Guidelines for Part 17.2 of the Dutch Environmental Management Act: measures in the event of environmental damage or its imminent threat (English

Transcription

1 Guidelines for Part 17.2 of the Dutch Environmental Management Act: measures in the event of environmental damage or its imminent threat (English translation of original version dated 8 January 2008)

2 Introduction This document provides the guidelines for the new Part 17.2 of the Dutch Environmental Management Act (Wm), measures in the event of environmental damage or its imminent threat. The revised Part 17.2 of the Wm requires you as a competent authority to order action be taken or take action yourself to prevent impending environmental damage, and to limit and remedy such damage that has already occurred. You have an obligation to recover the costs incurred from the operator that caused the damage. This is a practical application of the polluter pays principle. One of the objectives of the new regulations is to encourage business operators to keep the risk of environmental damage as low as possible, meaning that the regulations are also intended to have a preventive effect. A special feature of the new regulations is that government also has an obligation to recover the costs of preventing and remedying environmental damage from the operator concerned. These new Sections in the Wm are the implementation in Dutch legislation of the EC s Environmental Liability Directive 1. This is an English translation of the original version of the guidelines, no changes having been made to it since initial publication. Although the regulations in Part 17.2 of the Environmental Management Act applying to environmental liability have not been amended, this might not be true of some of the regulations to which these guidelines refer. Please accept our apologies for any confusion. Summary If you discover damage, or the threat of damage, to soil, water or nature areas, the action plan can be of assistance. The plan sets out the steps that you as a competent authority can and must do in such cases. It specifies what you have to do if the damage falls within the scope of Part 17.2 of the Wm. You may also apply the measures even if Part 17.2 does not apply. 1 Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (Official Journal, 30 April 2004). 2

3 By working through the module Does Part 17.2 of the Wm apply?, you can determine whether this Part covers the environmental damage concerned, or the damage threatening to occur. Chapters 1 to 8 of these guidelines provide background information on various subjects that the module deals with in depth. Links to these chapters will appear as you follow the action plan. Although these guidelines have been prepared with great care, they cannot be considered as conferring any rights. They do not have the status of regulations. The wording of the Wm prevails. 3

4 Contents Action plan for competent authorities when applying Part 17.2 of the Environmental Management Act Internet program Does Part 17.2 of the Wm apply? Chapter 1: Scope of Part 17.2 of the Wm Chapter 2: Damage thresholds for soil, water and nature Chapter 3: Procedures and legal protection Chapter 4: Cost recovery Chapter 5: Notification of environmental damage Chapter 6 Competent authority, coordination and the powers of demand of the Minister of Housing, Spatial Planning and the Environment Chapter 8: Relationship to other regulations Appendixes: A. Links: o The text of the parliamentary bill for Part 17.2 of the Wm o Explanatory memorandum to the draft parliamentary bill o Environmental Liability Directive B. Procedures for rulings in the action plan (appendix to chapter 3) 4

5 Action plan for competent authorities when applying Part 17.2 of the Wm Introduction This action plans presents the steps in a logical order that you as a competent authority have to carry out pursuant to Part 17.2 of the Wm. It is not obligatory to keep to this order, as it might be more practical in some cases to follow a different order. Step 11 (notification of environmental damage) might also be appropriate somewhere between steps 3 and 10. As a competent authority, you are required to apply the provisions of Part 17.2 if they are applicable. You may apply your usual enforcement and other powers in addition, but only insofar as they do not conflict with Part 17.2 Wm 2. Chapter 7 provides more information on enforcement (administrative as well as criminal). This action plan specifies the steps you have to follow as a competent authority. However, the entity carrying out the activity that causes the environmental damage (or the imminent threat of such damage) (called the perpetrator in the rest of this document) must also take action: provide information and take steps to prevent, limit and remedy the damage. The action plan is divided into the following parts: I. Detection of environmental damage (or its threat) - Step 1: Correct competent authority and coordination Once environmental damage (or its threat) has been identified or notified, you must first determine who the competent authority is according to Part 17.2 of the Wm. If you are the competent authority, you must immediately report the situation to all administrative bodies who might be involved. It is possible that you are only one of the administrative bodies with the status of competent authority. If this is the case, the various administrative bodies concerned have to agree on which one is to take responsibility for the coordination. - Step 2: Collect information You must next collect information on the nature, extent and perpetrator of the environmental damage. You must also proactively share this information with all administrative bodies that might be involved. - Step 3: Determine if Part 17.2 of the Wm applies At this point, you have to determine whether the damage actually falls within the scope of Part 17.2 of the Wm. - Step 4: Ruling on requests for measures to be taken If you have received a request to take measures, you will have to make a decision on it. 2 Section 17.9(7) of the Dutch Environmental Management Act (Wm). 5

