ENVIRONMENTAL DAMAGE ASSESSEMENT - Welcome to …：环境损害评估-欢迎…

ENVIRONMENTAL DAMAGE ASSESSEMENT - Welcome to …：环境损害评估-欢迎… ENVIRONMENTAL DAMAGE ASSESSEMENT Giuseppe Di Marco and Angelo Maggiore Italian National Agency for Environmental Protection and Technical Services 1. Introduction Commonly, by environmental damage we mean the adverse effects induced onto environmental goods by an anthropic activity. Environmental goods consist in natural resources, which can be unitary (wild flora and fauna, air, soil, water) or integrated (ecosystem, biodiversity, territory), and the services (landscape, subsistence, salubrity, purification, trophic productivity, gas and climate regulation, nutrient cycling, disturbance prevention and alleviation, etc ) they provide to the ecosystem (ecological services), or to humans (private and public antrophic services). Many anthropic activities cause environmental damages and, in line with the principle of sustainable development, they should be avoided. However, when this is not possible, they must be regulated (by criminal or administrative law) in order to limit their adverse effects 1and, according to the polluter pays principle, to internalize in advance their externalities (through taxes, concession fees, insurances or other forms of financial security products, etc). When one or more polluters are identified and a causal link can be established between damage and identified polluters, anthropic activities causing environmental damage may undergo a civil liability mechanism, aiming at compensating for adverse effects induced to natural resources and their ecological and public anthropic services. Directive 2004/35/CE provides that environmental damage is compensable when the adverse effects on the conservation status of protected habitats and species, on the ecological, chemical and/or quantitative status and/or ecological potential of the water and on the risks to 2human health associated with land contamination are significant and measurable and caused by dangerous activities, without the need of proving the responsible party to be at fault or 3negligent (strict liability). For adverse effects on the conservation status of protected habitats and species, environmental damage is compensable for any activity, when the responsible party has been at fault or negligent (fault-based liability). 4Italian legislation extends the strict liability to any activity and the fault-based liability to any magnitude of adverse effects on any environmental good, provided they are caused by illicit activities. In accordance with Directive 2004/35/CE, it states that compensation for environmental damage can be achieved through remediation, which, in case of damages to water or protected 1 By externalities we mean the positive (benefits) or negative (costs) effects connected with production or consumption of a good by an individual which impact the well-being of another individual though not being accounted for in the paid or received prizes. 2 For example when the effects overcome the established limits for legitimate uses of natural resources. 3 Unless he/she him/herself demonstrates not to be at fault or negligent. 4 Legislative Decree 152/2006. 1 consists in the measures of reinstatement aiming at restoring the species or natural habitats damaged natural resources, ecological and public anthropic services to or toward the baseline 5condition (primary remediation) or in the measures to compensate the fact that primary 6remediation does not result in a full restoration (complementary remediation) and in the measures to compensate the interim loss of natural resources and the ecological and public 7anthropic services provided by them (compensatory remediation). In case of damages to land, the remediation consists in decontaminating the land until there is no longer any significant risk of adversely affecting human health. Remediation of environmental damage is, in Italy, the privileged form of compensation and, according to communitarian principles, it is the only one when strict liability is concerned. In this case, if the responsible party does not accomplish the remediation, the State can claim only for monetary compensation for the remediation expenses which have already been undertaken. If the responsible party has carried out an illicit activity, he/she has been at fault or negligent and he/she does not remediate the damage, the Italian legislation provides that compensation can be claimed for through the imposition of a payment in favour of the State of an amount of money equal to the monetary value of the environmental damage (compensation by 8patrimonial equivalent). The “Protocol on civil liability and compensation for damage caused by the transboundary effects of industrial accidents on transboundary waters to the 1992 Convention on the protection and use of transboundary watercourses and international lakes and to the 1992 Convention on the transboundary effects of industrial accidents” states that the operator shall be liable for the damage to transboundary water caused by an industrial accident (Art. 4: Strict liability). Moreover, where domestic law provides for a fault-based liability regime, the Protocol extends it to damage to transboundary water (Art. 5: fault-based liability). In these cases, the Protocol states that the operator shall compensate damages caused by the transboundary effects of the accident on transboundary waters. These damages include damage to environmental goods (Art. 2). The compensation for this kind of damage consists in the payment of the cost of the measures of reinstatement, taken or 9to be undertaken, and the cost of the response measures. When measures of reinstatement are 5 By baseline we mean the condition that would have existed had the damage not occurred. 