When can costs be recovered by an enforcing authority? Subject to sections 78J(7) and 78K(6) of the Environmental Protection Act 1990 (EPA 1990), an enforcing authority is entitled to recover its reasonable costs from the appropriate person(s) where it has carried out remediation work pursuant to its powers under EPA 1990, s 78N(3)(a), (c), (e) and (f): • where there is imminent danger of serious harm, or serious pollution of controlled waters • a person fails to comply with any of the requirements in a remediation notice • it would decide, due to hardship considerations, not to recover some or all of its costs (eg it may be able to recover its costs where it is entitled to recover a portion of those costs) • no appropriate person, in relation to a particular thing, has been found after reasonable inquiry (eg it may be able to recover its costs if an appropriate person is later found) Where there are two or more appropriate persons, the enforcing authority may recover its costs from those

When can enforcing authorities carry out remediation work? Enforcing authorities have power to do what is 'appropriate' by way of remediation under the Pt IIA of the Environmental Protection Act 1990 (EPA 1990) to the 'relevant land or water environment' where: • there is an imminent danger of serious harm or serious pollution of controlled waters • an appropriate person has entered into a written agreement with the enforcing authority for the authority to carry out the work at the cost of that person • a person fails to comply with any of the requirements in a remediation notice • it is precluded

Requirement for remediation Enforcing authorities must ensure that any land they identify as contaminated land under Part IIA of the Environmental Protection Act 1990 (EPA 1990) is remediated to the required standard. Remediation may be carried out by: • an appropriate person, pursuant to a remediation notice served by the enforcing authority • an appropriate person or some other person, voluntarily or pursuant to some other regime, as long as the enforcing authority is satisfied that appropriate remediation is being, or will be, carried out without the service of a remediation notice • the enforcing authority, where it is the appropriate person or has the power to carry out remediation work itself According to the Environment Agency's (EA) report on Dealing with contaminated land in England, at the majority of remediated sites (371/460), the responsibility for carrying out remediation fell to either the Local Authority (LA) or the EA. Of these sites remediation was undertaken: • on an urgent basis (13%) • by the LA via a written agreement with the appropriate person, where

Determining liability Enforcing authorities should follow the five step procedure set out in the statutory guidance for determining liability under the Environmental Protection Act 1990, s 78F (EPA 1990). Not all stages of the procedure will be relevant in all cases. See Practice Note: Contaminated land—process for determining liability. Step four in the procedure requires the enforcing authority to determine whether any members of a liability group should be excluded from liability. Exclusion issues may arise where the history of a site is complex. For example, a succession of different occupiers or different industries may all have contributed to the presence of pollutants and it may be fair for some of them to be excluded. Importantly, an appropriate person cannot be excluded from a liability group if they are the only person in that group. Similarly, where there are two or more appropriate persons not all of them can be excluded from a liability group. Different exclusion tests apply to Class A liability groups and Class B liability groups. The six complicated exclusion tests apply to Class A liability

Determining liability for remediation Identifying the appropriate person(s) who may be liable for remediation under Part IIA of the Environmental Protection Act 1990 (EPA 1990), is the first step in the five-step procedure set out in the statutory guidance, which enforcing authorities should follow when determining liability under the EPA 1990, s 78F. Not all stages of the procedure will be relevant in all cases. See Practice Note: Contaminated land—process for determining liability. Step one requires the enforcing authority to identify: • the appropriate person(s) liable for the costs of remediation, and • the relevant liability group(s) Questions of hardship are not taken into account at this stage. See Practice Note: Contaminated land—process for determining liability—Hardship considerations. Who is an appropriate person? An 'appropriate person' is any: • person who causes or knowingly permits contaminating substances to be in, on or under the land in question (Class A), or • owner or occupier of contaminated land, but only where a Class A person cannot be found (Class B) An 'appropriate

Contaminated land 'Land contamination' is a general term used to describe any land that may be contaminated in some way. 'Contaminated land', is a specific legal term defined in the Environmental Protection Act 1990, Pt IIA (EPA 1990). See Practice Note: Contaminated land—definition of contaminated land. If a local authority identifies contaminated land it must serve a remediation notice on anyone who caused or knowingly permitted the contaminant(s) to be in on, or under the land. If no such persons can be found, liability may fall on the innocent owner or occupier. The contaminated land regime is strict and retrospective. It was introduced to: • deal with the legacy of contaminated sites in the UK that would not be remediated without regulatory intervention • promote market solutions by encouraging companies to undertake voluntary remediation Liability should only be imposed under Part IIA where there is no better solution for dealing with the contamination, ie it is an option of last resort. See Practice Note: Contaminated land—objectives of the contaminated land regime. Several other regimes

