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Schedule II of the Prevention and Remedying of Environmental Damage Regulations sets out a common framework to be followed in order to choose the most appropriate measures to ensure the remedying of environmental damage.

The Common Framework, as included in Schedule II, is reproduced below:

1. Remediation of damage to water or protected species or natural habitats

Remedying of environmental damage, in relation to water or protected species or natural habitats, is achieved through the restoration of the environment to its baseline condition by way of primary, complementary and compensatory remediation, where:

a) “Primary” remediation is any remedial measure which returns the damaged natural resources and/or impaired services to, or towards, baseline condition;

b) “Complementary” remediation is any remedial measure taken in relation to natural resources and/or services to compensate for the fact that primary remediation does not result in fully restoring the damaged natural resources and/or services;

c) “Compensatory” remediation is any action taken to compensate for interim losses of natural resources and/or services that occur from the date of damage occurring until primary remediation has achieved its full effect;

d) “interim losses” means losses which result from the fact that the damaged natural resources and/or services are not able to perform their ecological functions or provide services to other natural resources or to the public until the primary or complementary measures have taken effect. It does not consist of financial compensation to members of the public.

Where primary remediation does not result in the restoration of the environment to its baseline condition, then complementary remediation will be undertaken. In addition, compensatory remediation will be undertaken to compensate for the interim losses.

Remedying of environmental damage, in terms of damage to water or protected species or natural habitats, also implies that any significant risk of human health being adversely affected be removed.

1.1 Remediation objectives

Purpose of primary remediation

1.1.1.    The purpose of primary remediation is to restore the damaged natural resources and/or services to, or towards, baseline condition.

Purpose of complementary remediation

1.1.2.    Where the damaged natural resources and/or services do not return to their baseline condition, then complementary remediation will be undertaken. The purpose of complementary remediation is to provide a similar level of natural resources and/or services, including, as appropriate, at an alternative site, as would have been provided if the damaged site had been returned to its baseline condition. Where possible and appropriate the alternative site should be geographically linked to the damaged site, taking into account the interests of the affected population.

Purpose of compensatory remediation

1.1.3.    Compensatory remediation shall be undertaken to compensate for the interim loss of natural resources and services pending recovery. This compensation consists of additional improvements to protected natural habitats and species or water at either the damaged site or at an alternative site. It does not consist of financial compensation to members of the public.

1.2 Identification of remedial measures

Identification of primary remedial measures

1.2.1.    Options comprised of actions to directly restore the natural resources and services towards baseline condition on an accelerated time frame, or through natural recovery, shall be considered.

Identification of complementary and compensatory remedial measures

1.2.2.    When determining the scale of complementary and compensatory remedial measures, the use of resource-to-resource or service-to-service equivalence approaches shall be considered first. Under these approaches, actions that provide natural resources and/or services of the same type, quality and quantity as those damaged shall be considered first. Where this is not possible, then alternative natural resources and/or services shall be provided. For example, a reduction in quality could be offset by an increase in the quantity of remedial measures.

1.2.3.    If it is not possible to use the first choice resource-to-resource or service-to-service equivalence approaches, then alternative valuation techniques shall be used. The competent authority may prescribe the method, for example monetary valuation, to determine the extent of the necessary complementary and compensatory remedial measures. If valuation of the lost resources and/or services is practicable, but valuation of the replacement natural resources and/or services cannot be performed within a reasonable time-frame or at a reasonable cost, then the competent authority may choose remedial measures whose cost is equivalent to the estimated monetary value of the lost natural resources and/or services.

The complementary and compensatory remedial measures should be so designed that they provide for additional natural resources and/or services to reflect time preferences and the time profile of the remedial measures. For example, the longer the period of time before the baseline condition is reached, the greater the amount of compensatory remedial measures that will be undertaken (other things being equal).

1.3 Choice of the remedial options

The reasonable remedial options should be evaluated, using best available technologies, based on the following criteria:

a) The effect of each option on public health and safety,

b) The cost of implementing the option,

c) The likelihood of success of each option,

d) The extent to which each option will prevent future damage, and avoid collateral damage as a result of implementing the option,

e) The extent to which each option benefits to each component of the natural resource and/or service,

f) The extent to which each option takes account of relevant social, economic and cultural concerns and other relevant factors specific to the locality,

g) The length of time it will take for the restoration of the environmental damage to be effective,

h) The extent to which each option achieves the restoration of site of the environmental damage,

i) The geographical linkage to the damaged site.

