Environmental Responsibility (Financial Guarantee)
In Spain, Royal Decree 2090/2008—that approves the previous Law 26/2007 on environmental responsibility—forces the realization of an analysis of environmental risks for economic activities listed in the Annex III of said law in order to get a financial guarantee that would cover the costs related to the repair of any environmental damage that would be the direct consequence of the activity, including those resulting in an accident.
After that, Royal Decree 183/2015, was published on March 13, modifying Royal Decree 2090/2008, from December 22, introducing a series of modifications aimed, among other things, to simplify the determination process of the mandatory financial guarantee.
In agreement with the current legislation, the date from which the mandatory financial guarantee will be required for each of the activities from the Annex III of the Law 26/2007 will be determined by Ministerial Order.
Annex III of the Law 26/2007 is pretty extensive and was totally modified by the publication of the Order APM/1040/2017, reducing the number of the activities required to have a financial guarantee.
In addition, this law establishes the protocol for action in the case of environmental accidents and how environmental damage repair projects should be carried out. This regulation is intended to curb the common practice of discharging effluents intentionally when the fine compensates the economic costs that would entail complying with current environmental legislation.
Financial Guarantee for Environmental Responsibility
Every financial guarantee for environmental responsibility should have a series of elements:
- Modalities of a financial guarantee. In Spain, insurance policies, the support of a financial guarantee or the constitution of a technical reserve is admitted through an “ad hoc” fund with materialization in financial investments backed by public sectors. These techniques can complement each other.
- Responsibilities covered by the financial guarantee. The entire amount of the financial guarantee will be used to repair environmental damages. The use of a part of this capital to cover a different environmental responsibility is not allowed.
- Guaranteed subjects. It usually refers to the operator of the economic activity, although it can be extended to subcontractors or professionals who collaborate with the operator.
- Covered costs and quantitative limits. They must include the costs of avoidance and prevention of accidents and what is stipulated as “primary repair”, although there is a maximum ceiling, currently set at 20 million euros.
- Update of the amount of the guarantee. The financial guarantee must be updated when required by law, or the company may request an update when performing a new analysis of environmental risks, if the calculated values are different from those of the previous report.
- Validity of the guarantee. The company or operator must keep the guarantee in force throughout its activity, until the moment of the effective cessation. In the case of a reduction in guarantees of 50% or more, you must replenish the amount within six months from the date of knowledge or detection.
Regulatory Framework for Environmental Risk Analysis (ERA)
The environmental risk analysis will collect the minimum amount necessary to satisfy the financial guarantee required by the government for the companies. It is a complex calculation, as it must contemplate unforeseen scenarios, such as those that would lead to different accidents, and their consequences depending on the specific location of the company and its environment.
Tandem HSE is trained to perform the environmental risk analysis (ERA) of your company and to establish the minimal financial guarantee. To do so, we use our methodology, complying with the UNE 150008 standard or other equivalents and, according to the degree of homogeneity of the sector, we also take into account tools for sectorial risk analysis such as the MIRAT and reference tables.