6 If the environmental damage falls within the scope of Part 17.2 of the Wm and you are the competent authority or the competent authority responsible for taking action where coordination is involved carry on with part II of the plan. II. Measures to prevent and limit environmental damage - Step 5: Verification of measures already taken You have to verify the measures that have already been taken. - Step 6: Take further measures to prevent or limit environmental damage You must next order the perpetrator to take further measures to prevent and limit the environmental damage. You can also take such measures yourself, in addition or instead. - Step 7: Informing duty of the competent authority You have to inform certain bodies about the situation, insofar as you have not already done so. NB As the competent authority, you always have the right to take measures yourself to prevent and limit environmental damage, if such measures are necessary. For this, you do not have to take into consideration whether the perpetrator has taken any measures or which ones. III. Remedial measures - Step 8: Approval of proposed remedial measures You have to judge whether the remedial measures the perpetrator proposes are appropriate. - Step 9: Taking remedial measures yourself You have to decide whether to take remedial measures yourself. Such a situation arises if, for example, you cannot establish who the perpetrator is. NB: As the competent authority, you always have the right to take remedial measures yourself, if such measures are necessary. For this, you do not have to take into consideration whether the perpetrator has taken any measures or which ones. IV. Cost recovery - Step 10: Cost recovery You have an obligation to recover the costs of the measures from the perpetrator (including additional costs). V. Notification and registration - Step 11: Reporting You must notify the Minister of Housing, Spatial Planning and the Environment about every instance of environmental damage and liability, including the provision of specified data. 6

7 The steps of the action plan are detailed below. 7

8 I. Detection of environmental damage (or the threat of such damage) Step 1: Correct competent authority and coordination (Sections 17.9(5) and 17.15(2) of the Wm) Correct competent authority If Part 17.2 of the Wm applies, verify that you are the correct competent body according to its provisions. (Chapter 6 provides more information on this point). If you are not the correct competent body, you have to pass on all relevant information received to the correct one 3. In addition, if you received the information as part of a notification or request for measures to be taken, you must inform the person making the notification or request that you have passed on the information. Coordination If multiple administrative bodies are designated as competent authorities, or another administrative body has been granted relevant powers, all the competent administrative authorities will have to hold timely group consultations to ensure the effective coordination of decisions and measures. The competent administrative bodies have to agree among themselves which of them is to take responsibility for the coordination 4. The competent authority (administrative body) responsible for the coordination manages all the activities under Part 17.2 of the Wm. If the competent bodies cannot organise the division of tasks themselves, they jointly find a solution, for example, through the intermediation of another administrative body (such as the Queen's Commissioner). Should they fail to find a solution in time, the Minister of Housing, Spatial Planning and the Environment can assign the various tasks 5. If poor coordination among the competent bodies results in conflicting decisions, they are exposed to the risk of objection and appeal procedures, as well as claims for damages. A competent body in this context can always take the initiative to bring the coordination or other issues to the attention of the Minister of Housing, Spatial Planning and the Environment. Chapter 6 includes an extensive discussion of the terms competent authority and coordination. Step 2: Collect information (Sections 17.10(1), 17.12(2), 17.13(2) and 17.14(1) of the Wm) 3 Section 2:3(1) of the General Administrative Law Act (Awb). 4 Section 17.9(5) of the Wm. 5 Section 17.15(2) of the Wm. 8

9 Collection of information following notification by the perpetrator When the perpetrator detects environmental damage (or the threat of such damage), it must notify the competent authority accordingly as soon as possible, providing information on all relevant aspects of the situation. The perpetrator must provide the following details in every case 6 : a. the cause of the incident and the circumstances in which it occurred; b. the substances discharged as a result of the incident, including their characteristics; c. other information relevant for assessing the nature and seriousness of the impact of the incident on the environment; d. the measures taken or being considered for preventing, limiting or reversing the impact of the incident; e. the measures being considered for preventing a recurrence of such incidents. As a competent authority, you verify that all the above information is provided in full. If this is not so, you can order the perpetrator to provide this or supplementary information. You must also determine the extent of the environmental damage 7. Collection of information in other situations If you detect environmental damage (or its threat) while acting in your official capacity, accede to the request of a third party to take measures, or receive instructions from the Minister of Housing, Spatial Planning and the Environment to take a specific action, you perform the following as a competent authority: 1. Determine the extent of the environmental damage and, if possible, the perpetrator If deemed necessary, order the perpetrator to provide information or supplementary data 9. Only when the above information is received does the competent authority start filling out the notification form. Clearly, if there are multiple competent authorities pursuant to Part 17.2 of the Wm, the authority responsible for the coordination fills out the form. See also step 11. It is envisaged that the competent authority supplements the notification form with new information as soon as this becomes available and updates the form at least once a year before 1 February. Accordingly, it might be appropriate to perform step 11 somewhere between steps 3 and 10. This will ensure that the competent authority adequately discharges its duty to provide certain information to the Minister of Housing, Spatial Planning and the Environment (Section 17.8 of the Wm). Step 3: Determine if Part 17.2 of the Wm applies By working through the module Does Part 17.2 of the Wm apply?, verify that this Part is applicable. More background information is contained in chapters 1 and 2. If not, the notification of environmental damage (or its imminent threat) is handled according to another regulation (see chapter 8). 6 Sections 17.12(2) and 17.13(2) of the Wm. 7 Sections 17.10(1a), 17.10(1b) and 17.14(1) of the Wm). 8 Section 17.14(1) of the Wm. 9 Sections 17.10(1a) and 17.10(1b) of the Wm. 9