6 The purpose of complementary remediation is to provide an overall level of natural resources and/or services, also at an alternative site, similar to the level which 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. Firstly, measures providing resources and/or services of the same type, quality and quantity as those damaged shall be considered and secondly, other resource/services at least equivalent to those damaged. If this is not possible, alternative natural resources and/or service (for example, a quality-quantity trade-off) shall be provided. 7 The purpose of compensatory remediation is to additionally improve 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. 8 The EU Directive 2004/35/CE does not propose any monetary compensation for the damage. Only expenses the State undertakes for restoring the impaired natural resources, and the public services provided by them can be compensated. 9 Any reasonable measures taken by any person, including public authorities, following an industrial accident, to prevent, minimize or mitigate possible losses or damage or to arrange for environmental clean-up. These measures can be considered as a part of the compensatory remediation. 2 not possible, complementary remediation measures can be considered in order to introduce the equivalent of the damaged goods into the transboundary waters. This paper shows the procedure by which APAT, through a complex multidisciplinary juridical, technical and economic analysis (Environmental Damage Assessment - EDA) achieves a monetary valuation of the damage to natural resources, ecological and public anthropic services, aiming at compensating by patrimonial equivalent. Moreover, the EDA application status and specific aspects and problems related to damages to the water environment and their compensation are highlighted. 2. The Environmental Damage Assessment (EDA) In order to monetarily value environmental damages and claim for compensation by patrimonial equivalent, a complex multidisciplinary juridical, technical and economic analysis is necessary (the Environmental Damage Assessment, EDA). In Italy, this investigation is carried out by APAT (since 1998) or other technical bodies of the Ministry of the Environment. The main critical issues arising while carrying out the EDA are: , to demonstrate the existence of the damage and the cause-effect link between the damage and activities that have caused it; the illicit and faulty or negligent , to determine and quantify the damage; , to find out a suitable procedure to monetarily value the damage. The monetary valuation of the damage follows two preliminary phases: the damage determination and the damage quantification. 2.1 Damage determination By damage determination we mean the collection and analysis of the information useful to ascertain the environmental damage and its cause-effect link with the illicit and faulty or negligent activities. The environmental damage is ascertained by documenting the effects of the source on the targets through measurements, photos, analyses, witnesses and other supporting elements like scientific investigations, statistics, simulations and the comparison with similar situations or historical trends. The cause-effect link is ascertained by documenting the damage scenario through the identification and characterization of the source, exposure pathways and targets. The source is described in terms of kind of pollutant, kind of discharge (continuous or intermittent nature, technological processes originating it) and kind of illicit and faulty or negligent activities generating it. In this context, it is useful, if not necessary, to acquire information about the plant technological characteristics and productive cycles. The exposure pathways are described in terms of the way the source impacts on the targets. 3 The targets are described in terms of natural resources exposed to the impact of the source term. In order to correctly document the environmental damage and the cause-effect link, it is important to take into consideration that the pollutant level and the biological effects, at a specific site, can be the result of the contribution of several other sources and of natural fluctuations. Since data are usually lacking, the damage determination phase (and the following ones) is difficult to accomplish. In addition, it is usually carried out for events occurred, as an average, a couple of years before. As a consequence, it is usually difficult, if not impossible, to gather further data, besides those collected in the initial phase, especially about the damage scenario (like the flow rate of the release) and the effects on environmental components. It does not therefore usually provide all the necessary technical, juridical and economic data which are necessary to monetarily value the damage. The situation is different when dealing with industrial accidents. In this case the damage determination phase is implemented straight away following the event and it is often facilitated by the availability of ad-hoc environmental emergency response plans (including monitoring systems) developed as part of the procedure adopted to protect the population and the environment. 