European Communities (Environmental Liability) Regulations, 2008

• Jurisdiction: Ireland
• Citation: IR SI 547/2008

S.I. No. 547 of 2008

EUROPEAN COMMUNITIES (ENVIRONMENTAL LIABILITY) REGULATIONS 2008

INDEX

1. Citation and Commencement

2. Interpretation

3. Application

4. Exceptions

5. Temporal Application

6. Competent Authority

7. Imminent threat — operator

8. Imminent threat — issue of direction

9. Environmental damage — operator

10. Environmental damage — issue of direction

11. Determination of remedial measures

12. Remedial measures — direction by Agency to operator

13. Appeal from a direction issued under Regulation 8, 10, or 12

14. Co-operation with public authorities

15. Environmental damage — submission and request

16. Review of decision of Agency under Regulation 15

17. Liability for prevention and remediation costs

18. Joint and several liability

19. Limitation of actions

20. Damage occurring in more than one state — co-operation by Minister and Agency

21. Register

22. Injunctive relief

23. Authorised Officer

24. Offences

25. Direction

26. Service of Direction

Schedule 1

Criteria in assessing damage to protected species and natural habitats

Schedule 2

Remedying of environmental damage

Schedule 3

Activities

Schedule 4

International Conventions

Schedule 5

International Instruments

Schedule 6

Information and data referred to in Article 18 (1)

S.I. No. 547 of 2008

EUROPEAN COMMUNITIES (ENVIRONMENTAL LIABILITY) REGULATIONS 2008

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 23rd December, 2008.

I, JOHN GORMLEY, Minister for the Environment, Heritage and Local Government, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 1 hereby make the following regulations:

Citation and Commencement

1. (1) These Regulations may be cited as the European Communities (Environmental Liability) Regulations 2008.

(2) These Regulations come into operation on 1 April 2009.

Interpretation

2. (1) In these Regulations—

“Agency” means the Environmental Protection Agency;

“Birds Directive” means Council Directive 79/409/EEC of 2 April 1979 2 on the conservation of wild birds;

“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 to protected species and natural habitats” means 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 1; this damage does not include previously identified adverse effects which result from an act by an operator which was expressly authorised by—

(a) the relevant authorities in accordance with Article 6(3) and (4) of the Habitats Directive and Regulation 16, 25, 26 or 32 of the Natural Habitats Regulations, or

(b) such enactments or rules of law (if any) that apply to habitats and species in the State, to which the Natural Habitats Regulations do not apply;

“Directive” means Directive 2004/35/EC 3 on environmental liability with regard to the prevention and remedying of environmental damage;

“direction” means a direction issued by the Agency pursuant to Regulation 8(1), 10(1) or 12(1);

“environmental damage” means—

(a) damage to protected species and natural habitats,

(b) water damage, or

(c) land damage;

“Habitats Directive” means Council Directive 92/43/EEC 4 of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora;

“land damage” means 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;

“Minister” means the Minister for the Environment, Heritage and Local Government;

“Natural Habitats Regulations” means the European Communities (Natural Habitats) Regulations 1997 ( S.I. No. 94 of 1997 ), the European Communities (Natural Habitats) (Amendment) Regulations 1998 ( S.I. No. 233 of 1998 ), the European Communities (Natural Habitats) (Amendment) Regulations 2005 ( S.I. No. 378 of 2005 );

“operator” means, in relation to an occupational activity, the person-

(a) who operates or controls it, or

(b) the person to whom decisive economic power over the activity has been delegated, including, where an enactment or other rule of law applies to the occupational activity, the holder of a permit or authorisation for such an activity or the person registering or notifying such an activity pursuant to the enactment or other rule of law as the case may be, and, for the purposes of an activity referred to in Schedule 3—

(i) the holder of a licence (within the meaning given to that term in article 1 of Schedule 3) referred to in paragraph (a), (b), (c), (d), (e), (f), (i) or (l) of article 2 of that Schedule,

