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The Environmental Liability (Scotland) Regulations 2009

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17.—(1) Subject to paragraphs (2) and (3), the competent authority shall recover from the operator who has caused the damage or the imminent threat of damage, the costs it has incurred in relation to preventive or remedial measures taken under these Regulations and any costs incurred by it under regulation 8(3) or 15(1).

(2) An operator shall not be required to bear the cost of preventive or remedial measures if it demonstrates that the environmental damage or the imminent threat of such damage—

(a)was caused by a third party 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.

(3) An operator is not required to pay the costs of remedial measures taken under these Regulations if it demonstrates that it 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 granted in relation to an activity in Schedule 1; or

(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 of the emission or activity.

(4) Paragraph (3) shall not apply where the damage was caused by the release of genetically modified organisms.

(5) Where the circumstances referred to in paragraph (2) apply, an operator who incurs any costs under these Regulations may recover those costs from the relevant third party or public authority as appropriate.

(6) Proceedings for recovery of costs may be initiated by a competent authority not more than 5 years after whichever is the later of the dates specified in paragraph (7).

(7) Those dates are—

(a)the date on which the competent authority completed any relevant measures taken under these Regulations;

(b)the date on which the competent authority identified the responsible operator.

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