Environmental Liability Directive: 2nd Consultation

Draft Scottish Statutory Instruments

Draft Regulations laid before the Scottish Parliament under paragraph 2(2) of Schedule 2 to the European Communities Act 1972, for approval by resolution of the Scottish Parliament.

DRAFT SCOTTISH STATUTORY INSTRUMENTS

2008 No. ENVIRONMENT

The Environmental Liability (Prevention and Remediation) (Scotland) Regulations 2008

Made - - - - 2008

Coming into force - - - - 2008

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972( a) and all other powers enabling them to do so.

In accordance with paragraph 2(2) of Schedule 2 to that Act, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.

Citation, commencement and extent

1. These Regulations-

(a) may be cited as the Environmental Liability (Prevention and Remediation) (Scotland) Regulations 2008;

(b) shall come into force on 2008; and

Interpretation

2. -(1) In these Regulations-

"baseline condition" means the condition at the time of the damage of the natural resources and services that would have existed had the environmental damage not occurred, estimated on the basis of the best information available;

"conservation status" means-

(a) in respect of a natural habitat, the sum of the influences acting on a natural habitat and its typical species that may affect its long-term natural distribution, structure and functions as well as the long-term survival of its typical species within, as the case may be, the European territory of the Member States to which the EC Treaty applies, the territory of a Member State or the natural range of that habitat; and

(b) in respect of a species, the sum of the influences acting on the species concerned that may effect the long-term distribution and abundance of its populations within, as the case may be, the European territory of the Member States to which the EC Treaty applies, the territory of a Member State or the natural range of that species;

"costs" means costs which are justified by the need to ensure the proper and effective implementation of Directive 2004/35/ EC including the costs of taking preventive measures and remedial actions, the costs of assessing environmental damage, an imminent threat of such damage, alternatives for action as well as the administrative, legal, and enforcement costs, the costs of data collection and other general costs, monitoring and supervision costs;

^{( a) 1972 (c.68), as relevantly amended by the Legislative and Regulatory Reform Act 2006 (c.51), section 27(1) and (2).}

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

"Directive 79/409/ EEC" means Council Directive of 2nd April 1979 on the conservation of wild birds( a);

"Directive 92/43/ EEC" means Council Directive of 21st May 1992 on the conservation of natural habitats and of wild fauna and flora( b);

"Directive 2000/60/ EC" means the Directive of the European Parliament and of the Council of 23rd October 2000 establishing a framework for Community action in the field of water policy( c);

"Directive 2001/18/ EC" means the Directive of the European Parliament and of the Council of 12th March 2001 on the deliberate release into the environment of genetically modified organisms( d);

"Directive 2004/35/ EC" means the Directive of the European Parliament and of the Council of 21st April 2004 on environmental liability with regard to the prevention and remedying of environmental damage( e);

"Directive 2006/118/ EC" means the Directive of the European Parliament and of the Council of 12th December 2006 on the protection of groundwater against pollution and deterioration( f);

"emission" means the release in the environment, as a result of human activities, of substances, preparations, organisms or micro-organisms;

"favourable conservation status", in relation to-

(a) a natural habitat, means the status of the habitat when-

(i) its natural range and areas it covers within that range are stable or increasing;

(ii) the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future; and

(iii) the conservation status of its typical species is favourable; and

^{( a) O.J. No. L 103, 25.4.1979, p.1, as amended by Council Directive 81/854/ EEC of 19th October 1981 (O.J. No. L 319, 7.11.1981, p.3); Commission Directive 85/411/ EEC of 25th July 1985 (O.J. No. L 233, 30.8.1985, p.33); Council Directive 86/122/ EEC of 8th April 1986 (O.J. No. L 100, 16.4.1986, p.22); Commission Directive 91/224/ EEC of 6th March 1991 (O.J. No. L 115, 8.5.1991, p.41); Council Directive 94/24/ EC of 8th June 1994 (O.J. L 164, 30.6.1994, p.9); Commission Directive 97/49/ EC of 29th July 1997 (O.J. No. L 223, 13.8.1997, p.9); Council Regulation ( EC) No. 807/2003 of 14th April 2003 (O.J. No. L 122, 16.5.2003, p.36); and Council Directive 2006/105/ EC of 20th November 2006 (O.J., 20.12.2006, p.368). Also amended by the Act of Accession of Greece (O.J. No. L 291, 19.11.1979, p.17; the Act of Accession of Spain and Portugal (O.J. No. L 302, 15.11.1985, p.23); the Act of Accession of Austria, Sweden and Finland (O.J. No. C 241, 29.8.1994, p.21); (adapted by Council Decision 95/1/ EC, Euratom, ECSC (O.J. No. L 1, 1.1.1995, p.1); and
the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (O.J. No. L 236, 23.9.2003, p.33).
( b) O.J. No. L 206, 22.7.1992, p.7, as amended by Council Directive 97/62/ EC of 27th October 1997 (O.J. No. L 305, 8.11.1997, p.42); Regulation ( EC) No. 1882/2003 of the European Parliament and of the Council of 29th September 2003 (O.J. No. L 284, 31.10.2003, p.1) and Council Directive 2006/105/ EC of 20th November 2006 (O.J., 20.12.2006, p.368). Also amended by the Act of Accession of Austria, Sweden and Finland (O.J. C 241, 29.8.1994, p.21); (adapted by Council Decision 95/1/ EC, Euratom, ECSC) (O.J. No. L 1, 1.1.1995, p.1); and the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (O.J. No. L 236, 23.9.2003, p.33).
( c) O.J. No. L 327, 22.12.2000, p.1.
( d) O.J. No. L106, 17.4.2001, p.1, as amended by Regulation ( EC) 1830/2003 (O.J. No. L 268, 18.10.2003, p.24).
( e) O.J. L 143, 30.4.2004, p.56, as amended by Directive 2006/21/ EC (O.J. L 102, 11.4.2006, p.15).
( f) O.J. No. L 372, 27.12.2006, p.19.}

