The Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009

PART 1N.I.Introductory provisions

Citation and commencementN.I.

1.  These Regulations may be cited as the Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009 and come into operation on 24th July 2009.

InterpretationN.I.

2.—(1) The Interpretation Act (Northern Ireland) 1954(1) applies to these Regulations as it applies to an Act of the Northern Ireland Assembly.

(2) In these Regulations—

“activity” means any economic activity, whether public or private and whether or not carried out for profit;

“area of special scientific interest” means an area declared under Article 28(1) of the Environment (Northern Ireland) Order 2002(2);

[F1”baseline” means the low-water line along the coast as defined in the Territorial Seas (Baseline) Order 2014]

“damage” means a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly;

“groundwater” means all water which is below the surface of the ground in the saturation zone and in direct contact with the ground or subsoil;

“imminent threat of damage” means a sufficient likelihood that environmental damage will occur in the near future;

“marine installation” means any artificial island, installation, platform or other artificial structure at sea, other than a pipeline or a vessel;

“natural habitats” means—

“natural resource” means—

“operator” means any natural or legal, private or public person who operates or controls the activity by means of delegated authority or otherwise and includes the holder of a permit or authorisation for such an activity;

[F4“river basin management plan” has the same meaning as in the Water Environment (Water Framework Directive) Regulations (Northern Ireland) 2017.]

“Planning Appeals Commission” means the Planning Appeals Commission established under Article 110 of the Planning (Northern Ireland) Order 1991(5);

“protected species” means the species mentioned in [F5Article 4(1) of Directive 2009/147/EC of the European Parliament and of the Council] or listed in Annex I to that Directive or listed in [F5Annex II to Council Directive 97/62/EC and Annex IV to Council Directive 92/43/EEC] ;

“services” means the functions performed by a natural resource for the benefit of another natural resource or the public;

“vessel” means—

(3) Unless otherwise defined in these Regulations, expressions used in Directive 2004/35/EC of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage(6) [F6as last amended by Directive 2013/30/EU of the European Parliament and of the Council] have the same meaning in these Regulations.

[F7(4) A reference to Council Directive 1999/31/EC on the landfill of waste shall be construed as a reference to that Directive [F8as it had effect immediately before exit day].]

[F92A.  References in Schedule 2 or 3 to EU instruments are to those instruments as they had effect immediately before exit day]N.I.

[F10ApplicationN.I.

2B.  These Regulations apply to the areas specified in the following table—

Meaning of “environmental damage”N.I.

3.—[F11(1) Subject to regulations 5, 6 and 7, these Regulations apply to environmental damage to—

(a)Protected species or natural habitats, or an area of special scientific interest;

(b)Surface water or groundwater;

(c)Marine waters; or

(d)Land.]

(2) Environmental damage to protected species or natural habitats or an area of special scientific interest means damage of a kind specified in Schedule 1 if it is caused by—

(a)an activity in Schedule 2; or

(b)an activity where the operator was at fault or was negligent as to whether such damage would be caused.

(3) Environmental damage to surface water means damage to a body of surface water classified as such pursuant to Annex II to Council Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy(7) [F12as last amended by Commission Directive 2014/101/EU,] caused by an activity in Schedule 2 such that one of the—

(a)biological quality elements listed in Annex V to that Directive;

(b)level of one of the chemicals listed in the legislation in Annex IX or a chemical listed in Annex X to that Directive [F13as amended by Directive 2013/39/EU of the European Parliament and of the Council]; or

(c)physicochemical quality elements (as listed in Annex V to that Directive),

is adversely affected in such a way that its value changes to a value consistent with the water being classified as a lower status than before the damage (whether or not the body of water is, in fact, reclassified).

(4) Environmental damage to groundwater means any adverse effect on a body of groundwater as described in Annex II to Directive 2000/60/EC on—

(a)its conductivity or its level (both of which are specified in Annex V to Directive 2000/60/EC); or

(b)its concentration of pollutants (as specified in that Annex and in Directive 2006/118/EC of the European Parliament and of the Council on the protection of groundwater against pollution and deterioration(8)) [F14as amended by Commission Directive 2014/80/EU]

in such a way that the value changes to a value consistent with the water being classified as a lower status than before the damage caused by an activity in Schedule 2 (whether or not the body of water is, in fact, reclassified).

[F15(4A) Environmental damage to marine waters means damage to marine waters classified as such pursuant to Directive 2008/56/EC of the European Parliament and of the Council establishing a framework for community action in the field of marine environmental policy, such that their environmental status is significantly adversely affectedF16...] .

(5) Environmental damage to land means contamination of land by substances, preparations, organisms or micro-organisms arising out of an activity specified in Schedule 2 that results in a significant risk of adverse effects on human health.

(6) This regulation extends to the foreshore, sea bed and subsoil and their natural resources.

Other legislationN.I.

4.  Nothing in these Regulations shall be construed so as to affect the right of an operator to limit liability in accordance with the Convention on Limitation of Liability for Maritime Claims 1976(9).

ExceptionsN.I.

5.  These Regulations shall not apply in relation to environmental damage, or imminent threat of damage, caused by—

(a)an act of terrorism, armed conflict, civil war, insurrection or hostilities;

(b)an exceptional natural phenomenon, provided the operator took all reasonable precautions to protect against damage being caused by such an event;

(c)activities, the sole purpose of which is to protect from natural phenomena;

(d)an incident in respect of which liability or compensation falls within the scope of—

(i)the International Convention of 27 November 1992 on Civil Liability for Oil Pollution Damage((10));

(ii)the International Convention of 27 November 1992 on the Establishment of an International Fund for Compensation for Oil Pollution Damage(a); or

(iii)the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001(11);

(e)activities, the main purpose of which is to serve national defence or international security;

(f)radioactivity from an activity covered by the Treaty establishing the European Atomic Energy Community or caused by an incident or activity in respect of which liability or compensation falls within the scope of the Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy and the Brussels Supplementary Convention of 31 January 1963;

(g)pollution of a diffuse character if it is not possible to establish a causal link between the damage and the activities of individual operators; or

(h)damage caused in the course of commercial sea fishing if all legislation relating to that fishing was complied with.

Temporal applicationN.I.

6.  These Regulations shall not apply to—

(a)damage caused by an incident, event or emission that finished before the coming into operation of these Regulations;

(b)damage or imminent threat of damage caused by an incident, event or emission that occurs after that date if it derives from an activity that took place and finished before that date; or

(c)damage caused by an emission, event or incident that took place 30 years or more before the damage.

Exception from environmental damage to surface water or groundwaterN.I.

7.—(1) Environmental damage to water does not include—

(a)damage caused by a new modification to the physical characteristics of a body of surface water;

(b)an alteration to the level of a body of groundwater F17...; or

(c)deterioration from high status to good status of a body of surface water resulting from new sustainable human development activitiesF18...,

if all the conditions specified in paragraph (2) are fulfilled.

(2) The conditions are—

(a)all practicable steps are taken to mitigate the adverse impact on the status of the body of water;

(b)the reasons for the modifications or alterations are specifically set out and explained in the river basin management plan F19... and the objectives are reviewed every six years;

(c)the reasons for the modifications or alterations are of overriding public interest, or the result of the damage is outweighed by the benefits of the new modifications or alterations to human health, to the maintenance of human safety or to sustainable development; and

(d)the beneficial objectives served by the modifications or alterations of the body of water cannot for reasons of technical feasibility or disproportionate cost be achieved by other means.

Enforcing authorityN.I.

8.  These Regulations shall be enforced by the Department of the Environment.