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If a competent authority has incurred costs in relation to preventive or remedial actions taken under the ELD it shall, in accordance with the polluter-pays principle, recover those costs from the responsible operator. However, an operator shall not be required to bear the cost of preventive or remedial actions when it can prove that the environmental damage or imminent threat of such damage was caused by a third party and occurred despite the fact that appropriate safety measures were in place, or resulted from compliance with a compulsory order or instruction emanating from a public authority. The latter exception only applies if the order or instruction in question was not consequent upon an emission or incident caused by the operator’s own activities.
A Member State may also allow the operator not to bear the cost of remedial actions taken pursuant to the ELD in some other cases where the operator demonstrates that it was not at fault or negligent. This possibility applies in cases where the environmental damage was caused either by an emission or event expressly authorised by, and fully in accordance with the conditions of, an authorisation given under applicable national laws and regulations which implement the EU legislative measures specified in Annex III, or an emission or activity which the operator demonstrates was not considered likely to cause environmental damage according to the state of scientific and technical knowledge at the time when the emission was released or the activity took place. (Art 8.)
Cost recovery proceedings against an operator or a third party who has caused damage or the imminent threat of damage in relation to any measures taken in pursuance of the ELD must be initiated within five years from the date on which those measures were completed or the liable operator, or third party, was identified— whichever is the later (Art 9).
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