive 2004/35/EC. The regulations were formally designated as ‘The Environmental Damage (Protection and Remediation) Regulations 2009’, but have recently being re-issued for England, with very minor modifications, as The Environmental Damage (Protections and Remediation) Regulations 2015. Similar regulations apply to Wales, Scotland, and Northern Ireland.
The regulations oblige those who create environmental damage, whether by water pollution, adversely affecting protected species or sites of special scientific interest (SSSIs), or by land pollution that causes risks to human health, to not only cease the damage, but also to implement a wide variety of remedial measures to restore affected areas.
Who is affected by the Environmental Damage Regulations?
The regulations cover all those included in the so-called ‘Schedule 2’. This covers businesses with a licence to discharge to waterways, landfill operators, those dealing with hazardous waste, those using or transporting dangerous substances or agrochemicals, etc. In these cases negligence does not need to be proved for the regulations to take effect. Not every case of pollution will be considered serious enough to be covered by the regulations, but experts should be consulted if there is any doubt.
In addition, any business or individual can be affected by the regulations if their actions significantly adversely affect a protected species or a site of special scientific interest (SSSI), and are deemed to be ‘negligent’. Consider a manufacturer that has an extension built. It turns out the work damages a watercourse in which great crested newts (a protected species) live. The manufacturer may be liable under the regulations, even though their business is not classed as ‘Schedule 2’.
What must a company do if an environmental incident occurs, or is thought likely to occur?
First of all, a company must address the source of the pollution or damage, and immediately inform the relevant authority. This will be:
It should be noted that incidents include those resulting in a risk to human health. Accurate risk assessment is essential in such cases. It is a complex iterative process, involving quantitative modelling of sorption to airborne dust (inhalation route), soil, dermal uptake, plant uptake, etc.
Once the initial source of pollution or damage is addressed, the relevant agency has the power to order remedial action, by serving a remedial notice. The aim of the action is to restore the affected habitat back to its original condition as soon as practicable. For example, in the case of polluted land, this might involve the removal and replacement of contaminated topsoil.
Restoration may also involve complementary or compensatory remediation. Complementary remediation involves restoring habitat nearby. In the instance of our newts, it could involve ecologists constructing a suitable pond near to the destroyed ditch.
Compensatory remediation involves providing alternative facilities to those people affected by the damage. Consider a river in which pollution has killed off the fish. It might be determined that the river would recover in three years. In the meantime, an under-stocked river nearby could be restocked with fish, as compensatory remediation for local anglers. Note that compensatory remediation involves providing an alternative resource while the original area recovers, not financial compensation.
All the relevant government authorities are able to recover their enforcement costs in full from the business involved.
All businesses should be aware of the Environmental Damage Regulations and their potential impact. Not all potential problems are obvious to the untrained eye. Enforcement action can prove expensive, particularly where a suboptimal remediation strategy might be specified. In such a scenario employing an experienced environmental consultant is advisable.
Environmental Damage (Prevention and Remediation) Regulations 2009: Guidance for England and Wales. https://www.gov.uk/government/publications/environmental-damage-prevention-and-remediation-regulations-2009-guidance-for-england-and-wales
Environmental Liability (Scotland) Regulations 2009: A Quick Guide. http://www.gov.scot/Resource/Doc/921/0084567.pdf
The Environmental Damage (Prevention and Remediation) (England) Regulations 2015. http://www.legislation.gov.uk/uksi/2015/810/made
Mills & Reeve website. ‘With the demise of the contaminated land regime, will the environmental damage regulations play a greater role?’ http://www.mills-reeve.com/with-the-demise-of-the-contaminated-land-regime-will-the-environmental-damage-regulations-play-a-greater-role-06-08-2015/