4 March 2019

Support in the implementation of the REFIT actions for ELD

phase 2

21st Government Expert Group Meeting

Support in the implementation of the REFIT actions for ELD

Objectives

• To increase the knowledge/evidence on ELD implementationcovering its functioning, effectiveness and efficiency

• Development of an ELD information system for collecting in asystematic and structured way data on ELD implementation atnational and EU level

• Improving capacity building and training material

Project tasks

• Task 1: Compiling relevant data from Member States andalternative data from stakeholders– including information on prevention and precautionary effects

– Country fiches

• Task 2: Completing the ELD Information System– Country fiches template and ELD Information System

• Task 3: Improving capacity building and training material– ELD training and capacity building material and

– IT help desk on environmental damage and evaluation risks re financialsecurities

Task 1 & 2 : PROCESS for compiling data for country fiches

• Bilateral meetings with Stakeholders associations in February

• ELD GEG meeting in March 2018

• Development of country fiche template & data gathering questionnaire: May 2018

• Desk research - 1st draft country fiches: July 2018

• Distribution to authorities and stakeholders: 13 July 2018

• Bilateral meetings/dialogue with national government experts

• First set of comments up to end Oct 2018 for the 20th ELD GEG meeting Nov 2018

• Second set of comments up to February 2019

• All members states have commented except for CY, CZ, HU, LT, MT

• Comments from stakeholders:– Desk research sources included reports from Stakeholders

– Answer from Insurance sector in ES and IT; Industry Natural Resource Management Group

Task 1 & 2 : Compiling data for Country fiches – Desk Research

• Objectives:– To collect information on the situation re. environmental damages in EU

– To gather comparable data for evaluation of ELD implementation

• Sources of information– Phase 1 information

– National reports on the implementation of ELD to the European Commission

– Reports from Inspectorates for Environment/Enforcement bodies

– Commission documents:

• The Commission Staff Working Document, REFIT Evaluation of ELD - summaries

• Analysis of integrating the ELD into 11 national legal frameworks, 2013;

• Implementation challenges and obstacles of the ELD, Annex – 16 countries, 2013

– Stakeholders reports (J&E)

Task 1 & 2 : Compiling data for Country fiches – Desk Research

• Sources of information– Systematic review of Registries/Databases under other EU legislation:

• eMARS: very useful tool for accident reporting. Some with environmental impacts.

• Inspire: database on the implementation of the INSPIRE Directive provides access to data sets onnatural resources (e.g landuse, protected sites, natural risk zones) but not on damages.

• E-PRTR: The information is obtained by using different search options (pollutant release, pollutanttransfer, waste transfer, geo coverage, year…) but it does not provide information on theenvironmental damages. For example, in 2015 in Spain there were 251 releases of pollutants tothe water from which 138 involved heavy metals from 72 different facilities; There were 1677transfers of hazardous waste that year.

• Risidata: On-line Incident database such as transport accidents (air plane crash, train collisions)food infections, cyber attacks, pipeline explosions, floods… but not about environmental damages

Task 1 & 2 : Compiling data for Country fiches – Desk Research

• Sources of information– Systematic review of Registries/Databases under other EU legislation:

• Wise: major tailings dam failures database from 1960 to Feb 2019; it provides factual/historicalinfo on cases and enforcement measures (incl fines). Not about the environmental damages

• Rapid JRC: Rapid Natech Risk Assessment Tool. Most info is on earthquakes. No info onenvironmental damages/impacts.

• Disaster database: No info on damages to the environment. It grants access to differentdatabases, software and modelling tools for projections on different areas includingenvironment and climate change (e.g. Inspire national)

• EM-DAT: partial (free of charge) access to validated data on the disasters’ impact on human(such as num of people killed, injured or affected) and disaster-related economic damage. s

– Media

– ES and IT insurance

– Input from ELD Government expert: except for CY, CZ, HU, LT, MT

Task 1 & 2 : Compiling data for Country fiches

Final version of the country fiches

• The introduction section has been significantly amended

• Scope of the initiative: Environmental incidents & ELD

• The definitions in the Glossary of terms used have been modified, adding:

– Environmental liability

– Registry

• Harmonisation of the country fiches: Summary and key findings

– Differences on information available and

– Authorities involvement

– Stakeholders info

Task 1 & 2: Country fiches comparative analysis

• No information is systematically collected for all types of environmental damages– There is no obligation to report on all incidents/accidents of environmental damage.

