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

11 - Remediation Action by the Authority

11.1 Before serving any REMEDIATION NOTICE, the ENFORCING AUTHORITY needs to consider whether it has the power to carry out any of the REMEDIATION ACTIONS itself. Where this applies, the authority is precluded from serving a REMEDIATION NOTICE requiring anyone else to carry out that REMEDIATION ACTION ( section 78H(5)).

The Power to Carry Out Remediation

11.2 In general terms, the ENFORCING AUTHORITY has the power to carry out a REMEDIATION ACTION itself in cases where:

(a) the ENFORCING AUTHORITY considers it necessary to take urgent action itself ( section 78N(3)(a); see paragraphs 5.1 to 5.4 above);

(b) there is no APPROPRIATE PERSON to bear responsibility for the action ( section 78N(3)(f); see paragraph 11.3 below);

(c) the ENFORCING AUTHORITY is precluded from requiring one or more persons, who would otherwise be APPROPRIATE PERSONS, to carry out the action ( sections 78N(3)(d) & (e); see paragraph 11.4 below);

(d) the ENFORCING AUTHORITY has agreed with the APPROPRIATE PERSON that the authority should carry out the REMEDIATION ACTION ( section 78N(3)(b); see paragraphs 11.5 to 11.6 below); or

(e) the REMEDIATION ACTION has been specified in a REMEDIATION NOTICE, which has not been complied with ( section 78N(3)(c); see paragraph 15.15 below).

THERE IS NO APPROPRIATE PERSON

11.3 The ENFORCING AUTHORITY has the power to carry out a REMEDIATION ACTION if, after reasonable enquiry, it has been unable to find an APPROPRIATE PERSON for that action ( section 78N(3)(f)).

THE APPROPRIATE PERSON CANNOT BE REQUIRED TO CARRY OUT A REMEDIATION ACTION

11.4 The ENFORCING AUTHORITY needs to consider whether it has the power to carry out a REMEDIATION ACTION on the basis that the APPROPRIATE PERSON cannot be required to carry it out. This applies where:

(a) the ENFORCING AUTHORITY considers that if it carried out the REMEDIATION ACTION itself, it would not seek to recover fully from that APPROPRIATE PERSON the proportion of the costs which that person would otherwise have to bear if the action were included in a REMEDIATION NOTICE ( sections 78N(3)(e) & 78P(2); see also paragraphs 10.1 to 10.10 above);

(b) the REMEDIATION ACTION is referable solely to one or more SIGNIFICANT POLLUTANT LINKAGES which relate to the SIGNIFICANT POLLUTION OF THE WATER ENVIRONMENT (and not to any SIGNIFICANT HARM), and either:

(i) the APPROPRIATE PERSON is a CLASS B PERSON ( section 78J(2)), or

(ii) the APPROPRIATE PERSON is a CLASS A PERSON solely by virtue of his having permitted the discharge of water from a mine which was abandoned before the end of 1999 ( section 78J(3));

(c) the SIGNIFICANT POLLUTANT LINKAGE to which the REMEDIATION ACTION is referable is the result of the escape of the POLLUTANT from other land onto the CONTAMINATED LAND in question, and both:

(i) the APPROPRIATE PERSON is a CLASS B PERSON, and

(ii) the REMEDIATION ACTION is intended to deal with SIGNIFICANT HARM or the SIGNIFICANT POLLUTION OF THE WATER ENVIRONMENT on land other than the CONTAMINATED LAND in question, to which the POLLUTANT has escaped ( section 78K); or

(d) requiring the APPROPRIATE PERSON to carry out the REMEDIATION ACTION would have the effect of making him personally liable to bear the costs, and:

(i) he is a "PERSON ACTING IN A RELEVANT CAPACITY" such as an insolvency practitioner ( section 78X(4)), and

(ii) the REMEDIATION ACTION is not to any extent referable to any POLLUTANT which is present as a result of any act or omission which it was unreasonable for a person acting in that capacity to do or make ( section 78X(3)(a)).

WRITTEN AGREEMENT

11.5 Even if none of the grounds set out in paragraph 11.4 above applies, the ENFORCING AUTHORITY may wish to consider whether it would, nonetheless, be appropriate for the authority to carry out a REMEDIATION ACTION itself on behalf of the APPROPRIATE PERSON. This might be appropriate, in particular, in the case of home-owners identified as APPROPRIATE PERSONS.

11.6 If the ENFORCING AUTHORITY considers that it wishes do this, it needs to seek the written agreement of the APPROPRIATE PERSON for:

(a) the ENFORCING AUTHORITY to carry out the REMEDIATION ACTION itself, on behalf of the APPROPRIATE PERSON; and

(b) the APPROPRIATE PERSON to reimburse the authority for any costs which he would otherwise have had to bear for the REMEDIATION ( section 78N(3)(b)).

Action by the Authority

11.7 The ENFORCING AUTHORITY'S powers to carry out REMEDIATION under section 78N may be triggered with respect to all of the APPROPRIATE PERSONS for a particular REMEDIATION ACTION, or only with respect to some of them. Whichever is the case, the authority is precluded from including the REMEDIATION ACTION in question in a REMEDIATION NOTICE served on anyone ( section 78H(5)).

11.8 However, where the ENFORCING AUTHORITY carries out a REMEDIATION ACTION using its powers with respect to urgent action ( section 78N(3)(a)) or limitations on costs ( section 78N(3)(e); see paragraphs 10.1 to 10.6 above), it is entitled to recover its reasonable costs from all of the APPROPRIATE PERSONS for that REMEDIATION ACTION ( section 78P(1)). In deciding how much of those costs to recover from any particular APPROPRIATE PERSON, the authority must have regard to hardship which may be caused to that person and to the statutory guidance set out in Chapter E of Annex 3 ( section 78P(2)).

11.9 For example, there may be two APPROPRIATE PERSONS (persons "1" and "2") for a particular REMEDIATION ACTION. The ENFORCING AUTHORITY may consider that the cost which "person 1" would have to bear would cause him hardship. On this basis, the authority has a power to carry out the REMEDIATION ACTION itself, and cannot include that action in a notice served on either of the APPROPRIATE PERSONS (see paragraph 10.5 above). Once the authority has carried out the action, it can recover from "person 2" the same proportion of its costs as a REMEDIATION NOTICE served on him would have specified, and from "person 1" as much of the remainder as would not cause hardship or be inconsistent with the statutory guidance in Chapter E.

11.10 Where the ENFORCING AUTHORITY is precluded from serving a REMEDIATION NOTICE because it has powers under section 78N to carry out the REMEDIATION itself, it will be under a duty to prepare and publish a REMEDIATION STATEMENT recording:

"(a) the things which are being, have been, or are expected to be, done by way of REMEDIATION in the particular case;

"(b) the name and address of the person who is doing, has done, or is expected to do, each of those things; and

"(c) the periods within which each of those things is being, or is expected to be done" ( section 78H(7)).

11.11 The ENFORCING AUTHORITY must then include details of the REMEDIATION STATEMENT on its REGISTER ( section 78R(1)(c) and regulation 15; see paragraphs 17.1 to 17.19 below and Annex 4, paragraph 79).