10 If it is, carry on with step 4. Step 4: Ruling on requests for measures to be taken (Sections 17.15(1) and 17.9(6) of the Wm) Rulings on requests Interested parties and the bodies referred to in Part 17.2(3) of the Wm, can request that you as a competent authority order the perpetrator to take measures 10. If you receive such a request, you have to issue a ruling on it, supported with reasons. If insufficient data is provided, you do not need to consider the request 11. The outcome is therefore that you either issue a ruling compelling the perpetrator to take measures or reject the request of the third party (and accordingly not demand any measures be taken). The procedure to be followed is described in chapter 3. Coordinated issuing of rulings in the case of multiple competent authorities If multiple administrative bodies are designated as competent authorities, they have to coordinate their handling of requests 12. In reaching a decision, they will have to take into account the interrelationships between their individual rulings. II. Measures to prevent and limit environmental damage Step 5: Verification of measures already taken (Sections 17.12(1), 17.12(2) and 17.3(1) of the Wm) Verification In the case of impending environmental damage, as well as environmental damage that has already occurred, the perpetrator has an obligation to take measures. As a competent authority, you have to determine as quickly as possible the measures that have already been taken and whether the perpetrator has carried out its statutory duties. These duties are set out below in two groups: one concerns situations where the environmental damage has occurred; the other, situations where it has not yet occurred. Environmental damage has not yet occurred: The perpetrator must immediately take preventive measures to prevent the environmental damage or limit it to a minimum. If the threat of environmental damage nevertheless remains, the perpetrator has to provide supplementary information in accordance with step Section 17.15(1) of the Wm. 11 Section 4:5 of the Awb. 12 Section 17.9(6) of the Wm. 13 Sections 17.12(1) and 17.12(2) of the Wm. 10

11 Environmental damage has already occurred: The perpetrator has to take all feasible measures to keep polluting substances and other damage factors under control, to restrict their impact, to remove them or to manage them in some other way. All other environmental damage and adverse effects on human health, as well as further impairment of functions, must be limited or prevented 14. The foregoing are therefore measures to prevent further environmental damage as much as possible, and should not be confused with remedial measures. Step 6: Taking further measures to prevent or limit environmental damage (Sections 17.10, 17.12(4), 17.12(5), 17.12(6), 17.13(5), 17.14(2) and 17.14(5) of the Wm) Taking or prescribing measures Once it is known which measures have been taken, in your capacity of competent authority you order the perpetrator (if known) to immediately take the necessary measures for preventing or limiting the environmental damage. In connection with this, you have the right to issue specific instructions. Section 17.12(1) of the Wm places an obligation on the perpetrator to immediately take preventive measures. The obligation of the competent authority can thus be regarded as supplementing and/or complementing that of the perpetrator. You also have the right to take measures yourself at all times irrespective of whether the perpetrator takes actions and recover the costs later. No special justification is required for these actions on your part. Examples of such situations are where the perpetrator takes the measures unsatisfactorily or not at all, or where the urgency is so great that the competent authority prefers to avoid the risks of leaving the responsibility to the perpetrator. In contrast to enforcement situations, the above do not require the setting of a time limit for the perpetrator to still take measures on its own initiative. Measures you take yourself have to be justified by a ruling, however (see step 9). If you cannot establish the identity of the perpetrator, you will have to provide a ruling on whether you are taking measures yourself 15. Priorities If several incidents of environmental damage have occurred simultaneously and the necessary remedial measures cannot be taken at the same time, you as a competent authority decide which damage is going to be remedied first 16. In the case of multiple administrative bodies acting as competent authorities, they will have to make this decision jointly. Permission The legal owner of the property where the activities are being carried out or the environmental damage is occurring (or threatening to occur) has an obligation to permit preventive or remedial measures to be taken on its land 17. As the legal owner, this entity 14 Section 17.13(1) of the Wm. 15 Sections 17.10(2) and 17.14(2) of the Wm. 16 Section 17.14(4) of the Wm. 17 Section of the Wm. 11

12 might have nothing to do with causing the environmental damage. It can obtain financial compensation, however. The procedure to be followed is described in chapter 3. Step 7: Informing duty of the competent authority (Sections 17.12(3), 17.13(3) and 17.14(1) of the Wm) You must immediately inform the bodies referred to in Section 17.2(3) of the Wm about all the relevant aspects of the situation. In the case of environmental damage that has already occurred outside Dutch territory, or might occur, you have to inform the Minister of Housing, Spatial Planning and the Environment accordingly 18. III. Remedial measures Step 8: Approval of proposed remedial measures (Sections 17.9(6), 17.10(2), 17.11, 17.12(5), 17.12(6), 17.14(3) and 17.14(4) of the Wm) Taking or prescribing remedial measures In accordance with Annex II of the Environmental Liability Directive, if environmental damage has occurred, the perpetrator has to specify potential remedial measures and submit them to you 19. Go to step 9 if you are enable to establish who carried out the activities. Go to step 10 if you have taken all the necessary measures yourself. As a competent authority, you decide which of the proposed remedial measures have to be taken. You can order the party involved to provide an assessment of the extent of the environmental damage 20. If the perpetrator fails to take the measures, you take measures yourself 21 and recover the costs later. You can also compel the perpetrator to take these measures and force discharging of the responsibility by means of a penalty payment order. You also have the right to take remedial measures yourself at all times, irrespective of whether the perpetrator takes measures. No special justification is required for these actions on your part. In contrast to enforcement situations, the above do not require the setting of a time limit for the perpetrator to still take measures on its own initiative. Measures you take yourself have to be justified by a ruling, however (see step 9). Priorities 18 Section 17.13(3) of the Wm. 19 Section 17.13(6) of the Wm. 20 Section 17.14(3) of the Wm. 21 Section 17.10(2) of the Wm. 12