1.3.2.    When evaluating the different identified remedial options, primary remedial measures that do not fully restore the damaged water or protected species or natural habitat to baseline or that restore it more slowly can be chosen. This decision can be taken only if the natural resources and/or services foregone at the primary site as a result of the decision are compensated for by increasing complementary or compensatory actions to provide a similar level of natural resources and/or services as were foregone. This will be the case, for example, when the equivalent natural resources and/or services could be provided elsewhere at a lower cost. These additional remedial measures shall be determined in accordance with the rules set out in section 1.2.2.

1.3.3.    Notwithstanding the rules set out in section 1.3.2. and in accordance with Article 7(3), the competent authority is entitled to decide that no further remedial measures should be taken if:

a) the remedial measures already taken secure that there is no longer any significant risk of adversely affecting human health, water or protected species and natural habitats, and

b) the cost of the remedial measures that should be taken to reach baseline condition or similar level would be disproportionate to the environmental benefits to be obtained.

 

2. Remediation of land damage

The necessary measures shall be taken to ensure, as a minimum, that the relevant contaminants are removed, controlled, contained or diminished so that the contaminated land, taking account of its current use or approved future use at the time of the damage, no longer poses any significant risk of adversely affecting human health. The presence of such risks shall be assessed through risk-assessment procedures taking into account the characteristic and function of the soil, the type and concentration of the harmful substances, preparations, organisms or micro-organisms, their risk and the possibility of their dispersion. Use shall be ascertained on the basis of the land use regulations, or other relevant regulations, in force, if any, when the damage occurred.

If the use of the land is changed, all necessary measures shall be taken to prevent any adverse effects on human health.

If land use regulations, or other relevant regulations, are lacking, the nature of the relevant area where the damage occurred, taking into account its expected development, shall determine the use of the specific area.

A natural recovery option, that is to say an option in which no direct human intervention in the recovery process would be taken, shall be considered.

Additional Information and Links

EU Legislation and Resources:

• EU’s ELD Website
• EU’s ELD Legislation
• EU Commission ELD Guidelines
• Information Factsheet 
• Summary of the Environmental Liability Directive
• Brochure
• ELD Training Material
• Questions and Answers on the Environmental Liability Directive

National Legislation and Resources:

• National Regulations 
• Environmental Damage
• Criteria on Environmental Damage
• Environmental Liability Directive
• Prevention and Remedying of Environmental Damage Regulations
• Addressing the Prevention and Remedying of Environmental Damage

ELD Reporting:

• Malta’s Implementation Report – 2013
• Malta’s Implementation Report – 2021

Other International Collaborations:

• IMPEL Criteria for the Assessment of Environmental Damage (CAED) & Training 

The following are the criteria referred to in definition of “environmental damage” in the Prevention and Remedying of Environmental Damage Regulations. These are included in the regulations’ Schedule I.

The significance of any damage that has adverse effects on reaching or maintaining the favourable conservation status of habitats or species has to be assessed by reference to the conservation status at the time of the damage, the services provided by the amenities they produce and their capacity for natural regeneration.

Significant adverse changes to the baseline condition should be determined by means of measurable data such as:

1. The number of individuals, their density or the area covered;
2. The role of the particular individuals or of the damaged area in relation to the species or to the habitat conservation, the rarity of the species or habitat (assessed at local, regional and higher level including at Community level);
3. The species’ capacity for propagation (according to the dynamics specific to that species or to that population), its viability or the habitat’s capacity for natural regeneration (according to the dynamics specific to its chara cteristic species or to their populations);
4. The species or habitat’s capacity, after damage has occurred, to recover within a short time, without any intervention other than increased protection measures, to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition.

Damage with a proven effect on human health must be classified as significant damage.

The following does not have to be classified as significant damage:

1. Negative variations that are smaller than natural fluctuations regarded as normal for the species or habitat in question;
2. Negative variations due to natural causes or resulting from intervention relating to the normal management of sites, as defined in habitat records or target documents or as carried on previously by owners or operators;
3. Damage to species or habitats for which it is established that they will recover, within a short time and without intervention, either to the baseline condition or to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition.

