Screening Regulatory Impact Analysis - Environmental Liability Directive
Summary of Responses
1.
Introduction
In July 2007, the Screening Regulatory Impact Analysis on the Environmental Liability Directive
was published by the Department of the Environment, Heritage and Local Government on its
website (www.environ.ie). Comments were invited from interested parties.
At the same time, the Department invited comments and circulated a copy of the consultation
paper to over 140 relevant stakeholders including Government Departments/Offices, State
Agencies, Regulatory Authorities including local authorities, environmental NGOs,
representative groups and associations, private enterprises and private individuals.
This document is a narrative overview of responses received as part of that consultation
process. It does not purport to be a comprehensive summary of those views, but rather it
identifies common points and issues which have implications for transposition. Interested
parties are advised to read the full text of respective responses to get a comprehensive account
of the views expressed by the various respondents.
2.
Overview of Responses
29 responses were received by the Department of the Environment, Heritage and Local
Government in response to its Screening Regulatory Impact Analysis (RIA) on the
Environmental Liability Directive (ELD).
The full list of respondents are outlined at Appendix 1. The respondents are categorised as
follows:
Government Departments/Offices (11);
State Agencies/Regulatory Authorities (10);
Representative Groups/Associations (4);
Private Enterprises (2); and
Non Governmental Organisations (2).
The acronyms used in referring to some of these respondents are also detailed in Appendix 1.
In general, the responses welcomed the opportunity to comment and noted that the
consultation paper provided a well structured and comprehensive review of the main aspects
and issues concerned with the transposition of the ELD. Some respondents welcomed the
transposition of the ELD - the Regional Fisheries Board envisaged significant benefits for the
fishery service while BwI emphasised the urgent need for new legislation to ensure better
protection for the natural environment than currently exists in Irish law. However, the IFA
expressed their concern at the implications of the ELD for the competitiveness of Irish
agriculture, and DAFF stated that implementation could potentially have more of an impact on
the agricultural sector than other sectors given the sector's close relationship with the
environment. The EPA commented that, additional resources would be required were the
Agency adequately to fulfil the competent authority role.
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3.
Summary of Analysis of Responses
Most respondents focussed their comments on the adoption or otherwise of the discretionary
provisions contained in the ELD, while others focussed on specific Articles of the ELD. The
responses submitted are presented below under 3 broad headings, reflecting the general
structure of the consultation paper:
Content of the RIA;
Exceptions and Discretions; and
Legal and Operational Issues.
4.
Content of the RIA
The RIA outlined 3 options for transposing the ELD and identified the costs, benefits and
impacts involved in pursuing these options. Enforcement provisions were also outlined in the
RIA. Some respondents commented on specific aspects of the RIA and these comments are
summarised below.
Options
IBEC noted that Option 2 would pose very significant difficulties for many enterprises and could,
in some instances, impact on their commercial viability. Such a course of action would ignore,
and possibly conflict with, existing regulatory regimes in the views of IBEC.
Of those respondents who commented on the options for transposing the ELD, all respondents
agreed with Option 3 for the transposition of the ELD with some seeking a variation on the
discretionary provisions to be adopted. Although the other respondents did not specifically
comment on Options 1, 2 or 3, most of these respondents indirectly agreed with Option 3 by
their support for the adoption of the discretionary provisions.
IBEC, in its response, accepted that the requirements of the ELD overlap with existing national
legislation making transposition extremely complex and stated that transposition should build
on existing legislation. It considered that the ELD should be implemented in a balanced,
reasonable and predictable manner particularly regarding the discretions available.
The IFA, on the other hand stated that while it did not purport to conform to a "do nothing"
scenario, it considered that the present level of regulation imposed on farmers was sufficient to
meet the requirements of the ELD. The IFA also stated that the ELD also represented a
duplication of existing high environmental standards and regulations currently in place in Ireland
for uncertain environmental or biodiversity gains. DAFF felt that the Directive was intended to
address identified cases of environmental damage or potential damage and they expressed the
view that it should not be interpreted as overlapping or adding to the existing body of crosscompliance and legislative environmental requirements applying to normal agricultural or
forestry activity, carried on in accordance with those requirements.
