4Th ELD Stakeholder Conference
4th ELD Stakeholder Conference
'Drawing Lessons from the ELD Evaluation – Towards a Multi-Annual ELD Rolling Work Programme'
Maison d'Associations Internationales, Rue Washington 40, Brussels
24th May 2016
Summary Report
Why did we have this Conference?
The main objective of the Conference was to offer a space for presentation, discussion and stakeholder exchange of the recently adopted Commission Report on the application of the Environmental Liability Directive[1] (ELD) and its REFIT Evaluation including the resulting Action Plan. Following from the Action Plan (Section 6 in the ELD Report), the Commission explained to work towards the adoption of the multi-annual ELD rolling work programme 2016-2020. Main topics have been addressed in parallel workshops in the afternoon (Evidence Base, Implementation Tools, Financial Security).
Who was present?
The four main ELD stakeholder groups (industry, financial sector, authorities, NGOs/academia) were again actively engaged in the exchange. Altogether 95 participants signed the presence list.
Morning Session
Welcome and organisational information by Joachim D'Eugenio, Deputy Head of Unit D.4, DG Environment
Joachim D'Eugenio (JDE) welcomed the participants. He explained changes to the morning agenda, i.e. the reversed order of the presentations due to a priority engagement at the European Parliament of the Vice-Chair of the Environment Committee of the EP, Benedek Jávor, and the apologies of the originally planned speaker from the Dutch Permanent Representation, Head of the Environment Unit, Jeroen Steeghs, for the Dutch Presidency on behalf of the Council, who could not participate.
Introductory speech ("Why environmental liability matters") by Joanna Drake, Deputy Director-General of DG Environment
Joanna Drake opened the Conference in presenting that the main objectives (prevention and remediation) and principles (polluter-pays principle) of the Environmental Liability Directive are still valid after a decade of implementation. It is time to take stock of what the Directive delivered and where it had shown shortfalls.
The ELD had introduced at EU-level major elements of environmental liability: a legal basis on which imminent damage to natural resources can be prevented and the remediation of damage to natural resources can be secured. Rules on strict liability of environmental polluters as well as the participatory rights for environmental NGOs to request action in case of environmental damage became EU-wide obligatory. Strengthening the standards of prevention and restoration of damaged natural resources to their baseline condition,as well as the introduction of the concept of financial security for ELD liabilities,also show the added value of the Directive.
The evaluation had however also clearly revealed the weak points of the ELD implementation: While a few Member States use the Directive successfully as basis for their interventions to prevent and remedy damages, several Member States have notified only few cases and 11 Member States not even a single incident of environmental damage within the reporting period April 2007 to April 2013 where remediation was carried out following the ELD legislation. The continuation of this 'patchwork of environmental remediation' across the EU is at least surprising.
Specific challenges identified in the evaluation concern the divergent interpretation of key terms and conceptsof the Directive, in particular of the 'significance threshold', the continuing existence of national legislation replacing the Directive, low awareness of the ELD at operator level and limited resources at authorities' level, the lack and divergent quality of data on ELD implementation and environmental liability more generally. More data and evidence is neededto better understand and to improve the situation. Hence, an Environmental Liability Register that logs incidents in general and the use of the ELD instrument in particular is needed.
Miss Drakestressed that the Action Plan based on the REIT evaluation must tackle the shortcomings and challenges in the next years, if the EU is serious about improving the environment through an effective and efficient environmental liability instrument and about ensuring the level playing field. She concluded that the Action Plan will only be as successful as Member States, the business sector, civil society organisations and academics, in short the representatives of these groups present today will engage and collaborate with the Commission to help make the ELD even more effective and useful as it is. The Directive works but could achieve much more. It needs to be applied more often and more evenly, so that the environment can be protected through environmental liability up to the levels that were originally intended.
Presentation of the ELD Report, REFIT Evaluation and Action Plan by Hans Lopatta, Unit D.4, DG Environment
Hans Lopatta(HL) presented the Commission report on the application of the ELD and the REFIT Evaluation (see links to documents above) and explained the Action Plan and what would follow from it in terms of the multi-annual ELD rolling work programme 2016-2020, to be prepared in collaboration with the Member States experts in the coming months (presentation ELD Evaluation, Report, Action Plan.ppt on the Conference website).
