The Implementation of the

Environmental Liability Directive in the

Netherlands

dinsdag 20 mei 2014

Key issues and challenges

Co Molenaar, Ministry of Infrastructure and Environment

Edward Brans, Pels Rijcken & Droogleever Fortuijn

NICOLE, May 15th 2014, Berlin

Ehp.Brans@PelsRijcken.NL

Objective ELD:

To prevent and remedy environmental damage by establishing a framework on environmental liability based on the polluter pays principle.based on the polluter pays principle.

- Preventive action (art. 5 and 8)

- Remedial action (art. 6, 7, 8 and Annex II)

Key features of the regime:

• Unlimited liability

• Occupational activities

Any activity carried out in the course of an economic activity, business or undertaking, economic activity, business or undertaking, irrespective its profit or non-profit character

• Strict liability / Fault based liability

- Dangerous activities - related to relevant EU legislation (Annex III (appr. 4.500 comp.).

- Non-dangerous activities (Non-annex III)

Recoverable types of harm:

Dangerous activities (Annex III / strict liability)

- Damage to protected habitats and species (Wild Bird and Habitats Directives)

- Damage to certain waters (Water framework Directive) - Damage to certain waters (Water framework Directive) - Land contamination

Non-dangerous activities (Non-annex III / fault liability)

- Damage to protected habitats and species (Wild Bird and Habitats Directives)

Land contamination

Damage threshold ELD

Land damage:Only covered if the land contamination creates a “significant risk of human health being adversely affected”.

- No reference to risks for natural resources;- Limited guidance in ELD regarding applicationthreshold criterion

Scope ELD:- Only recoverable if beyond a certain threshold- Is caused after 30 April 2007- No diffuse pollution (unless causal link can be established (ECJ 9 March 2010, C-378/08))

Land contamination

Dutch Soil Protection Act (SPA)

Section13 SPA

Any person performing acts on or in the soil [..] and who is aware or can reasonably suspect that such acts are likely to contaminate or impair the soil shall be obliged to take any measure that can be reasonably required of him in order to prevent the soil being so contaminated or impaired or, in the event of such contamination or impairment occurring, to take remedial action and to limit and to eliminate as much as possiblethe contamination or the impairment or the direct consequences thereof. If the contamination or impairment is the result of an unusual event, the measures shall be taken forthwith.

Land contamination

Dutch Soil Protection Act (SPA)

Section 13 SPA compared with the ELD

� Section 13 SPA applies to incidents causing land damage from 1 January 1987 onwards;damage from 1 January 1987 onwards;

� Not limited to land damage causing human health risks;

- Also damage to ecosystems,- damage to groundwater.

� Not limited to occupational activities;� Detailed guidance available on threshold criteria;� No liability for interim losses.

Land contamination

Dutch Soil Protection Act (SPA)

Section 13 SPA compared with the ELD

� With regard to land damage, ELD does not add much.

� Problems:� Problems:- discussion is possible on what are considered to

be reasonable measures of remediation (costs (MTBE/ETBE))

- more than one public authority has to ability to apply Section 13 SPA;

- bankruptcy potential liable person;- Limited insurance (no obligation financial security)

Water damage

Damage threshold ELD

Water damage:Only if the damage is of such a significance that it “adversely affects the ecological [..] status and/or ecological potential” of the waters covered (WFD)ecological potential” of the waters covered (WFD)

Sections 6.2 and 6.8 2009 Dutch Water Act:- Comparable with Section 13 SPA;- Limited experience- No experience with interim losses- ELD is valuable because of it’s threshold criterion

(WFD)

Damage to protected habitats and species

Damage threshold ELD

Damage to protected habitats and species:Only covered by the ELD if the damage is such that it has “significant adverse effects on reaching or maintaining the “significant adverse effects on reaching or maintaining the favourable conservation status” of the habitats and species concerned (Habitats Directive)

Baseline condition

Significance is to be assessed with reference to the baseline condition:

“the condition at the time of the damage of the natural resources and services that would have existed had the damage not occurred, estimated on the basis of the best information available”.

•Natural fluctuations, seasonal factors and or other (natural) causes to be taken into account? Yes, it is not a penal law regime.

•Services: functions performed by a natural resource for the benefit of another natural resource or the public

How to determine the baseline condition?

Wild birds and Habitats Directives and WFD:- Ms are required under these Directives to collect data on the conservation and biological status of certain natural habitats and species and on the quality of surface- and groundwaters.species and on the quality of surface- and groundwaters.

Data will become available on a natural resources level.

Under Wild Birds and Habitats Directives (and WFD) no requirement to collect data on human use services.

No or very limited data available on the services the natural resources covered under the ELD provide to humans

Tasks public authorities

- Duty to establish which operator caused the damage;

- Assess the significance of the damage;

- Determine which remedial measures are to be taken (Annex

II proposals);

- Require the operator to take the necessary remediation

measures

- Take the measures themselves if the operator fails to comply

with the request

- cost recovery-rule (art. 8(1) ELD)

- Exclusions (art. 8(2) ELD)

A B

Baseline

Service A B

Release Restoration / CompensationProgram

ServiceLevel

Time

Recovery w ith Restoration

Natural Recovery

Objective remediation (Annex II ELD)

• primary remediation measures (any remedial measure which returns the damaged natural resources and/or impaired services to, or towards, baseline condition)condition)

• compensatory remediation measure (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 full effect)

Implementation ELD in the Netherlands. Some conclusions

- ELD introduces new tasks for public authorities (and

operators)

- ELD does not add much where it concerns soil pollution.

Different for damage to protected habitats and species;

- In the Netherlands often more public authorities have the

ability to act;

- Are public authorities sufficiently trained?

- Cost-recovery-rule / exceptions and bankruptcy

- What if it appears not to be an ELD case and measures were

taken on behalf of public authorities?

- What if the remediation measures taken appear to be less

successful?