PREVENTION AND REMEDYING OF ENVIRONMENTAL DAMAGE REGULATIONS

SUBSIDIARY LEGISLATION 549.97

PREVENTION AND REMEDYING OF

ENVIRONMENTAL DAMAGE REGULATIONS

21st August, 2015

LEGAL NOTICE 280 of 2015, as amended by Legal Notice 217 of 2021.

The title of these regulations is the Prevention and

Remedying of Environmental Damage 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 on environmental

liability with regard to the prevention and remedying of

environmental damage.

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 u ndert aken. In addit ion, 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

no t return to their b aseline con dition , th en complem entary

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 t hese approaches, act io ns t hat p ro vi de nat ural

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

those damaged shall be considered first. Where this is not possible,

th en alternat ive nat ural 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

author ity may prescribe the method, for exam ple 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 regulation 8(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 and emissions 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 or

the environment. 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 or the environment.

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.

In these regulations, unless the context otherwise requires

"baseline condition" means the condition that would have existed at

the time of the damage of the natural resources and services had the

environmental damage not occurred, estimated on the basis of the best

information available;

"the competent authority" means the Environment and Resources

Authority, and such other body or person as the Minister for

Sustainable Development, the Environment and Climate Change

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, imminent threats 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" or "pollution" means the release in the environment, as a

result of human activities, of substances, energy, 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 authorized

by the relevant authorities in accordance with provisions of

Part III or Part XI of the Flora, Fauna and Natural Habitats

Protection Regulations, or regulation 9 of the Conservation

of Wild Birds Regulations, 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

(i)

the ecological, chemical or quantitative status or

the ecological potential of the waters concerned,

as defined in the Water Policy Framework

Regulations, with the exception of adverse

effects where regulation 4(7) applies; or

(ii) the environmental status of the marine waters

concerned, as defined in the Marine Policy

Framework Regulations, with the exception of

those particular aspects of the environmental

status of the marine environment which are

already regulated by means of the Water Policy

Framework Regulations;

(c) land damage, which is any land contamination that creates

a significant risk of human health or the environment 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 respect of an

event, act or omission that creates 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 regulation 3(3) of the

Conservation of Wild Birds Regulations or listed in

Schedule I thereto or listed in Schedule II and V to the

Flora, Fauna and Natural Habitats Protection

Regulations;

(b) the habitats of species mentioned in regulation 3(3) of

the Conservation of Wild Birds Regulations or listed in

Schedule I thereto or listed in Schedule II to the Flora,

Fauna and Natural Habitats Protection Regulations and

the natural habitats listed in Schedule I to the said

Regulations and the breeding sites or resting places of

the species listed in Annex V to the said Regulations;

(c) any habitat or species, not listed in the Schedules

mentioned in paragraphs (a) and (b) above, and which

the competent authority designates for equivalent

purposes as those laid down in the two Regulations

mentioned in paragraphs (a) and (b);

"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 or the environment;

"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;

" w a t e r s " m e a n a l l w a t e r s c o v e r e d b y t h e Wa t e r P o l i c y

Framework Regulations.

ACTIVITIES REFERRED TO IN REGULATION 4

1. The operation of installations subject to permit in

pursuance of the Industrial Emissions (Framework) Regulations.

That means all activities listed in Schedule I of the Industrial

Emissions (Integrated Pollution Prevention and Control)

Regulations, Schedule 1 of the Limitation of Emissions of Volatile

Organic Compounds Regulations 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 the

Waste Regulations.

Those operations include, inter alia, the operation of landfill

sites under the Waste Management (Landfill) Regulations and the

operation of incineration plants under the Industrial Emissions

(Waste Incineration) Regulations.

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 authorization in pursuance of the Pollution caused by Certain

Dangerous Substances, discharged into the Aquatic Environment

Regulations.

4. All discharges of substances into groundwater which

require prior authorisation in pursuance of the Protection of

Groundwater against Pollution and Deterioration Regulations.

5. The discharge or injection of pollutants into surface water

or groundwater which require a permit, authorisation or registration

in pursuance of the Water Policy Framework Regulations.

