Regulations, 2008

L.N. 121 of 2008

ENVIRONMENT PROTECTION ACT

(CAP. 435)

DEVELOPMENT PLANNING ACT

(CAP. 356)

Prevention and Remedying of Environmental Damage

Regulations, 2008

IN exercise of the powers conferred by articles 9 and 11 of the

Environment Protection Act, hereinafter referred as “the Act”, and of

article 60 of the Development Planning Act, the Minister for the

Environment has made the following regulations>–

(1) The title of these regulations is the Prevention and

Remedying of Environmental Damage Regulations, 2008.

(2) Unless otherwise provided in the provisions of these

regulations, these regulations shall come into force on such date as the

Minister responsible for the environment may, by notice in the Gazette

appoint, and different dates may be so appointed for different provisions

and different purposes of these regulations.

CRITERIA REFERRED TO IN DEFINITION OF “ENVIRONMENTAL DAMAGE”

The significance of any damage that has adverse effects on reaching or maintaining

the favourable conservation status of habitats or species has to be assessed by

reference to the conservation status at the time of the damage, the services provided

by the amenities they produce and their capacity for natural regeneration. Significant

adverse changes to the baseline condition should be determined by means of

measurable data such as

1) The number of individuals, their density or the area covered;

2) The role of the particular individuals or of the damaged area in relation to

the species or to the habitat conservation, the rarity of the species or habitat

(assessed at local, regional and higher level including at Community level);

3) The species' capacity for propagation (according to the dynamics specific to

that species or to that population), its viability or the habitat's capacity for

natural regeneration (according to the dynamics specific to its characteristic

species or to their populations);

4) The species or habitat's capacity, after damage has occurred, to recover

within a short time, without any intervention other than increased protection

measures, to a condition which leads, solely by virtue of the dynamics of the

species or habitat, to a condition deemed equivalent or superior to the

baseline condition.

Damage with a proven effect on human health must be classified as significant

damage.

The following does not have to be classified as significant damage

1)

Negative variations that are smaller than natural fluctuations regarded as

normal for the species or habitat in question;

2)

Negative variations due to natural causes or resulting from intervention

relating to the normal management of sites, as defined in habitat records

or target documents or as carried on previously by owners or operators;

3)

Damage to species or habitats for which it is established that they will

recover, within a short time and without intervention, either to the

baseline condition or to a condition which leads, solely by virtue of the

dynamics of the species or habitat, to a condition deemed equivalent or

superior to the baseline condition.

The purpose of these regulations is to establish a framework

of environmental liability based on the polluter-pays principle, to prevent

and remedy environmental damage and to implement the provisions of

Directive 2004#35#CE of the European Parliament and of the Council

of 21 April 2004.

REMEDYING OF ENVIRONMENTAL DAMAGE

This Schedule sets out a common framework to be followed in order to choose the

most appropriate measures to ensure the remedying of environmental damage.

1. Remediation of damage to water or protected species or natural habitats

Remedying of environmental damage, in relation to water or protected species or

natural habitats, is achieved through the restoration of the environment to its baseline

condition by way of primary, complementary and compensatory remediation, where

(a) "Primary" remediation is any remedial measure which returns the damaged

natural resources and/or impaired services to, or towards, baseline condition;

(b) "Complementary" remediation is 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 is 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;

(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. It does not consist of financial

compensation to members of the public.

Where primary remediation does not result in the restoration of the environment

to its baseline condition, then complementary remediation will be undertaken. In

addition, compensatory remediation will be undertaken to compensate for the

interim losses.

Remedying of environmental damage, in terms of damage to water or protected

species or natural habitats, also implies that any significant risk of human health

being adversely affected be removed.

1.1. Remediation objectives.

Purpose of primary remediation.

1.1.1. The purpose of primary remediation is to restore the damaged natural resources

and/or services to, or towards, baseline condition.

Purpose of complementary remediation.

1.1.2. Where the damaged natural resources and/or services do not return to their

baseline condition, then complementary remediation will be undertaken. The purpose

of complementary remediation is to provide a similar level of natural resources and/or

services, including, as appropriate, at an alternative site, as would have been provided

if the damaged site had been returned to its baseline condition. Where possible and

appropriate the alternative site should be geographically linked to the damaged site,

taking into account the interests of the affected population.

Purpose of compensatory remediation.

