ELD Evaluation, Report, Action Plan

1. Environmental Liability Directive 4th Stakeholder Conference Drawing Lessons from the ELD EvaluationTowards a Multi-Annual ELD Rolling Work ProgrammeMaison d'Associations InternationalesBrussels, 24 May 2016 ELD Evaluation, Report, Action Plan

2. ELD Report and REFIT Evaluation Key Question • "Pursuant to the Commission's Regulatory Fitness and Performance Programme (REFIT), the purpose of this evaluation is to examine to what extent Directive 2004/35/EC on environmental liability … remains fit for purpose with regard to the prevention and remedying of environmental damage and whether it delivers the intended results."

3. ELD Report and REFIT Evaluation Key Finding • "The overall finding from the submitted information and data confirmed the conclusion from the previous Commission report on the ELD of October 2010 of a significant variance between Member States. Despite the efforts undertaken so far by the Commission and the stakeholder groups to create a better level field by non-legislative measures, not only the transposition of this framework directive but also the implementation still varies greatly. This is the reason why the topic of the remaining 'patchwork' situation as regards environmental liability was broadly discussed in several of the ELD implementation and evaluation studies."

4. ELD Report and REFIT Evaluation • Report: Article 18(2) ELD: Report on the experience gained in the application of the ELD in the EU, taking account of review points – • 14.4.2016, COM(2016) 204 final • REFIT Evaluation: Requirements (BR package of 19th May 2015) - Evaluation criteria: Relevance, Effectiveness, Efficiency, Coherence, EU-added value – followed by an Action Plan – • 14.4.2016, SWD(2016) 121 final

5. Information sources • 27 Member Statesreports2013 • 3 ELD consultants studiesin 2013/14, 2 ELD studies in 2012/13 • Commission 2010ELD report:Conclusions • Feedback from ELD government expertsandELD stakeholders

6. ELD implementation 2007 – 2013 (1) Number of reported ELD cases per Member State vary considerably: • 95 annual cases (HU) • 85 annual cases (PL) • 10 annual cases (DE), • 3 annual cases (UK) to • less than 1 annual case Eleven Member States had no ELD cases reported

7. ELD Evaluation – Divergent numbers Principal reasons – besides the framework character of the Directive containing many options and allowing for different interpretations – explaining the high variance: • Continued use of pre-existing national legislation instead of ELD legislation (in combination with) • A high 'significance threshold' of environmental damage • Publicly accessible registers of ELD cases • Access of interested parties to submit commentsand to cooperate with competent authorities • Subsidiary obligation of competent authorities to carry out preventive and remedial action if the operator failed to do • Level of awareness of the ELD (rights and obligations) by operators and the public

8. Reported ELD cases: Categories of environmental damage Category of environmental damage, based on 1450 attributable cases (some cases count double):

9. ELD Evaluation – Scope and types of environmental damage • Is the scope for damage to biodiversity, to water and to land right? For example, 'significant risk of human health being adversely affected' as regards land damage? • Should the scope of environmental damage be extended to include other damage categories? For example, 'damage to air', 'damage to protected landscapes'?

10. Reported ELD cases:Type of damaging activity Most cases concern Annex III.2 (waste), III.7 (dangerous substances) and Article 3(1)(b) (fault- based liability), followed III.1 (IPPC) and III.8 (transport)

11. ELD Evaluation – Scope and types of dangerous activities (Annex III) Scope and types of dangerous activities, framing strict liability: • Is the scope of strict liability right? Should it be extended to all occupational/professional activities, or even every human activity? In particular as regards biodiversity damage? • Are there gaps in Annex III? Transport of dangerous substances in pipelines (extra industrial sites)?

12. Reported ELD cases: Duration of Remediation Length of remediation procedure is between 1 day and more than 6 years, average duration is approximately about 12 months (484 cases/15 MS)

13. Reported ELD cases:Costs of Remediation Costs of remedial action, based on a sub-set (140 notified cases): Average: €350,000, if two large scale damage cases are excluded (Kolontár, Moerdijk), and €42,000 if only cases below 1 million € are considered

14. ELD Evaluation – Costs Limited information available in particular on: • Administrative costs for authorities (beyond the costs which are recoverable from liable operators) • Private costs for businesses, in particular as regards costs beyond compliance costs with prevention of imminent damage and remediation costs of environmental damage, i.e. for: • Investments in abatement technologies • (better) environmental management systems • Financial security (insurance and alternative instruments) to cover ELD liabilities

15. REFIT Evaluation - Relevance • Objectives still relevant, only some formally obsolescent provisions (reporting, legal references) • Contribution to environmental protection through prevention and remediation of damage, but to a limited degree (resources, under-use) • Potential for better implementation of preventive and remedial objectives (more, incl. complementary and compensatory remediation) • Relevance to be assessed against diverse national legal frameworks and traditions