Costs, Benefits and Impacts
The Department of the Taoiseach suggested that a separate analysis of the costs, benefits and
impacts of each option including supporting information from past experience and data on
previous incidents of pollution be provided to facilitate comparison across options and to give
greater clarity to this analysis. They also recommended the quantification of such costs.
The IFA, in their response, highlighted the additional costs to the agricultural industry being
imposed by the ELD. DAFF stated that given the high insurance costs that prevail in Ireland,
the level of preventative and remedial costs that are applied for the purposes of this legislation
could have indirect implications for competitiveness (particularly relative to non EU countries).
They considered that this would have implications for agriculture as well as all sectors and
needed to be considered carefully.
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IBEC, in their response, noted that the ELD would impose additional compliance burdens on
operators, but its impact on national competitiveness could be minimised by adopting the permit
and state-of-the-art defences. They stated that Irish enterprises have performed exceptionally
well in meeting and exceeding their environmental responsibilities and should receive due
recognition for this success. As such, they felt that it was essential that the legislation be
transposed in a manner that reflects and rewards the efforts made by business to date. They
also mentioned that the RIA contained no evidence to support the statement about the costs of
meeting the requirements of the ELD being offset by lower insurance costs.
Enforcement
The Department of the Taoiseach queried why there would be no enforcement involved if
Option 2 were chosen, and the need to provide enforcement provisions involving criminal
sanctions.
The HSA referred to the burden of proof in proving environmental damage had occurred; that
this would rest with the regulatory authority and could be difficult to establish when untoward
activities had taken place. Significant resources would be required to prepare files of evidence
for court proceedings and a lot of work, time and effort would be required in bringing legal
proceedings which could sometimes result in minimal court fines.
The HSA also suggested that on-the-spot fines for breaches of environmental conditions of a
permit/licence/authorisation would be a useful tool to reduce non-complacence with lower
threshold breaches. They noted that a culmination of these type of breaches could result in
long-term environmental damage.
IBEC, in their response, stated that business fully accepted that demonstrable deterrents and
sanctions must underpin a regulatory environment, but that the introduction of criminal
sanctions must be accompanied by an appropriate burden of proof and the right of appeal.
They considered that the regulatory regime being introduced should be regularly checked
against international benchmarks to ensure that our application was not disproportionate.
The NRA queried whether criminal offences would be based on strict liability and if these would
be proportionate and constitutional.
The EPA referred to implementation of the ELD requiring the cooperation and assistance of a
number of agencies and Departments and the powers available under section 63 of the
Environmental Protection Agency Act 1992, as amended with respect to monitoring the
performance of local authorities. They considered that other additional authorities should be
brought within the scope of section 63, if the EPA were to be designated as the competent
authority. The EPA also highlighted the difficulties being experienced in the local government
sector with respect to access to land and directing third parties to undertake work. They
considered that sufficient powers should be given to the competent authority to counteract
similar problems arising in the implementation of the ELD.
5.
Exceptions and Discretions
The RIA discussed the circumstances where operators would be exempt (referred to as
"exceptions" in the ELD) from liability. These exceptions include mandatory exceptions and
other exceptions which are subject to the discretion of Member States and these were
discussed in Appendix 3 of the RIA. Comments were submitted with respect to both the
mandatory exceptions and the discretionary provisions.
Mandatory Exceptions - Article 4
The Department of Defence, in their response, referred to specific activities of the Defence
Forces which relate to serving national defence or international security, and they considered
that such activities should be covered by the mandatory exceptions outlined in the RIA.
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The HSA queried whether drainage activities would be exempt as activities the sole purpose of
which is to protect from natural disasters.
IBEC supported the implementation of the exceptions outlined in Article 4 and a government
commitment for an ongoing review of the direct and indirect implications following
implementation of those international conventions which have yet to be ratified.