1.1.3. Compensatory remediation shall be undertaken to compensate for the interim

loss of natural resources and services pending recovery. This compensation consists

of additional improvements to protected natural habitats and species or water at either

the damaged site or at an alternative site. It does not consist of financial compensation

to members of the public.

1.2. Identification of remedial measures.

Identification of primary remedial measures.

1.2.1. Options comprised of actions to directly restore the natural resources and

services towards baseline condition on an accelerated time frame, or through natural

recovery, shall be considered.

Identification of complementary and compensatory remedial measures.

1.2.2. When determining the scale of complementary and compensatory remedial

measures, the use of resource-to-resource or service-to-service equivalence

approaches shall be considered first. Under these approaches, actions that provide

natural resources and/or services of the same type, quality and quantity as those

damaged shall be considered first. Where this is not possible, then alternative natural

resources and/or services shall be provided. For example, a reduction in quality could

be offset by an increase in the quantity of remedial measures.

1.2.3. If it is not possible to use the first choice resource-to-resource or service-to-

service equivalence approaches, then alternative valuation techniques shall be used.

The competent authority may prescribe the method, for example monetary valuation,

to determine the extent of the necessary complementary and compensatory remedial

measures. If valuation of the lost resources and/or services is practicable, but

valuation of the replacement natural resources and/or services cannot be performed

within a reasonable time-frame or at a reasonable cost, then the competent authority

may choose remedial measures whose cost is equivalent to the estimated monetary

value of the lost natural resources and/or services.

The complementary and compensatory remedial measures should be so designed that

they provide for additional natural resources and/or services to reflect time

preferences and the time profile of the remedial measures. For example, the longer

the period of time before the baseline condition is reached, the greater the amount of

compensatory remedial measures that will be undertaken (other things being equal).

1.3. Choice of the remedial options.

1.3.1. 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,

(c)

The likelihood of success of each 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,

(i)

The geographical linkage to the damaged site.

1.3.2. 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 or

compensatory 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 section 1.2.2.

1.3.3. Notwithstanding the rules set out in section 1.3.2. and in accordance with

Article 7(3), the competent authority is entitled to 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.

2. Remediation of land damage.

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. 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. Use shall be ascertained on the basis

of the land use regulations, or other relevant regulations, in force, if any, when the

damage occurred.

If the use of the land is changed, all necessary measures shall be taken to prevent any

adverse effects on human health.

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.

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.

(1)

In these regulations, unless the context otherwise

requires>

”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<

“the competent authority” means the Malta Environment and

Planning Authority,”and such other body or person as the Minister

responsible for the environment may by order in the Gazette,

prescribe and different bodies or persons may be designated as the

competent authority for different provisions and different purposes

of these regulations<

“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 Treaty applies or the territory

of a Member State or the natural range of that habitat<

The conservation status of a natural habitat will be taken

as “favourable” 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, as defined in paragraph (b)<

(b) in respect of a species, the sum of the influences

acting on the species concerned that may affect 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 Treaty applies or the territory of a Member State or

the natural range of that species<

The conservation status of a species will be taken as

“favourable” 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<

“costs” means costs which are justified by the need to ensure

the proper and effective implementation of these regulations

including 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<

“damage” means a measurable adverse change in a natural

resource or measurable impairment of a natural resource service

which may occur directly or indirectly<

“emission” means the release in the environment, as a result

of human activities, of substances, preparations, organisms or

micro-organisms<

“environmental damage” means>

(a) damage to protected species and natural habitats,

which is any damage that has significant adverse effects on

reaching or maintaining the favourable conservation status

of such habitats or species. The significance of such effects is

to be assessed with reference to the baseline condition, taking

account of the criteria set out in Schedule I<

Damage to protected species and natural habitats does

not include previously identified adverse effects which result

from an act by an operator which 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 or, in the

case of habitats and species not covered by Community law,

in accordance with equivalent provisions of national law on

nature conservation<

(b) water damage, which is any damage that

significantly adversely affects the ecological, chemical and,or

quantitative status and,or ecological potential, as defined in

Directive 2000#60#EC, of the waters concerned, with the

exception of adverse effects where Article 4(7) of that

Directive applies<

(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<

“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 the 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 the person registering or notifying such an

