The Environmental Damage (Prevention and Remediation) (England) Regulations 2015

PART 3 Remediation

Assessment of damage

17.  Where damage has been caused and there are reasonable grounds for believing that it is, or may be, environmental damage, the enforcing authority must establish whether or not it is environmental damage.

Determining liability to remediate

18.—(1) If the enforcing authority establishes that the damage is environmental damage, it must notify the responsible operator—

(a) that the damage is environmental damage;

(b) that the responsible operator’s activity was a cause of the environmental damage;

(c) that the responsible operator must submit proposals, within a time specified by the enforcing authority, for measures that will achieve the remediation of the environmental damage in accordance with Schedule 3; and

(d) that the responsible operator has a right to appeal.

(2) The enforcing authority may withdraw the notification if it is satisfied that the notification should not have been served or that an appeal against the notice is likely to succeed.

Appeals against liability to remediate

19.—(1) A person served with notification under regulation 18 may appeal against that notification by giving notice of appeal to the Secretary of State.

(2) Notice of appeal must be served within 28 days of service of the notification under regulation 18 unless the time limit is extended by the Secretary of State.

(3) The grounds of appeal are that—

(a) the operator’s activity was not a cause of the environmental damage;

(b) the enforcing authority has acted unreasonably in deciding that the damage is environmental damage;

(c) the environmental damage resulted from compliance with an instruction from a public authority (except an instruction relating to an emission or incident caused by the operator’s own activities);

(d) the responsible operator was not at fault or negligent, and the environmental damage was caused by an emission or event expressly authorised by, and fully in accordance with the conditions of a permit listed in Schedule 4;

(e) the responsible operator was not at fault or negligent, and the environmental damage was caused by an emission or activity, or any manner of using a product in the course of an activity, that 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; or

(f) the environmental damage was the result of an act of a third party and occurred despite the fact that the responsible operator took all appropriate safety measures.

(4) Schedule 5 contains procedures for the appeal.

(5) The person deciding the appeal may confirm or quash the notice.

Remediation notices

20.—(1) Once it receives the proposals from the responsible operator (or, if a proposal is not received within the specified time limit, at any time after the time limit has expired), the enforcing authority—

(a) must, so far as is practicable, consult—

(i) any person who has notified an enforcing authority under regulation 29; and

(ii) any person on whose land the remedial measures will be carried out; and

(b) may consult any other person appearing to the enforcing authority to be necessary.

(2) Following consultation the enforcing authority must serve a notice on the responsible operator that specifies—

(a) the damage;

(b) the measures necessary for remediation of the damage, together with the reasons;

(c) the period within which those measures must be taken;

(d) any additional monitoring or investigative measures that the responsible operator must carry out during remediation; and

(e) the right of appeal against the notice.

(3) Failure to comply with a remediation notice is an offence.

Appeal against a remediation notice

21.—(1) A responsible operator may appeal against a remediation notice on the grounds that its contents are unreasonable by giving notice of appeal to the Secretary of State.

(2) An appeal may only be brought against those parts of the remediation notice that specify requirements which are different from proposals submitted by the responsible operator in accordance with a notification under regulation 18(1)(c).

(3) Notice of appeal must be served within 28 days of service of the remediation notice unless the time limit is extended by the Secretary of State.

(4) Schedule 5 contains procedures for the appeal.

(5) The Secretary of State or the person appointed by the Secretary of State to deal with the appeal—

(a) may confirm, vary or quash the notice;

(b) must give written notification of the final decision and the reasons for it; and

(c) may, if appropriate, add further compensatory remediation requirements necessitated by the lapse of time since the remediation notice was served.

(6) A remediation notice need not be complied with pending determination of an appeal unless the person hearing the appeal directs otherwise.

Further provisions on remediation notices

22.  An enforcing authority may serve further remediation notices at any time while remediation is being carried out or, if remediation has not been achieved, at the end of the remediation period, requiring further or different remediation.

Action by the enforcing authority

23.  Once it has established that, in its opinion, damage is environmental damage, the enforcing authority may carry out any reasonable works—

(a) at any time if a responsible operator cannot be identified;

(b) if a responsible operator fails to comply with a remediation notice, whether or not an appeal is pending; or

(c) if the responsible operator is not required to carry out remediation under these Regulations.