(ii) for the purposes of—

(I) the European Communities (Classification, Packaging, Labelling and Notification of Dangerous Substances) Regulations 2003 ( S.I. No. 116 of 2003 ) the person “responsible for placing on the market a substance to which these Regulations apply” within the meaning of Regulation 2 of those Regulations,

(II) the European Communities (Classification, Packaging, and Labelling of Dangerous Preparations) Regulations 2004 ( S.I. No. 62 of 2004 ), the “person responsible for placing on the Market” within the meaning of Regulation 2 of those Regulations,

(III) the European Communities (Authorisation, Placing on the Market, Use and Control of Plant Protection Products) Regulations 2003 ( S.I. No. 83 of 2003 ), the person who holds an authorisation to place on the market and use a plant protection product pursuant to Regulation 13 or 19 of those Regulations,

(IV) the European Communities (Authorisation, Placing on the Market, Use and Control of Biocidal Products) Regulations 2001 ( S.I. No. 625 of 2001 ), the person who is authorised or registered for placing on the market or use of a biocidal product pursuant to Regulation 10, 19 or 20 of those Regulations,

(iii) for the purposes of—

(I) the Carriage of Dangerous Goods by Road Regulations 2007 ( S.I. No. 288 of 2007 ), a participant, within the meaning of Regulation 13, to whom Regulation 17, 21, 26, 30, 33, 35 or 37 of those Regulations, as the case may be, applies,

(II) the European Communities (Carriage of Dangerous Goods by Road) (ADR Miscellaneous Provisions) Regulations ( S.I. No. 289 of 2007 ), a carrier within the meaning of Regulation 3 and a consignor within the meaning of Regulation 4 of those Regulations,

(III) the European Communities (Transport of Dangerous Goods by Rail) Regulations 2003 ( S.I. No. 701 of 2003 ), any participant, within the meaning of Regulation 9, to whom Regulation 10, 11, 12, 13, 14, 15, 16 or 17, as the case may be, applies,

(IV) the European Communities (Vessel Traffic Monitoring and Information System) Regulations 2004 ( S.I. No. 81 of 2004 ), the operator, agent or master of a ship within the meaning of Regulation 3 of those Regulations,

(V) the Genetically Modified Organisms (Contained Use) Regulations 2001 ( S.I. No 73 of 2001 ), the user within the meaning of Regulation 3 of those Regulations,

(VI) the Genetically Modified Organism (Deliberate Release) Regulations 2003 ( S.I. No. 500 of 2003 ), the notifier within the meaning of Regulation 3 of those Regulations, and

(VII) Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 5 on the management of waste from extractive industries;

“protected species and natural habitats” means—

(a) the species mentioned in Article 4(2) of the Birds Directive or listed in Annex I thereto or listed in Annexes II and IV to the Habitats Directive, and

(b) the habitats of species mentioned in Article 4(2) of the Birds Directive or listed in Annex I thereto or listed in Annex II to the Habitats Directive, and the natural habitats listed in Annex I to the Habitats Directive and the breeding sites or resting places of the species listed in Annex IV to the Habitats Directive;

“public authority” means:

(a) a Minister of the Government,

(b) a local authority within the meaning of the Local Government Act 2001 (No. 37 of 2001),

(c) the Commissioners of Public Works in Ireland,

(d) a harbour authority within the meaning of the Harbours Acts 1946 to 2005,

(e) a harbour company under the Harbours Acts 1996 to 2005,

(f) the Health Service Executive,

(g) a board or other body (but not including a company under the Companies Acts) established by or under statute, or

(h) a company under the Companies Act, in which all the shares are held—

(i) by or on behalf of or jointly with a Minister of the Government,

(ii) by directors appointed by a Minister of the Government, or

(iii) by a board, company or other body referred to in paragraph (g) or subparagraph (i) or (ii);

“remedial measures” means any action, or combination of actions, including mitigating or interim measures to restore, rehabilitate or replace damaged natural resources or impaired services, or to provide an equivalent alternative to those resources or services as foreseen in Schedule 2;

“Statutes of Limitations” means the Statute of Limitation 1957 (No. 6 of 1957), the Statute of Limitations (Amendment) Act 1991 (No. 18 of 1991) and the...