activity<

“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<

“protected species and natural habitats” means>

(a) the species mentioned in Article 4(2) of Directive

79#409#EEC or listed in Annex I thereto or listed in Annexes

II and IV to Directive 92#43#EEC<

(b) the habitats of species mentioned in Article 4(2) of

Directive 79#409#EEC or listed in Annex I thereto or listed in

Annex II to Directive 92#43#EEC, and the natural habitats

listed in Annex I to Directive 92#43#EEC and the breeding

sites or resting places of the species listed in Annex IV to

Directive 92#43#EEC< and

(c) any habitat or species, not listed in those Annexes

which the Authority designates for equivalent purposes as

those laid down in these two Directives<

“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<

“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 II<

“services” and “natural resources services” mean the functions

performed by a natural resource for the benefit of another natural

resource or the public<

“waters” mean all waters covered by Directive 2000#60#EC.

(1) These regulations shall only apply to>

ACTIVITIES REFERRED TO IN REGULATION 4

1. The operation of installations subject to permit in pursuance of Council Directive

96/61/EC of 24 September 1996 concerning integrated pollution prevention and

control(1). That means 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 75/442/EEC of 15 July 1975 on waste(2) and Council Directive

91/689/EEC of 12 December 1991 on hazardous waste(3).

Those operations include, inter alia, the operation of landfill sites under Council

Directive 1999/31/EC of 26 April 1999 on the landfill of waste(4) and the operation

of incineration plants under Directive 2000/76/EC of the European Parliament and of

the Council of 4 December 2000 on the incineration of waste(5).

For the purpose of these Regulations, those operations shall 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 the inland surface water, which require prior authorisation in

pursuance of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by

certain dangerous substances, discharged into the aquatic environment of the

Community(6).

4. All discharges of substances into groundwater which require prior authorisation in

pursuance of Council Directive 80/68/EEC of 17 December 1979 on the protection of

groundwater against pollution caused by certain dangerous substances(7).

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 27 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(8);

(b) dangerous preparations as defined in Article 2(2) of Directive 1999/45/EC of

the European Parliament and of the Council of 31 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(9);

(c) plant protection products as defined in Article2(1) of Council Directive

91/414/EEC of 15 July 1991 concerning the placing of plant protection products

on the market(10);

(d) biocidal products as defined in Article 2(1)(a) of Directive 98/8/EC of the

European Parliament and of the Council of 16 February 1998 concerning the

placing of biocidal products on the market(11).

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 21

November 1994 on the approximation of the laws of the Member States with regard

to the transport of dangerous goods by road(12) or in the Annex to Council Directive

96/49/EC of 23 July 1996 on the approximation of the laws of the Member States

with regard to the transport of dangerous goods by rail(13) or as defined in Council

Directive 93/75/EEC of 13 September 1993 concerning minimum requirements for

vessels bound for or leaving Community ports and carrying dangerous or polluting

goods(14).

9. The operation of installations subject to authorisation in pursuance of Council

Directive 84/360/EEC of 28 June 1984 on the combating of air pollution from

industrial plants(15) 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 23 April 1990 on the

contained use of genetically modified micro-organisms(16).

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(17).

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 1 February 1993 on the supervision and control of shipments of waste

within, into and out of the European Community(18).

(1) OJ L 257, 10.10.1996, p. 26. Directive as last amended by Regulation (EC) No 1882/2003.

(2) OJ L 194, 25.7.1975, p. 39. Directive as last amended by Regulation (EC) No 1882/2003.

(3) OJ L 377, 31.12.1991, p. 20. Directive as amended by Directive 94/31/EC (OJ L 168, 2.7.1994, p. 28).

(4) OJ L 182, 16.7.1999, p. 1 Directive as amended by Regulation (EC) No 1882/2003.

(5) OJ L 332, 28.12.2000, p. 91.

(6) OJ L 129, 18.5.1976, p. 23. Directive as last amended by Directive 2000/60/EC.

(7) OJ L 20, 26.1.1980, p. 43. Directive as amended by Directive 91/692/EEC (OJ L 377, 31.12.1991, p. 48).

(8) OJ 196, 16.8.1967, p. 1. Directive as last amended by Regulation (EC) No 807/2003.

(9) OJ L 200, 30.7.1999, p. 1. Directive as last amended by Regulation (EC) No 1882/2003.

(10) OJ L 230, 19.8.1991, p. 1. Directive as last amended by Regulation (EC) No 806/2003 (OJ L 122, 16.5.2003, p. 1).