Questions & Answers:Dawn Slevinasked whether it is a problem if some Member States used the ELD to its full extent and others rely more on pre-existing national legislation but are doing well.
Answer: Important is the outcome and what happens on the ground, as clearly stated from the start of the JunckerCommission. If better preventative action and the same remediation standards are achieved (e.g. primary, complementary, compensatory remediation) and requirements are fulfilled (e.g. request for action and access to justice), then this is not a problem.The question that remains to be answered is: 'Is the balance there?' But for the moment, we lack the evidence for it.
Maria Kotsovilireferred to the report where it is mentioned that 'the primary objective of harmonisation has not been achieved yet' and asked whether the attainment of the harmonisation objective was ever realistic, given the framework character of the Directive.
Answer: The ELD has already established to some extent EU addedvalue by granting a binding legal frameworkfor restoration of damaged natural resources to their baseline, strict liability across the EU for hazardous activities, rights of affected citizens and NGOs to request damage remediation and have access to justice, etc. We need to investigate further the potential of the ELD and to work further on improving its implementation in order to ensure a better level playing field. An important tool for improving implementation as well as for improving the knowledge base would be an EU-wide ELD register based on national registries containing the same (comparable) core data.
Mark Vos provided that effectiveness generates more small losses, and he wanted to get confirmation whether there are many small losses and only a few big ones.
Answer: The ELD Evaluation has indeed confirmed that large scale losses occur not too frequently in the EU (about two or three within ten years exceeding 50 million Euro, more so exceeding 1 million Euro. Including the costs of incidents exceeding 1 million but excluding the costs of incidents exceeding 50 million Euro, the average costs of environmental damage per case would amount to 350.000 Euro.
In addition, we need to demonstrate what happens and what does not work. We need to provide some insight, trends in developments. Do we have less accidents at all? How can we draw conclusions from the knowledge base, expert experience, which is currently limited and fragmented.
Ruth Saeys wondered to what extent Member States made use of the optional defences (permit defence, state-of-the-art defence) and whether they changed their use/incorporation of the optional defences in their legislation.
Answer: This is one of the gaps in information. Data about the use of optional defences would be very relevant, but the Commission had unfortunately only obtained rather haphazard and limit information in that respect, mainly due to the fact that Member States were not obliged to report on it.
Edward Bransreferred to the recommendation in the Executive Summary of the REFIT Evaluation to set up a 'clearing-house'-function and compared this with the 'Damage assessment, Remediation and Restoration Program' of NOAA in the US (https://www.darrp.noaa.gov/).
Answer: This would be an important idea in the framework of the 'Implementation Tools' cluster.This cluster can discuss ideas such as 'clearing house' or guidance or something similar as well as to work together to get a better common understanding of the key terms of the Directive, training and financial security.All these are issues for the afternoon workshops.
José Luis Heras de Herráizcommented that the Report does not say anything wrong, but could have considered in more detail the problems of uneven application, insufficient reporting and gaps in financial capacity of the operator, given for example the Resolution of the European Parliament on the Ajka accident. He had expected a more determined approach containing more concrete proposals.
Answer: The currently available information does not allow for more far reaching or robust conclusions in this respect.
Phil Crowcraftreferred to the right of NGOs and third parties to notify environmental damage instances. While according to the evaluation only very few such notifications are recorded, Italy alone accounts for quite a lot, but pursuant to the data only a few of them seem to have been considered (17 confirmed cases v.93 such notifications in Italy). He therefore asked the Commission whether it thinks that Article 12 ELD (request for action) is working well.
Answer: The numbers are based on the information obtained from the Member States in their national application reports. It is difficult to judge overall on the basis of the experience gained in the application of the Directive whether Article 12 works well. However, this Article belongs to the provisions in the ELD where Member States had most problems in the transposition, i.e. the Commission identified a higher frequency of non-conform transposition (even if this cannot answer the empirical question).
Koenraad de Stickere provided that according to their experience there are much more environmental damage incidents than reported. Some information must be missing somewhere. Maybe this is due to the transposition into various legislations. He would know of a number of biodiversity cases where prevention had been ordered by the authorities but zero cases have been reported.
