5th ELD Stakeholder Workshop

Results from the project

Support for the REFIT actions for the ELD – phase 1

Maison d'Associations Internationales, Rue Washington 40, Brussels

4thOctober 2016

Summary Workshop Report

This document provides a synthesis of the 5th ELD Stakeholder Workshop that took place in Brussels on 4th October 2017.

Objective and Nature of the Workshop

The main objective of the Workshop was to discuss with key stakeholders the main results of the project ‘Support for the REFIT actions for the ELD’ with a view to guide future actions.

The Nature of the meeting: non-public. About 60 stakeholders were present at the workshop. The participants list is attached.

The document follows the agenda of the meeting. It presents the main points of the discussion, the questions posed by different stakeholders and the responses. All meeting documents including presentations are available at:

Welcome and organisational information by Joachim D'Eugenio, Deputy Head of Unit E.4, (European Commission, DG ENV)

Joachim D’Eugenio (Chairperson for the morning sessions; European Commission, DG ENV), welcomed the participants and introduced the speakers. He noted that the work under the contract will be concluded by the end of the year, but the wider workplan on the ELD will continue beyond this. He noted that there will be an opportunity for further feedback on the issue before the end of the current contract, and also beyond that in terms of further work.

Introductory session and Multi-Annual Work Programme (MAWP) 2017 – 2020 by Hans Lopatta (European Commission, DG ENV Unit E.4.)

Hans Lopatta summarised the findings of the ELD REFIT (carried out 2014 to 2016), the content of the 2017-2020 Multiannual Work Programme (MAWP), the work of the current study/year and the outlook for next year. The REFIT concluded that the ELD remains fit for purpose in terms of its main objectives. However, the key finding was that the Directive is underused and the evidence base regarding its implementation is insufficient for drawing a reliable evaluation. Other key problems are the different interpretations over some terms of the Directive and the lack of knowledge and awareness on the Directive. The Action Plan was developed on the basis of the 2016 ELD report and REFIT evaluation, including: training and capacity building, clarifying key concepts, improving the data on incidents. He explained the work that is underway under the MAWP (joint venture of EU Commission and MS), covering three tasks: 1) improving the evidence-base, currently in its pilot phase, 2) Common Understanding Document, more-or-less completed, 3) capacity building support tools, currently being evaluated 4) financial security: 2016 report by IMPEL), and a working-draft practical guide of IMPEL in 2017.

Development of an IT tool supporting the ELD implementation (Task 1 of the project), presentation by Marta Ballesteros (Milieu)

Marta Ballesteros presentedthe first task of the current project on the establishment of an assessment framework and prototype IT tool to answer the REFIT Study’s conclusions regarding the lack of evidence-base data. The IT tool should promote the gathering of data at national level and EU-level in a harmonised way, responding to the lack of national level repositories of data on the ELD. This tool should also contribute to improving implementation, facilitate sharing information about Member States’ implementation of the Directive and enable a much more complete evaluation in the future of the ELD. She explained the methodology for developing the ELD IT tool for gathering data on the ELD. She also explained the conceptual framework that was developed for the tool, to align the IT tool with the definitions and scope of the ELD, which is available in the project report. She highlighted the challenge that very few MS are collecting sufficient information on ELD implementation at the national level. The draft final prototype tool presents data on one country (PT) and can be accessed for comments at:

Joachim D’Eugenio clarified that the term IT tool is more accuratethan a register, because it better reflects its nature not being a reporting tool, but is about collecting evidence on environmental damage incidents, possibly leading to ELD cases. He also stressed that the tool is currently a prototype and will be further developed. Further, the conceptual framework is already an independent outcome of the project, and represents an assessment framework that could be used for a future fitness evaluation. The idea is also that the tool would be used beyond the Commission, and therefore encouraged reactions to the tool.

