Environmental Damage and Environmental Liability: ELD

The European Communities (Environmental Liability) Regulations, S.I. No. 547 of 2008, known as the ELD Regulations, came into force in Ireland on 1 April 2009.  These Regulations give effect under Irish law to the ELD Directive (EU Directive 2004/35/CE on environmental liability with regard to the prevention and remedying of environmental damage).    

The Regulations “supplement” existing national and European legislation by establishing a framework of environmental liability based on the 'polluter-pays' principle, making operators of an occupational activity (defined in Regulation 2) liable for the prevention and remediation of environmental damage that they may, or have, caused.  

The use of the Regulations as “supplementary” legislation means that pre-existing legislation is primarily used where it achieves the same objectives as the Regulations. In a case where the existing legislation fails to achieve the objectives of the ELD regarding remediation and cost recovery, the Agency will use its powers under the ELD.  

The EPA is designated as the Competent Authority for all aspects of these Regulations. 

What Defines Environmental Damage? 

Environmental damage under the Environmental Liability Regulations means: 

Water damage that has significant adverse effects on the water status under the Water Framework Directive 2000/60/EC 

    - e.g. changing the ecological status of surface water to a lower status from good to moderate or poor

Land damage that creates a significant risk to human health as a result of the direct or indirect introduction, in, on or under land, of substances, preparations, organisms or micro-organisms 

   -e.g. contamination by fuels or other toxic chemicals

Damage to protected species and natural habitats e.g.                                                                                                        

  • a significant harmful effect on the conservation status of an EU protected species such as bats, freshwater pearl mussels,
  • damage to a Natura 2000 site or natural habitat, or
  • a harmful effect on the ecological structure and function of an area of special scientific interest.

Only very serious cases of water pollution, land contamination and damage to protected species and natural habitats are classed as “environmental damage” and are dealt with through the ELD Regulations. Most cases of pollution and damage will be covered by other legislation. For example, if you cause a less serious water pollution incident, you may be issued with a notice to remedy the pollution or be prosecuted under other legislation e.g. Local Government (Water Pollution) Act, 1977.

ELD Obligations 

The ELD Regulations are an overarching piece of legislation that can be used in conjunction with all the Agency's existing enforcement powers, but will only be used in the appropriate circumstances when environmental damage has occurred. 

The ELD Regulations place an obligation on an Operator to take preventative measures to dispel any threats of environmental damage, or where damage has occurred to take measures to contain further damage.  In addition, an operator must notify the EPA where an imminent threat, or actual case of, environmental damage has occurred.  This can be done through the on-line submission form below.  

The ELD Regulations require the EPA as competent authority to direct operators to take measures (preventative or remedial) where there is an imminent threat of, or actual case of, environmental damage.  It is an offence if an operator fails to comply with any such direction. 

Report an environmental damage incident 

As an operator, you are required to notify the EPA where you believe there is an imminent threat of environmental damage or where environmental damage has occurred. This is in addition to the obligation for licensed operators to notify the EPA about the incident as required by your licence. 

Use the environmental damage incident form

This form may also be used by affected members of the public or members of environmental advocacy organisations to notify the EPA about cases of imminent threat or actual environmental damage.

Guidance 

The EPA published guidance on the ELD Regulations in 2011.  More recently, in April 2021, the European Commission published guidelines providing an interpretation of environmental damage.  The EPA guidelines will be updated to reflect these guidelines.  In the interim, the EC guidelines should be read in conjunction with the EPA guidance, and should be considered to supersede the EPA guidance where differences arise.  

Make a query about environmental damage and environmental liability 

Any queries on the ELD Regulations should be addressed to our Environmental Liability Directive (ELD) Unit which can be contacted via email to E.DirectiveUnit@epa.ie (clearly stating it is an ELD query); by phone on (053) 916 0600.

 You can also write to us at: 

ELD Unit

Environmental Protection Agency 

John Moore Road,

Castlebar,

Co. Mayo.

 

Learn more 

Implementation of Environmental Liability law in the EU: 

European Commission website and reports on the Environmental Liability Directive  

Legislation on Environmental Liability: 

Environmental Liability Directive 2004/35/CE 

European Communities (Environmental Liability) Regulation 2008 (SI 547 of 2009) 

  

Additional Reference documents: 

Habitats Directive - ​​Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora 

Birds Directive - Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds 

The European Communities (Birds and Natural Habitats Regulations 2011 (S. I. No. 477 of 2011) transpose the Habitats Directive and the Birds Directive.  

Water Framework Directive – Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000) establishing a framework for Community action in the field of water policy 

EPA Maps – Use the WebGIS Interactive map to view EPA spatial data (Water Maps)