(b) a species, means the status of that species when-

(i) population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats;

(ii) the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future; and

(iii) there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis;

"genetically modified organisms" has the meaning assigned to it by Directive 2001/18/ EC;

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

"natural resource" means protected species and natural habitats, water and land;

"occupational activity" means any activity carried out in the course of an economic activity, a business or an undertaking, irrespectively of its private or public, profit or non-profit character;

"operator" means any natural or legal, private or public person who operates or controls an occupational activity or, where this is provided for in national legislation, to whom decisive economic power over the technical functioning of such an activity has been delegated, including the holder of a permit or authorisation for such an activity or a person registering or notifying such an activity;

"protected species and natural habitats" means-

(a) (i) the species mentioned in Article 4(2) of Directive 79/409/ EEC or listed in Annex I to that Directive;

(ii) the species listed in Annexes II and IV to Directive 92/43/ EEC; and

(b) (i) the habitats of species mentioned in Article 4(2) of Directive 79/409/ EEC or listed in Annex I to that Directive;

(ii) the habitats of species listed in Annex II to Directive 92/43/ EEC;

(iii) the natural habitats listed in Annex I to Directive 92/43/ EEC; and

(iv) the breeding sites or resting places of the species listed in Annex IV to Directive 92/43/ EEC.

"preventive measures" means any measures taken in response to an event, act or omission that has created an imminent threat of environmental damage, with a view to preventing or minimising that damage;

"recovery", including "natural recovery" means, in the case of water, protected species and natural habitats the return of damaged natural resources and/or impaired services to baseline condition and in the case of land damage, the elimination of any significant risk of adversely affecting human health;

"relevant local authority" means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994( a);

"remedial measures" means any action, or combination of actions, including mitigating or interim measures to restore, rehabilitate or replace damaged natural resources and/or impaired services, or to provide an equivalent alternative to those resources or services as foreseen in Schedule 3 to these Regulations;

"Scotland" has the meaning assigned to it by section 126(1) (interpretation) of the Scotland Act 1998( b) as read with the Scottish Adjacent Water Boundaries Order 1999( c);

" SEPA" means the Scottish Environment Protection Agency;

"the EC Treaty" means the Treaty establishing the European Community;

^{( a) 1994 c.39.
( b) 1998 c.46.
( c) S.I. 1999/1126.}

"services" and "natural resources services" means the functions performed by a natural resource for the benefit of another natural resource or the public; and

"waters" means all waters covered by Directive 2000/60/ EC and which comprise "the water environment" within the meaning of section 3(2) of the Water Environment and Water Services (Scotland) Act 2003( a).

(2) A reference in these Regulations to anything done in writing or produced in written form includes a reference to an electronic communication, as defined in section 15 of the Electronic Communications Act 2000( b) which has been recorded in written form and is capable of being reproduced in that form.

Application

3. -(1) Subject to regulation 4, these Regulations apply in relation to environmental damage.

(2) "Environmental damage" means-

(a) damage of a kind specified in Schedule 1 to protected species and natural habitats, if it is caused by-

(i) an activity to which Schedule 2 relates; or

(ii) an activity other than one to which Schedule 2 relates whenever the operator has been at fault or negligent.

(b) damage to water caused by an activity in Schedule 2 which results in a deterioration-

(i) of status;

(ii) of a biological quality element, a chemical quality element or a physicochemical quality element such that the condition of the quality element is consistent with the conditions defined in accordance with Annex V to Directive 2000/60/ EC for a lower status class than was the case prior to the deterioration; or

(iii) such that any value or condition required of a parameter for the classification of groundwater chemical status or groundwater quantitative status as good in accordance with Annex V to Directive 2000/60/ EC and Directive 2006/118/ EC is no longer achieved,

and in relation to which paragraph 7 of Article 4 of Directive 2000/60/ EC is not applicable;

(c) land damage, which is any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction, in, on or under land, of substances, preparations, organisms or micro-organisms caused by an activity in Schedule 2.