2.2 Damage quantification By damage quantification we mean the analytical measure of the extent, severity and duration of the damage in terms of: , alteration, which is an adverse variation with respect to the baseline condition of the natural resources and services; , deterioration, which is a partial loss of the ability of the natural resource to provide an ecological or public anthropic service; , partial destruction, which is the loss of one or more services; , total destruction, which is the loss of all the services. In practical terms, the quantification of the damage can be obtained by valuating a series of indicators, defined between 0 and 1 (or in percentage), expressing the degree of alteration (Alt), deterioration (Det) or destruction (Des) of natural resources and services, calculated by comparing, to each other, environmental quality indicators of the present state (Ip), reference state (Ir) and maximum (Lmax) or minimum (Lmin) permissible pollution limits (changing according to the services). According to whether an increasing quality is described by an increasing (Ipi, Iri) or decreasing (Ipd, Ird) value of the indicator, the environmental damage can be quantified by the following relationships (Table 1): Increasing indicator Decreasing indicator Alt = (Iri-Ipi)/Iri Alt = (Ipd-Ird)/Ipd Det = (Iri-Ipi)/(Iri-Lmin) Det = (Ipd-Ird)/(Lmax-Ird) Des = 1 if Ipi < Lmin or Ipi = 0 Des = 1 if Ipd > Lmax Table 1: Indicators for damage quantification 4 When quality is expressed by pollutant concentrations, then decreasing indicators should be used. A systematic collection of maximum permissible pollution limits and of baseline levels is, therefore, essential for the determination of the loss of services (destruction), loss of the ability to provide a service (deterioration) and of the variation of the quality degree (alteration). 2.3 Monetary valuation of environmental damage The last step of the EDA consists in the either precise or equitative monetary valuation of the damage, providing technical and economic elements useful for determining the economic refund of the damage itself (compensation by patrimonial equivalent). 10, a precise valuation can be achieved by attributing a In accordance with economical theories value/prize to all components of value associated with the damaged environmental goods (Table 2). This leads to the so-called Total Economic Value (TEV). The components of the Total Economic Value Direct use Use Value Indirect Use Option Use Bequest Value Non Use (passive) Value Existence Value Table 2: The Total Economic Value components While it is immediate to attribute a value to direct uses, which are market-based, some components of value, like those relative to the non-use value of environmental goods, are not marketable and therefore they do not have a prize. When environmental damage involves not marketable values, the cost of primary remediation becomes an economic operational parameter that can be used to perform a precise valuation of the damage itself. In fact, the cost of primary remediation can quantify the amount of money which is necessary to restore all the values lost because of the damage. Based on these considerations, APAT has provided a precise monetary valuation of damage whenever it was possible to refer to primary remediation. In these cases the TEV is estimated equal to the cost of primary remediation plus the cost related with the interim loss of the natural resources and the ecological and public anthropic services provided by them, during the period between the beginning of the deterioration and the complete recovery to the baseline condition. 10 See, for example, “Il risarcimento del danno ambientale: aspetti teorici e operativi della valutazione economica” APAT 2006, available on APAT Website: 5 The cost of primary remediation is valuated by estimating the expenses, already undertaken by the State, if that is the case, which are necessary to restore the deteriorated resources to the baseline. In particular, this can be accomplished, for example, on the basis of the costs of a hypothetical project to monitor, control and contain, remediate and re-naturalize all deteriorated natural resources, keeping into account their extension (determined and quantified, in terms of volume, surface, number of individuals and species, in the two previous phases of the EDA) 11. and the unitary prize lists for these activities 12Though not being primary remediation always applicable, requiring it the reversibility of the 13damage and the technical and economic feasibility (primary remediability), in this context it can anyway be hypothesised, since it only aims at providing a plausible framework enabling the estimate of its cost. The value of the interim loss can be monetarily valued by estimating the compound legal interests accrued on the primary remediation cost during the unavailability period (interest rate net of inflation). In some cases, it can be valued by estimating the expenses (already undertaken by the State, if that is the case) which are necessary to provide, for a period as long as the unavailability period, the same resources and services (replacement costs). In particular, this can be done, for example, on the basis of the expenses which are necessary to set up and manage the recreational services of a water body or a system for supplying drinking water. It is also possible to monetarily value the interim loss by estimating the public defensive expenses undertaken by the State to implement response measures (like, for example, the expenses undertaken by the national health service to cope with a salubrity deterioration). When the hypothesised primary remediation can only be partial, the costs can be integrated by those relative to complementary remediation. When a primary remediation cannot be envisaged, it is possible to achieve a precise monetary valuation of the damage by using other methods indicated by economic theories. Among these methods we mention replacement costs, defensive expenditures, and methods based on revealed 14or stated preferences. 