Criteria to indentify imminent threat of damage

Art. 2, par. 9 of ELD defines “imminent threat of damage” as a “sufficient likelihood that environmental damage will occur in the near future”.
The second check-list included in the Practical Tables may be used to identify cases of imminent threat of environmental damage under Environmental Liability Directive (ELD).

To evaluate the existence of the imminent threat of damage the Source-Pathway-Receptor (SPR) Basic Model should be used. The basic model consists in finding linkage among source-pathway-receptors. If the SPR linkage is confirmed, an imminent threat of damage should be considered.
The SPR Model applied to the assessment of the imminent threat of damage should then consider all actual damaging occurrences (primary sources, secondary sources, etc.), all actual and possible pathways (direct and indirect), and all actual and possible receptors/targets among the natural resources protected by ELD.
The identification of an imminent threat of damage implies that the operator have to take preventive measures to prevent damage. So, the concept of imminent threat of damage is related to an evolving or potentially evolving situation and not to a stable and permanent situation.
Another important aspect of the identification of an imminent threat of damage is that natural resources may be either already be exposed to damage factors (adverse effects already occurred) or at risk of being exposed to damage factors (no adverse effects yet).
Following this aspect, the assessment of imminent threat of damage allows to use the precautionary principle, which implies this concept: if no preventive measures are taken, may I say that environmental damage will not occur beyond any reasonable doubt?
As a consequence, it is possible to use the precautionary principle instead of determining if adverse effects might become significantly enough to generate environmental damage in the near future.
At this regard, par. 72 EU COM notice C(2021) 1860 final says that for the purposes of applying preventive measures and immediate management of damage factors, the need for rapid assessment means that reliance will need to be placed on and conclusions reached on the basis of readily available information. General information about the nature of the damage factors and the exposure of a natural resource to their adverse effects will often be key, since there may be no time to wait for site-specific details to emerge. The application of the precautionary principle is necessary in such circumstances.
Moreover, footnote 92 EU COM notice C(2021) 1860 final says that in some situations, it is very difficult to assess the significance of environmental damage and in particular the imminent threat of it. This may be for different reasons, for example, there may be a lack of information in an emergency. In these situations, the precautionary principle can play a key role, by justifying intervention on the basis of a reasonable belief. It will enable the carrying out of the necessary preventive action and the launch of the corresponding administrative procedure.
The assessment of an imminent threat of environmental damage requires verification of following 5 elements:
1) presence of an ongoing damaging occurrence or damage factors still active (namely, presence of an evolving or potentially evolving situation)
2) presence of ELD natural resources liable to be harmed
3) presence of actual or potential exposure routes linking the damaging occurrence and/or the damage factors to ELD natural resources liable to be harmed
4) consistency of damage factors and/or adverse effects to reference concepts (according to ELD) of the ELD natural resources liable to be harmed
5) Presence of a “sufficient likelihood that environmental damage will occur in the near future”, which may be assessed in the light of 5 sub-elements such as:
5.a Period of the permanence of the damaging occurrence and damage factors (This sub-element becomes relevant if the damaging occurrence and the damage factors do not extinguish rapidly but keep staying active for a time);
5.b Frequency of the damaging occurrence (in case the damaging occurrence is not a unique emission, event or incident) and damage factors (This sub-element becomes relevant if the damaging occurrence is unique but severe or if the damaging occurrence is not severe but multiple and frequent over time);
5.c Magnitude, extent and hazardousness of the damage factors with respect to the ELD natural resource¹  (This sub-element becomes relevant if magnitude, extent and hazardousness of damage factors are able to significantly affect ELD natural resource);
5.d Proximity of the ELD natural resource with respect to the damaging occurrence and/or damage factors (This sub-element becomes relevant if the ELD natural resource is close and reachable by the damaging occurrence and/or damage factors); and
5.e Degree of exposure of the ELD natural resource with respect to the damage factors (This sub-element becomes relevant if the ELD natural resource is vulnerable and highly exposed (quantitatively and temporally) to the damage factors).
The first 4 elements enable to evaluate the conditions for the existence of a possible imminent threat of damage (Preliminary check), while the 5th element (Check for determining a “sufficient likelihood that environmental damage will occur in the near future”), composed by 5 sub-elements, enable to evaluate if there is a sufficient likelihood that environmental damage will occur in the near future, namely if there is an imminent threat of damage.
The combined evaluation of the 5 sub-elements might arise the condition of sufficient likelihood that environmental damage will occur in the near future. Each one of them might be singularly in the condition of arising the likelihood that environmental damage will occur in the near future (see Practical Tables), however an overall assessment of them is required. It means that both:
-    Imminent threat of damage cannot arise from single sub-element alone; and
-    Imminent threat of damage may arise even if not all sub-elements are in a condition of relevance.
In the light of the assessment of the 5 elements above, the precautionary principle may be used in certain cases, especially in circumstances as the ones mentioned in par. 72 and footnote 92 of the EU COM notice C(2021) 1860.
In this regard, it may be useful to consider the possibility to apply, in certain cases, the concepts of clues and evidence also for the imminent threat of damage. In fact, they can represent two different triggers of intervention by the procedures for preventive measures envisaged in art. 5 of ELD². 
In fact, the determination of clues of imminent threat of damage may correspond to the determination of an imminent threat of damage by using the precautionary principle while the evidence of imminent threat of damage may correspond to the determination of an imminent threat of damage without using the precautionary principle.
Especially in circumstances as the ones mentioned in par. 72 and footnote 92 of the EU COM notice C(2021) 1860, the determination of clues of imminent threat of damage may provide a reasonable proof for triggering intervention by the procedures for preventive measures under ELD^3 4.

Note: The process of identification of an imminent threat under the ELD should not limit environmental officers (on the ground) or the operator to take any immediate in
situ actions (suh as emergency, containment and mitigation measures) if deemed required and subsequently inform the ELD competent authority accordingly.