(11) OJ L 123, 24.4.1998, p. 1. Directive as amended by Regulation (EC) No 1882/2003.

(12) OJ L 319, 12.12.1994, p. 7. Directive as last amended by Commission Directive 2003/28/EC (OJ L 90, 8.4.2003, p. 45).

(13) OJ L 235, 17.9.1996, p. 25. Directive as last amended by Commission Directive 2003/29/EC (OJ L 90, 8.4.2003, p. 47).

(14) OJ L 247, 5.10.1993, p. 19. Directive as last amended by Directive 2002/84/EC of the European Parliament and of the

Council (OJ L 324, 29.11.2002, p. 53).

(15) OJ L 188, 16.7.1984, p. 20. Directive as amended by Directive 91/692/EEC (OJ L 377, 31.12.1991, p. 48).

(16) OJ L 117, 8.5.1990, p. 1. Directive as last amended by Regulation (EC) No 1882/2003.

(17) OJ L 106, 17.4.2001, p. 1. Directive as last amended by Regulation (EC) No 1830/2003 (OJ L 268, 18.10.2003, p. 24).

(18) OJ L 30, 6.2.1993, p. 1. Regulation as last amended by Commission Regulation (EC) No 2557/2001 (OJ L 349, 31.12.2001,

p. 1).

(a) environmental damage caused by any of the occupational

activities listed in Schedule III, and to any imminent threat of such

damage occurring by reason of any of those activities<

(b) damage to protected species and natural habitats caused

by any occupational activities other than those listed in Schedule

III, and any imminent threat of such damage occurring by reason

of any of those activities, whenever the operator has been at fault

or negligent.

(2) These regulations shall apply without prejudice to more

stringent Community legislation regulating the operation of any of the

activities falling within the scope of these regulations and without

prejudice to Community legislation containing rules on conflicts of

jurisdiction.

(3) Without prejudice to relevant national legislation, these

regulations shall not give private parties a right of compensation as a

consequence of environmental damage or of an imminent threat of such

damage.

INTERNATIONAL CONVENTIONS REFERRED TO IN REGULATION 5(2)

(a) the International Convention of 27 November 1992 on Civil Liability for Oil

Pollution Damage;

(b) the International Convention of 27 November 1992 on the Establishment of an

International Fund for Compensation for Oil Pollution Damage;

(c) the International Convention of 23 March 2001 on Civil Liability for Bunker Oil

Pollution Damage;

(d) the International Convention of 3 May 1996 on Liability and Compensation for

Damage in Connection with the Carriage of Hazardous and Noxious Substances by

Sea;

(e) the Convention of 10 October 1989 on Civil Liability for Damage Caused during

Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels.

(1) These regulations shall not cover environmental damage

or an imminent threat of such damage caused by>

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

insurrection<

(b) a natural phenomenon of exceptional, inevitable and

irresistible character.

(2) These regulations shall not apply to environmental

damage or to any imminent threat of such damage arising from an

incident in respect of which liability or compensation falls within the

scope of any of the International Conventions listed in Schedule IV to

these regulations.

(3) These regulations shall be without prejudice to the right

of the operator to limit his liability in accordance with national legislation

implementing the Convention on Limitation of Liability for Maritime

Claims (LLMC), 1976, including any future amendment to the

Convention, or the Strasbourg Convention on Limitation of Liability in

Inland Navigation (CLNI), 1988, including any future amendment to

the Convention.

(4) These regulations shall not apply to such nuclear risks

or environmental damage or imminent threat of such damage as may be

caused by the activities covered by the Treaty establishing the European

Atomic Energy Community or caused by an incident or activity in respect

of which liability or compensation falls within the scope of any of the

international instruments listed in Schedule V to these regulations.

(5) These regulations shall only apply to environmental

damage or to an imminent threat of such damage caused by pollution of

a diffuse character, where it is possible to establish a causal link between

the damage and the activities of individual operators.

(6) These regulations shall not apply to activities the main

purpose of which is to serve national defence or international security

nor to activities the sole purpose of which is to protect from natural

disasters.

INTERNATIONAL INSTRUMENTS REFERRED TO IN REGULATION 5(4)

(a) the Paris Convention of 29 July 1960 on Third Party Liability in the Field of

Nuclear Energy and the Brussels Supplementary Convention of 31 January 1963;

(b) the Vienna Convention of 21 May 1963 on Civil Liability for Nuclear Damage;

(c) the Convention of 12 September 1997 on Supplementary Compensation for

Nuclear Damage;

(d) the Joint Protocol of 21 September 1988 relating to the Application of the Vienna

Convention and the Paris Convention;

(e) the Brussels Convention of 17 December 1971 relating to Civil Liability in the

Field of Maritime Carriage of Nuclear Material.

