A major problem with the Environmental Liability Directive (ELD) is its under-use in practise. Many industrial operators and other key stakeholders are unaware of the potential liabilities arising from environmental damage.
The main aims of the EcoLexLife project were to raise awareness of this directive and to build administrative capacity for its implementation in Slovenia. It ran between 2017 and 2019 and received EU funding under the LIFE programme.
The project successfully achieved these objectives, by reinforcing knowledge on environmental damage and the implementation of the directive among key stakeholders. It also increased transparency on environmental liability cases in Slovenia, by publishing a list of cases on the EcoLex Life Portal.
As the only such initiative in Slovenia, EcoLexLife contributed to the significant increase of registered environmental liability cases - from one in 2017, to 13 in 2019.
After receiving information from the project, 281 entities completed the risk assessment profile and 547 reported changing an internal practice.
EcoLexLife helped companies become aware of environmental liability requirements, remedy actions, business risks and possible preventative measures. This was particularly successful among SMEs. At the start of the project, 2/3 of SMEs had no knowledge of environmental legislation. At the end of the project, over 62% of SMEs were aware of their environmental responsibilities.
Through training and workshops, EcoLexLife built the capacity of public authorities in implementing the ELD.
The project developed a list of core problems regarding the implementation process of the ELD in Slovenia and identified possible solutions. This list received positive feedback from government ministries. The project also identified shortcomings of the ELD and provided a set of recommendations.
The project increased NGO’s awareness on environmental liability, notably through workshops.
EcoLexLife drafted an ELD insurance policy for Slovenia, paving the way towards the development of ELD specific insurance services.
Portuguese ELD Report 2020
The Portuguese Environment Agency (APA) published a national report on ELD cases in 2020, based on a National Communication System established in 2017.
National Communication System
Portugal’s ‘National Communication System’ is a fully operational, bilingual platform for the communication and registration of environmental damage and imminent threat of environmental damage.
It includes a dashboard of key indicators, in line with the new reporting requirements in the ELD. In addition to other relevant information, it covers
- the description of the damaging occurrence, the place of the occurrence and its surroundings
- the identification of the operator, the activity that caused the damage and the affected site
- the affected or potentially affected natural resources (land, surface waters, marine waters, groundwater, protected species and natural habitats)
- the remediation or preventive measures already taken or planned to be adopted
- financial security information and complementary observations
2020 Report on ELD Cases
Based on the National Communication System, the 2020 national report on ELD cases analyses relevant information concerning all environmental damage cases communicated in 2019. It includes
- a map of the reported cases
- cases reported under the scope of the ELD, and other cases collected through this National Communication System
- a classification of the cases pursuant to activities and affected natural resources
- the evolution and trends of the previous years since the entry into force of the ELD
The report also takes the new parameters for reporting under the ELD into account. The Portuguese Environment Agency plans to produce annual reports, depending on resources available.
The data collected for the report showed
- greater awareness of the environmental liability regime by operators and interested parties
- a greater number of environmental cases and a faster adoption of the adequate preventive and remedial measures by the operator
- that the communication platform of environmental damage and imminent threat developed for the report was considered user-friendly and pragmatic, and thus promoted communication of environmental cases
- that for all cases falling under the scope of the ELD (from August 2008 to the end of 2019) the operators had set up financial guarantees that allowed them to cover the necessary preventive and remedial measures
- that most ELD cases were caused by activities related to the manufacture, use, storage, processing, filling release into the environment and onsite transport of hazardous substances
74% of all cases concerned damage to both soil and groundwater, 21% affected soil only and 5% affected only water. No cases affecting protected species and natural habitats were reported.
Spanish tools for ELD implementation
Good implementation of the Environmental Liability Directive (ELD) is a challenge across the EU. Implementation can be significantly improved using software tools. In Spain, the Environmental Liability Law 26/2007 obliges certain operators to have financial security for environmental liabilities. The Spanish authorities have developed three tools (ARM-IDM-MORA), which help operators prepare environmental risk assessments and calculate the amount of mandatory financial security.