(3) For the purposes of this regulation "status" is as specified in Annex V to Directive 2000/60/ EC.

Exemptions

4. These Regulations do not apply to-

(a) in relation to damage to protected species and natural habitats, previously identified adverse effects resulting from an act by an operator which act was expressly authorised by the relevant authorities in accordance with provisions implementing Article 6(3) and (4) or Article 16 of Directive 92/43/ EEC or Article 9 of Directive 79/409/ EEC.

(b) environmental damage or an imminent threat of such damage caused by-

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

(ii) a natural phenomenon of exceptional, inevitable and irresistible character; or

^{( a) 2003 asp 3. Section 3(1) of the 2003 Act defines "the water environment" as meaning "all surface water, ground water and wetlands". "Surface water", "ground water" and "wetlands" are defined, respectively in section 3(2), (3) and (4) of the 2003 Act, and associated definitions are also defined in that section.
( b) (c.7), as amended by the Communications Act 2003 (c.21).}

(iii) pollution of a diffuse character where it is not possible to establish a casual link between the damage and the activities of individual operators.

(c) environmental damage or an imminent threat of such damage arising from an incident in respect of which liability or compensation falls within the scope of-

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

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

(d) activities regulated under the Nuclear Installations Act 1965( b);

(e) activities-

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

(ii) the sole purpose of which is to protect from natural disasters.

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

(g) damage caused by an emission, event or incident that occurs after the coming into force of these Regulations which results from a specific activity that took place and finished before that date; and

(h) subject to paragraph (i) damage, if more than 30 years have passed since the emission, event or incident which resulted in the damage having occurred;

(i) damage, in the case of the release of genetically modified organisms, if more than 75 years have passed since the emission, event or incident which resulted in the damage having occurred.

Other legislation

5. These Regulations are without prejudice to-

(a) the right of any responsible operator to limit liability in accordance with the Merchant Shipping (Convention on Limitation of Liability for Maritime Claims) (Amendment) Order 1998( c); and

(b) any more stringent Community legislation regulating the operation of any of the activities falling within the scope of Directive 2004/35/ EC.

Competent authority

6. -(1) For the purposes of these Regulations, the competent authority in relation to instances of environmental damage or an imminent threat of such damage-

(a) to protect species or natural habitats in coastal water (within the meaning of section 3(8) of the Water Environment and Water Services (Scotland) Act 2003( d)) or elsewhere in the territorial sea forming part of Scotland, is the Scottish Ministers;

(b) to protected species or natural habitats in any other place, is Scottish Natural Heritage; and

(2) In any case where a competent authority considers it would assist it in the exercise of its functions under these Regulations, it may-

(a) consult such other persons it considers have an interest in an instance of environmental damage or the imminent threat of such damage; and

^{( a) Both these conventions were implemented by Chapter III of the Merchant Shipping Act 1995.
( b) 1965 c.57.
( c) S.I. 1998/1258.
( d) 2003 asp 3.}

(b) require such persons as it considers appropriate to take whatever action it considers necessary including such steps as are specified in section 108 of the Environmental Act 1995( a).

(3) The competent authority shall determine whether or not an incident or the imminent threat of an incident is likely to give rise to environmental damage for the purposes of these regulations.

(4) In relation only to environmental damage of the type defined in regulation 3(2)(a)(ii) in the event that the competent authority decides that an incident or imminent threat of an incident will result in environmental damage, that authority shall decide whether or not the environmental damage has occurred as a result of the fault or negligence of an operator.

(5) Where-

(a) more than one instance of environmental damage has occurred; and

(b) the competent authority is unable to ensure the remedial measures are taken at the same time,

the competent authority shall determine which instance of environmental damage is to be remedied first.

(6) When determining which incidence of environmental damage is to be remedied first for the purposes of paragraph (5), the competent authority shall have regard to the following matters-

(a) the nature, extent and gravity of the instances of environmental damage concerned;

(b) the possibility of natural recovery; and

(7) Before making a determination under paragraph (5), the competent authority shall consult-

(a) any interested person as defined in regulation 11(1); and

(b) the owner or occupier of the land upon which, or any waters in respect of which, remedial measures are to be taken.

(8) A person consulted under paragraph (7) may make representations to the competent authority within such time limit as specified by the competent authority to the person and the competent authority shall take into account any representation in making its determination for the purposes of paragraph (5).

Preventive measures

7. -(1) In the event of an imminent threat of environmental damage caused by an activity, the operator shall without delay take the necessary preventive measures.

(2) If, notwithstanding the taking of preventive measures, an imminent threat of environmental damage remains, the operator must as soon as practicable notify the competent authority of the circumstances of the threat.

(3) In the absence of any notification by an operator, if a competent authority has reasonable grounds for believing that there is an imminent threat of environmental damage it may require the relevant operator to provide information thereon.

(4) The competent authority may, at any time-

(a) require an operator to provide it with such additional information as may be required by it following notification of a threat under paragraph (2);

(b) require an operator to take preventive measures; or

(5) Where required by a competent authority an operator shall take preventive measures.

