Legislative alert: deadlines now fixed for the creation of financial guarantees under environmental liability legislation

Ministerial Order APM/1040/2017, of 23 October, establishing the deadline for the creation of compulsory financial guarantees for the activities set out in annex III of Law 26/2007, of 23 October, on Environmental Liability, has recently been approved, containing an essential requirement for the exercise of certain professional activities which cause or threaten to produce imminent environmental damage.

Order APM/1040/2017 has a double objective: (i) to amend the annex to Order ARM/1783/2011, in order to adapt it to the changes introduced by the Regulation partially developing Law 26/2007 (approved by Royal Decree 183/2015, of 13 March); and (ii) to establish the deadline for the creation of the financial guarantees contemplated in article 24 of Law 26/2007. In this respect, the Order establishes the following deadlines for the creation of financial guarantees by operators set out in Annex III of Law 26/2007, depending on whether they intend carrying out activities classified with priority level 1 or 2:

• (i) Operators carrying out activities classified with priority level 1 shall create a financial guarantee which allows them to meet the environmental liability inherent in their activity prior to  the date falling 1 year after the entry into force of the new Order (that is, before 31 October 2018)
• (ii) Operators carrying out activities classified with priority level 2 shall create the financial guarantee prior to the date falling 2 years after the entry into force of the Order (that is, before 31 October 2019)

It should be recalled that level 1 activities relate to those Operators subject to Law 16/2002, of 1 July, on Integrated Pollution Prevention and Control (IPPC) and to those Operators subject to Royal Decree 1254/1999, of 16 July, approving measures for the control of inherent risks in serious accidents involving dangerous substances (SEVESO). This Order takes the opportunity to amend the annex to Order ARM/1783/2011, for the purpose of adapting the list of activities to which the Law on Environmental Liability applies, to other legislative changes which have taken place (Law 5/2013, of 11 June, amending Law 16/2002 IPPC and Law 22/2011, of 28 July, on waste and contaminated land; and RD 815/2013, of 18 October, approving the Regulation on industrial emissions and developing Law 16/2002).

A ministerial order establishing the deadline for the creation of compulsory financial guarantees for priority level 3 activity sectors is, however, still pending approval and publication.