Discretionary Provisions
The Department of the Taoiseach suggested that the costs and benefits of adopting each of the
discretionary provisions should be explicitly analysed and outlined so as to ensure that the
decisions taken are evidence-based rather than pragmatic.
Extension of Habitats and Species - Article 2(3)(c)
The RIA outlined the impact of exercising this discretion which would extend, for the purposes
of the ELD, the species and habitats listed in the Annexes of the Birds and Habitats Directives
to other species and habitats covered specifically by Irish legislation.
Of those respondents who commented on this specific discretionary provision, most felt that the
habitats and species should be extended. Some of these respondents referred to the inclusion
of specific habitats and species such as additional freshwater, marine species, marine habitats,
inland fisheries habitats and particular fish species, red-listed and amber-listed birds as
identified by the Irish Birds of Conservation Concern, species placed on lists for protection,
Natural Heritage Areas, National Parks, nature reserves, sites and heritage centres. BwI
believed that extending protection to Irish species would enforce the existing protection that is
afforded to these species but which in their view is inadequate.
IBEC and DAFF, on the other hand felt that the provisions of the Directive should not apply to
habitats and species not listed in the Annexes of the Birds and Habitats Directives and that
resources should be prioritised for those species most in need of protection, including those
identified as threatened or vulnerable at the EU level.
The NRA, in its response, felt that if the ELD was extended to habitats and species beyond
those listed in the Birds and Habitats Directives there would be significant cost and time
implications for the planning and construction of national road schemes and for development
generally.
One respondent queried whether sites designated for protection under other legislation (e.g.
Natural Heritage Areas and Proposed Natural Heritage Areas, Nature Reserves, Refuges for
Flora and Fauna) but providing similar/equivalent purposes as laid down in the Birds and
Habitats Directive, could already be covered by the ELD. That respondent also suggested that
the position of fish species, with respect to their protection afforded by the ELD and Irish
legislation should be outlined.
Permit Defence and State-of-the-art Defence - Article 8(4)
Adopting the permit defence would mean that an operator would not be held liable for the costs
of remediating environmental damage resulting from an activity if the operator acted fully in
accordance with the terms and conditions of a licence and if the operator did not act
negligently. Adopting the state-of-the-art defence would mean that an operator should not be
held liable for remediating environmental damage where the operator had acted (including the
use of a product) in a manner consistent with a reasonable expectation of no environmental
damage occurring in light of the state of scientific and technical knowledge then prevailing.
Of those respondents who commented on these specific discretionary provisions, all but two
respondents supported the adoption of these defences. The Loughs Agency stated that it
would not necessarily favour exempting operators from liability. DAFF stated that adoption of
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the permit defence could transfer an inordinate and far-reaching amount of responsibility for the
activity to the regulatory authority. However, they recommended the adoption of the state-ofthe-art defence. Some respondents noted that the consequences of the adoption or otherwise
of these defences needed careful consideration.
The implications for regulatory authorities were identified by some respondents. These include:
expertise would be required in issuing a licence/permit/authorisation so as to ensure that the
terms of the licence are correct; a licence could become very restrictive such that it would be
unworkable in practice; the information submitted in an application for a licence should be in
accordance with certain protocols or test guidelines; the need to modify a licence following an
incident of environmental damage; the liability for damage following the issue of a licence
where environmental damage occurred due to an omission or an inclusion of an item in the
licence, and if the regulatory authority should be liable for the damage caused and the
remediation of such damage in such instances; and insufficient assessment and evaluation by
a regulatory authority in issuing the licence
The implications for businesses were also highlighted. Respondents referred to: business'
need for legal certainty so as to carry out their activities in a viable manner; the potential for
discouraging companies to set up businesses in Ireland – including activities which are
necessary for the protection of the environment such as waste management; the regulatory
certainty required to promote investment and innovation; reasonable and balanced provisions
that promote predictability and provide the appropriate incentive for responsible parties to focus
on prevention; the extent that businesses would be allowed to pollute and what would go
beyond those limits; the possible availability of insurance products and the increase in the cost
of insurance products covering environmental risks; and the adverse knock-on effects for
industry and consumers.