Responding to different questions from stakeholders, Mr D’Eugenio clarified that the tool should not only contain data on ELD cases, but also on any environmental incident that may or may not result in an ELD case. José Luis Heras de Herraiz from the Pool Español de Riesgos Medioambientalesasked whether every environmental incident or only cases where the ELD was applied should be included and questioned whether public domain information, such as from media or news stories, would be reliable enough and therefore useful. In response, Mr D’Eugenio asserted every relevant environmental incident and how it was treated should be included and that inaccurate information should not be published, but that media stories could be used to record relevant incidents.
Sandor Fülöp from Justice and Environment welcomed the development of the tool because access to information is key to solving issues with the implementation of the ELD. Justice and Environment had recently carried out a survey on five countries and also highlighted the difficulties of obtaining information at MS level, and the reliance on data available on the EU website. Mr D’Eugenio confirmed that the Commission was committed to pursuing the provision of data to fulfil their mandate for evidence-based policy making.
Marijke Schurmans of Exxon Mobil stressed that the ELD is also about prevention, and questioned how this would be included or measured. Further a stakeholder from the insurance sector noted on the conceptual framework, that other EU rules cover precautionary measures, such as in the IED or IPPC, which could be integrated. She also questioned the inclusion of the ePRTR register as the ELD is much broader and the ePRTR only on emissions. Mr D’Eugenio responded that prevention is an important issue, part of the conceptual framework and the prototype has a mechanism to capture it, which is up for discussion. Mr Lopatta commented that it would be useful to collect. Cases on preventative measures which have been also part of the MS reports 2013, and most of the cases in the prototype from PT are for example preventive not remedial. He stressed that it would be useful to have information on precautionary measures and on financial security. Regina Vilão of the Portuguese Environment Ministry suggested that the prevention of environmental damage would be a result of the actions taken, including the IT tool and other awareness raising and capacity building initiatives. Edward Brans from Pels Rijcken & Droogleever Fortuijn N.V. wondered whether also information collected under Article 6(3) and (4) of the Habitats Directive could be used, and pointed to the difference between "biodiversity damage" and "damage to protected species and natural habitats" which creates some uncertainty.
The issue of the widening the data sources of the current tool was raised by Marijke Schurmans and Edward Brans and Mr D’Eugenio clarified that the ePRTR and the Birds and Habitats Directives have been used to develop the prototype, but when rolled out, the tool could include all data falling under the scope of the Directive, including data gathered in the implementation of other Directives. Hans Lopatta clarified that the correct term is "damage to protected species and natural habitats" and that the term "biodiversity damage", sometimes used for the ELD, should be replaced by it.
Denis Blanpain from AXA Belgium raised the point that many incidents are collected at regional, not MS level, which may explain the lack of data in countries such as Belgium. Mr D’Eugenio acknowledged that this was an important point and would be raised at the Expert Group meeting. Ms Ballesteros stressed that the tool is currently a draft with potential for further development depending on the strategic decision by the Commission on how to use this tool. Therefor a more comprehensive gathering of information is technically possible and could be undertaken in the future.
Mirona Coropciuk from Euromines asked who would be in charge of providing the information for the database, and who will check its reliability while ensuring that the data matches information specific to the ELD. Mr D’Eugenio explained that while the ELD authorities at national level have a key role in providing information, maintaining or updating it, the tool allows for a variety of sources of information, including citizens, NGOs and operators or even automatic links with existing sources. The verification of the reliability of data could be the responsibility of the representatives of national authorities in the Member State concerned. Dawn Slevin from AIG asked how prevention will be measured and how incidents will be treated which have not become ELD cases. Ece Ozdemiroglu provided that indicators are there to answer what, how many cases etc. In her view the most important questions received during the ELD trainings which she had provided, concerned uncertainties and she offered to share her experience about those problems. Joachim D'Eugenio concluded that nothing is yet fixed in stone and emphasized the current explorative stage of the development process. Hans Lopatta pointed to the difference between preventive action in the meaning of the ELD (responding to the imminent threat of environmental damage) and precautionary measures (not expressly addressed in the ELD, such as environmental management and risk management systems, pollution abatement or mitigation investments, financial security measures), with both measures being relevant to collect.

Development of online prototype (Task 1 of the project), presentation by Alberto Telletxea (Bilbomática)

Mr Alberto Telletxea and Mr Marco Pinto Ferreira Da Silva (Bilbomática), explained the content and main technical elements of the prototype, currently a "light technology platform", meant to be a web-based central system. The prototype includes a private area for MS where they can edit information and which could be used as national solution for the own country's needs. It should be open-source with means to filter access to information and a potential to filter-out sensitive data. The main attributes (indicators) can be extended; it should include harmonised spatial information vie the INSPIRE Directive. Bilbomática explained in particular the four main functional features: map viewer (access to geographical location of damage), dashboard (two functionalities: map and bar-chart), country fiches (overview of relevant country-specific information), input form (two ways: questionnaire; massive upload). Ms Ballesteros stressed that the prototype has been designed to cover information on both environmental cases and ELD cases. However, at the moment according to the project objectives the prototype remains more of a concept than an operational tool. Access to information is a challenge of this project but the tool allows to gradually upload information. Participants were encouraged to test the tool and channel their feedback through Milieu by 10 October 2017. Mr D’Eugenio also encouraged additional feedback beyond this date, in particular on the conceptual framework, on data availability and on the usefulness of the tool and potential improvements, as this will also be taken into account in further development work.

On improving data availability, Mr D’Eugenio asked whether data decentralisation would be an option Dawn Slevin suggested that industry/trade associations may already have some useful databases, and that some companies have already shared information on insurance claims. On this, Mirona Coropciuk confirmed that they have data but the availability depends on which information is required and at what level. Sandor Fülöpsuggested that on environmental incidents in general, NGOs and local communities could be another important source of information, provided there they have capacities (pointing to the need for some capacity-building).