– Existing databases collecting information on environmental incidents are linked to EU legislation but do not provide information on environmental damage following the ELD

– The data on environmental damages is patchy at national and EU level

• Most countries have civil, criminal and administrative liability that can cover damages to environment– Civil, criminal and administrative are different in scope

– Pre-existing administrative liability was generally fault based and did not include preventive or complementary/compensatory remediation

Task 1 & 2 : Country fiche – Key findings

Pre-existing administrative liability systems: 2 main approaches

1. In some Member States ELD is supplementary/complementary to existing administrative liability• the existing administrative liability entails a broad and effective enforcement system, sometimes

linked to the permitting or licencing system which Member States consider contributes to preventing and remediating damages on water land and biodiversity

• ELD applies when the existing system does not apply; if prevention/remediation of significant envdamages is achieved through other laws

• Generally the threshold for significant damage is high

Task 1 & 2 : Country fiche – Key findings

Pre-existing administrative liability systems: 2 main approaches

2. In other Member States ELD is the first system to be applied when a case of environmental damage occurs,

• it complements existing administrative liability closing gaps or establishing stricter requirements and environmental protection rules

• pre-existing sectorial administrative national regime covers what ELD does not cover: strict liability, preventive measures and complementary and compensatory measures

• ELD amends/repeals and integrates existing legislation for Environmental protection

• The threshold for significant damage is not high and it is similar to the one in other directives

Task 1 Key findings: Country fiche

Registry/database of environmental damages: 4 different groups of countries

• Member States with no register of ELD cases at all: AT, BE, CZ, CY, FL, HU, (BG, ES) MT, LU, SE, SL, UK

• BG and ES publish an annual report on ELD implementation uploaded in their website

• Member States with no ELD register but with an information system or register of environmental damage incidents: (HR), IE, DK, FR , DE, LT, SK

• Member States with register of ELD cases but not publicly available: PL, EL

• Member States with only ELD register publicly available: UK up to 2014

• Member States with ELD register and an information system of environmental damage incidents: EE, LV, PT

Task 1: Key findings: Country fiche

Number of environmental incidents – 3 groups of countries

• Member States with large number Environmental incidents (strong inspections system/EU legislation databases), mostly dealt with as ELD:

PL (93 ELD cases/506) IT, EL, HU (573 where 243 water, 124 biodiversity), LT (4 ELD cases/3,847), FR (1,715)

• Member States with a no large number of ELD cases but public database of env damage cases: – PT, EE(32/634), DE, UK (76), SK (2 imminent threats and 5 of env damage)

• Member States with a not large number of ELD cases and no database on environmental incidents publicly available database: – ES (27), LV (17)

• Member States with a reduced number (zero) ELD cases –– AT (4 env damage cases) BE, CY, CZ, DK, FL, LU, MT, NL, SE, SL

Task 1: Key findings: Country fiche

Mandatory financial security:

• Legislation requires operators to take insurance (additional legislation might be required):

BG, CZ, ES, PT, RO, SK, SE,

• Mandatory financial security but required additional legislation not adopted: EL, HR, HU

• No mandatory financial security: AT, CY, DE, DK, EE, EL, FL, LT, LU, PL, NL, SL,UK,

FR (Env insurance developed)

Task 1: Key findings: Country fiche

Defences:

• No defences adopted: BG, IE, HU, PL, SE, SL

• No permit defence: LU, FR

• No state of the art defence: DK, FL, LT, RO

• Both defences adopted: AT, CY, CZ, EE, ES, HR, LV, MT, NL, SK

NEXT STEPS

NEXT STEPS TASKS 1 and 2

• March 2019 – April 2019– Finalising the country fiches - EIR

– Fine-tuning ELD information system

– Adapt the Country Fiches into the ELD information system

Task 2: ELD Information System State of Play

Encourage the collection and sharing of information on environmental incidents to improveimplementation and to enable evaluation of ELD

EU DATABASE

Member States ELD Tool

European Union ELD Reporting Tool

Member States

Task 2: ELD Information System State of Play

Content:– Environmental damage

– The liable legal person

– Remediation process

– Remediation cost

– Administrative costs

– Defences applied

– Type of liability

– Financial securities

– Judicial review

– Directive applied

– Geographic information of the environmental damage locations

Task 2: ELD Information System State of Play

Country fiches

Task 2: ELD Information System State of Play

Upload data:

Task 3: Capacity building

Updating ELD training and capacity building material

• Review of the existing EU training material• Integration of key concepts interpretation as developed in Phase 1• Development of draft case studies

Task 3: Capacity building

Development of case studies with a legal approach

• 4 Case examples

– Air pollution (CJEU C-129/16) and case where air pollution leads to (potential)soil and water damage 2015 (Aspropyrgos in Greece)

– Applicability of the ELD and the Convention on Civil Liability for Oil Pollution(Sinking of AGIA ZONI II tanker in the Saronic Gulf (Greece, 2017)

– Strict liability: Trailer accident 2012 (Germany)– Fault liability: Non-compliance with water abstraction permit 2011 (Loobu River

Estonia)– Role of NGOs as environmental liability watchdog: Case Kwiza Agro 2010

(Austria)

Task 3: Capacity building

Development of case studies with a legal approach

• 2 questioning cases– Case on causal link: Augusta roadstead (place where ships anchor) in Sicily (CJEU C-

378/08, preliminary ruling)– Case on applicability of ELD: damage to prior authorization: Hydroelectric power station

on the river Mürz, Austria (CJEU C-529/15, preliminary ruling)

• 1 exercise case study on types of remediation:

Scale of complementary and compensatory remedial measures

– Resource and service equivalence approach– Value equivalency analysis

Task 3: ELD Information system

IT help desk for assessment of environmental damage & evaluation risks refinancial securities

• Collaboration with IMPEL: Analysis of existing tools (ES, IE, NL)

• The IE system is not finished or publicly available yet

• Feasibility assessment (content/IT) for the ES systems to work in other MS

Task 3: ELD Information system

The ES system is:

• ELD tailored

• Available to the public since 5 April 2013, free of change, on the web page of theMinistry for Environment

• Requires an important amount of data to be provided by the operator to get resultsHowever, the tools allow user to enter the data and obtain the outcomes quickly.

• Some characteristics need to be adapted to national context: GIS, language, IPR• It can be used as a decision-making tool by the operators. The Spanish

methodology constitutes a good practice and a possible basis for an EU-wide tool.

» Testing by MS?

Task 3: ELD Information system

Tool Technicalreplicability

Further insight

ES tool: MORAEnvironmental Damage Index

Software tool & methodologyProvides an API to access programatically to the capabilities

IE guidance on assessing and costing environmental liabilities

The tool operates in a Excel spreadsheet system

Visual HEA (Nova SoutheasternUniversity, Florida)

Habitat Equivalency Analysis

Software to Facilitate Calculation of

Compensatory Restoration

following Natural Resource Injury

The methodology is openly available but the software is not open source

Analysis of the technical replicability of tools for assessing environmental damage and risk

NEXT STEPS

NEXT STEPS TASKS 1 and 2

• March 2019 – April 2019– Finalising the country fiches

NEXT STEPS TASK 3

• March 2019 – April 2019:– Update of the training material

– Case studies published

– Testing the replicability of ES/MORA system or IE (when published) as a help desk onenvironmental damage and risk analysis in other EU Member States

Thank you

www. Milieu.bewww.bilbomatica.es

Any comments or questions?