DAFF felt that provisions in existing environmental protection legislation were stricter where the
mere possession of, or compliance with, a licence would not necessarily confer immunity on a
person who causes or permits any polluting emission from liability whether under legislation or
common law.
The possible implications for the environment were referred to by one respondent who noted
that the incentive to restore certain environmentally damaged sites would be removed by the
adoption of these defences thus undermining the ultimate aim of the ELD. That respondent
suggested that in such a situation an option would be for State authorities to take responsibility
for restoring the environmentally damaged sites where the defences would apply.
Questions were raised by respondents as to where the burden of proof would lie - industry, the
operator or the competent authority, and who would decide on the appropriate expertise to rely
on in state-of-the-art defence cases?
Third Parties - Request for Action - Article 12(5)
This discretion is about third parties having a statutory right to engage with a competent
authority in cases of an imminent threat of environmental damage. Exercising this discretion
would mean that third parties would not have a right formally to engage with the competent
authority, while not adopting would mean that they would have a right formally to engage with a
competent authority in cases of imminent threat.
Of those respondents who commented on this specific discretionary provision, all but two
respondents supported enabling third parties to request action in the case of imminent threat.
The Department of Health and Children did not support it as they felt that dealing with third
parties in the case of an imminent threat might delay action to prevent greater environmental
damage. IBEC, in its response, stated that the enterprise sector believed that a correct balance
needed to be struck between the benefits of providing such a statutory right and possible
negative impacts which could accrue. They felt that the appropriate solution would be to
provide greater publicity for the extensive existing arrangements by which anyone could notify
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the EPA and other bodies of significant environmental concerns, rather than invoking the
'request for action' discretion. IBEC also referred to the Aarhus Convention and its access to
justice provisions and cautioned against duplication. They noted that allowing third parties to
request action could lead to recurring malicious targeting of operators which, even if disproved,
could be costly for business operations and reputation; and they suggested that if such rights
were to be provided the competent authorities should be given significant discretion in how they
respond.
The restrictions outlined in the RIA in respect of this discretionary provision (i.e. where request
for action is not vexatious, frivolous or without substance or foundation) were specifically
supported by some respondents. BIM felt that, upon notification of environmental damage by a
third party, the competent authority should asses the cause of damage in the context of the
permit and state-of-the-art defences as part of the action taken and before proceeding further
with the request for action.
One respondent felt that it may prove difficult to demonstrate that certain complaints were not
vexatious without firstly spending a lot of resources and that, as such, allowing third parties to
request action would necessitate resources for investigations. Another respondent suggested
that a refundable administrative charge could assist in weeding out the vexatious requests and
noted that decisions on vexatious requests would be subject to review by the courts.
The costs incurred by third parties in requesting action (and whether such costs were included
in the Directive's definition of 'costs') was raised by another respondent.
Sewage Sludge - Annex III
Exercising this discretion would mean that the spreading of sewage sludge from urban waste
water treatment plants, treated to an approved standard, for agricultural purposes, would not
become an Annex III activity and as such the relevant operator would only be liable if s/he was
at fault/negligent and if s/he caused damage to protected species and natural habitats.
The exclusion of this activity from Annex III received mixed views with a majority favouring the
exclusion of the activity.
In opposing the exclusion of this activity, the HSA said that: Irish legislation does not indicate
the level of treatment required (pathogen removal/sterilisation); there is insufficient
information/research available in relation to the level if any of endocrine disrupters in sewage
sludge and their impacts on human health and the environment; and there is insufficient
information in relation to the availability of nutrients in sewage sludge for agricultural purposes.
Dublin City Council, on the other hand considered the activity to be one which is not of high risk
to the environment and IBEC considered that the Irish standards are based on best
international practice and are in excess of those set by the EU. Both of these supported the
exclusion of the activity from Annex III.
