Environmental Protection Act 1990 - Part IIA Contaminated Land: statutory guidance edition 2
This document promulgates revised statutory guidance for the operation of the contaminated land regime following implementation of the Contaminated Land (Scotland) Regulations 2005. It replaces the earlier 2000 version.
PART 3: The Procedure for Determining Liabilities
D.7 For most sites, the process of determining liabilities will consist simply of identifying either a single person (either an individual or a corporation such as a limited company) who has caused or knowingly permitted the presence of a single significant pollutant, or the owner of the site. The history of other sites may be more complex. A succession of different occupiers or of different industries, or a variety of substances may all have contributed to the problems which have made the land "contaminated land" as defined for the purposes of Part IIA. Numerous separate remediation actions may be required, which may not correlate neatly with those who are to bear responsibility for the costs. The degree of responsibility for the state of the land may vary widely. Determining liability for the costs of each remediation action can be correspondingly complex.
D.8 The statutory guidance in this Part sets out the procedure which the enforcing authority should follow for determining which appropriate persons should bear what responsibility for each remediation action. It refers forward to the other Parts of this Chapter, and describes how they should be applied. Not all stages will be relevant to all cases, particularly where there is only a single significant pollutant linkage, or where a liability group has only one member.
First Stage - Identifying Potential Appropriate Persons and Liability Groups
D.9 As part of the process of determining that the land is "contaminated land" (see Chapters A and B), the enforcing authority will have identified at least one significant pollutant linkage (pollutant, pathway and receptor), resulting from the presence of at least one significant pollutant.
WHERE THERE IS A SINGLE SIGNIFICANT POLLUTANT LINKAGE
D.10 The enforcing authority should identify all of the persons who would be appropriate persons to pay for any remediation action which is referable to the pollutant which forms part of the significant pollutant linkage. These persons constitute the "liability group" for that significant pollutant linkage. (In this guidance the term "liability group" is used even where there is only a single appropriate person who is a "member" of the liability group.)
D.11 To achieve this, the enforcing authority should make reasonable enquiries to find all those who have caused or knowingly permitted the pollutant in question to be in, on or under the land. Any such persons constitute a "Class A liability group" for the significant pollutant linkage.
D.12 If no such Class A persons can be found for any significant pollutant, the enforcing authority should consider whether the significant pollutant linkage of which it forms part relates solely to the pollution of the water environment, rather than to any significant harm. If this is the case, there will be no liability group for that significant pollutant linkage, and it should be treated as an "orphan linkage" (see paragraphs D.103 to D.109 below).
D.13 In any other case where no Class A persons can be found for a significant pollutant, the enforcing authority should identify all of the current owners or occupiers of the contaminated land in question. These persons then constitute a "Class B liability group" for the significant pollutant linkage.
D.14 If the enforcing authority cannot find any Class A persons or any Class B persons in respect of a significant pollutant linkage, there will be no liability group for that linkage and it should be treated as an orphan linkage (see paragraphs D.103 to D.109 below).
WHERE THERE ARE TWO OR MORE SIGNIFICANT POLLUTANT LINKAGES
D.15 The enforcing authority should consider each significant pollutant linkage in turn carrying out the steps set out in paragraphs D.10 to D.14 above, in order to identify the liability group (if one exists) for each of the linkages.
IN ALL CASES
D.16 Having identified one or more liability groups, the enforcing authority should consider whether any of the members of those groups are exempted from liability under the provisions in Part IIA. This could apply where:
(a) a person who would otherwise be a class A person is exempted from liability arising with respect to water pollution from an abandoned mine (see section 78J(3));
(b) a Class B person is exempted from liability arising from the escape of a pollutant from one piece of land to other land (see section 78K); or
(c) a person is exempted from liability by virtue of his being a person "acting in a relevant capacity" (such as acting as an insolvency practitioner), as defined in section 78X(4).
D.17 If all of the members of any liability group benefit from one or more of these exemptions, the enforcing authority should treat the significant pollutant linkage in question as an orphan linkage (see paragraphs D.103 to D.109 below).
D.18 Persons may be members of more than one liability group. This might apply, for example, if they caused or knowingly permitted the presence of more than one significant pollutant.