(6) Notwithstanding paragraph (5), where an operator-

(a) fails to comply with the requirements of paragraphs (1), (4)(b) or (c);

^{( a) 1995 c.25.}

(b) cannot be identified; or

the competent authority instead of the operator may itself take preventive measures.

(7) Failure by an operator to take action to comply with any of the requirements of paragraphs (1) to (5) is an offence.

Identification and determination of remedial measures

8. -(1) An operator shall identify, in accordance with Schedule 3 to these Regulations, remedial measures and shall submit them without delay to the competent authority for approval, unless the competent authority has taken action under paragraph 2(c) or (4) of regulation 9.

(2) As soon as practicable after the receipt of proposed measures submitted for approval in terms of paragraph (1) and before approving remedial measures, the competent authority shall consult-

(a) any interested person as defined in regulation 11(1); and

(b) the owner or occupier of the land upon which, or waters in respect of which, the proposed measures are to be taken.

(3) For the purposes of considering approval of the remedial measures, the powers of SEPA in section 108 of the Environment Act 1995 apply and are exercisable by the competent authority and by any person authorised by the competent authority by regulation 6(3)(b).

Operator to take remedial action

9. -(1) In the event that environmental damage has occurred, an operator must immediately-

(a) notify the competent authority of the circumstances of the damage;

(b) take all practicable steps to control, contain, remove or otherwise manage any contaminants and/or any other damage factors in order to limit or prevent further environmental damage, adverse effects on human health or further impairment of services; and

(c) on approval being given by the competent authority, take the necessary remedial measures in accordance with regulation 8.

(2) The competent authority may, at any time-

(a) require an operator to provide it with supplementary information on any environmental damage that has occurred following notification under paragraph 1(a);

(b) take, require the operator to take, or give the operator instructions concerning all practicable steps to immediately control, contain, remove or otherwise manage any contaminants and any other damage factors in order to limit or prevent further environmental damage, adverse effects on human health or further impairment of services;

(d) give instructions to an operator to be followed on the necessary remedial measures to be taken; or

(e) take remedial measures.

(3) Where required by a competent authority an operator shall take remedial measures.

(4) Where an operator-

(a) fails to comply with the requirements of paragraphs (1), (2)(b), (c) or (d);or

(b) cannot be identified; or

the competent authority instead of the operator may itself take remedial measures but only as a means of last resort.

(5) Failure by an operator to comply with the requirements of paragraphs (1), (2)(a) to (d) and (3) is an offence.

Appeals and interim measures

10. -(1) An operator who is aggrieved by a decision of a competent authority to require an operator to do any of the things specified in regulation 7(4) and (5) and regulation 9(2) and (3) may appeal to the sheriff on questions of fact and law.

(2) An appeal to the sheriff under paragraph (1) shall be by way of summary application.

(3) The period within which an appeal under paragraph (1) may be brought shall be the shorter of-

(a) 21 days from the date after the date of posting of the decision the operator is desiring to appeal; or

(b) the period specified by the competent authority pursuant to regulations 7(4) and (5) and 9(2) and (3).

(4) The sheriff in determining an appeal may-

(a) confirm the decision of the competent authority;

(b) quash the decision;

(d) make such other order as the sheriff thinks just.

(5) The sheriff's determination on an appeal is final.

(6) Where an appeal to the sheriff is brought under paragraph (1), the decision of the competent authority which is the subject of the appeal shall be suspended until the appeal has been abandoned or determined by the sheriff, subject to paragraph (7).

(7) The relevant decision of the competent authority shall have effect notwithstanding any appeal to the sheriff which has not been determined by the sheriff where-

(a) in the opinion of the competent authority there is an imminent risk to human health, or an imminent threat of environmental damage; and

(b) the competent authority has notified the relevant operator of this opinion when requiring the operator to do any of the things specified in regulation 7(4) and (5) and 9(2) and (3).

Request for action and review

11. -(1) In this regulation "interested person" means any person-

(a) who is affected or likely to be affected by environmental damage; or

(b) who has a sufficient interest in the environmental decision making relating to the environmental damage; or

(d) who is a non governmental organisation promoting environmental protection and who is able to demonstrate that it meets the requirements of (b) or (c).

(2) An interested person may submit any observations to the competent authority in relation to an incidence of environmental damage or an imminent threat of such damage of which they are aware and request the competent authority to take action under these Regulations.

(3) A request from an interested person under paragraph (2) shall be-

(a) made in writing; and

(b) accompanied by relevant information and data supporting any observation made under that paragraph in relation to the incidence of environmental damage.

(4) Upon receipt by a competent authority of a request under paragraph (2) it shall determine whether or not it is satisfied that the request and the accompanying observation demonstrate in a plausible manner that the environmental damage or an imminent threat of such damage exists and, in the event that-

(a) it is so satisfied, the procedure in paragraph (5) shall be followed; or

(b) it is not so satisfied, it shall notify the person who made the request under paragraph (2) of its decisions and its reasons therefor.

