Environmental Protection Act 1990 - Part IIA Contaminated Land: statutory guidance edition 2

PART 5: Specific Considerations Applying to Class A Persons

E.32 The statutory guidance in this Part sets out specific considerations to which the enforcing authority should have regard in cost recovery decisions where the appropriate person is a Class A person, as defined in Chapter D (that is, a person who has caused or knowingly permitted the significant pollutant to be in, on or under the contaminated land).

E.33 In applying the approach in this Part, the enforcing authority should be less willing to waive or reduce its costs recovery where it was in the course of carrying on a business that the Class A person caused or knowingly permitted the presence of the significant pollutants, than where he was not carrying on a business. This is because in the former case he is likely to have earned profits from the activity which created or permitted the presence of those pollutants.

Where Other Potentially Appropriate Persons have not been Found

E.34 In some cases where a Class A person has been found, it may be possible to identify another person who caused or knowingly permitted the presence of the significant pollutant in question, but who cannot now be found for the purposes of treating him as an appropriate person. For example, this might apply where a company has been dissolved.

E.35 The authority should consider waiving or reducing its costs recovery from a Class A person if that person demonstrates to the satisfaction of the enforcing authority that:

(a) another identified person, who cannot now be found, also caused or knowingly permitted the significant pollutant to be in, on or under the land; and

(b) if that other person could be found, the Class A person seeking the waiver or reduction of the authority's costs recovery would either:

(v) be excluded from liability by virtue of one or more of the exclusion tests set out in Part 5 of Chapter D, or

(vi) the proportion of the cost of remediation which the appropriate person has to bear would have been significantly less, by virtue of the guidance on apportionment set out in Part 6 of Chapter D.

E.36 Where an appropriate person is making a case for the authority's costs recovery to be waived or reduced by virtue of paragraph E.35 above, the enforcing authority should expect that person to provide evidence that a particular person, who cannot now be found, caused or knowingly permitted the significant pollutant to be in, on or under the land. The enforcing authority should not regard it as sufficient for the appropriate person concerned merely to state that such a person must have existed.