6.
Legal and Operational Issues
The RIA discussed the legal and operational issues presented by the Directive. These were
outlined in Appendix 4 of the RIA. Comments were submitted with respect to some of these
Articles and include other miscellaneous comments - these are set out below.
Environmental damage - Article 2(1)
The HSA noted that Irish legislation defines environmental pollution and not environmental
damage and questioned whether there would be some form of linkage between the two
definitions. It also noted that water bodies less than 10 km2 were excluded from the Water
Framework Directive and questioned the ELD's implications for such water bodies; and that
sludge from urban waste water treatment plants could cause land damage.
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DAFF, in its response, noted that some of the information required to determine significant
adverse changes to baseline conditions was not known and in some cases information of the
baseline condition could be lacking.
The NRA queried whether there was sufficient data available to demonstrate the favourable
conservation status of the various species and natural habitats throughout the country. They
also queried whether it was possible that some protected species and habitats may not reach
favourable conservation status.
Guidance on Environmental Damage and Remedial Measures - Articles 2(1), 3 and 7, and
Annex II
BIM agreed that the scheme developed for implementation and enforcement of the ELD should
be as clear as possible so that operators would be aware of their responsibilities and
consequences of causing environmental damage.
ELS strongly supported the proposed production of guidance documents for operators and the
public on how the competent authority would assess environmental damage and on the
identification and evaluation of remedial measures, including the development of risk
assessment procedures in the case of land damage. They also strongly supported the
suggestion in the RIA that such guidance should be produced, inter alia, having regard to the
outcome of research work being conducted at EU level. ELS also suggested that the
Department request the European Commission to provide such guidance on an EU-wide basis.
The use of the proposed guidance in future criminal proceedings was raised by another
respondent.
ELS also suggested that the practical examples outlined in the RIA should be further developed
to assist in the development of a coherent strategy to evaluate whether environmental damage
falls under the ELD.
Protected species and natural habitats - Article 2(3)
DAFF considered that the protection afforded to the species of animals and plants listed in the
Annexes to the Birds and Habitats Directives wherever they occur throughout Ireland was a
significant development and which would have serious implications for forestry and other land
uses. They stated that baseline information on the existence, location and extent of these
habitats and species outside of designated areas was not good. They considered that if a
habitat or species was overlooked or was not picked up in the course of existing inspection
and/or screening regimes, environmental damage could occur unwittingly and the liability
provisions of the ELD would apply.
The NRA, in its response, noted that the exceptions provided in the Directive for damage to
protected species and habitats (Article 6(3) and 6(4) of the Habitats Directive refers) only apply
to Natura 2000 sites, and as such some habitats and species outside Natura 2000 sites would
have more protection than those within Natura 2000 sites.
Conservation Status - Article 2(4)
DAFF, in their response, felt that the conservation status of habitats and species should be
known as reports were required to be submitted to the EU in 2007. However, they
acknowledged a lack of detailed information in some cases. They also felt that the accessibility
of this data on a national or site basis could be an issue. In relation to the territorial aspect of
the definition of conservation status, they queried the implications where a species is classified
as favourable conservation status in Ireland but unfavourable elsewhere in the EU.
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Operator - Article 2(6)
The IBF suggested that, in defining operator, it should be made clear that banks could not be
classified, expressly or by implication, as operators liable for damage to the environment where
they take control of a facility under insolvency provisions. Their view was that liability should
rest with the entity (or insolvency estate) that would otherwise be classified as the operator.
IBEC considered that the temptation to expand the operator definition to include deep pocket
entities should be avoided.
The NRA, in its response, suggested that there may be benefit in using the term 'occupier' as
Irish case law has already teased out this definition.
Natural resource - Article 2(12)
BwI suggested that the definition of natural resources should include all biodiversity and not just
protected species.