Additional Information and Links

EU Legislation and Resources:

• EU’s ELD Website
• EU’s ELD Legislation
• EU Commission ELD Guidelines
• Information Factsheet 
• Summary of the Environmental Liability Directive
• Brochure
• ELD Training Material
• Questions and Answers on the Environmental Liability Directive

National Legislation and Resources:

• National Regulations 
• Environmental Damage
• Remedying of Environmental Damage
• Environmental Liability Directive
• Prevention and Remedying of Environmental Damage Regulations
• Addressing the Prevention and Remedying of Environmental Damage

ELD Reporting:

• Malta’s Implementation Report – 2013
• Malta’s Implementation Report – 2021

Other International Collaborations:

• IMPEL Criteria for the Assessment of Environmental Damage (CAED) & Training 

It is widely recognised that our environment is instrumental to our well-being, with various related ecosystem services providing important aspects linked to our healthy, economy and society.

In 2004, the European Union introduced the new legislation establishing, for the first time in the EU, a comprehensive liability regime for damages to the environment, based on the ‘polluter-pays’ principle.

The polluter-pays principle is based on the fact that those that have caused environmental damage should be liable for remediation of damage, the so-called polluter-pays principle.

Additional Information and Links

EU Legislation and Resources:

• EU’s ELD Website
• EU’s ELD Legislation
• EU Commission ELD Guidelines
• Information Factsheet 
• Summary of the Environmental Liability Directive
• Brochure
• ELD Training Material
• Questions and Answers on the Environmental Liability Directive

National Legislation and Resources:

• National Regulations 
• Environmental Damage
• Criteria on Environmental Damage
• Remedying of Environmental Damage
• Environmental Liability Directive
• Prevention and Remedying of Environmental Damage Regulations

ELD Reporting:

• Malta’s Implementation Report – 2013
• Malta’s Implementation Report – 2021

Other International Collaborations:

• IMPEL Criteria for the Assessment of Environmental Damage (CAED) & Training 

“Environmental damage” is defined as damage to protected species and natural habitats, damage to water and damage to soil. The legal instruments define “damage” as a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly.

Environmental damage is linked with damage to protected species, natural habitats and water status as well as land damage and contamination. Each of these based on parameters established under the Environment Liability Directives and the related thematic EU Directives and national legislation, as well as criteria to determine significance of damage  included in Schedule I of the national regulations.

Schedule II of the national regulations set out a common framework to be followed in order to choose the most appropriate measures to ensure the remedying of environmental damage.

The regulations also indicate those operational activities which might lead to environmental damage. Operators carrying out dangerous activities listed in Schedule III of the national regulations and Annex III of the Directive fall under strict liability. It is also relevant that operators carrying out other occupational activities than those listed in Schedule III may be liable for fault-based environmental damage.

These regulations apply without prejudice to other more stringent national or EU legislation regulating the operations of any of the activities, including actions affecting Natura 2000 sites and protected species under the EU’s Habitats and Birds Directives.

In view of the various challenges at EU level in one of the most crucial definitions, it also noted that the European Commission is developing further guidelines to assist on the common understanding of the term ‘environmental damage’ as defined in the ELD. Once such work is agreed at EU level, such guidelines are expected to help to improve the evidence base through a better common understanding of this key term, aligning better the practical application of the Directive within the EU.

Additional Information and Links

EU Legislation and Resources:

• EU’s ELD Website
• EU’s ELD Legislation
• EU Commission ELD Guidelines
• Information Factsheet 
• Summary of the Environmental Liability Directive
• Brochure
• ELD Training Material
• Questions and Answers on the Environmental Liability Directive

National Legislation and Resources:

• National Regulations 
• Criteria on Environmental Damage
• Remedying of Environmental Damage
• Environmental Liability Directive
• Prevention and Remedying of Environmental Damage Regulations
• Addressing the Prevention and Remedying of Environmental Damage

ELD Reporting:

• Malta’s Implementation Report – 2013
• Malta’s Implementation Report – 2021

Other International Collaborations:

• IMPEL Criteria for the Assessment of Environmental Damage (CAED) & Training 

ADDRESSING THE PREVENTION AND REMEDYING OF ENVIRONMENTAL DAMAGE

The Prevention and Remedying of Environmental Damage Regulations (SL 549.97) establishes a legal framework under the Environment Protection Act (Cap. 549) aimed at addressing environmental liability based on the polluter-pays principle.