13 If several incidents of environmental damage have occurred simultaneously and the necessary remedial measures cannot be taken at the same time, you as a competent authority decide which damage is to be remedied first 22. In the case of multiple administrative bodies acting as competent authorities, they will have to make this decision jointly. Coordinated approach in the case of multiple competent authorities If multiple administrative bodies are designated as competent authorities, they have to coordinate their handling 23 of requests for the approval of proposed remedial measures. In reaching a decision, they will have to take into account the interrelationships between their individual rulings. Permission The legal owner of the property where the activities are being carried out or the environmental damage is occurring (or threatening to occur) has an obligation to permit preventive or remedial measures to be taken on its land 24. As the legal owner, this entity might have nothing to do with the environmental damage. It can obtain financial compensation, however. The procedure to be followed is described in chapter 3. Step 9: Taking remedial measures yourself as a competent authority if the perpetrator is unknown (Sections 17.10(2), 17.10(6), 17.11, 17.14(2) and 17.14(4) of the Wm) Taking measures yourself If you cannot determine who the perpetrator is, you will have to make a well-founded decision on whether to take measures yourself 25 and, if so, which measures. You can always take measures yourself, i.e., even if the perpetrator is known. You have the right to take all feasible measures to keep polluting substances and other damage factors under control, to restrict their impact, to remove them or to manage them in some other way 26. The aim is to limit or prevent further environmental damage and adverse effects on human health and activities, as well as further impairment of functions. You can take the necessary preventive or remedial measures yourself, or have them implemented by third parties. Setting priorities If several incidents of environmental damage have occurred and the necessary remedial measures cannot be taken at the same time, you as a competent authority decide which damage is to be remedied first Section 17.14(4) of the Wm. 23 Section 17.9(6) of the Wm. 24 Section of the Wm. 25 Section 17.14(2) of the Wm. 26 Section 17.10(2) of the Wm. 27 Section 17.14(4) of the Wm. 13

14 Permission The legal owner of the property where the activities are being carried out or the environmental damage is occurring (or threatening to occur) has an obligation to permit preventive or remedial measures to be taken on its land 28. As the legal owner, this entity might have nothing to do with causing the environmental damage. The procedure to be followed is described in chapter 3. IV. Cost recovery Step 10: Cost recovery (Sections and of the Wm) Aim is cost recovery Whether you take measures yourself as a competent authority or have third parties take them, you have an obligation to recover the costs from the perpetrator 29. (See below for exceptions to this rule.) If the perpetrator is unknown, the recovery of costs is not relevant. You have to set the amount owed in costs in the form of a ruling. Costs comprise not only the costs of the measures themselves, but also all additional costs, such as administrative and legal expenses, and any compensation paid to the legal owner of the property because of inconvenience suffered. You can recover the costs by means of a writ 30. If multiple competent bodies are involved in a claim, it also makes sense for them to keep each other informed regarding the recovery of costs and to coordinate the recovery procedures (or issue a single ruling for all the costs). Exceptions Exception 1: You have no right to recover the costs of preventive or remedial measures if the perpetrator proves that the environmental damage (or its threat): a. was caused by a third party despite proper security measures being in place; or b. was the consequence of following a compulsory order or instruction from an administrative body, unless this was an order or instruction the perpetrator received because of an emission or event it had caused itself. Exception 2: You have the right to waive the recovery of costs if the expenses involved in recovering them exceed the amount to be claimed. Exception 3: This applies only to remedial measures. You can waive recovery of all or part of the associated costs if the appropriate reasonableness test shows that the perpetrator cannot reasonably be held liable for all or some of the costs. This is subject to the perpetrator satisfying two conditions: 1) prove it was not in default or negligent, and 2) be able to successfully invoke the authorisation defence or the state-of-the-art defence. 28 Section of the Wm. 29 Section of the Wm. 30 Section 5:26 of the Awb. 14