Costs - Articles 2(16), 8 and 10
The need for an environmental fund, sinking fund or public fund was raised by a number of
respondents. Such a fund could serve to: offset the costs to the State for environmental
damage; cover costs of an authority for preventive measures; and cover the costs of orphan
pollution incidents where neither the persons responsible nor the landowners could be legally
identified satisfactorily.
The EPA, in their response, expressed concern at the exposure of the competent authority, and
ultimately the Exchequer to unquantifiable liabilities in instances where the competent authority
has had to take and fund the necessary preventive and remedial measures itself. It suggested
that the practical operation of such instances would need further clarification and the detail
should be provided in the proposed regulations transposing the ELD.
The HSA noted that regulatory authorities would incur costs in relation to investigations and
monitoring and not just in liaising with the competent authority especially if the
permit/authorisation/licence was issued by that regulatory authority.
IBEC, in their response, considered that cost recovery mechanisms should not be specified
within implementing regulations as the process should be flexible enough to fit with a variety of
scenarios and business practices.
Scope - Articles 3 and 16
DCENR, in their response, referred to the Mining Waste Directive and sought clarification on
whether those waste facilities, operating post 1 May 2008, would be considered as Annex III
activities; and whether current operators on closed extractive industry waste sites operating
new and different activities would be liable for environmental damage. It also noted that
elements of a strict liability regime were already applicable to working minerals; the person
causing damage to the surface of any land or to mineral deposits or to water supplies or
causing a nuisance was directly, or indirectly liable to pay compensation
Waterways Ireland, in their response, sought to have the works required for the purpose of
carrying out its statutory functions declared as exempt operations for the purposes of the ELD.
IBEC suggested that for damage to protected species and natural habitats, strict liability should
be implemented for Annex III activities, and fault-based for all other activities; in relation to
water and land damage, IBEC considered that strict liability should be limited to those Annex III
activities.
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Cost allocation in cases of multiple party causation - Article 9
One respondent sought clarification on whether a proportional or joint and several regime is to
be applied in Ireland. IBEC supported the option of apportionment of costs in multi-party cases
based on proportionate liability as they felt that this would be a logical extension of a risk based
approach to legislation and an application of the polluter pays principle. They also considered
that joint and several liability would deter insurers from entering the market.
Competent authority - Article 11
Department of the Taoiseach noted that it was not clear what criteria would be taken into
account in deciding on designation of the ELD's competent authority. They also considered it
useful to outline the various issues involved in determining whether to designate a single
competent authority or multiple authorities, and to explore in more detail the pros and cons of
designating the EPA as competent authority. BwI felt that careful evaluation of the competence
of the existing enforcement authorities was required to enable assessment of their ability to
enforce the ELD and assess the resources required to effectively enforce it.
The EPA, in their response, noted that, if they were to be designated as the competent
authority, this would necessitate the allocation of additional resources. They also stated that
the duties and responsibilities to be conferred on the competent authority and in particular, the
identification of the appropriate remedial measures would require significant resources in terms
of expenditure, time and expertise.
In addition, the EPA expressed concern in having to rely on external expertise, particularly in
relation to establishing environmental damage with respect to species and habitats and they
recommended that such expertise should be available within the EPA, if they were to be
designated as the competent authority.
One respondent considered that the designation of one single competent authority could
provide a more consistent application of the provisions of the ELD. It could provide more
uniformity in the decisions regarding the preventive or remedying measures, without prejudice
of the support of other regulatory authorities when necessary. In situations where damage had
been caused to different elements of the environment (water, land, etc.), it felt that these could
be better conducted by a single authority rather than by several authorities which would deal
with the different aspects.
DAFF also recommended that a single regulatory authority be designated as the Directive was
a complex piece of legislation and implementation of its requirements would require certain
expertise - very specific expertise in assessing damage and fulfilling other aspects of the
Directive as well as legal expertise, and they felt that it would make sense that such expertise
would be developed in one regulatory authority.