D.19 Where the membership of all of the liability groups is the same, there may be opportunities for the enforcing authority to abbreviate the remaining stages of this procedure. However, the tests for exclusion and apportionment may produce different results for different significant pollutant linkages, and so the enforcing authority should exercise caution before trying to simplify the procedure in any case.
Second Stage - Characterising Remediation Actions
D.20 Each remediation action will be carried out to achieve a particular purpose with respect to one or more defined significant pollutant linkages. Where there is a single significant pollutant linkage on the land in question, all the remediation actions will be referable to that linkage, and there is no need to consider how the different actions relate to different linkages. This stage and the third stage of the procedure therefore do not need to be carried out where there is only a single significant pollutant linkage.
D.21 However, where there are two or more significant pollutant linkages on the land in question, the enforcing authority should establish whether each remediation action is:
(a) referable solely to the significant pollutant in a single significant pollutant linkage (a "single-linkage action"); or
(b) referable to the significant pollutant in more than one significant pollutant linkage (a "shared action").
D.22 Where a remediation action is a shared action, there are two possible relationships between it and the significant pollutant linkages to which it is referable. The enforcing authority should establish whether the shared action is:
(a) a "common action" - that is, an action which addresses together all of the significant pollutant linkages to which it is referable, and which would have been part of the remediation package for each of those linkages if each of them had been addressed separately; or
(b) a "collective action" - that is, an action which addresses together all of the significant pollutant linkages to which it is referable, but which would not have been part of the remediation package for every one of those linkages if each of them had been addressed separately, because:
(i) the action would not have been appropriate in that form for one or more of the linkages (since some different solution would have been more appropriate),
(ii) the action would not have been needed to the same extent for one or more of the linkages (since a less far-reaching version of that type of action would have sufficed), or
(iii) the action represents a more economic way of addressing the linkages together which would not be possible if they were addressed separately.
D.23 A collective action replaces actions that would have been appropriate for the individual significant pollutant linkages if they had been addressed separately, as it achieves the purposes which those other actions would have achieved.
Third Stage - Attributing Responsibility between Liability Groups
D.24 This stage of the procedure does not apply in the simpler cases. Where there is only a single significant pollutant linkage, the liability group for that linkage bears the full cost of carrying out any remediation action. (Where the linkage is an orphan linkage, the enforcing authority has the power to carry out the remediation action itself, at its own cost.)
D.25 Similarly, for any single-linkage action, the liability group for the significant pollutant linkage in question bears the full cost of carrying out that action.
D.26 However, the enforcing authority should apply the guidance in Part 9 with respect to each shared action, in order to attribute to each of the different liability groups their share of responsibility for that action.
D.27 After the guidance in Part 9 has been applied to all shared actions, it may be the case of the rest of the guidance in this Chapter to that liability group.
Fourth Stage - Excluding Members of a Liability Group
D.28 The enforcing authority should now consider, for each liability group which has two or more members, whether any of those members should be excluded from liability:
(a) for each Class A liability group with two or more members, the enforcing authority should apply the guidance on exclusion in Part 5; and
(b) for each Class B liability group with two or more members, the enforcing authority should apply the guidance on exclusion in Part 7.
Fifth Stage - Apportioning Liability between Members of a Liability Group
D.29 The enforcing authority should now determine how any costs attributed to each liability group should be apportioned between the members of that group who remain after any exclusions have been made.
D.30 For any liability group which has only a single remaining member, that person bears all of the costs falling to that liability group, that is both the cost of any single-linkage action referable to the significant pollutant linkage in question, and the share of the cost of any shared action attributed to the group as a result of the attribution process set out in Part 9.
D.31 For any liability group which has two or more remaining members, the enforcing authority should apply the relevant guidance on apportionment between those members. Each of the remaining members of the group will then bear the proportion determined under that guidance of the total costs falling to the group, that is both the cost of any single-linkage action referable to the significant pollutant linkage in question, and the share of the cost of any shared action attributed to the group as a result of the attribution process set out in Part 9. The relevant apportionment guidance is:
(a) for any Class A liability group, the guidance set out in Part 6; and
(b) for any Class B liability group, the guidance set out in Part 8.
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