Gerrit van der Veen en Floris van Westrhenen van AKD hebben voor de expert meeting van het Deltalinqs Energy Forum op 19 april 2012 een presentatie bij het Rotterdamse Havenbedrijf gehouden over de opslag van CO2 op zee. Zij hebben aandacht besteed aan de lopende projecten, de juridische kaders en de verschillende aansprakelijkheidsregimes die voor de opslag van CO2 op land en op zee gelden.

1. CCS and Dutch legislation
on licenses and liabilities
Deltalinqs Energy Forum
Gerrit van der Veen
Floris van Westrhenen
AKD Rotterdam
19 April 2012

2. Agenda
1. Introduction
2. The dutch legal system
3. Licenses and proceedings
4. Liabilities
5. Conclusion
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3. Introduction (0)
1. AKD has been involved in the ROAD Project
(Rotterdam Opslag en Afvang Demonstratie-
project, Rotterdam Capture and Storage
Demonstration Project).
2. Gerrit van der Veen of AKD = public law and
regulatory lawyer.
3. Floris van Westrhenen of AKD = construction and
real estate lawyer.
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4. Introduction (1)
1. No current onshore CCS-projects the
Netherlands, due to local resistance of NIMBY
nature and therefore lack of public support for
onshore storage.
2. Policy aim: CCS under the sea. Storage at sea
should provide sufficient possibilities for the
required level of CO2 reduction.
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5. Introduction (2)
1. Government shall support development of CCS by
deep-sea CO2 storage.
2. ROAD-project (Rotterdam Opslag en Afvang
Demonstratieproject, Rotterdam Capture and
Storage Demonstration Project) is aimed at
capturing part of the CO2 emitted by E.ON's
Maasvlakte Power Plant 3 (MPP3).
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6. The Dutch legal system (1)
1. Implementation of CCS-Directive (2009/31/EC)
and the OSPAR Decision 2007/2 in Dutch Mining
Act and subordinate legislation, such as Mining
Regulation.
2. Effective from 10 and 16 September 2011.
3. Of the three different stages in the CCS storage
chain: the capture, transport and storage of
CO2, the Mining Act and subordinate legislation
only regulate the storage of CO2.
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7. The Dutch legal system (2)
1. The amendments of the mining legislation just
ensure the implementation of the CCS
Directive, and no more.
2. So, the current legal framework might be
insufficient for successful introduction and
execution of CCS.
3. Additional mining legislation might be necessary
regarding (among others) financial commitments
and liability issues.
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8. The Dutch legal system (3)
1. The implementation of the CCS Directive follows as
much as possible the system of the existing mining
legislation.
2. On the storage of CO2, the Mining Act contains
more severe and strict requirements in relation to
the contents of the permit (application).
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9. Licenses and proceedings (1)
1. Other than in “normal” mining licenses, a
monitoring plan, a termination plan and the
provision of financial security will have to form
part of the CO2 storage permit, which is an
“integral storage permit”.
2. Consultancy role of the European
Commission, non-binding advice prior to decision
to license.
3. The integral storage permit includes, among
others, provisions on risk management, closure of
a storage complex and financial security.
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10. Licenses and proceedings (2)
1. New permit for the exploration of potential CO2
storage sites ('CO2 exploration permit').
2. Exclusive right for holders of a CO2 exploration
permit or a CO2 storage permit to develop the
licensed activities.
3. So: No interference with an identical permit or
with a permit for other activities (such as
exploration, production or storage) is possible
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11. Licenses and proceedings (3)
1. The holder of a regular exploration, production or
storage permit, who wishes to store CO2 in the
relevant storage complex, must first (partially)
return the regular permit before a positive decision
can be taken regarding his application for a CO2
storage permit.
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12. Licenses and proceedings (4)
1. Application for license must be published in “De
Staatscourant”.
2. Then: 91-day-period for competing license starts.
3. Means end of priority position of holder of other
permit regarding the location. Could therefore lead
to “loss of location”.
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13. CCS and liabilty (1)
CCS Directive:
• Climate damaged due to leakage of CO2 is address
through the Emissions Trading Directive
• Environmental damage is address by the
Environmental Liability Directive (implemented in the
Netherlands through the Wet Milieubeheer.
• Civil liability is not covered by the CCS directive. This
issue is left to the member states.
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14. CCS and liabilty (2)
Potential grounds for civil liability:
• Article 6:162 DDC (unlawful act)
• Requires a form of negligence
• The act must be attributable
• The injured party must prove a causal relationship
between the unlawful act and his damage.
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15. CCS and liabilty (3)
Potential grounds for civil liability:
• Art. 6:174 BW (liability for defective buildings or
works)
• Strict liabilty. No negligence required.
• Also applies to mining works.
• Liability only if the structure is defective: if the
building or works did not meet requirements.
• Not limitied to physical defects. Faulty software can
cause the building or structure to be defective.
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16. CCS and liabilty (4)
Potential grounds for civil liability:
• Art. 6:175 DCC (liabilty for dangerous substances)
• A party who professionaly handles a dangerous
substance is liable when the danger materializes
• The substance must be inherently dangerous. Not
clear whether this applies to CO2.
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17. CCS and liabilty (5)
Potential grounds for civil liability:
• Art. 6:176 (liabilty for operating a dump site)
• The operator of a dumping site is strictly liable for
damage caused by the pollution of air, water or soil.
• The operator remains liable for twenty years after
closure of the dump site.
• Not clear whether a CO2 storage facility qualifies as a
dump site.
• The stored CO2 originates from a party other than the
operator.
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18. CCS and liabilty (6)
Potential grounds for civil liability:
• Art. 6:177 DCC (strict liability for a mining works)
• A holder of a mining permit is liable for a discharge of
minerals/resources.
• CO2 is not a mineral/resource.
• The holder of the permit is liable for damage due to
movements of the soil.
• The holder of the permit remains liable after closure
of the mining works.
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19. CCS and liability (7)
Pursuant to article 31J Mining Act the Minister can
revoke a storage permit on his initiative or on the
initiative of the permit holder if:
• The permit holder shows the CO2 is stored
completely and permanently;
• The storage site has been closed and facilities to
inject CO2 have been removed;
• A period of at least twenty years has passed since
closure of the site (this period can be shortened or
extended at the discretion of the Minister)
• The permit holder has provided the financial means
to cover the foreseeable costs, which at least
include the estimated cost of monitoring for a
periode of thirty years.
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20. CCS and liability (8)
• When the permit has been revoked, responsiblity is
transfered to the State.
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21. CCS and liabilty (9)
• However, the transference only regards liabilty for
climate and environmental damage.
• Civil liability is not affected by the transference.
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22. CCS and liabilty (10)
Conclusion:
• It is not clear to what extent an operator of a CO2
storage facility can be held liable for damaged.
• An amendment to the Dutch civil code has been
announced.
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23. Thank you for your attention!
AKD lawyers & civil law notaries
Wilhelminakade 1
3072 AP Rotterdam
P.O. Box 4302
3006 AH Rotterdam
Gerrit van der Veen
Lawyer and partner
Regulatory and Government Affairs
T: +31 88 253 5556
F: +31 88 253 5447
M: +31 6 47 67 07 77
E: gvanderveen@akd.nl
W: www.akd.nl/en
Floris van Westrhenen
lawyer
Construction and Real Estate
T: +31 88 253 5321
F: +31 88 253 5443
M: +31 6 46 40 60 79
E: fvanwestrhenen@akd.nl
W: www.akd.nl
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