6. Water abstraction and impoundment of water subject to

prior authorization in pursuance of the Water Policy Framework

Regulations.

7. Manufacture, use, storage, processing, filling, release into

the environment and onsite transport of

(a) dangerous substances in pursuance of the Dangerous

Substances Regulations;

(b) dangerous preparations in pursuance of the Dangerous

Substances and Preparations Regulations;

(c) plant protection products in pursuance of the Plant

Protection Products Regulations;

(d) biocidal products in pursuance of the Biocides

Regulations.

8. Transport by road or sea of dangerous or polluting goods as

defined in regulation 2 of Motor Vehicles (Carriage of Dangerous

Goods by Road) Regulations and Annex A to Council Directive

2008/68/EC of the 24 September 2008 on the approximation of the

laws of the Member States, with regard to the inland transport of

dangerous goods by road or as defined in Dangerous Cargo Ships,

Marine Terminals and Facilities and Bunkering Regulations.

9. Any contained use, including transport, involving

genetically modified micro-organisms as defined by the Contained

Use of Genetically Modified Micro-Organisms Regulations.

10. Any deliberate release into the environment, transport and

placing on the market of genetically modified organisms as defined

by the Deliberate Release into the Environment of Genetically

Modified Organisms Regulations.

11. Transboundary shipment of waste within, into or out of the

European Union, requiring an authorisation or prohibited in the

meaning of Regulation (EC) No 1013/2006 of the European

Parliament and of the Council of 14 June 2006 on shipments of

w a s t e a n d t h e Wa s t e M a n a g e m e n t ( S h i p m e n t s o f Wa s t e )

Regulation.

12. The management of extractive waste pursuant to the Waste

Management (Management of Waste from Extractive Industries and

Backfilling) Regulations.

13. The operation of storage sites pursuant to the Geological

Storage of Carbon Dioxide Regulations.

(1)

These regulations shall apply to

(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 national or 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.

(4) These regulations shall apply without prejudice to any

additional provisions of the Crimes Against the Environment Act, as

may be relevant to the activity.

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.

(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.

(5) Where the environmental damage or an imminent threat of such

damage is caused by pollution of a diffuse character, these regulations

shall only apply 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, if

there is a declaration in writing from the Minister responsible for the

respective sector stating that the application of these regulations would

have an adverse effect on national defence or international security or

the protection from natural disasters.

INTERNATIONAL INSTRUMENTS REFERRED TO IN

REGULATION 5(4)

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

L i a b i l i t y i n t h e F i e l d o f N u c l e a r E n e rg y a n d t h e B r u s s e l s

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

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

t h e p r e v e n t i v e m e a s u r e s t a k e n b y t h e o p e r a t o r, i n f o r m t h e

competent authority of all relevant aspects of the situation, as soon

as possible.

(3) Without prejudice to the aforesaid, 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

PREVENTION AND REMEDYING

OF ENVIRONMENTAL DAMAGE

(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

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

remedial actions taken pursuant to these regulations.

(2) Subject to sub-regulations (3) and (4), 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 occurred 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 (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 shall be 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.

(1) The competent authority shall have the duty to

(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.

(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, or alternatively,

(c) alleging the impairment of a right emanating from a

valid license or permit,

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 71(6)

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

Provided that the interest of any non-governmental

organisation incorporated for the purpose of promoting environmental

protection and meeting any requirements under the Voluntary

Organisations Act shall be deemed sufficient for the purpose of sub-

regulations (1)(b). Such non-governmental organisations shall also be

deemed to have rights capable of being impaired for the purpose of

sub-regulation (1)(c).

(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, including

evidence to substantiate the alleged impairment if the request is made

under sub-regulation (1)(c).

(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 re levant prov isions o f the

Voluntary Organisations Act, inform the persons referred to in sub-

regulation (1), 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 or originated in

Maltese territory, Malta shall provide sufficient information to the

potentially affected Member States.

(3) Where Malta 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; in such a case

Malta 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.

These regulations shall not apply to

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

took place before the 30th April 2007;

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

which takes place subsequent to the 30th April 2007

when it derives from a specific activity that took place

and finished before the said date; or

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

since the emission, event or incident, resulting in the

damage, occurred.