(1) Where environmental damage has not yet occurred but Preventive Action.

there is an imminent threat of such damage occurring, the operator shall,

without delay, take the necessary preventive measures.

(2) An operator shall, in any such case, including whenever

an imminent threat of environmental damage is not dispelled despite

the preventive measures taken by the operator, inform the competent

authority of all relevant aspects of the situation, as soon as possible.

(3) Without prejudice to the afore-said, the competent

authority shall>

(a) require the operator to provide information on any

imminent threat of environmental damage or in suspected cases of

such an imminent threat<

(b) require the operator to take the necessary preventive

measures<

(c) give instructions to the operator to be followed on the

necessary preventive measures to be taken.

(4) The competent authority may take these measures itself

if the operator>

(a) fails to comply with the obligations laid down in sub-

regulations (1) or (3)(b) or (c), or

(b) cannot be identified, or

(c)

is not required to bear the costs under these regulations.

(1) Where environmental damage has occurred the operator

shall, without delay, inform the competent authority of all relevant

aspects of the situation and take>

(a) all practicable steps to immediately control, contain,

remove or otherwise manage the relevant contaminants and, or

any other damage factors in order to limit or to prevent further

environmental damage and adverse effects on human health or

further impairment of services, and

(b) the necessary remedial measures, in accordance with

regulation 8.

(2) The competent authority shall, at any time>

(a) require the operator to provide supplementary

information on any damage that has occurred<

(b) take, require the operator to take or give instructions to

the operator concerning, all practicable steps to immediately

control, contain, remove or otherwise manage the relevant

contaminants and, or any other damage factors in order to limit or

to prevent further environmental damage and adverse effect on

human health, or further impairment of services<

(c) require the operator to take the necessary remedial

measures<

(d) give instructions to the operator to be followed on the

necessary remedial measures to be taken.

(3) The competent authority may take these measures itself,

as a means of last resort if the operator>

(a) fails to comply with the obligations laid down in sub-

regulations (1) or 2(b), (c) or (d), or

(b) cannot be identified, or

(c)

is not required to bear the costs under these regulations.

(1) Operators shall identify, in accordance with Schedule Determination of

remedial measures.

II, potential remedial measures and submit them to the competent

authority for its approval, unless the competent authority has taken action

under regulation 7(3).

(2) The competent authority shall decide which remedial

measures shall be implemented in accordance with Schedule II, and

with the cooperation of the relevant operator, as required.

(3) Where several instances of environmental damage have

occurred in such a manner that the competent authority cannot ensure

that the necessary remedial measures are taken at the same time, the

competent authority shall be entitled to decide which instance of

environmental damage must be remedied first.

In making that decision, the competent authority shall have

regard, inter alia, to the nature, extent and gravity of the various instances

of environmental damage concerned, and to the possibility of natural

recovery. Risks to human health shall also be taken into account.

(4) The competent authority shall invite the persons referred

to in regulation 13(1) and in any case the persons on whose land remedial

measures would be carried out to submit their observations and such

authority shall take them into account.

(1) The operator shall bear the costs for the preventive and Prevention and

remediation costs.

remedial actions taken pursuant to these regulations.

(2) Subject to sub-regulations (3) and (4) hereof, the

competent authority shall recover, inter alia, via security over property

or other appropriate guarantees from the operator who has caused the

damage or the imminent threat of damage, the costs it has incurred in

relation to the preventive or remedial actions taken under these

regulations.

However, the competent authority may decide not to recover

the full costs where the expenditure required to do so would be greater

than the recoverable sum or where the operator cannot be identified.

(3) An operator shall not be required to bear the cost of

preventive or remedial actions taken pursuant to these regulations when

he can prove that the environmental damage or imminent threat of such

damage>

(a) was caused by a third party and occured 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.

(4) The operator shall not bear the cost of remedial actions

taken pursuant to these regulations where he 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 conferred

by or given under relevant laws and regulations which implement

those legislative measures specified in Schedule III, as applied at

the date of the emission or event<

(b) an emission or activity or any manner of using a product

in the course of an activity which the operator demonstrates was

not considered likely to cause environmental damage according to

the state of scientific and technical knowledge at the time when

the emission was released or the activity took place.