Answer: The Commission evaluated the situation on the basis of available information. In the past, the Commission was mainly looking for evidence directly linked to the application of the ELD. As a conclusion of the REFIT exercise, we would need to broaden our evidence base also looking at national liability schemes and other mechanisms which are in place to safeguard the environment. And we need to get this evidence out into the public domain and explain how the ELD interacts in this wider context.
Barbara Goldsmith remarked that the Report's numerical analysis may have limits in being able to show where we stand with the ELD implementation at present. While the evaluation reports a low number of cases, she referred to the discussion at the 3rd ELD Stakeholder Workshop in 2014, pointing out that the sheer number of cases alone is not a good metric to indicate whether the ELD has been successful. It is also possible that the low number of cases indicates the converse, namely that the Directive is working well, due to its preventative effect. In addition, she emphasized the need to have good information to accurately assess the effectiveness of the ELD, noting that the Ad-Hoc Industry Natural Resource Management Group has expanded its 30 year old proprietary database resources for operators to include ELD cases and that itwould continue to take a lead role in conducting periodic surveys of operators as warranted and serving as resources to the broad operator community. She said that until adequate data are available and analysed, it is premature to reach too many conclusions relative to the effectiveness of the ELD.
Answer: Prevention is essential but we need to work together to demonstrate that it happens in practice. We need a better evidence base and we may need indicators. The statistics are sometimes biased because the reporting formats of the Member States are different. We need to agree first on how we measure the success or lack of success of this Directive or the costs and benefits it carries with it.
SørenStig Andersen highlighted the question of financial security. The polluter-pays principle cannot work if the polluter is bankrupt, does not have the money or financial cover to remedy the damage.He wondered whether there are tools to make financial security more attractive for companies.He assumed that EU instruments, such as the Environmental Impact Assessment Directive or the EMAS Regulation could work together, deliver some impetus or incentive without being compulsory.
Answer: It is indeed crucial to have financial security for ELD liabilities. Some Member States who have established mandatory financial security at national level use the EMAS Regulation to provide for alleviations (Spain, Czech Republic), so it can be indeed an incentive.
SándorFülöp said that he happily hears that indicators are considered. Some members of his organisation are dealing in the last 15 years with indicators. Lawyers and mathematicians must work together in this task (even if this sounds impossible) but the ELD implementation topic cries for indicators, they could be very helpful.
Ece Ozdemiroglu commented that she was involved since the beginning in good practitioner guidance to decidewhichone is an ELD case. She found that one thing is a particular problem, namely that we do not sufficiently communicate to each other. Ecologists should be more involved. And ELD training should become a regular part of administrators' curriculum.
Answer: More multi-disciplinary cooperation should indeed be fostered.
Joachim D'Eugenioinvited for comments on the report in general and on the Commission recommendations at EU level as well as at national level. JDEwrapped up the discussion concluding that following the Conference the Commission invites feedback, input and ideas from the stakeholder community and encouraged the participants to come forward with their comments (also in writing after the conference).
Response on the ELD Report and REFIT Evaluation by Benedek Jávor, Vice-Chair of the Environment Committee
Benedek Jávor presented himself coming from a country which suffered in the last 15 years twice a catastrophic environmental damage (Baia Mare/Romania in 2000 affecting Hungary, Kolontár in 2010) without that the liable operators had paid a cent for the caused pollution; all costs were borne by the Hungarian taxpayer. This is clear evidence of the shortcomings of the national as well as European (ELD) legislation.
Mr. Jávor then explained the Resolution of the European Parliament, highlighting problems of the ELD, mainly the huge differences between the liability systems of the Member States creating different risk and cost levels. As the Hungarian accident of Kolontár showed, there was also a problem regarding the HU inspection system (negative competence conflict), the implementation of the risk management system under the Seveso Directive and problems with the permit under the IPPC Directive. But similar sites still exist in Hungary and elsewhere.
He then expressed the view that the experience demonstrated not only a problem with the implementation but also with the legislation; a better Directive is needed. He presented a few reactions on the ELD report:
- It is questionable whether the financial ceilings for financial security of operators are sufficient. A harmonised mandatory financial security system at EU level would seem necessary.
- Data transparency and better reporting to the public is necessary (ELD registry).
- It is necessary to step up all relevant legislation as regards hazardous waste legislation, which causes currently serious problems. The local communities should be involved in the decision-making process regarding hazardous waste.