(5) Where a competent authority is satisfied under paragraph (4) in relation to a request made under paragraph (2) it shall-

(a) consider the request and any accompanying information submitted under paragraph 3(b); and

(b) notify the operator of the request, provide it with a copy of the accompanying information and invite the operator to respond with any representations.

(6) After having had regard to any representations made to it by the operator referred to in paragraph 5(b), the competent authority shall notify-

(a) the person who made the request under paragraph (2); and

(b) the operator;

of its decision regarding the request and provide reasons therefor.

Co-operation by competent authorities with competent authorities of Member States

12. -(1) Where, in the opinion of the competent authority, an instance of environmental damage or an imminent threat of such damage affects or is likely to affect the territory of one or more other Member States, the competent authority shall-

(a) co-operate with the competent authority of that Member State:

(b) provide all such information as may be required by the competent authority of that Member State in relation to damage or imminent threat of such damage; and

(c) ensure or facilitate that preventive measures or remedial measures, as appropriate, are taken by an operator or by that competent authority under regulations 7(6) or 9(4).

(2) Where a competent authority is aware of-

(a) an occurrence of or imminent threat of environmental damage in Scotland as a result of an occupational activity specified in Schedule 2 to these Regulations; or

(b) an occurrence of or imminent threat of damage in Scotland as a result of any other occupational activity where the occurrence or imminent threat has arisen as a result of the fault or negligence of the operator of the activity,

and those activities are carried on otherwise than in Scotland, the competent authority shall as soon as possible notify the Scottish Ministers.

(3) A notification under paragraph (2) shall specify-

(a) the nature of the occurrence or threat;

(b) the severity of the occurrence or threat;

(d) whether preventive measures or remedial measures are required and what those measures should comprise;

(e) whether the competent authority is to take those measures; and

(f) the estimated costs of those measures.

(4) The Scottish Ministers, upon being notified under paragraph (2), may-

(a) notify the Commission of the matter;

(b) notify the competent authority of the relevant Member State of the matter;

(d) recover costs from the relevant Member State in relation to any costs incurred by a competent authority in taking preventive measures or remedial measures.

Costs

13. -(1) Subject to paragraph (2), an operator shall, in addition to the costs as defined in regulation 2, pay the costs of-

(a) any preventive measures taken under regulation 7;

(b) any remedial measures taken under regulation 8 or 9; and

(c) any preventive measures or remedial measures taken by the competent authority in respect of environmental damage, or the imminent threat of such damage, by that operator.

(2) An operator shall not pay the costs due under paragraph (1) where he demonstrates that the environmental damage or the imminent threat of such damage-

(a) was caused by a third party despite the fact that appropriate safety measures were in place; or

(b) resulted from compliance with a compulsory order or instruction emanating from a public authority other than an order or instruction consequent upon an emission or incident caused by the operator's own activities.

(3) Where the circumstances referred to in paragraph 2 apply, an operator who incurs any costs under these Regulations may recover all or some of those costs from a third party or public authority.

(4) Where an operator demonstrates that he was not at fault or negligent and that the environmental damage was caused by-

(a) an emission or event expressly authorised by, and fully in accordance with the conditions of an authorisation granted in relation to an activity in Schedule 2 as at the date of the emission or event; or

(b) an emission or activity or any manner of using a product in the course of an activity which the operator can demonstrate was not considered likely to cause environmental damage according to the state of scientific and technical knowledge at the time of the emission or activity,

the competent authority may determine that the operator is not required to pay the costs of remedial measures taken under these Regulations.

(5) Paragraph 4 shall not apply in relation to the release of genetically modified organisms.

Allocation of costs

14. -(1) Where the activities of more than one operator have resulted in an instance of, or the imminent threat of, environmental damage, the competent authority shall determine the operators responsible for the environmental damage.

(2) The competent authority may determine the operators responsibility on the following basis:-

(a) percentage split; or

(b) jointly and severally; or

(d) in such other manner as it deems appropriate.

(3) The competent authority may, at any time, require the operators concerned to provide it with such information as may be required by it in determining the operators responsibility for costs.

Competent authority to recover costs

15. -(1) Where the competent authority has incurred any costs under these Regulations, it shall be entitled to seek recovery of those costs from the responsible operator as determined in accordance with regulation 14 or such other person as the competent authority considers liable to it for those costs.

(2) Recovery proceedings under paragraph (1) shall be initiated not later than five years from the date upon which-

(a) the competent authority completed the measures taken which resulted in it incurring costs; or

(b) the competent authority identifies the responsible operator or other liable person,

whichever date is the later.

Penalties

16. A person guilty of an offence under these Regulations shall be-

(a) liable on summary conviction to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding twelve months or both; or

(b) a conviction on indictment to a fine or to imprisonment for a term not exceeding two years or both.

Offences by bodies corporate

17. Where an offence under these Regulations is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of-

(i) any director, manager, secretary or other similar officer of the body corporate; or

(ii) any person who was purporting to act in any such capacity,

that person as well as the body corporate is to be deemed to be guilty of that offence and is liable to be proceeded against and punished accordingly.