15 The authorisation defence is that the environmental damage resulted from an activity, emission or event that was explicitly permitted at the time, based on and completely in accordance with the conditions attaching to a permit. The state-of-the-art defence is where the entity carrying out the activity claims that the impact on the environment was not deemed harmful at the time, based on scientific and technological understanding existing then. Time limit on right to recover costs The right to recover costs expires five years after the day on which the preventive and remedial measures are fully implemented 31. However, if the perpetrator is not identified until after these measures are fully implemented, the five-year expiry period commences at the time of identification. You therefore need to monitor this expiry period and initiate a recovery process in time. Refer to chapter 4 for the details of cost recovery. The procedure to be followed is described in chapter 3. V. Notification and registration Step 11: Reporting (Sections 17.9(7), 17.15(2) and of the Wm) Obligations Pursuant to Part 17.2 of the Wm, you have an obligation to submit certain data and information to the Minister of Housing, Spatial Planning and the Environment concerning each instance of environmental damage and liability 32. You should use the notification form for this purpose. Fill out the reporting form as quickly as possible after receiving the initial information. It is recommended that the contents of the notification form be updated as soon as new data becomes available and supplemented with new information at least once a year before 2 February. Accordingly, step 11 might also be appropriate somewhere between steps 3 and 10. Coordination If multiple bodies are competent authorities for the same instance of environmental damage, the obvious approach is for the body acting as coordinator to make the notification. Order of the Minister of Housing, Spatial Planning and the Environment 31 Section of the Wm. 32 Section of the Wm. 15

16 If the Minister of Housing, Spatial Planning and the Environment ordered competent authorities to take certain measures described in Part 17.2, you have to report in writing on the approach adopted to comply with the order 33. More information on the required content of the report is given in chapter 5. Enforcement In accordance with Section 18.2g of the Wm, you as a competent authority have the obligation for enforcement of the provisions prescribed by or pursuant to Part 17.2 of the Wm. If an offence has been committed, you have the power to impose a penalty payment order for example. This would be the case if the perpetrator provides no information even though you had requested it. As a competent authority, you are required to apply the provisions of Part 17.2 if they are applicable. You may apply the usual enforcement and other powers in addition, but only insofar as they do not conflict with Part 17.2 of the Wm (Section 17.9(7) in particular). Chapter 7 contains more information on enforcement (administrative as well as criminal). Definitions The bodies referred to in Section 17.2(3) of the Wm The administrative bodies and government agencies referred to in Section 17.2(3) of the Wm are: - the mayors of the municipalities concerned; - the inspector; - the Queen s Commissioners in the provinces concerned if the impact of the incident extends or could extend beyond the boundaries of the municipality where the establishment in question is entirely located or is for the most part; - the Provincial Executive if the incident causes soil pollution or damage; - other administrative bodies or government agencies that have a direct interest in being informed immediately. It is not possible to provide an exhaustive list of such bodies. Some examples are the Inspectorate of the Ministry of Housing, Spatial Planning and the Environment, General Inspection Service, water authorities, water quality manager and managers of nature reserves. As soon as possible The expression as soon as possible in relation to Part 17.1 of the Wm (not Part 17.2) has figured in some case law: - ABRvS 25 October 2006, case number /1: this judgment concerned a case where the company in question had not telephoned the competent authority immediately, 33 Sections 17.15(2) and 18.8a(2) of the Wm. 16

17 the offence being based on the fact that it did have time to telephone the fire service and the police. - ABRvS 12 July 2006, case number /1; a competent authority does not have the right to define the expression as soon as possible from Section 17.2 of the Wm in the relevant permit. 17

18 Scope of Part 17.2 of the Wm as an Internet program (temporarily in hardcopy version; final version will replace hardcopy by links to the program) Using this interactive decision tree, you can determine whether a particular type of environmental damage (or its threat) falls under Part 17.2 of the Wm. The decision tree is represented by the diagram below. You can start the program by clicking the button at the bottom of the page. In addition, by clicking a block in the diagram, you can invoke the corresponding step of the decision tree. It is not essential to follow the steps in sequence. You can click each box. It is also possible to jump ahead in the decision tree, instead of having to follow all the steps. Is the activity professional or operational? Yes No No Does the environmental damage (or its threat) fall under the heading of an exception? No Yes Is the activity listed in Annex III to the Directive? No Yes No Does guilt or negligence apply to the perpetrator of the environmental damage? Yes Is one of the three damage thresholds (soil, water, and protected species and natural habitats) being breached (or is the threat imminent)? No No Is the damage threshold for protected species and natural habitats being breached (or is the threat imminent)? Yes Yes Yes Part 17.2 of the Wm applies Part 17.2 of the Wm does not apply Start the program 18

19 1. Is the environmental damage (or its imminent threat) the result of a professional or operational activity? For help in answering the question, click here. No: Part 17.2 of the Wm does not apply. Chapter 8 discusses the regulations that might apply. Yes: continue with question 2. 19

20 2. Section 17.8 of the Wm contains a list of exceptions for environmental damage to which Part 17.2 does not apply. Does one of these exceptions apply to the environmental damage in question (or its imminent threat)? Yes: Part 17.2 of the Wm does not apply. Chapter 8 discusses the regulations that might apply. No: continue with question 3. The exceptions referred to in Section 17.8 of the Wm are discussed extensively in chapter 1. In brief, the liability under Part 17.2 of the Wm does not apply to: a. environmental damage (or the imminent threat of such damage): 1º. due to of wars or riots; explanation 2º. due to exceptional natural phenomena; explanation 3º. caused by oil tankers; explanation 4º. due to nuclear accidents and risks; explanation 5º. caused by military operations; explanation 6º. due to activities for protection against natural disasters. explanation b. environmental damage to nature areas (or the imminent threat of such damage) resulting from actions in conformity with a permit issued under the 1998 Nature Conservancy Act or the Flora and Fauna Act; explanation c. environmental damage (or its imminent threat) due to an emission or event: explanation 1º. that occurred before 30 April 2007; 2º. that occurred after 30 April 2007, provided the damage is the result of a specific activity that began and ended before this date; or 3º. that occurred more than 30 years in the past. 20