Such legislation aims to prevent and remedy environmental damage and to implement the provisions of EU Directive 2004/35/CE of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage, more popularly known as ELD or the Environment Liability Directive.

The Prevention and Remedying of Environmental Damage Regulations and the Environmental Liability Directive (ELD) provide addressing prevention, by identifying those activities which may pose an imminent threat to the environment, as well as remediation.

The Regulations and the ELD also provide a framework for such assessment of damage and remediation and aim to create awareness and an incentive for further investments in prevention measures and better environmental practice.

These legal instruments are construed in parallel with other legislation, including the EU’s Habitats Directive, the Wild Birds Directive, the Water Framework Directive, the Marine Strategy Framework Directive and the respective national regulations, namely the Flora, Fauna and Natural Habitats Protection Regulations (SL 549.44), the Conservation of Wild Birds Regulations (SL 549.42), the Water Framework Policy Regulations (SL 549.100) and the Marine Policy Framework Regulations (SL 549.62). Other legal instruments are relevant vis-à-vis the management of waste from extractive industry, carbon storage and the safety of offshore oil and gas operations.

For further information on these national legal instruments and issues relevant to thematic aspects addressed by ERA and linked with the above, refer to the following links:

• Legislation and Policy
• Thematic Environmental Areas

Additional Information and Links

EU Legislation and Resources:

• EU’s ELD Website
• EU’s ELD Legislation
• EU Commission ELD Guidelines
• Information Factsheet 
• Summary of the Environmental Liability Directive
• Brochure
• ELD Training Material
• Questions and Answers on the Environmental Liability Directive

National Legislation and Resources:

• Addressing the Prevention and Remedying of Environmental Damage
• National Regulations 
• Environmental Damage
• Criteria on Environmental Damage
• Remedying of Environmental Damage
• Environmental Liability Directive
• Prevention and Remedying of Environmental Damage Regulations

ELD Reporting:

• Malta’s Implementation Report – 2013
• Malta’s Implementation Report – 2021

Other International Collaborations:

• IMPEL Criteria for the Assessment of Environmental Damage (CAED) & Training 

The Environmental Liability Directive entered into force on 30 April 2004.

This Directive was originally construed in parallel with other Directive, particularly the EU’s Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora; Directive 2009/147/EC on the conservation of wild birds; Directive 2000/60/EC establishing a framework for Community action in the field of water policy; and Directive 2008/56/EC establishing a framework for community action in the field of marine environmental policy, focusing the attention on natural habitats, protected species, water status and land contamination aspects.

The ELD was later amended four times through Directive 2006/21/EC on the management of waste from extractive industries; through Directive 2009/31/EC on the geological storage of carbon dioxide and amending several directives; through Directive 2013/30/EU on safety of offshore oil and gas operations and amending Directive 2004/35/EC; and through Regulation (EU) 2019/1010 on the alignment of reporting obligations in the field of legislation related to the environment. The amendments broadened the scope of strict liability by adding the “management of extractive waste” and the “operation of storage sites pursuant to Directive 2009/31/EC” to the list of dangerous occupational activities in Annex III of the ELD. The Offshore Safety Directive, containing an amendment to the ELD (extension of the scope of damage to marine waters), was adopted in June 2013. The Reporting Alignment Regulation adapted the reporting requirements to the need to create a better evidence base.

A consolidated version of the ELD, as at June 2019, is available here.

Additional Information and Links

EU Legislation and Resources:

• EU’s ELD Website
• EU’s ELD Legislation
• EU Commission ELD Guidelines
• Information Factsheet 
• Summary of the Environmental Liability Directive
• Brochure
• ELD Training Material
• Questions and Answers on the Environmental Liability Directive

National Legislation and Resources:

• Addressing the Prevention and Remedying of Environmental Damage
• National Regulations 
• Environmental Damage
• Criteria on Environmental Damage
• Remedying of Environmental Damage
• Environmental Liability Directive
• Prevention and Remedying of Environmental Damage Regulations

ELD Reporting:

• Malta’s Implementation Report – 2013
• Malta’s Implementation Report – 2021

Other International Collaborations:

• IMPEL Criteria for the Assessment of Environmental Damage (CAED) & Training