Rodrigo Diaz from XL Catlin suggested that the quality of the data required depend on the final user which should be decided first. Alfonso Urquijo Fernandez de Cordoba from Willis Towers Watson, stressed that in providing data, it is important to identify the incident and who is reporting it, verify the reliability of the information and finally to quantify the data. José Luis Heras de Herraiz proposed that information on cases should be updated over time as more information becomes available, cases are evolving, along with information on the status of the case. Mr D’Eugenio explained that the tool should contain open access data (reference to the "European media tool"), within the confines of data protection and that a quality data assurance process needs to be implemented. He also stated that further discussions on data could be held bilaterally with industry and insurance stakeholders to explore sources of data, such as those mentioned, which was positively received by participants.
Edward Brans mentioned that identification of the reporting person could be sensitive (data protection). Lisa Casali from the Pool Inquinamento raised the issue of the confidentiality of data. They manage hundreds of environmental liability cases in Italy. There could be legal issues concerning identifying the perpetrator of the damage, although other information could be made available. However, an application may need to be made to the authorities to release the data. Dawn Slevin also confirmed that insurance can in principle share information. Mr D’Eugenio assured participants that the tool would observe data protection and other legal rules. Mr Lopatta also confirmed that operators would not need to be identified.
Regina Vilão of the Portuguese Environment Ministry who has tested the prototype, made the point that the ELD obliges operators to report any incidents to competent authorities and MS are obliged to submit reports, meaning this information is available. The prototype could be improved by adding other layers relating to different sources, time periods and other data such as that on the Habitats Directive. Christina Kourenti confirmed that they were not yet able to send the information but would send the updated ELd registry in English soon to Bilbomática. Ms Ballesteros highlighted that at the moment the prototype is focused on the incidents and cases from 2013 onwards as information prior to that date exist in the national reports that have been published in the Commission website. She mentioned that the IT tool provides a picture of the situation; prevention will be shown by the indicators. The tool has some functionalities with important layers of analysis (e.g. Natura 2000 sites). She expressed that the usefulness of the tool could go far beyond of the ELD (more common approaches, used also in other areas). She welcomed feedback on whether it would be useful to include historical data or information prior to 2013 in order to compare statistical information. Mr. Lopatta explained such data can be published without that sensitive information is included, as for example the Hungarian ELD report was published on the EU website once the confidential data (individual operators) have been anonymized. Mr. D'Eugenio confirmed that this prototype will not be in the public domain.

Financial securities, presentation by Kim Bradley of IMPEL

Mr D’Eugenio specified that the Commission is keen at fostering uptake of the provision of financial securities.

Kim Bradley, gave a presentation on the results of their work on a Practical Guide on 'Financial Provision for Environmental Liabilities', following last year's IMPEL report on 'Financial Provision. Protecting the Environment and the Public Purse'. Some key findings were: the need to address regulatory inconsistency (e.g. the time taken for regulators to take decisions on financial provision or rules dealing with insolvencies); the need for more flexibility in options for small enterprises; the role of corporate law (on insolvency) in hindering cost recovery; and the adequacy of the financial provision documents and the amounts covered. The methodology included a survey and 25%-30% of the responses came from operators and of them, mostly from waste and mining sectors. Feedback on the guidance document was encouraged before December. See the draft IMPEL Practical Guide.

Sandor Fülöp noted that environmental cases can be divided into two groups, requiring different financial securities: 1) incidents that are dealt with quickly and may not need high insurance, and 2) lengthy pollution cases which can be very costly. For the second group, financial securities may need to be complemented with environmental law.
Edward Brans asked whether they had taken into account the fact that the company may go bankrupt. Kim Bradley clarified that one of the recommendations is that there should be monitoring of the institutions providing the securities. José Luis Heras de Herraiz stated that there are already national regulations on this and that financial institutions have monitoring authorities. Another question related to whether there was data on the number of insolvency cases connected with environmental damage, and therefore an assessment of the capacity of the financial sector to provide securities to these companies. Ms Bradley confirmed that the study did not have the information, but that it would be useful.
A representative of insurance from Belgium, gave the example of a fund paid by tax contributions for the clean-up of historical pollution by gas operations. There is still money available on the fund which could be arguably used for the clean-up of other environmental damage. Therefore, this can be combined with insurance to clean up future damage. Ms Bradley responded that such a model works well where there are many small operators, but that insurance should be the first line of defence. Lisa Casali mentioned an interesting project in Italy regarding the cooperation between mandatory surety on land under the IED and insurance ( a recent Decree on the calculation of the amount of security had lot of benefits for the market – this beyond the background that at present only less than 1% of the pollutants have coverage). Kim Bradley considered that the example of the Italian mandatory provision promoting collaboration between mandatory bonds (required under the IED) and insurance industries is a legal driver which should boost coverage.
Finally, Mr Lopatta summarised the outlook from the Commission’s perspective. He asserted that financial security is essential, but noted that there is a lack of an overall picture of the situation in MS. On this, the Commission is planning an activity to investigate the coverage of financial securities. Karl Ortmann of the German Insurer’s Association confirmed that the level of coverage in Germany was closer to 99% but that it would be difficult to cover liabilities for unforeseen emissions (relating to the IED) with insurance.
Insurance sector representative considered that there was a lack of willingness to provide insurance for this issue, which should be taken into account in the discussion about alternatives. Mr Lopatta added that there are a lot of financial instruments available, but there is low demand. He also noted that the use of other instruments should also be investigated in the envisaged study.

Common Understanding Document – Task 2 of the project, presentation by Katherine Salès (Deloitte)