21 3. Is the activity listed in Annex III to the Directive? Yes: continue with question 5. No: continue with question 4. Annex III to the Directive lists activities that are incorporated in EU regulations. A discussion of the scope of each EU directive mentioned goes beyond the purpose of these guidelines. Instead, the table below provides a general description of each activity in question and of the corresponding EU regulation. You can download a regulation by clicking its number. If a list of documents appears, you should select the most recently consolidated version. Activities referred to in Annex III Description of activity Operation of installations for integrated pollution prevention and control (IPPC) Waste management operations, (including the collection, transport, reuse, disposal, supervision and aftercare) Discharge into surface water Discharge of substances into groundwater Discharge or injection of pollutants into surface water or groundwater Water abstraction and water impoundment Installations that release pollutants into the air Cross-border shipment of waste Manufacture, storage, processing, landfilling, release into the environment and onsite transport of dangerous substances, preparations, plant protection products or biocides Conditions Permit required under the IPPC Directive (96/61/EC). Permit or registration required under the Waste Directive (75/442/EEC) or the Hazardous Waste Directive (91/689/EEC). Also applies to operations covered by Directive 1999/31/EC (landfill sites) and Directive 2000/76/EC (waste incineration). Permit required under Directive 76/464/EEC. Permit required under Directive 80/68/EEC. Permit, authorisation or registration required under Directive 2000/60/EC. Prior authorisation required under Directive 2000/60/EC. Permit required under Directive 84/360/EEC. Permit required or activity forbidden under Regulation 259/93 EEC. Concerns: 1. dangerous substances as defined in Directive 67/548/EEC, 2. dangerous preparations as defined in Directive 1999/45/EC, 3. plant protection products as defined in Directive 91/414/EEC, or 4. biocides as defined in Directive 98/8/EC. 21

22 Transport of dangerous substances or polluting goods by road, rail, inland waterways, sea or air Contained use, including transport, of genetically modified micro-organisms Deliberate release of genetically modified organisms into the environment, including the transport and marketing Management of facilities for extractive waste (land for the collecting or depositing of waste from the prospecting, extraction, treatment and storage of mineral resources and from the operating of quarries) Concerns: 1. dangerous substances as defined in Annex A to Directive 94/55/EC, 2. dangerous goods as defined in the Annex to Directive 96/49/EC, 3. dangerous goods or polluting goods as defined in Directive 93/75/EEC. Concerns genetically modified microorganisms as defined in Directive 90/219/EEC. Concerns deliberate release, placing on the market and genetically modified organisms as defined in Directive 2001/18/EC. Concerns the management of waste facilities as defined in Directive 2006/21/EC. Example Owing to a disaster, a company suddenly emits a substance into the air. This can be an activity within the scope of Annex III if: the company is an IPPC plant; or it requires a permit under Directive 84/360/EEC because the plant is emitting polluted substances; or there is an emission of dangerous substances as defined by Directive 67/548/EEC. 22

23 4. Can the entity performing the activity that caused the environmental damage (or the imminent threat of such damage) be deemed at fault or negligent? No: Part 17.2 of the Wm does not apply. Chapter 8 discusses the regulations that might apply. Yes: continue with question 6. Fault or negligence: the significant point of this formulation is that intent does not have to exist. In the framework of Part 17.2 of the Wm, the concept of liability based on fault requires the perpetrator to have acted in a way deserving condemnation. In other words, fault or negligence has to exist. This is the case, for example, if the perpetrator took inadequate precautionary measures to prevent the damage, or the damage was due to carelessness on the part of its employees. 23

24 5. Are one or more damage thresholds being breached, or is the threat of this happening imminent? - Threshold for damage to protected species and natural habitats - Threshold for damage to water - Threshold for damage to soil No: Part 17.2 of the Wm does not apply. Chapter 8 discusses the regulations that might apply. Yes: Part 17.2 of the Wm applies. 24

25 6. Is the Threshold for damage to protected species and natural habitats being breached or is there an imminent threat of this happening? No: Part 17.2 of the Wm does not apply. Chapter 8 discusses the regulations that might apply. Yes: Part 17.2 of the Wm applies. 25