Offences by Scottish partnerships

18. Where an offence under these Regulations is committed by a Scottish partnership (other than a limited liability partnership) is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, that partner as well as the partnership is to be deemed guilty of that offence and liable to be proceeded against and punished accordingly.

Offences by limited liability partnerships

19. Where an offence under these Regulations is committed by a limited liability partnership and is proved to have been committed with the consent or connivance of, or have been attributable to any neglect on the part of, any member of that partnership or person who was purporting to act as such, that member or person as well as the limited liability partnership, as the case may be, is to be deemed guilty of that offence and is liable to be proceeded against and punished accordingly.

Authorised to sign by the Scottish Ministers

[ ],

[ ]

[ ] Date

SCHEDULE 1
Regulation 3(1)
DAMAGE TO PROTECTED SPECIES AND NATURAL HABITATS

Damage to protected species and natural habitats

1. -(1) In the case of protected species or natural habitat the damage must be such that it has a significant adverse effect on reaching or maintaining the favourable conservation status of the protected species or natural habitat taking into account-

(a) the conservation status at the time of the damage;

(b) the services provided by the amenities they produce;

(d) the number of individuals, their density or the area covered;

(e) the role of the particular individuals or of the damaged area in relation to the species or to the habitat conservation and the rarity of the species or habitat assessed at the relevant level whether local, regional or Community-wide;

(f) the capacity of the species for propagation, its viability or the capacity of the habitat for natural regeneration;

(g) the capacity of the species or habitat to recover within a short time of the damage being caused to a condition which leads to its state at the time of the damage or better without any intervention other than increased protection measures.

(2) Any damage is significant if it has a proven effect on human health.

(3) Damage to protected species or natural habitats does not include damage caused by an act expressly authorised by the relevant authorities in accordance with the Conservation (Natural Habitats, etc.) Regulations 1994( a) or the Wildlife and Countryside Act 1981( b).

^{( a) S.I. 1994/2716.
( b) 1981 c.69.}

SCHEDULE 2
Regulation 3(2)
OCCUPATIONAL ACTIVITIES FOR THE PURPOSES OF REGULATION 3(2)

1. The operation of installations subject to permit in pursuance of Council Directive 96/61/ EC of 24th September 1996 concerning integrated pollution prevention and control( a) (all activities listed in Annex I of Directive 96/61/ EC with the exception of installations or parts of installations used for research, development and testing of new products and processes).

2. Waste management operations, including the collection, transport, recovery and disposal of waste and hazardous waste, including the supervision of such operations and after-care of disposal sites, subject to permit or registration in pursuance of Council Directive 2006/12/ EC of 15th July 1975 on waste( b) and Council Directive 91/689/ EEC of 12th December 1991 on hazardous waste( c).

The operation of landfill sites under Council Directive 1999/31/ EC of 26th April 1999 on the landfill of waste( d) and the operation of incineration plants under Directive 2000/76/ EC of the European Parliament and of the Council of 4th December 2000 on the incineration of waste( e).

This does not include the spreading of sewage sludge from urban waste water treatment plants, treated to an approved standard, for agricultural purposes.

3. All discharges into land surface water, which require prior authorisation in pursuance of Council Directive 76/464/ EEC of 4th May 1976 on pollution caused by certain dangerous substances, discharged into the aquatic environment of the Community( f).

4. All discharges of substances into groundwater which require prior authorisation in pursuance of Council Directive 80/68/ EEC of 17th December 1979 on the protection of groundwater against pollution caused by certain dangerous substances( g).

5. The discharge or injection of pollutants into surface water or groundwater which require a permit, authorisation or registration in pursuance of Directive 2000/60/ EC.

6. Water abstraction and impoundment of water subject to prior authorisation in pursuance of Directive 2000/60/ EC.

7. Manufacture, use, storage, processing, filling, release into the environment and onsite transport of-

(a) dangerous substances as defined in Article 2(2) of Council Directive 67/548/ EEC of 27th June 1967 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous substances( h);

^{( a) O.J. No. L 257, 10.10.1996, p.26. Directive as last amended by Regulation ( EC) No. 1882/2003.
( b) O.J. No. L 114, 27.4.2006, p.9.
( c) O.J. No. L 377, 31.12.1991, p.20. Directive as amended by Directive 94/31/ EC (O.J. No. L 168, 2.7.1994, p.28).
( d) O.J. No. L 182, 16.7.1999, p.1. Directive as amended by Regulation ( EC) No. 1882/2003.
( e) O.J. No. L 332, 28.12.2000, p.91.
( f) O.J. No. L 129, 18.5.1976, p.23. Directive as last amended by Directive 2000/60/ EC.
( g) O.J. No. L 20, 26.1.1980, p.43. Directive as amended by Directive 91/692/ EEC (O.J. L 377, 31.12.1991, p.48).
( h) O.J. No. L 196, 16.8.1967, p.1. Directive as last amended by Regulation ( EC) No. 807/2003.}

(b) dangerous preparations as defined in Article 2(2) of Directive 1999/45/ EC of the European Parliament and of the Council of 31st May 1999 concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations( a);

(c) plant protection products as defined in Article 2(1) of Council Directive 91/414/ EEC of 15th July 1991 concerning the placing of plant protection products on the market( b);

(d) biocidal products as defined in Article 2(1)(a) of Directive 98/8/ EC of the European Parliament and of the Council of 16th February 1998 concerning the placing of biocidal products on the market( c).

