E.L.D. SPANISH TRANSPOSITION
THE FINANCIAL GUARANTEE REQUIREMENTS
José Luis Heras Herráiz
POOL ESPAÑOL DE RIESGOS MEDIOAMBIENTALES, AIE
WORKSHOP ON THE IMPLEMENTATION OF ENVIRONMENTAL LIABILITY
Ministry for the Environment, Energy and Climate Change
Athens 20TH January 2012
Pool Español
de Riesgos
Medioambientales
• SET UP IN 1994
• 25 MEMBERS
• AGREGATED CAPACITY
• REINSURANCE SCHEME.
Subject to the European block exemption
regulation for co-insurance and reinsurance
agreements.
THE SPANISH TRANSPOSITION
OF THE E.L.D.
E. L. D. 2004/ 35
NATURAL RESOURCES:
-Species and Habitats in Natura
2000.
-Water and soil.
SPANISH LAW 26/2007
NATURAL RESOURCES:
- Species and Habitats in Natura 2000 +
national + autonomic catalogues.
- Water and soil.
- Coast line.
NON ANNEX III ACTIVITIES:
- Only Fault Liability.
- Only for damages to Protected
Habitats and Species.
NON-ANNEX III ACTIVITIES:
- Strict liability for preventive and minimization
measures.
- Fault liability for remediation measures.
- Liable for all natural resources included in law.
MANDATORY FINANCIAL
GUARANTEES
• Chapter IV (Arts. 24 to 33)
This part will come into force gradually between 2013 and 2019.
POSSIBLE OPTIONS:
• Ad - hoc reserve. Set up by the operator funds invested in
public debt.
• Bank bond.
• Insurance + ad-hoc fund, (the last to be managed by the
C.C.S., still to be regulated).
- Minimum amounts: from 300.000 to 20 Million Euros,
depending on “potential damage”
INSURANCE
Is the only guarantee option
Where RISK
IS TRANSFERRED
From. THE OPERATOR’S
DEBTS ACCOUNT
THE REACH OF THE INSURANCE IS LIMITED
1.
Some causes of claim cannot be insured.
2.
Some industrial sites are polluted.
3.
Some industries are not insurable.
4.
The sum insured is always limited.
5.
Temporary scope of coverage use to be restrictive.
SPECIFIC REQUIREMENTS AND LIMITATIONS ALLOWED
FOR INSURANCE
REQUIREMENTS:
• Coverage must be specific and exclusive for environmental
liability.
• Must include expenses to prevent imminent threat of damage.
ALLOWANCES.- (May be limited to):
• Unintended and unexpected cause.
• Primary restoration.
• Sums limited (from 300.000 € to 20 Million €)
The national fund for late-discovery claims
(Post activity closure)
• Managed by the C.C.S.
• To cover claims discovered whhen thhe activity
has closed.
• Will be fed with surcharge in insurance
premiums.
• Guarantee period Equals insurance period(Máx. 27 years).
• Coverage limits Equals Insurance limits.
THE NEW INSURANCES
Descriptions provided have no contractual value.
Concepts are sumarized for better understanding
NEW STRUCTURE OF INSURED LIABILITIES
LIABILITY
DAMAGED GOOD OR INTEREST
-PROTECTED SPECIES AND HABITATS
ENVIRONMENTAL
-WATER
-SHORE LINE
LIABILITY
-SOIL
PERSONS:
POLLUTION
CIVIL
(3RD
LIABILITY
PARTY)
- BODILIY INJURY
- OTHER PERSONAL DAMAGES
PROPERTIES:
- PRIVATE OR PUBLIC OWNER
LOSS OF INCOME
CLAIMS MANAGEMENT
Regulate:
– The duty by the insured:
• To declare the facts to the Competent authority.
• To take himself urgent prevention and minimization
measures.
– The different powers to claim and act, between:
• Competent authority.
• Damaged third party.
INSURANCE
LIMITS
NON ACCIDENTAL
DAMAGES
Non acceptable
risks
Damages caused by
other than pollution
ENVIRONMENTAL
INSURABLE LIABILITY
LIABILITY RISK
Polluted soils
Damages occurred before
or afer the insured period
SOME ADVISES TO ENHANCE
THE INSURABILITY RATIO
1. Unacceptable sites or activities.
• Coordinate evaluation and acceptability criteria.