26 Chapter 1 Scope of Part 17.2 of the Environmental Management Act 1.1 Introduction This chapter deals with the question of which cases are covered by the regulation for environmental liability of Part 17.2 of the Wm. The easiest way to answer this is by using the module Does Part 17.2 of the Wm apply?. This chapter provides a further explanation in greater depth. The scope of Part 17.2 is defined by Sections 17.7 (general application), 17.8 (exceptions) and 17.6 (definitions) of the Wm. These Sections are discussed below. In broad terms, damage falls within the scope of Part 17.2 if it: is to protected species, natural habitats, water or soil; exceeds the damage threshold; results from an activity performed in a professional or operational capacity; falls within the scope of: o Annex III to the Environmental Liability Directive; or o if not, it can be classified as damage to protected species or natural habitats, and the entity carrying out the activity that caused the environmental damage (or the imminent threat of such damage) (the perpetrator ) can be deemed at fault or negligent; and the damage is not an exception as described in Section 17.8 of the Wm. 1.2 General application of Section 17.7 of the Wm Section 17.7 of the Wm This Part applies to: a. environmental damage or an imminent threat of such damage that is caused by activities referred to in Annex III to the EC Directive on Environmental Liability; b. environmental damage to protected species or natural habitats or an imminent threat of such damage that is caused by an activity other than those referred to in a, if the entity performing the activity can be deemed at fault or negligent. Two types of activity distinguished Subsections a and b of Section 17.7 of the Wm distinguish between the activities in Annex III to the Directive and other activities: In the case of Annex III activities, liability is for damage to soil, water or protected species and natural habitats. For activities not covered by Annex III, the liability is limited to damage to protected species and natural habitats. 26

27 Damage to soil or water resulting from an activity not specified by Annex III is not within the scope of Part 17.2 of the Wm. Distinction between risk liability and fault liability Risk liability exists in the case of damage resulting from the activities listed in Annex III to the Directive. Such liability applies by definition to this type of damage, irrespective of the question of fault. Fault liability applies in the case of damage resulting from activities not covered by Annex III. In the framework of Part 17.2 of the Wm, the concept of liability based on fault requires the perpetrator to have acted in a way deserving condemnation. In other words, fault or negligence has to exist. This is the case, for example, if the perpetrator took inadequate precautionary measures to prevent the damage, or the damage was due to carelessness on the part of its employees. Entity performing the activity Part 17.2 focuses on the entity performing the activity. This entity is defined as follows: Section 17.6(1) of the Wm entity performing the activity: the natural person or the legal person under private or public law that is performing the activity or having it performed, managing the activity or having it managed, or to whom decisive financial control of the technical operation of the activity has been transferred, including the holder of a permit or authorisation to perform the activity and the entity that is having or has had the activity registered or is giving or has given notification of the activity; The person performing the activity can therefore act in two capacities: 1. As the entity with a permit or other authorisation (an exemption or notification for example) to perform the activity. 2. As the entity with such control over the establishment s operations that it has the power to terminate the activity causing the damage. Accordingly, this entity is liable for the damage resulting from activities covered by Annex III, whether or not it is at fault. Regarding damage resulting from other activities, fault or negligence has to exist. If, in a given situation, it can be imputed to one of the possible actors, the condition is satisfied. The consequence is that this entity can be said to be the entity performing the activity and therefore liable. In these guidelines, the entity performing the activity is referred to as the perpetrator. Activity Section 17.6(1) of the Wm activity: an activity carried out professionally or operationally, irrespective of whether its nature is public or private, profit-making or non-profit-making; Part 17.2 applies to professional and operational activities. It does not apply to an activity performed as part of a hobby. In deciding whether something is professional or operational, making a profit is not the only criterion, as non-profit activities can also fall in the former 27

28 category. Profit as an objective can certainly be one of the factors in determining the nature of an activity, alongside its continuity (how long it lasts), obstacles, extent, size of the land involved, purpose (hobby or personal) and the environment in which it takes place. Annex III to the Directive As stated above, activities named in Annex III are subject to a different liability regime than the one for activities not covered by the Annex. What is the scope of Annex III precisely? In Annex III to the Directive, many activities are grouped. Each of these activities is covered by Annex III, but only insofar as it is included in an EU Directive referred to in connection with the activity. A discussion of the scope of each relevant EU regulation exceeds the purpose of these guidelines. Instead, the table below provides a general description of each activity in question and of the corresponding EU regulation. You can download a regulation by clicking its number. If a list of documents then appears, you should select the most recently consolidated version. 28

29 Activities referred to in Annex III Description of activity Operation of installations for integrated pollution prevention and control (IPPC) Waste management operations, (including the collection, transport, reuse, disposal, supervision and aftercare) Discharge into surface water Discharge of substances into groundwater Discharge or injection of pollutants into surface water or groundwater Water abstraction and water impoundment Installations that release pollutants into the air Cross-border shipment of waste Manufacture, storage, processing, landfilling, release into the environment and onsite transport of dangerous substances, preparations, plant protection products or biocides Transport of dangerous substances or polluting goods by road, rail, inland waterways, sea or air Contained use, including transport, of genetically modified micro-organisms Deliberate release of genetically modified organisms into the environment, including the transport and marketing Conditions Permit required under the IPPC Directive (96/61/EC). Permit or registration required under the Waste Directive (75/442/EEC) or the Hazardous Waste Directive (91/689/EEC). Also applies to operations covered by Directive 1999/31/EC (landfill sites) and Directive 2000/76/EC (waste incineration). Permit required under Directive 76/464/EEC. Permit required under Directive 80/68/EEC. Permit, authorisation or registration required under Directive 2000/60/EC. Prior authorisation required under Directive 2000/60/EC. Permit required under Directive 84/360/EEC. Permit required or activity forbidden under Regulation 259/93 EEC. Concerns: 1. dangerous substances as defined in Directive 67/548/EEC, 2. dangerous preparations as defined in Directive 1999/45/EC, 3. plant protection products as defined in Directive 91/414/EEC, or 4. biocides as defined in Directive 98/8/EC. Concerns: 1. dangerous substances as defined in Annex A to Directive 94/55/EC, 2. dangerous goods as defined in the Annex to Directive 96/49/EC, 3. dangerous goods or polluting goods as defined in Directive 93/75/EEC. Concerns genetically modified microorganisms as defined in Directive 90/219/EEC. Concerns deliberate release, placing on the market and genetically modified organisms as defined in Directive 2001/18/EC. 29

