The Environmental Damage Regulations and the Role of Insurance
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Transcript of The Environmental Damage Regulations and the Role of Insurance
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The Environmental Damage Regulations and the Role of Insurance
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The Environmental Damage Regulations
Keith DavidsonDirector
ELM Law
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20 year wait
• 1989 – Proposal for Directive on Civil Damage
• 1990 – Environmental Protection Act
• 1993 – Green Paper Damage to the Environment
• 1995 – Environment Act introduced Part 2A
• 2000 – Part 2A EPA came into force
• 2004 – Environmental Liability Directive
• 2009 – Environmental Damage Regulations
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King of the liability regimes
Environmental Damage (Prevention and Remediation) Regs 2009
The 3 main regimes for dealing with land contamination have to be considered in the following order
1. Environmental Damage Regulations
2. Remediation under planning
3. Remediation under Part 2A
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Incidents caused after March 2009
Environmental damage or an imminent threat of environmental damage caused after March 2009
“sufficient likelihood that environmental damage will occur in the near future”
LA or EA can serve a PreventionNotice or Remediation Notice
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What is Environmental Damage?
Land - significant risk of adverse effects on human health[Part 2A – significant possibility of significant harm]
Water - lower the status of surface wateror groundwater
SSSI - adverse effect on theintegrity of the site
Species or habitat – significant conversation status effect
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Contaminated land – EDR or Part 2A?
NoYes
YesNo
Yes to all
EDR have to finda polluter or person who controlsthe activity
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Two–track liability regime
Schedule 2 Activities SSSIs, protected habitatsstrict liability if fault based liabilitynon compliant the operator intended to cause the damage or was negligent
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Schedule 2 Activities – strict liability
Permitted installations
Manufacture, use, storage of dangerous substances
Construction and demolition
Waste management operations
Mining
Water abstraction and impoundment
Transport of dangerous or polluting goods
Discharges into surface water or groundwater
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More expensive remediation
In addition to primary remediation costs (restore to condition before the damage) the clean up bill can include:
(a) Complementary remediation – if a habitat is destroyed, creating an equivalent habitat offsite
(b) Compensatory remediation – paying interim losses until the habitat is restored
(c) Regulator costs – legal, technical (investigation, assessment and monitoring)Administrative
(d) Easier for cost recovery
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New legal duty to report
No general obligation in Part 2A to alert regulators about contamination
Occupiers can deliberately choose not to notify regulators as voluntary disclosure can trigger liability
Fundamental shift in environmental law – in the event of environmental damage or an immediate threat of damage, the operator must immediately
(a) take preventative action (b) notify the regulator; and (c) carry out agreed remedial measures
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Example – manufacturing site
Powder coating discharged from spraying activities was discharged via a pipe outside the factory and adjoining land was covered in white powder
Interested party contacted the LA and requested action
Remediation Notice served on the operator who removed the contaminated soil and repaired the pipework
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Conclusions – impact of EDR
• More expensive remediation
• More expensive disputes
• More options for regulators
• Greater risks near SSSIs
• Need EDR audits
• Improved reporting procedures
• Review insurance protection
• Legal duty to take immediate action and report to regulators
• NGOs and adjoining landowners can initiate regulatory action
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The Role of Insurance
Duncan SpencerDirector
EDIA Limted
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Chemie – Pack, 2011
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Public Liability Policies
PL Cover• Exclude Pollution• Give Back “Sudden and Accidental” Pollution• Beyond Boundary of Insureds Property• Some Flexibility to Claim Response
However• Investment Income Down• Claims on the Up• Insurers Looking for Reasons NOT to Pay
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Sudden vs Gradual
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Example of a PL Policy Claim
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So What is Not Already Covered?
Gradual Pollution
Wear and Tear
Foreseen Events
Damage to Your Own Land
Damage to Non Owned Property
Damage to Fauna and Flora
Historical Events
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Environmental Insurance
Covers “Pollution” and “Environmental Damage”
Protects from 3rd Party Liabilities with some 1st Party Extensions
On and Off Site Clean Up and Restoration
3rd Party Property Damage and Bodily Injury
Business Interruption
Historical and Operational Liabilities
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Historical Liabilities
Merger and Acquisition
Risk Transfer for investors
Pension Fund Portfolios
Policy Period
Incident Claim
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Operational Liabilities
High Risk Activities
Cover gaps in PL Policies
Cover for New Legislation
Policy Period
Incident Claim
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Considerations
Do you rely on insurance to provide financial security?
Have you assessed if your insurance provides the correct protection?
Do your Clients understand this gap?
Does your supply chain understand this gap?
What happens if your supply chain fails because of this?
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Summary
Insurance Cover for Pollution
Poorly Understood
PL Potentially Provides NO
Cover
Environmental Insurance Should be Considered as
Part of a Risk Management
Strategy
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New Liability?
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Contact Details
Duncan [email protected]: +44 (0) 7825 884 222
Keith [email protected]: +44 (0) 7827 353 652