A number of respondents supported and considered the EPA to be the most appropriate
competent authority for the ELD. BIM noted that this combined with a local/regional input from
local authorities or other regulatory bodies with a regional presence such as the Sea Fisheries
Protection Authority should provide good geographical knowledge and enforcement
capabilities, thereby ensuring that local needs would be addressed. The competent authority
should also draw on the expertise of other government departments and agencies to ensure fair
and efficient management and enforcement of the ELD. The NRA felt that as a significant
number of provisions relate to nature conservation there would have to be extremely close
liaison between the National Parks and Wildlife Service (NPWS) and the competent authority;
they queried whether NPWS would form part of the competent authority. Another respondent
queried if there was a danger that the EPA would be perceived as the judge, jury, prosecutor
(and possible even the defendant) in certain circumstances.
IBEC, in their response, did not see the need to establish a new competent authority as they
felt that the EPA was best placed for the role but consideration should be given as to how, and
to whom, an operator could appeal the requirement to carry out preventative or remediation
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actions and that successful implementation by the EPA would be dependent on the necessary
resources being made available. IBEC also suggested that significant decisions on costs,
remediation and damage should be made collectively and not by any one individual in the
competent authority to increase consistency, repeatability, reliability, continuity and confidence.
They felt that this should improve consistency in the regulatory process and would give a
degree of predictability and certainty. In addition, they considered that a clear and transparent
mechanism was required to provide for speedy decisions and appeals, and that costs
associated with appeals should be set at such a level as to support genuine appeals, while
discouraging spurious appeals. The NRA queried if judicial review offered an appeal
mechanism.
The Regional Fisheries Boards, in their response, considered that their role in protecting
fisheries habitats was such that they should also be given subsidiary responsibilities in this
regard as it would enhance the efficiency of their existing service.
The Loughs Agency, in their response, suggested that they be considered as a competent
authority in the area of water quality, fisheries, marine and estuarine habitat, aquaculture and
shellfisheries within the Foyle and Carlingford catchments, and as such it would consider it
appropriate to designate multiple competent authorities.
Respondents noted that the relationship between the competent authority and other regulatory
authorities needed to be carefully developed. They felt that resources needed to be allocated
appropriately for both the competent authority and regulatory authorities as the latter could
require additional expertise to investigate complaints in relation to ELD.
The EPA, in their response, acknowledged the proposed establishment of support mechanisms
similar to those in place for emergency/contingency planning. However, the EPA noted that
they had limited interaction with the Framework for Major Emergencies and arrangements for
communication and interaction with other principle response agencies would need to be
considered further.
Financial security - Article 14
One respondent supported the approach outlined in the RIA that compulsory financial
instruments, beyond the scope of those currently required under IPPC and waste licensing
systems would not be incorporated into the transposition of the ELD, on the basis that it would
allow for the development of secure financial security arrangements supported by a competitive
and knowledge-based financial market.
Another respondent noted that the issue of financial security was crucial and while the
introduction of financial measures had run into difficulties in a number of Member States due to
the inability of indigenous and European insurers to provide the cover required, it was noted
that expertise and track record of financial provisions was available elsewhere.
IBEC, in their response, noted that they would strongly oppose the application of mandatory
financial security measures by the competent authority as they felt that insurers could not be
forced to offer products, and companies unable to purchase insurance could effectively be
criminalised. They also considered that businesses were best placed to take decisions about
all aspects of their operations, including the optimum means of covering liabilities.
The HSA queried whether consideration should be given to the provision of finance through
environmental bonds at planning/permit/licensing stage for all activities listed in Annex III. It
also suggested that the costs of environmental damage could be met by the provision of such
environmental bonds.
However, the provision of a bond or financial security instrument for local authority activities
was considered by one respondent to create an additional cost on the tax payer.
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Temporal Application - Article 17
The operative date of the ELD was questioned by one respondent; it felt that both the date of
the transposition into Irish law and 30 April 2007 could be considered as the operative date of
the ELD.