30 Management of facilities for extractive waste (land for the collecting or depositing of waste from the prospecting, extraction, treatment and storage of mineral resources and from the operating of quarries) Concerns the management of waste facilities as defined in Directive 2006/21/EC. Example Owing to a disaster, a company suddenly emits a substance into the air. This can be an activity within the scope of Annex III if: the company is an IPPC plant; or it requires a permit under Directive 84/360/EEC because the plant is emitting polluted substances; or there is an emission of dangerous substances as defined by Directive 67/548/EEC. The terms environmental damage and damage threshold Part 17.2 of the Wm applies to environmental damage. As stated above, environmental damage can comprise damage to water, soil, protected species and natural habitats. Section 17.6(1) of the Wm defines these types of damage as: Section 17.6(1) of the Wm 1. every type of damage to protected species or natural habitats that, given the baseline condition and the criteria of Annex I to the Environmental Liability Directive of the EC, has significant adverse effects on the achievement or maintenance of the favourable conservation status of these species or habitats; 2. every type of damage to waters that has a significant adverse effect on the ecological, chemical or quantitative status, or the ecological potential, as specified in the Water Framework Directive, of the waters concerned, with the exception of the adverse effects to which Article 4(7) of the Directive applies; 3. every type of soil pollution that holds a significant risk of adverse effects on human health, and involved the depositing of substances, preparations, organisms or microorganisms directly or indirectly on, in or under the soil. Each of the three types of damage has a lower limit, below which there is no environmental damage within the meaning of Section 17.2 of Wm. This is because there have to be significant adverse effects, significant adverse impact or a significant risk. Each limit is referred to as a damage threshold. If the damage remains under this threshold, Part 17.2 of the Wm does not apply. The three damage thresholds are discussed extensively in chapter 2 of these guidelines. Protected species and natural habitats You can go to the discussion on the meaning of protected species and natural habitats by clicking here. An imminent threat of environmental damage Section 17.6 of the Wm environmental damage or an imminent threat of such damage: environmental damage or a sufficiently high probability that environmental damage will occur in the near future; 30

31 An imminent threat of environmental damage is also within the scope of Part 17.2 of the Wm. By imminent threat is understood sufficient likelihood that environmental damage will occur soon. The presence of sufficient likelihood can depend on so many factors, that each competent authority has to decide on a case-by-case basis whether it exists. 1.3 Exceptions in Section 17.8 of the Wm Section 17.8 of the Wm summarises the situations to which the provisions of Part 17.2 do not apply. Section 17.8 of the Wm Contrary to Section 17.7, this Part does not apply to: a. environmental damage or an imminent threat of such damage as a result of: 1º. an act of war, hostilities, civil war or riot, 2º. a natural phenomenon that is exceptional, inescapable and inevitable, 3º. an event for which the liability or compensation for damage is within the scope of a Convention mentioned in Annex IV to the Environmental Liability Directive of the EC and which is binding on the Netherlands, 4º. nuclear risks or an activity to which the Treaty establishing the European Atomic Energy Community applies; 5º. an activity or event for which the liability or compensation for damage is within the scope of a Convention mentioned in Annex V to the Environmental Liability Directive of the EC, 6º. an activity that primarily serves the interests of national defence or international security, 7º. an activity whose sole purpose is to provide protection against natural disasters; b. environmental damage to protected species and natural habitats comprising the predefined adverse effects of activities for which the competent authority granted a permit: 1º. in conformity with provisions for the implementation of Article 6(3) and Article 6(4), or Article 16 of Council of Europe Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, and Article 9 of Council of Europe Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, or 2º. in the case of species or habitats not covered by Community law, in conformity with the provisions of or pursuant to Sections 3,4 and 5 of the Flora and Fauna Act or Sections 10 and 10a of the 1998 Nature Conservancy Act; c. environmental damage or an imminent threat of such damage due to an emission or event: 1º. that occurred before 30 April 2007, 2º. that occurred after 30 April 2007, provided the damage is the result of a specific activity that began and ended before this date, or 3º. that occurred more than 30 years ago. Subsection a contains the general list of exceptions. Subsection b deals with the damage that is permitted by a permit under the 1998 Nature Conservancy Act or the Flora and Fauna Act. Subsection c includes the exceptions in the case of damage resulting from an event that occurred too long ago for Part 17.2 of the Wm to apply. The table below is a simplified presentation of the types of damage excluded by Section Damage due to wars, riots, etc. Subsection a(1) 31