8. Transport by road, rail, inland waterways, sea or air of dangerous goods or polluting goods as defined either in Annex A to Council Directive 94/55/ EC of 21st November 1994 on the approximation of the laws of the Member States with regard to the transport of dangerous goods by road( d) or in the Annex to Council Directive 96/49/ EC of 23rd July 1996 on the approximation of the laws of the Member States with regard to the transport of dangerous goods by rail( e) or as defined in Council Directive 93/75/ EEC of 13th September 1993 concerning minimum requirements for vessels bound for or leaving Community ports and carrying dangerous or polluting goods( f).

9. The operation of installations subject to authorisation in pursuance of Council Directive 84/360/ EEC of 28th June 1984 on the combating of air pollution from industrial plants( g) in relation to the release into air of any of the polluting substances covered by the aforementioned Directive.

10. Any contained use, including transport, involving genetically modified micro-organisms as defined by Council Directive 90/219/ EEC of 23rd April 1990 on the contained use of genetically modified micro-organisms( h).

11. Any deliberate release into the environment, transport and placing on the market of genetically modified organisms as defined by Directive 2001/18/ EC of the European Parliament and of the Council( i).

12. Transboundary shipment of waste within, into or out of the European Union, requiring an authorisation or prohibited in the meaning of Council Regulation ( EEC) No. 259/93 of 1st February 1993 on the supervision and control of shipments of waste within, into and out of the European Community( j).

13. The management of extractive waste pursuant to Directive 2006/21/ EC of the European Parliament and of the Council of 15th March 2006 on the management of waste from extractive industries( k).

^{( a) O.J. No. L 200, 30.7.1999, p.1. Directive as last amended by Regulation ( EC) No. 1882/2003.
( b) O.J. No. L 230, 19.8.1991, p.1. Directive as last amended by Regulation ( EC) No. 806/2003 (O.J. No. L 122, 16.5.2003, p.1).
( c) O.J. No. L 123, 24.4.1998, p.1. Directive as amended by Regulation ( EC) No. 1882/2003.
( d) O.J. No. L 319, 12.12.1994, p.7. Directive last amended by Commission Directive 2003/28/ EC (O.J. No. L 90, 8.4.2003, p.45).
( e) O.J. No. L 235, 17.9.1996, p.25. Directive as last amended by Commission Directive 2003/29/ EC (O.J. No. L 90, 8.4.2003, p.47).
( f) O.J. No. L 247, 5.10.1993, p.19. Directive as last amended by Directive 2002/84/ EC of the European Parliament and of the Council (O.J. No. L 324, 29.11.2002, p.53).
( g) O.J. No. L 188, 16.7.1984, p.20. Directive as amended by Directive 91/692/ EEC (O.J. No. L 377, 31.12.1991, p.48).
( h) O.J. No. L 117, 8.5.1990, p.1. Directive as last amended by Regulation ( EC) No. 1882/2003.
( i) O.J. No. L 106, 17.4.2001, p.1. Directive as last amended by Regulation ( EC) No. 1830/2003 (O.J. No. L 268, 18.10.2003, p.24).
( j) O.J. No. L 30, 6.2.1993, p.1. Regulation as last amended by Commission Regulation ( EC) No. 2557/2001 (O.J. No. L 349, 31.12.2001, p.1).
( k) O.J. No. L 102, 11.4.2006, p.15.}

SCHEDULE 3
Regulation 8(1)
REMEDIATION OF ENVIRONMENTAL DAMAGE

PART I

Application of Part I

1. Remediation of damage to natural resources other than land.

Definitions

2. In this Part-

(a) "Primary remediation" means any remedial measure which returns the damaged natural resources and/or impaired services to, or towards, baseline condition;

(b) "Complementary remediation" means any remedial measure taken in relation to natural resources and/or services to compensate for the fact that primary remediation does not result in fully restoring the damaged natural resources and/or services;

(c) "Compensatory remediation" means any action taken to compensate for interim losses of natural resources and/or services that occur from the date of damage occurring until primary remediation has achieved its full effect; and

(d) "interim losses" means losses which result from the fact that the damaged natural resources and/or services are not able to perform their ecological functions or provide services to other natural resources or to the public until the primary or complementary measures have taken effect; and does not include financial compensation to the public.

Objectives

3. -(1) Environmental damage, in relation to water, protected species or natural habitats, shall be effected by the restoration of the environment to its baseline condition by-

(a) primary remediation;

(b) complementary remediation; and

(2) Where primary remediation does not result in the restoration of the environment to its baseline condition, then complementary remediation will be undertaken, and compensatory remediation will be undertaken to compensate for the interim losses.

