Since the approval of Law 26/2007 on Environmental Responsibility, companies whose activity may cause damage to the adjacent environment are obliged to carry out measures to prevent, avoid and repair such damage, as well as to cover their costs. This law is therefore based on the principles of “prevention” and “the polluter pays”, both of which are included in international environmental law.
For practical purposes, article 24 of the Environmental Liability Law establishes the obligation to provide a financial guarantee for the operators of the activities contemplated in annex III of said law, which must enable them to meet the environmental liability inherent to their activity. However, this Annex III was initially defined very broadly, so it was later necessary to limit the activities through Royal Decree 183/2015. Thus, with the exception of the exemptions provided for by law (which are commented on below), the activities whose operators are required to provide the financial guarantee are as follows:
These activities were classified into three levels of priority according to their dangerousness, which made it possible to establish the date from which the compulsory financial guarantee should be in place. For operators whose activity was associated with a maximum priority level (level 1), such as Seveso operators, the deadline was set at 31 October 2018, while for activities with priority level 2 the deadline was extended by one year (31 October 2019).
Efforts are therefore currently focused on activities at priority level 3, for which the deadline for providing the financial guarantee is 16 October 2021). This group includes a wide range of activities, such as gasification and liquefaction installations, installations for the production and processing of metals, the mineral industries, the chemical industries, waste treatment installations, wood-based industries, the textile industries, the leather industries, the agri-food industries and mining waste installations, among others.
The Environmental Responsibility Law also states that the amount of the obligatory financial guarantee will be established on the basis of the analysis of the environmental risks of the activity, which must be carried out in accordance with the UNE 150008 standard or other equivalent standards. In summary, environmental risk analysis begins with the identification of accidental scenarios and the establishment of their probability of occurrence.
To do this, it is necessary to zone the installation and identify the associated sources of danger. In parallel, an environmental characterization must be carried out, which includes the identification of potentially impacted natural resources (surface and underground water, soil, and species of flora and fauna, among others). The Environmental Damage Index (EDI) associated with each accidental scenario must then be estimated. The methodology for calculating the MDI is based on a series of estimators of the costs of primary repair of the potentially affected natural resources, offering a semi-quantitative result that in no case can be interpreted as the real value of the damage associated with each scenario. Finally, the estimate of the financial guarantee is made for only one of the accidental scenarios, which will correspond to the reference scenario. The reference scenario will group at least 95% of the total accumulated risk of the scenarios, risk being understood as the product between the probability of occurrence of the scenario and the MDI.
As already anticipated, the reference scenario will serve as the basis for calculating the compulsory financial guarantee by quantifying the environmental damage in terms of its extent (estimate of the amount of resource potentially affected), intensity (degree of severity), duration, frequency and reversibility.
To support these calculations, the Ministry for Ecological Transition and Demographic Challenge makes available to operators the computer application IDM-MORA (https://cutt.ly/atmPutP), whose initials correspond to Environmental Damage Index and Environmental Responsibility Offer Model. Once all the fields of the MORA tool have been filled in, the costs associated with primary, compensatory and complementary repairs are obtained. The amount of the financial guarantee to be contracted must cover at least the costs of the primary repair and the costs of avoidance and prevention, which must represent at least 10% of the total amount of the primary repair.
Complementary and compensatory repair costs may be included on an optional basis, and are recommended to avoid compromising the principles of objective and unlimited liability that preside over the Environmental Liability Law. Finally, it should be noted that failure to provide the mandatory financial guarantee is considered a very serious breach, which would result in penalties ranging from 50,001 to 2,000,000 euros.
Once the operator has provided the mandatory financial guarantee in any of its three forms (insurance policy, guarantee or technical reserve), he must submit a responsible declaration to the competent authority as he has provided this guarantee or has been exempted. This exemption benefits those operators who carry out activities that may cause damage whose repair is assessed at less than 300,000 euros (or 2,000,000 euros in the case of those who prove that they are permanently adhered to an environmental management system). The exemption also covers those activities that use phytosanitary products and biocides for agricultural purposes as provided for in Article 28 of the Environmental Liability Act.
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