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

PART 6: Apportionment Between Members of any Single Class A Liability Group

D.73 The statutory guidance in this Part is issued under section 78F(7) and sets out the principles on which liability should be apportioned within each Class A liability group as it stands after any members have been excluded from liability with respect to the relevant significant pollutant linkage as a result of the application of the exclusion tests in Part 5.

D.74 The history and circumstances of different areas of contaminated land, and the nature of the responsibility of each of the members of any Class A liability group for a significant pollutant linkage, are likely to vary greatly. It is therefore not possible to prescribe detailed rules for the apportionment of liability between those members which would be fair and appropriate in all cases.

General Principles

D.75 In apportioning costs between the members of a Class A liability group who remain after any exclusions have been made, the enforcing authority should follow the general principle that liability should be apportioned to reflect the relative responsibility of each of those members for creating or continuing the risk now being caused by the significant pollutant linkage in question. (For these purposes, "risk" has the same meaning as that given in Chapter A.) In applying this principle, the enforcing authority should follow, where appropriate, the specific approaches set out in paragraphs D.77 to D.86 below.

D.76 If appropriate information is not available to enable the enforcing authority to make such an assessment of relative responsibility (and, following the guidance at paragraph D.36 above, such information cannot reasonably be obtained) the authority should apportion liability in equal shares among the remaining members of the liability group for any significant pollutant linkage, subject to the specific guidance in paragraph D.85 below.

Specific Approaches

PARTIAL APPLICABILITY OF AN EXCLUSION TEST

D.77 If, for any member of the liability group, the circumstances set out in any of the exclusion tests in Part 5 above apply to some extent, but not sufficiently to mean that the an exclusion should be made, the enforcing authority should assess that person's degree of responsibility as being reduced to the extent which is appropriate in the light of all the circumstances and the purpose of the test in question. For example, in considering Test 2, a payment may have been made which was sufficient to pay for only half of the necessary remediation at that time - the authority could therefore reduce the payer's responsibility by half.

THE ENTRY OF A SUBSTANCE VS. ITS CONTINUED PRESENCE

D.78 In assessing the relative responsibility of a person who has caused or knowingly permitted the entry of a significant pollutant into, onto or under land (the "first person") and another person who has knowingly permitted the continued presence of that same pollutant in, on or under that land (the "second person"), the enforcing authority should consider the extent to which the second person had the means and a reasonable opportunity to deal with the presence of the pollutant in question or to reduce the seriousness of the implications of that presence. The authority should then assess the relative responsibilities on the following basis:

(a) if the second person had the necessary means and opportunity, he should bear the same responsibility as the first person;

(b) if the second person did not have the means and opportunity, his responsibility relative to that of the first person should be substantially reduced; and

(c) if the second person had some, but insufficient, means or opportunity, his responsibility relative to that of the first person should be reduced to an appropriate extent.

PERSONS WHO HAVE CAUSED OR KNOWINGLY PERMITTED THE ENTRY OF A SIGNIFICANT POLLUTANT

D.79 Where the enforcing authority is determining the relative responsibilities of members of the liability group who have caused or knowingly permitted the entry of the significant pollutant into, onto or under the land, it should follow the approach set out in paragraphs D.80 to D.83 below. D.80 If the nature of the remediation action points clearly to different members of the liability group being responsible for particular circumstances at which the action is aimed, the enforcing authority should apportion responsibility in accordance with that indication. In particular, where different persons were in control of different areas of the land in question, and there is no interrelationship between those areas, the enforcing authority should regard the persons in control of the different areas as being separately responsible for the events which make necessary the remediation actions or parts of actions referable to those areas of land.

D.81 If the circumstances in paragraph D.80 above do not apply, but the quantity of the significant pollutant present is a major influence on the cost of remediation, the enforcing authority should regard the relative amounts of that pollutant which are referable to the different persons as an appropriate basis for apportioning responsibility.

D.82 If it is deciding the relative quantities of pollutant which are referable to different persons, the enforcing authority should consider first whether there is direct evidence of the relative quantities referable to each person. If there is such evidence, it should be used. In the absence of direct evidence, the enforcing authority should see whether an appropriate surrogate measure is available. Such surrogate measures can include:

(a) the relative periods during which the different persons carried out broadly equivalent operations on the land;

(b) the relative scale of such operations carried out on the land by the different persons (a measure of such scale may be the quantities of a product that were produced);

(c) the relative areas of land on which different persons carried out their operations; and

(d) combinations of the foregoing measures.

D.83 In cases where the circumstances in neither paragraph D.80 nor D.81 above apply, the enforcing authority should consider the nature of the activities carried out by the appropriate persons concerned from which the significant pollutant arose. Where these activities were broadly equivalent, the enforcing authority should apportion responsibility in proportion to the periods of time over which the different persons were in control of those activities. It would be appropriate to adjust this apportionment to reflect circumstances where the persons concerned carried out activities which were not broadly equivalent, for example where they were on a different scale.

PERSONS WHO HAVE KNOWINGLY PERMITTED THE CONTINUED PRESENCE OF A POLLUTANT

D.84 Where the enforcing authority is determining the relative responsibilities of members of the liability group who have knowingly permitted the continued presence, over a period of time, of a significant pollutant in, on or under land, it should apportion that responsibility in proportion to:

(a) the length of time during which each person controlled the land;

(b) the area of land which each person controlled;

(c) the extent to which each person had both the financial and technical means and a reasonable opportunity to deal with the presence of the pollutant in question or to reduce the seriousness of the implications of that presence; or

(d) a combination of the foregoing factors.

COMPANIES AND OFFICERS

D.85 If, following the application of the exclusion tests (and in particular the specific guidance at paragraphs D.48(l)(iii) and D.49 above) both a company and one or more of its relevant officers remain as members of the liability group, the enforcing authority should apportion liability on the following bases:

(a) the enforcing authority should treat the company and its relevant officers as a single unit for the purposes of:

(i) applying the general principle in paragraph D.75 above ( i.e. it should consider the responsibilities of the company and its relevant officers as awhole, in comparison with the responsibilities of other members of the liability group), and

(ii) making any apportionment required by paragraph D.76 above; and

(b) having determined the share of liability falling to the company and its relevant officers together, the enforcing authority should apportion responsibility between the company and its relevant officers on a basis which takes into account the degree of personal responsibility of those officers, and the relative levels of resources which may be available to them and to the company to meet the liability.

D.86 For the purposes of paragraph D.85 above, the "relevant officers" of a company are any director, manager, secretary or other similar officer of the company, or any other person purporting to act in any such capacity.