What is the duty to inspect? Local authorities (LAs) have a duty to inspect their areas for the purpose of: • identifying any contaminated land under the Environmental Protection Act 1990, Pt IIA (EPA 1990) • deciding whether it needs to be designated as a special site, for further information see Practice Note: Special sites of contaminated land LAs must act in accordance with the statutory guidance when identifying contaminated land. What land must be inspected? LAs must inspect land within their local area. A LA is not obliged to inspect land outside its area. However, it may choose to treat land outside its area as if it were land within its area, where the land is adjacent or adjoining its local boundary and is in such a condition that: • significant harm is being caused within its area • there is a significant possibility of significant harm being caused within its area • significant pollution of controlled waters is being caused within its area, or • there is a significant possibility of significant

What are controlled waters for the purposes of Pt IIA? 'Controlled waters' are defined in the Environmental Protection Act 1990 (EPA 1990) as having the same meaning as in the Pt III of the Water Resources Act 1991 (WRA 1991) except that the definition of 'ground waters' is modified. Essentially, controlled waters include: • relevant territorial waters (eg sea water out to three nautical miles) • coastal waters (eg tidal waters) • inland freshwaters (eg rivers, streams, watercourses, lakes, and ponds that are not tidal) • ground waters (eg water stored in rock layers beneath the soil) Relevant territorial waters 'Relevant territorial waters' are those that extend seaward for three nautical miles from the baselines adjacent to England and Wales. This definition adopts a three nautical mile limit as opposed to the 12 nautical mile limit for territorial waters under the Territorial Sea Act 1987. The baseline is usually the low water mark around the coast. It is delineated in the relevant orders in council: • Territorial Waters Order in Council 1964

Meaning of remediation 'Remediation' is given a relatively wide definition in the Environmental Protection Act 1990, Pt IIA (EPA 1990). It may involve a range of actions, including: • assessment actions: to assess the condition of contaminated land, controlled waters affected by that land, or any adjoining or adjacent land • remedial treatment actions: to remove or disrupt significant contaminant linkages (SCLs) • monitoring actions: inspections to monitor the condition of the contaminated land, controlled waters or any adjoining or adjacent land Essentially, remediation is the action(s) required to remove the risks posed to human health, the environment or controlled waters, and to return the land to a state that is suitable for its current use. The broad aims of remediation are to: • remove identified SCLs or permanently disrupt them so they are no longer significant and risks are reduced below an unacceptable level • take reasonable measures to remedy harm or pollution caused by a SCL Assessment actions Assessment actions may be required where information on the condition of the land is needed to: • characterise

Background to the contaminated land regime The contaminated land regime was introduced in 2000 to: • deal with the legacy of contaminated sites in the UK that would not be remediated without regulatory intervention • promote market solutions by encouraging companies to undertake voluntary remediation ‘Contaminated land’ has a specific legal definition under the Part IIA of the Environmental Protection Act 1990 (EPA 1990). Not all land contamination falls within the meaning of ‘contaminated land’. For further information, see Practice Note: Contaminated land—definition of contaminated land. Objectives in the statutory guidance The revised statutory guidance sets out objectives which should be read and applied with EPA

What is an orphan linkage? An 'orphan linkage' is one where there are no appropriate persons for a significant contaminant linkage (SCL). This may arise where: • the SCL relates solely to the pollution of controlled waters and no Class A person can be found • no Class A or Class B persons can be found, or • those who would otherwise be liable are exempted by one of the relevant statutory provisions Who pays for remediation where there is an orphan linkage? Who pays for the remediation of orphan linkages depends on how many SCLs are on the site, how the remediation

What is the nature of the liability? The Environmental Protection Act 1990, Pt IIA (EPA 1990) is a liability-based regime established to deal with the UK's legacy of contaminated land. It is not a criminal offence for a person to contaminate land under Pt IIA. However, it is an offence to fail to comply with a remediation notice issued by the enforcing authority. Retrospective liability An 'appropriate person' may be liable for the costs of remediating contaminated land where the contamination occurred before the regime came into force on 1 April 2000 (in England) and 15 September 2001 (Wales), even if it was not unlawful at the time it was caused. The retrospective nature of the regime enables the enforcing authority to require remediation at historically contaminated sites which are unlikely to be remediated otherwise. 'New' contamination is generally dealt with by other regimes, such as the environmental permitting or environmental liability regimes. Strict liability The regime is strict for the ‘causation’ limb of the liability test, in that the enforcing authority does not need to prove