16. REFIT Evaluation - Effectiveness • Patchworkof environmental remediation in the EU (legislation, implementation) – "framework" character (options) and exceptions • Significance threshold – national legal frameworks and interpretation – different thresholds for land, water, biodiversity • Scope of environmental damage (air, cultural heritage, protected landscapes) about right • Scope ofstrict liability, f.i. biodiversity, pipeline transport, hydraulic fracturing about right

17. REFIT Evaluation - Efficiency • Remediation (and prevention) costs: costs are partially available, divergence between MS is high (causes unclear) • Administrative costs: scarce data, no meaningful conclusion • Cost-effective internalization of external costs: benchmarks and measurement tools necessary • Permit and development risk: defences– lack of evidence • Financial security: • Sufficiency of offer and demand ? • Problems: large-scale accidents, operator's insolvency • ELD Fund or industry risk-sharing facility ?

18. REFIT Evaluation - Coherence • Coherence between ELD and EU environmental legislation (EIA Directive, IED, waste management) is given • Coherence between ELD and Habitats and Birds Directives: some issues identified ('significance', 'favourable conservation status') • Coherence between ELD and Water Framework Directive: water damage ('waters' vs, 'water bodies') • Coherence between ELD and IMO Conventions (environmental remediation standards) and Nuclear Conventions

19. REFIT Evaluation – EU-added value • Implementation of polluter-pays principleand strict liability across EU • Remediation to the baseline condition (primary, complementary, compensatory) • Inclusion of biodiversity damage • Implementation of international obligations (Nagoya – Kuala Lumpur Supplementary Protocol; Kiev Protocol)

20. ELD Report – Main challenges • Availability of data on ELD cases and national implementation • Awarenessof the Directive by main stakeholders and practitioners • Ambiguities around key concepts and definitions, such as the 'significance threshold' • Exceptions anddefences

21. ELD Report – Action Plan/Recommendations (1) • Support MS implementation with proactive information and capacity building actions such as • awareness raising and information, • stakeholder and practitioner exchange and communication at all levels, • training seminars andan assessment centre or experts network ("Clearing house" function) for all practitioners • Review the interpretation of key concepts and definitionsof the Directive, in particular in relation to "significance", "favourable conservation status", "preventive action", "baseline condition" etc. with a view to promote more uniform interpretation and a more level playing field

22. ELD Report – Action Plan/Recommendations (2) • Establish an EU register of ELD cases to help practitioners in practical implementation (competent authorities, financial security providers, operators, NGOs, the Commission) • Develop an agreed set of indicators for purposes of future regulatory monitoring and gather and publish data on the application of the Directive in the MS in view of the next REFIT evaluation (effectiveness, efficiency, coherence) in relation to the overall situation in the EU

23. Key questions for the afternoon breakout groups Evidence Base (1): How can we establish an EU-wide overview of incidence and how can they are dealt with under the ELD?

24. Key questions for the afternoon breakout groups Evidence Base (2): How can we can we demonstrate that there are no gaps in the application and that incidents treated under national regimes are ensuring a similar level of protection?

25. Key questions for the afternoon breakout groups Evidence Base (3): How can we improve the evidence base for costs and benefits, and for effectiveness and efficiency?

26. Key questions for the afternoon breakout groups Implementation Tools (1): Is common interpretation a good thing? If assuming yes (and when we diverge we know why we diverge), how do we achieve it?

27. Key questions for the afternoon breakout groups Implementation Tools (2): If training in ELD is useful, how can we make it a more attractive option?

28. Key questions for the afternoon breakout groups Implementation Tools (3): If there was a helpdesk – Would you call it? What would you ask? Who would you like to answer your questions?

29. Key questions for the afternoon breakout groups Implementation Tools (4): Let us share experiences, what works / what does not work in improving ELD implementation at national level?

30. Key questions for the afternoon breakout groups Financial Security (1): Which financial provision mechanisms do you consider to be legally secure and why?

31. Key questions for the afternoon breakout groups Financial Security (2): What is best practice in calculating the amount of financial provision  for potential accidents/incidents and how can this be disseminated effectively?

32. Key questions for the afternoon breakout groups Financial Security (3): How can the conditions for supply and demand of financial provision be improved?

33. Key questions for the afternoon breakout groups Financial Security (4): What do you consider to be the best way of making financial provision for large numbers of relatively low risk activities e.g. funds, levies, pooled arrangements?

34. http://ec.europa.eu/environment/liability/index.htmE:mail: Hans.Lopatta@ec.europa.eu • Member States’ reports by April 2013: • Annex VI ELD • Questionnaire useful? • Records of ELD cases • Commission report by April 2014: • International instruments in Annexes IV and V (IMO, Euratom), considering eventual studies by the IOPCF • GMOs: Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress under the Cartagena Protocol • Application of ELD to protected species/natural habitats • Instruments for incorporation into Annexes III, IV and V • Mandatory vs. voluntary security; financial security in particular for large scale accidents (2010 ELD Report) Thank you for your attention !