(5) Measures taken by the competent authority in pursuance

of regulations 6(3) and 6(4) and regulations 7(2) and (3) shall be without

prejudice to the liability of the relevant operator under these regulations

and without prejudice to Articles 87 and 88 of the Treaty.

The provisions of these regulations are without prejudice to

any provisions of other relevant legislation concerning cost allocation

in cases of multiple party causation especially concerning the

apportionment of liability between the producer and the user of a product.

The competent authority shall be entitled to initiate cost

recovery proceedings against the operator, or if appropriate, a third party

who has caused the damage or the imminent threat of damage in relation

to any measures taken in pursuance of these regulations within five

years from the date on which those measures have been completed or

the liable operator, or third party, has been identified, whichever is the

later.

Competent

(1) The competent authority shall have the duty to>

Authority.

(a) establish which operator has caused the damage or the

imminent threat of damage,

(b) assess the significance of the damage, and

(c) determine which remedial measures should be taken with

reference to Schedule II.

(2) The competent authority may require the relevant

operator to carry out his own assessment and to supply any information

and data necessary.

(3) The competent authority may empower or require third

parties to carry out the necessary preventive or remedial measures.

(4) Any decision taken pursuant to these regulations which

imposes preventive or remedial measures shall state the exact grounds

on which it is based. Such decision shall be notified forthwith to the

operator concerned, who shall at the same time be informed of the

remedies available to him under the relevant laws concerned and of the

time-limits to which such remedies are subject.

Request for Action.

(1) Natural or legal persons>

(a) affected or likely to be affected by environmental

damage, or

(b) having a sufficient interest in environmental decision

making relating to the damage, shall be entitled to submit to the

competent authority any observations relating to instances of

environmental damage of which they are aware and shall be entitled

to request the competent authority to take action under these

regulations.

(2) A person shall be deemed to have a “sufficient interest”

if he has complied with the requirement of the provisions of article

32(5) of the Development Planning Act, or if he qualifies as a consultee

or an identified stake-holder under the provisions of the Environmental

Impact Assessment Regulations, 2007>

Provided that the interest of any non-governmental

organisation promoting environmental protection and meeting any

requirements under national law shall be deemed sufficient for the

purpose of paragraph (b) of sub-regulation (1) hereof.

(3) The request for action shall be accompanied by the

relevant information and data supporting the observations submitted in

relation to the environmental damage in question.

(4) Where the request for action and the accompanying

observations show in a plausible manner that environmental damage

exists, the competent authority shall consider any such observations

and requests for action. In such circumstances the competent authority

shall give the relevant operator an opportunity to make his views known

with respect to the request for action and the accompanying observations.

(5) The competent authority shall, as soon as possible and

in any case in accordance with the relevant provisions of national law,

inform the persons referred to in sub-regulation (1) hereof, which

submitted observations to the authority, of its decision to accede to or

refuse the request for action and shall provide the reasons for it.

(1) Where environmental damage affects or is likely to

affect several Member States, those Member States shall cooperate,

also through the appropriate exchange of information, with a view to

ensuring that preventive action and, where necessary, remedial action

is taken in respect of any such environmental damage.

(2) Where environmental damage has occurred, the Member

State in whose territory the damage originates shall provide sufficient

information to the potentially affected Member States.

(3) Where a Member State identifies damage within its

borders which has not been caused within them it may report the issue

to the Commission and any other Member State concerned< it may make

recommendations for the adoption of preventive or remedial measures

and it may seek, in accordance with these Regulations, to recover the

costs it has incurred in relation to the adoption of preventive or remedial

measures.

Temporal

These regulations shall not apply to>

application.

(a) damage caused by an emission, event or incident that

took place before the 30 th April 2007<

(b) damage caused by an emission, event or incident which

takes place subsequent to the 30 th April 2007 when it derives from

a specific activity that took place and finished before the said date<

(c) damage, if more than 30 years have passed since the

emission, event or incident, resulting in the damage, occurred.

10.2003, p. 24).

[18] ĠU L 30, 06.02.93, p. 1. Regolament kif l-aħħar emendat bir-Regolament tal-Kummissjoni (KE) Nru 2557/2001 (ĠU L 349,

31. 12.01, p. 1).