Environmental Damage legislation being used
Environmental damage legislation has been used by Mid Devon
District Council; the first instance of the 2009 regulations being
used.
The incident relates to a spill of kerosene heating oil at a
residential property caused by a road tanker delivery. Through
error, the oil was transferred to a redundant tank rather than the
new replacement one at another location. As a result, oil leaked
via the disused oil pipe which had been cut at the point of entry
into the property. The oil soaked into the ground and through the
flooring and wall of the property causing nausea, headaches and
sore throats to the occupants as a result of kerosene vapours. Mid
Devon District Council decided that the regulations applied whereby
a dangerous substance has entered the ground affecting the health
of local residents.
Under regulation 18 of The Environmental Damage (Prevention and
Remediation) Regulations 2009, 'primary remediation' was enforced
on the fuel wholesale company with an appropriate deadline for
proposals to be submitted. Implementation was subsequently
controlled via regulation 20 which specified the strategy for
remediation, the clean-up targets, reporting and verification
requirements as well as the completion date.
This demonstrates the very real exposures that many businesses
will have and the likely remediation measures and associated costs
that they will have to bear in the event of gradual pollution and
biodiversity damage. The regulations bear a greater responsibility
on the polluter, and can cause both serious reputational damage as
well as substantial financial loss.
What do the regulations say?
The regulations include the powers to impose on business the
responsibility for the consequences of serious environmental
damage. Enforcement measures included damage to protected species
and habitats; damage to water and damage to land with significant
risk for human health based on the concept of the "Polluter Pays
Principle".
The regulations which can be enforced by various bodies within
the UK (such as the EA, Natural England and Environmental Health
Officers) introduces remediation concepts which critically include
the following:
- Primary remediation – repairing damage and
removal of contaminants and the management of recovery for the
area
- Complementary remediation – provision of
equally beneficial improvement at the site or alternative site as a
result of non recovery of the damaged area
- Compensatory remediation – compensation for
interim losses until the point that full recovery has been
achieved.
How does this affect my insurance?
Many general liability insurance policies are restricted to
sudden, unexpected and unforseen pollution. Gradual pollution is
broadly excluded. It is also highly unlikely that any provision for
costs will not include those of the Environmental Damage
Regulations which would include liability cover for damage to
biodiversity and other provisions such as complementary and
compensatory remediation.