2 Already polluted sites.
• Coordinate evaluation and rule reach of duty to clean.
3. Concepts and liabilities not suitable to be quantified in money.
• Coordinate evaluation criteria.
THE REGULATION FOR THE
DEVELOPMENT OF THE LAW
– Third final provision. Government is entitled
to develop…
– ...
– In particular, the Government, before
December 31st. 2008, will approve by means
of a decree, the development of the
provisions of chapter 4 and the definition of
the method for economic evaluation of the
environmental damage in accordance to the
provisions of article 24.
Regulation Dec. 2090/2008:
Details on FF.GG.
•
•
Operator of activities in
different sites?
Operator of activities in
different CC.AA.?
Clean-up responsibility in
old polluted sites
•One or several policies?
•One policy is enogh…
Provided that a claim in a given
site does not reduce the sum
insured for the rest.
Liabilities should be
shared between new and
old polluter (or the Adm.)
ENVIRONMENTAL RISK
ASSESSMENT
WHY AN ENVIRONMENTAL RISK ASSESSMENT?:
(VARIOUS USES AND INTERESTED PARTIES)
Interested persons
Operator
Environmental authorities
Financial guarantee provider
(Insurer, Bank, etc,)
Uses
Risk management
• Identification.
• Reduction measures implem.
• Financial decisions.
Part of environmental impact assessment.
• I.P.P.C. Permits.
• Evaluates potential damage Financial
guarantee requirements.
Risk quality selection decisions.
Premium calculation.
WHAT SHOULD AN E.R.A. COVER?
• Identification of perils and
accident scenarios.
• Estimation of probabilities
(Frequency.).
• Evaluation of potential
consequences (natural
assets around).
• Monetary evaluation.
HOW DETAILED SHOULD AN E.R.A. BE?
Proportion with risk complexity and severity;
• Only main perils and scenarios (but don’t forget the obvious).
• Only rough estimation of frequency.
• Potential consequences according to worse scenario.
• Value and cost table
(value to cost analysis).
HOW RELIABLE SHOULD AN E.R.A. BE?
• Contents:
enough but not excessive detail.
• Technical reliability:
Own staff.
Outside consultant.
Both.
• Independence
If performed by own staff
it should be verified
by an independent verifier
(objective)
WAYS FOR SIMPLIFICATION
 Sectorial guides.
 Sectorial models.
 Risk factors tables.
SUITABLE FOR ACTIVITY SECTORS WITH:
– Numerous plants.
– Main perils - homogeneous.
HOW SHOULD IT BE RULED?
Make it part of the
IPPC, Seveso
and other preventive ruling.
• As a preventive tool.
• Flexible.
Let operators
arrange their own initiatives
and present them for approval
• Make operators responsible.
• Involve insurers.
Let operators
arrange their own initiatives
and present them for approval
Let insurers suggest
minimum requirements
MISTAKES TO AVOID :
(DO NOT DESIGN RISK ASSESSMENT TOOLS…)
• Too complex or too expensive to apply.
• Too detailed and rigid.
• Disproportionate with the risk itself.
• Intended only for one purpose: (financial guarantee calculation).
• That compromise authorities in case of inexactitudes.
(Must be tools, not weapons)
NATURAL RESOURCES
BASELINE CONDITION
BASELINE CONDITION
MAIN PRINCIPLE:
Natural resources are Public
assets.
Should be identified
and quantified.
INTEREST OF ASSESING NATURAL RESOURCES
AND THEIR BASELINE CONDITION
• Risk evaluation.
• Put in value the actions taken by operators to improve
the environment around.
• Habitat banking
• Remediation target after a damage.
TOOLS
• REMEDE (UE)
• MORA AND VANE (SPAIN)
• INVENTORY OF POLLUTED SOILS
(NATIONAL LEGISLATIONS
PLUS S.P.F. DIRECTIVE).
Ευχαριστώ!
(Efgaristó)
Contact details:
Phone: 0034-915618411
Email.: [email protected]