Description of the tools
Environmental Risk Assessments (ARM)
This tool helps operators prepare environmental risk assessments. These assessments outline potential accidents and the probability they will occur, and (where appropriate) the amount of pollutants that would be released. It helps operators to construct an “event tree analysis”, select the potential sources of danger, and determine what would cause the accident and under which conditions.
Environmental Damage Index (IDM)
This tool allows the operator to estimate the severity of the environmental damage for each risk scenario identified in the environmental risk assessment. This makes it possible to compare the different scenarios, and to select a reference scenario to serve as the basis for calculating the amount of the mandatory financial guarantee.
Environmental Liability Offering Model (MORA)
MORA is a voluntary tool that calculates the costs of primary, compensatory and complementary remediation measures associated with a risk scenario. These are the costs that are necessary to restore the damaged natural area to its condition prior to the damage. This tool was created based on the methodology developed by Spain’s Directorate General for Environmental Quality and Assessment. With MORA and IDM, the amount of the mandatory financial guarantee can be calculated, to which the costs of prevention and avoidance measures must be added.
ARM, IDM and MORA also serve as a comprehensive risk management tool, as they include a catalogue of prevention, avoidance and remedial measures for operators. Other activities such as a sectoral environmental risk analysis, an individual environmental risk analysis, and a tool for the identification of risk management measures have also been developed.
For more information
Find out more about these tools, consult the user´s guide and read the annex which includes a case study.
Other relevant documents for the implementation of Law 26/2007 are the Guidance document for the determination of the significativity of environmental damages, the Protocol in case of incident and administrative procedure for the requirement of environmental liability, and the Document establishing the content of remedial projects.
All these tools and documents are gathered in the Guidance document for the implementation of the Law. A divulgate Brochure is also available.
Find out more about the implementation of Law 26/2007.
Finnish environmental liability case - Kokemäki river
In July 2014, an accident at a metallurgical plant in Finland resulted in the discharge of several heavy metals into the river Kokemäki. The accident was caused by human and technical errors, and at the time was the largest known incident of its kind in Finland. Approximately 66 tonnes of nickel, 1 tonne of cobalt, 2.3 tonnes of ammonia, 94 tonnes of sulphate as well as a smaller amount of other metals were released.
The incident resulted in large-scale mussel death. One week afterwards, millions of dead mussels were discovered floating in the river, including the thick-shelled river mussel (Unio crassus) that is protected by the EU’s Habitats Directive.
The supervisory authority found that the accident caused damage to protected species and habitats, and damage to surface water as defined in the ELD. As a result of the accident, remedial measures of the environment under the ELD were ordered. Environmental crises management procedures concerning the supervisory authority were also improved.
Lessons can be learnt from the actions taken by the authorities and the company following the incident.
Actions taken after the accident
The company immediately initiated the environmental monitoring procedures and contacted the regional environmental authority. Experts promptly assessed the situation, and sampling and monitoring of the river began the day after the incident. Daily meetings between relevant parties were held, and media and citizens were kept up-to-date through daily/weekly press releases. Cooperation between all relevant authorities was key, as well as between actors who took part in the decision process, such as national level environmental experts from the Finnish environmental institute, universities and ministries. The company immediately took responsibility in the investigations.
The remediation process under the ELD is ongoing.
In June 2017, the Centre for Economic Development, Transport and The Environment in Southwest Finland ordered remedial measures of the environment according to the Environmental Protection Act. The company appealed to the Administrative Court. One of the aspects in the appeal was whether the accident had caused damages to the protected species and habitats, and surface water as defined in ELD. In December 2019, the Court gave its decision, which ordered that the company perform monitoring and remedial obligations. The company appealed at the Supreme Administrative Court, and although the court has not yet ruled on the case, the company is performing its monitoring and remedial obligations.
Key lessons learned from the accident
Authorities must react quickly in unexpected crises, and strong communication between all parties involved is essential. In this case, the Finnish authorities also
- updated, renewed and clarified the procedure for crisis management and emergency instructions
- put in place weekend duty at the regional Unit for Environmental Protection and new protocols to inform employees, ministries and the council
- placed a higher focus on risk management at facility periodical inspections
- renewed the facility’s environmental risk assessment
- implemented changes in the monitoring and automation system, such as new alarms to increase reactivity and employee training