Risk to human health

4. The remedying of environmental damage, in relation to damage to water, protected species or natural habitats, shall result in the removal of any significant risk of human health being adversely affected.

Identification of remedial measures

5. -(1) In relation to primary remediation, actions to restore the natural resources and services towards baseline condition on an accelerated time-frame, or through natural recovery, shall be considered.

(2) In relation to complementary and compensatory remediation:-

(i) if possible, complementary and compensatory remedial measures must provide natural resources or services of the same type, quality and quantity as those damaged.

(ii) where this is not possible, similar but different natural resources or services must be provided (for example, by offsetting a reduction in the quality of natural resources or services by increasing their quantity);

(iii) where this is not possible, different natural resources or services may be provided, and the remedial measures must have the same monetary valuation as the lost natural resources or services;

(iv) if valuation of the lost natural resources or services is practicable, but valuation of the remedial measures cannot be made within a reasonable time or at a reasonable cost, then remedial measures may be provided whose cost is equivalent to the estimated monetary value of the lost natural resources or services;

(v) in the case of complementary remediation at a new site, where possible and appropriate this site should be geographically linked to the damaged site.

Choice of remediation

6. -(1) The reasonable remedial options should be evaluated, using best available technologies, based on the following criteria-

(a) the effect of each option on public health and safety;

(b) the cost of implementing the option;

(d) the extent to which each option will prevent future damage, and avoid collateral damage as a result of implementing the option;

(e) the extent to which each option benefits to each component of the natural resource and/or service;

(f) the extent to which each option takes account of relevant social, economic and cultural concerns and other relevant factors specific to the locality;

(g) the length of time it will take for the restoration of the environmental damage to be effective;

(h) the extent to which each option achieves the restoration of site of the environmental damage; and

(i) the geographical linkage to the damaged site.

(2) Subject to paragraph 3, when evaluating the different identified remedial options, primary remedial measures that do not fully restore the damaged water or protected species or natural habitat to baseline or that restore it more slowly can be chosen. This decision can be taken only if the natural resources and/or services foregone at the primary site as a result of the decision are compensated for by increasing complementary actions to provide a similar level of natural resources and/or services as were foregone. This will be the case, for example, when the equivalent natural resources and/or services could be provided elsewhere at a lower cost. These additional remedial measures shall be determined in accordance with the rules set out in paragraph 5(2).

(3) The competent authority may at any time decide that no further remedial measures should be taken if:

(a) the remedial measures already taken secure that there is no longer any significant risk of adversely affecting human health, water or protected species and natural habitats; and

(b) the cost of the remedial measures that should be taken to reach baseline condition or similar level would be disproportionate to the environmental benefits to be obtained.

PART II

Remediation of land damage

1. This Part applies to damage to land.

2. The necessary measures shall be taken to ensure, as a minimum, that the relevant contaminants are removed, controlled, contained or diminished so that the contaminated land, taking account of its current use or approved future use at the time of the damage, no longer poses any significant risk of adversely affecting human health.

3. The presence of such risks shall be assessed through risk-assessment procedures taking into account the characteristic and function of the soil, the type and concentration of the harmful substances, preparations, organisms or micro-organisms, their risk and the possibility of their dispersion.

4. Use shall be ascertained on the basis of the land use regulations, or other relevant regulations, in force, if any, when the damage occurred.

5. If the use of the land is changed, all necessary measures shall be taken to prevent any adverse effects on human health.

6. If land use regulations, or other relevant regulations, are lacking, the nature of the relevant area where the damage occurred, taking into account its expected development, shall determine the use of the specific area.

7. A natural recovery option, that is to say an option in which no direct human intervention in the recovery process would be taken, shall be considered.

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations implement Directive 2004/35/ EC of the European Parliament and Council on environmental liability with regard to the prevention and remedying of environmental damage.

They apply to environmental damage to protected species, natural habitats, water and land (Regulation 3).

They provide that, for certain economic activities, where there is an imminent risk of environmental damage, the responsible operator must take steps to prevent it, and if it has occurred must prevent further damage (Regulations 7 to 9).

Competent authorities are designated and these bodies have certain duties and powers (Regulations 6 to 9).

They provide for interested parties being able to request the competent authority to take action in certain circumstances (Regulation 11).

The Regulations make provision as to who bears the costs of carrying out any preventive or remedial steps (Regulation 13).

Breach of specified provisions of the Regulations is an offence punishable either on summary conviction or indictment (Regulation 16).

The Schedules to the Regulations set out what damage is to protected species and natural habitats (Schedule 1), the occupational activities covered (Schedule 2) and remediation measures (Schedule 3).

A Regulatory Impact Assessment ( RIA) has been prepared and placed in the Scottish Parliament Information Centre. Copies can be obtained from the Scottish Government, [insert address]. It is available on the Scottish Government website (insert address) as is a Transposition Note.

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