A Difficult Environment

The aviation industry is no stranger to the increasing demands of environmental law. In the Winter 2002 issue, we reported on the UK Contaminated Land regime and the impact that it will have on airport operators and industry manufacturers. In the Spring 2003 Issue, we reported on the impact of the Kyoto Protocol and the possible moves in the medium to long term to bring the industry’s emissions of greenhouse gases under control. In the Summer 2003 Issue, we reported on two cases that dealt with aircraft noise, and in particular the human rights aspects.

This article deals with two important further environmental law developments which will increase environmental liability and the cost of environmental compliance especially amongst manufacturers in the aviation industry.

Although the regulatory framework has meant that the use of asbestos in building construction and maintenance has been illegal for some time, it is estimated that asbestos still remains in half a million buildings in the UK due to its widespread use in the construction industry in the 1950s, 60s and 70s. No law to date has required all asbestos contained within older buildings to be identified and made safe. Those who are involved in building maintenance are particularly at risk. If they do not know whether or where asbestos is present in a building structure, they risk making fibres airborne as they carry out their work.

The Control of Asbestos at Work Regulations 2002 were introduced to protect such workers. They introduce a duty to identify and manage asbestos in "non domestic" premises. The duty came into force on 21 May 2004.

The duty is imposed on every person whose contract or tenancy obliges it to any extent to maintain or repair non domestic premises or any of their means of access or egress. Where there is no contract or tenancy, the duty is imposed on every person who has, to any extent, control of that part of those non domestic premises or their means of access or egress. Clearly, the owners and occupiers of properties that still contain old asbestos materials will be subject to the new duty.

In short, persons subject to the duty are required to:

• carry out a "suitable and sufficient" written assessment as to whether or not asbestos is, or is liable to be, present in the premises and keep the assessment under review. In doing the assessment, it must be presumed that materials contain asbestos unless there is strong evidence that it does not.
• carry out a risk assessment where asbestos is or is liable to be present, and prepare, implement and keep under review a written plan for managing any identified risk. The plan must provide details of monitoring, maintenance and, if necessary, removal. The plan must also include adequate measures for ensuring that information about the location of any asbestos is provided to every person who may disturb it and is made available to the emergency services.

The discovery of asbestos in an unexpected location when carrying out an assessment could lead to considerable disruption and cost and possibly even third party claims for compensation. Airport operators and industry manufacturers should be particularly alert to the need to take action to satisfy the new regulations, especially in relation to their older buildings.

The EU Directive on environmental liability entered into force on 30 April 2004. Member States will be required to transpose it into domestic law no later than 30 April 2007. Although transposition is a long way off, it will have a profound effect on environmental liability law in Member States and will thus have an impact on industry manufacturers in particular. As currently proposed, its main provisions provide for the following:

• strict liability for (1) remediating environmental damage or any imminent threat of such damage and (2) damage to protected species and natural habitats and to any imminent threat of such damage from specifically listed occupational activities;
• fault-based liability for damage to protected species and natural habitats caused by the operation of any other occupational activities;
• liability to be channelled to the "operator" of the relevant occupational activity at the time of the damage;

There are liability exceptions for:

• environmental damage or an imminent threat of such damage caused by "an act of armed conflict, hostilities, civil war or insurrection" or by "a natural phenomenon of exceptional, inevitable and irresistible character";
• liabilities arising under listed nuclear and oil pollution conventions provided that they are in force in the relevant Member State;
• diffuse environmental damage where it is not possible to establish a causal link between the damage and the activities of individual operators; and
• activities, the main purpose of which is to serve national defence or international security or the sole purpose of which is protection from natural disasters. Member States will be able to adopt "compliance with a permit" and "state-ofthe- art" defences if they wish, subject to the operator demonstrating that it was not at fault or negligent.

As currently proposed, Member States are obliged to take measures to encourage the development of financial security instruments and markets by the appropriate economic and financial operators, including financial mechanisms in case of insolvency, with the aim of enabling operators to use financial guarantees to cover their responsibilities under this Directive. The Commission may make proposals for mandatory financial security in the future.

Environmental law continues, therefore, to make its presence felt within the aviation industry. In the next issue of Aerospace News, we will report on the EU Emission Trading Scheme, due to become operational from 1 January 2005, and the factors that will determine whether air transport joins the scheme from 2008.