Other Miscellaneous Comments
Some respondents felt that definitions such as environment, groundwater, environmental
matrices, impairment of right, protected wild animal, protected wild bird, and habitat should be
included. A number of respondents queried the following points: the transfer of liability; flat-rate
calculation of costs; national standards for odour nuisance; availability of technical expertise for
assessing damage and remedial measures; costs and availability of insurance; impacts across
jurisdictions; proven environmental liability as a basis for civil liability; and EIA consent and its
use in the permit defence. Some other points which respondents felt should be addressed
include: the 'no net loss' principle; expansion of human health to include aquatic, insect and
animal health; and mitigating measures provided by a 'would be' respondent in the situation of a
case arising under the ELD should be taken into consideration in assessing the level of
punishment to be applied.
The experience of other areas for assistance in transposing or in considering implementation
issues was highlighted by some respondents, these include: implementation of the REACH
Regulation; dangerous goods legislation; environmental complaints systems; motor insurance
scheme; work place contact unit system; and health and safety legislation.
Additional clarity and guidance was requested on a number of items including the role of the
competent authority in applying discretion to cases where it takes preventative and remediation
measures itself; the process and timeframe for informing operators of preventative or
remediation actions being taken by the competent authority; the additional powers to be
conferred on the EPA; the powers, functions, duties and operation of the competent authority;
the procedure for identifying third parties in cases of environmental damage; how to go about
recovering costs from a third party (with particular emphasis on SMEs); and the interaction of
the ELD with existing legislation.
A number of other comments submitted had been addressed already in the consultation paper
and are not highlighted in this document.
Both IBEC and BwI sought consultation on the draft statutory instrument.
7.
Conclusion
Most respondents welcomed the opportunity to express their views on the consultation
document and the transposition of the ELD.
Some of the views expressed were conflicting, but nonetheless, the comments submitted will
assist in ensuring that the decisions being taken in transposing the ELD are better informed and
reflect the best possible approach. The revised version of the Screening Regulatory Impact
Analysis will address the issues raised as part of this consultation process.
It is hoped that, having engaged in this consultation process, it will assist in ensuring a greater
understanding, particularly amongst those being regulated, of the implications of this complex
and technical Directive. It should deliver a more effective transposition of the Directive with the
support of those being regulated.
Summary of Responses to Version 1 of the Screening RIA
page 11 of 13
Preparatory work on drafting the legal instrument for transposing the ELD is currently
underway. It is intended to circulate the draft regulations for comment (on the Department's
website) as soon as these are available.
Environment Policy Section
December 2007
Summary of Responses to Version 1 of the Screening RIA
page 12 of 13
Appendix 1
List of Respondents
The following are the list of those who submitted comments on the Screening Regulatory Impact
Analysis on the Environmental Liability Directive:
Acronyms
BwI
BIM
DAFF
DCENR
ELS
EPA
HSA
IBF
IBEC
IFA
NRA
Respondents
Animal and Plant Health Association
Birdwatch Ireland
Bord Iascaigh Mhara
Cavan County Council
Department of Agriculture, Fisheries and Food
Department of Communications, Energy and Natural Resources
Department of Defence
Department of Education and Science
Department of Environment, Heritage and Local Government (2 submissions)
Department of Health and Children
Department of the Taoiseach
Dillon Eustace Solicitors
Dublin City Council
Donegal County Council
Environmental Liability Services Limited
Environmental Protection Agency
Health and Safety Authority
Irish Banking Federation
Irish Business and Employers Confederation
Irish Farmers' Association
Loughs Agency
National Roads Authority
Regional Fisheries Board
Sligo Institute of Technology
Waterways Ireland
The Department of Social and Family Affairs, the Department of Community, Rural and Gaeltacht
Affairs, and the Revenue Commissioners also responded to the consultation paper but noted that
they had no observations to offer.
A copy of individual responses are available on request from: Environment Policy Section,
Department of the Environment, Heritage and Local Government, Room 2.45, Custom House,
Dublin 1. (email: environmentpolicy@environ.ie)
Summary of Responses to Version 1 of the Screening RIA
page 13 of 13