11 It is possible to use the remediation costs relative to similar situations (benefit transfer), public works itemized prize lists, market prizes for activities and supplies, etc. 12 The damage reversibility is the ability of the damaged environmental system to activate physical, chemical, biological and ecological reaction mechanisms offsetting the adverse effects of the damage (resiliency). Reversibility is conditioned by the physical-chemical-biological characteristics of the damage source, by its effects and by the characteristics of the receptors. In the most serious situations, the adverse effects are offset over very long periods or keep propagating in the environment, deteriorating it, even following the interruption of the source. 13 The damage remediability refers to the possibility, through suitable anthropic measures, to enhance the recovery of the conditions which would exist had the damage not occurred. 14 See, for example, “Il risarcimento del danno ambientale: aspetti teorici e operativi della valutazione economica” APAT 2006, available on APAT Website: 6 Among stated preferences methods, one of the most widely used is contingent valuation. This approach is based on a virtual market realized by surveying the importance of natural resources for the “interested community”. In other words, people are asked about their willingness to pay in order to keep/recover the damaged natural resource integral and still available or to accept compensation for injuring it. However, nowadays it is difficult to provide the information these methods need and the results are not always agreed and hence too weak and questionable to be used to claim for compensation. Therefore, when there is no conceivable primary remediation, the damage is often valuated in a equitative rather then precise way. In this case, it is, for example, possible to consider the costs of some negative externalities which are not internalised by the activities that have caused the damage, like the omission of the payments (taxes, insurances, concession fees, etc) which are needed to compensate for adverse effects induced in the environment. Another parameter consists in the so called illicit profit, which is the cost of the best available technologies, which, if applied, would have avoided/limited the environmental damage. It is also possible to interpret the illicit profit as that earned by the responsible party during the illicit period. 3. Application of the EDA procedure and problems related with water environment In the 2000-2006 period, APAT applied the EDA procedure to provide technical support to the Ministry of the Environment in the action of compensation, by patrimonial equivalent, in favour of the State in about 200 cases of damage on different environmental goods. This number might look small if compared with the number of daily actions contaminating the environment. However, the action of compensation for environmental damage is progressively becoming a widespread and solid procedure, also allowing to gather a significant amount of money, which is used by the State to finance urgent perimeterization, characterization, remediation and restoration measures. Table 3 synthesizes the data relative to some cases recently faced by APAT, in which the State has been monetarily compensated or has achieved program agreements and/or negotiated compensation agreements. 7 Case Brief damage description Deteriorated Monetary natural compensation resources/ [?] services Soil, architectonic Z1 hydro-geological damage following escavations Provisional = 100.000,00 and historical goods Illicit drawing of inert sand/silt/gravel material in Landscape and M1 Provisional = 400.000,00 the Brenta River bed vegetation Illicit management of hazardous wastes (alluminium B1 soil Provisional = 350.000,00 dust) CVM leakage from a industrial plant in Porto V Atmosphere 250.000,00 Marghera R1 Ammonia leakage from a Porto Marghera plant Atmosphere 290.000,00 Gathering, uncontrolled deposit and disposal of Negotiated compensation M2 soil slags agreement = 206.582,00 Negotiated compensation B2 Illicit management of hazardous wastes soil agreement = 360.000,00 Provisional = 35.000,00 Illicit management of hazardous wastes from Salubrity and + negotiated R2 vehicles’ demolition soil compensation agreement = 7,5 millions negotiated compensation Pollution caused in several years by a chemical Soil and C1 agreement = 600 plant in Porto Marghera groundwater millions negotiated compensation Pollution caused in several years by a chemical Soil and C2 agreement = 525 plant in Porto Marghera groundwater millions negotiated compensation Pollution caused in several years by a chemical Marine agreement for S plant in Rosignano Marittimo ecosystem investments of 40 millions Pollution caused in several years by a plant Salubrity and Provisional G1 producing asbestos materials soil 5 millions Pollution caused in several years by a chromium-Provisional Z2 groundwater plating plant 1,5 millions Formaldehyde discharges in a Maggiore Lake Provisional = G2 Surface water tributary 500.000,00 Atmosphere, Provisional = B3 Pollution caused in several years by a power plant soil and 800.000,00 ecosystem Accidental release of acid gas from a petrochemical Atmosphere Condemnation to C3 plant in Porto Marghera and salubrity compensate in civil court Pollution caused in several years by a plant in Soil and negotiated compensation M3 Mantova groundwater agreement = 12 millions Soil and Provisional = B4 Pollution caused by a municipal solid waste landfill groundwater 1 million Table 3: Cases in which the State has been compensated for environmental damage (2002 - 2007) The following table 4 shows the distribution of compensation actions supported by APAT in the period 2000-2006 according to different types of damage. 