- The public should be informed regularly about the state of the environment.
- The Commission should come forward with legislative proposals on access to justice, as proposed by former Commissioner Potočnik, and on environmental inspections.
- There is a need for an EU-wide industry risk-sharing facility. This is necessary for cases where the company disappears or is not able to cope with the costs (as for example at present for an illegal waste dumping site in the middle of Budapest, where the owner went bankrupt 15 years ago but there is no political will to clean it up). BJ further explained that this facility should be only one layer in a multi-level system, consisting at first tier in mandatory financial security with ceilings, at second tier in such a facility filled up by payments of companies which fall under strict liability, and at third tier in a MS guarantee (example: Fukushima accident).
Discussion:
Joachim D'Eugeniostated that the Commission shares the same objectives with the European Parliament, but may have a different view as regards the best means to achieve them. The question is what would have happened if the same accident as the one in Kolontár had happened in another Member State. Does the EU provide for effective means to deal with it in a similar way or do we need an additional EU level response?He referred to Joanna Drake's introductory presentation where she said that we can clearly do better with the current instrument. In five years from now, we need to come to better results. At present it is premature to make a case for revision of the ELD. And if we were to consider other solutions such as an amendment, we need better evidence. He mentioned also the current reflections of the Commission on other initiatives such as for access to justice with a planned interpretative guidance or an initiative on compliance assurance.
Benedek Jávorresponded that he would be absolutely open to continue the dialogue beyond this Conference. On the raised two questions
- Can we do better with the current instrument?
- What would happen if Kolontár occurred in another Member State?
On the circular economy proposal of the Commission, Mr. Jávor expressed the view that the original legislative proposal was more ambitious than the one under the current Commission. He added to the discussions around the fitness check for the Birds and Habitats Directives that the Directives would be fine; the problem is the implementation. One of the areas where the Commission should go ahead with new legislation is the ELD to make it work better, but better implementation of the ELD is also important.
Ruth Saeys complained that she is now hearing since six years that the Commission does not have sufficient data for the ELD to arrive to reliable conclusions. The lack is according to her due to the Member States waiting for consultants and for operators to provide data, and due to the fact that the authorities do not enforce the ELD. The EU should do something faster.
José Luis Heras de Herráiz remarked that insurance and comparable financial security instrumentsarein line with achieving the polluter-pays principle, but for a risk sharing facility or a fund to achieve this, it should be very accurately and consistently designed and managed. The final discussions in 2012 on the risk sharing facility have shown this and also demonstrated a broad rejection by the stakeholders. He also referred to the Kolontár accident, comparing it with a currently much debated pollution issue, the landfill where tyres went up in flames recently. As in the case of the landfill in Budapest, there is no financially viable liable operator, in the Spanish case it disappeared. And this despite the fact that Spain has properly transposed the ELD and did a lot to implement it well.
Mark Vos wondered in the face of the three pillars for the way forward – evidence base, implementation tools and financial security – whether there is anything peculiar with the ELD as compared with other directives. He also provided that the ELD should deal with the inherent risks to be managed by the operators carrying the hazardous activities listed in its Annex III.
Barbara Goldsmith noted that the Ad-Hoc Industry Natural Resource Management Group has considerable practical experience with the ELD and related liability regimes and issues, including its work to develop ELD best practices and thus it is well positioned to continue to help operators navigate the ELD's challenges.
SándorFülöpreturned to the question whether something like Ajka could also happen in other countries and answered it to the affirmative.There was indeed a complicated legal argument in Hungary about who is responsible for the inspection of the site weeks before the accident occurred. The burning tyres south of Madrid reminded him on to the situation in New Jersey/USA many years ago. The authorities and stakeholders managed to find a sustainable institutional setting in the end which prevents since then that this kind of problem is repeating.
Benedek Jávoradded that there is a lack of willingness of reporting and that such bad reporting could go on. There is a kind of Superfund in the EU for natural disasters, so it is not understandable why this could not also be created for man-made disasters. This is necessary, but it will certainly create additional costs. According to him, the Kolontár experience clearly showed that the current legal framework is not enough, even if this was a special case, but comparable incidents could happen in Slovakia, Poland, Romania or elsewhere. He also recognised that in the Hungarian case the bad classification of the material as non-hazardous waste played an important role.
Afternoon Session