8 TYPOLOGIES OF ENVIRONMENTAL DAMAGEWATER3% 2%WASTE 4% EMISSIONS7% 37%TERRITORIALTRANSORMATIONS18% NATURE CONSERVATION SOIL 29%OTHER Table 4: Most common damages (2000 - 2006) We can observe that damages to water (surface, groundwater and marine waters) are the most frequent category (about 40%) and includes 83 cases. The analysis of the cases of environmental damage related to the water environment shows that, often, not only the natural resource water per-se but also sediment, biological communities and anthropic services (potability, fishery, aquaculture, balneability) are deteriorated. When dealing with discharges into the water environment (as well as in the atmosphere), the damage determination and quantification phases present difficulties due to: , the relevant complexity and spatio-temporal variability of the water environment; , the rapid transport of pollutants. Because of these factors, data sampling schemes are often inadequate, the adverse effects are not permanent, their extent and severity is difficult to be determined, the baseline definition is uncertain, the cause-effect link becomes difficult to be demonstrated and the necessary time for the complete recovery to the baseline condition difficult to be estimated. These problems are particularly evident when the damage is due to an industrial accident. In order to assess the negative impacts on the different water environment goods (water, sediment, biota and their services), it is therefore extremely crucial to investigate immediately afterwards the accidental event, through inspections, suitable and prompt sampling and measuring system. This could also facilitate the ascertainment of the law violations and of the overcome of the deterioration maximum permissible limit. Either for chronic and accidental discharges, the release of pollutants in the water determines a deterioration of its overall state consisting in a reduction, though temporary and/or local, of its pollution load capacity thus jeopardizing services it provides. In spite of all these difficulties, the damage quantification can be provided on the basis of: , the pollutant load discharged in the water (source term); , the measurement or calculation of the maximum adverse change reached/reachable by the indicator of the present state Ip (for example maximum temporary and/or local pollutant concentration in the water); , maximum permissible pollution levels. 9 Practically, the monetary valuation of the water damage can be referred to the primary remediation costs of a volume of water determined as a function of the pollutant load discharged and the maximum permissible concentrations. This volume, called pollution capacity, represents the volume of water that the pollutant load discharged by the responsible party is able to contaminate at a level corresponding to the maximum permissible deterioration: 33Pollution capacity [m] = discharged pollutant load [kg]/maximum permissible concentration [kg/m] Besides solving the problem posed by an undefined damage extent, the pollution capacity method also solves the problem of not being able to distinguish the several contributions to the pollution level of a site. In fact it depends on the pollution load discharged only by the responsible party. 4. Conclusions APAT has developed a complex multidisciplinary juridical, technical and economic analysis (the Environmental Damage Assessment, EDA) capable of providing a monetary valuation of not marketable goods, like the environmental ones. This assessment is useful to claim for a monetary compensation for environmental damage that is both scientifically and legally defensible. The compensation for the environmental damage to water requires an adequate sampling and monitoring system able to distinguish the contribution to the deterioration level attributable to the responsible party, taking into account the relevant spatio-temporal variability of the water environment components and its extremely dynamic nature. The efficiency of data gathering is very time sensitive and data gathering opportunities are lost as time passes. In case of damages caused by incidental releases, data should be collected immediately after the release. If data gathering is incomplete then the EDA is jeopardized. In spite of these and other difficulties posed by the peculiarities of the water environment, the described methods for determining and quantifying the damage in terms of alteration, deterioration and destruction and the pollution capacity approach makes it possible to monetarily value the damage. The monetary value of the environmental damage can also be used to settle negotiated compensation agreement between the State and the responsible party, and to determine the extent of the necessary complementary and compensatory remedial measures, in those cases where valuation of the replacement natural resources/services cannot be performed within a reasonable time frame or at a reasonable cost. In principle, monetary valuation can also be used to support policy decision-making between conservation of natural resources and development. Highlighting the several services provided by environmental resources (which are not only marketable services) and attributing a value to their deterioration can raise awareness about their importance and support the cost-benefit analysis in sustainable management processes. Another application of the monetary valuation of environmental damage is in establishing insurances and financial guarantees. Of course monetary valuation can also act as a deterrent to polluters. 10