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

PART 9: Attribution of Responsibility between Liability Groups

D.98 The statutory guidance in this Part is issued under section 78F(7) and applies where one remediation action is referable to two or more significant pollution linkages (that is, it is a "shared action"). This can occur either where both linkages require the same action (that is, it is a "common action") or where a particular action is part of the best combined remediation scheme for two or more linkages (that is, it is a "collective action"). This Part provides statutory guidance on the attribution of responsibility for the costs of any shared action between the liability groups for the linkages to which it is referable.

Attributing Responsibility for the Cost of Shared Actions between Liability Groups

D.99 The enforcing authority should attribute responsibility for the costs of any common action among the liability groups for the significant pollutant linkages to which it is referable on the following basis:

(a) if there is a single Class A liability group, then the full cost of carrying out the common action should be attributed to that group, and no cost should be attributed to any Class B liability group);

(b) if there are two or more Class A liability groups, then an equal share of the cost of carrying out the common action should be attributed to each of those groups, and no cost should be attributed to any Class B liability group); and

(c) if there is no Class A liability group and there are two or more Class B liability groups, then the enforcing authority should treat those liability groups as if they formed a single liability group, attributing the cost of carrying out the common action to that combined group, and applying the guidance on exclusion and apportionment set out in Parts 7 and 8 of this Chapter as between all of the members of that combined group.

D.100 The enforcing authority should attribute responsibility for the cost of any collective action among the liability groups for the significant pollutant linkages to which it is referable on the same basis as for the costs of a common action, except that where the costs fall to be divided among several Class A liability groups, instead of being divided equally, they should be attributed on the following basis:

(a) having estimated the costs of the collective action, the enforcing authority should also estimate the hypothetical cost for each of the liability groups of carrying out the actions which are subsumed by the collective action and which would be necessary if the significant pollutant linkage for which that liability group is responsible were to be addressed separately; these estimates are the "hypothetical estimates" of each of the liability groups;

(b) the enforcing authority should then attribute responsibility for the cost of the collective action between the liability groups in the proportions which the hypothetical estimates of each liability group bear to the aggregate of the hypothetical estimates of all the groups.

CONFIRMING THE ATTRIBUTION OF RESPONSIBILITY

D.101 If any appropriate person demonstrates, before the service of a remediation notice, to the satisfaction of the enforcing authority that the result of an attribution made on the basis set out in paragraphs D.99 and D.100 above would have the effect of the liability group of which he is a member having to bear a liability which is so disproportionate (taking into account the overall relative responsibilities of the persons or groups concerned for the condition of the land) as to make the attribution of responsibility between all the liability groups concerned unjust when considered as a whole, the enforcing authority should reconsider the attribution. In doing so, the enforcing authority should consult the other appropriate persons concerned

D.102 If the enforcing authority then agrees that the original attribution would be unjust it should adjust the attribution between the liability groups so that it is just and fair in the light of all the circumstances. An adjustment under this paragraph should be necessary only in very exceptional cases.

Orphan Linkages

D.103 As explained at paragraphs D.12, D.14 and D.17 above, an orphan linkage may arise where:

(a) the significant pollutant linkage relates solely to the significant pollution of the water environment (and not to significant harm) and no Class A person can be found;

(b) no Class A or Class B persons can be found; or

(c) those who would otherwise be liable are exempted by one of the relevant statutory provisions (ie sections 78J(3), 78K or 78X(3)).

D.104 In any case where only one significant pollutant linkage has been identified, and that is an orphan linkage, the enforcing authority should itself bear the cost of any remediation which is carried out.

D.105 In more complicated cases, there may be two or more significant pollutant linkages, of which some are orphan linkages. Where this applies, the enforcing authority will need to consider each remediation action separately.

D.106 For any remediation action which is referable to an orphan linkage, and is not referrable to any other linkage for which there is a liability group, the enforcing authority should itself bear the cost of carrying out that action.

D.107 or any shared action which is referable to an orphan linkage and also to a single significant pollutant linkage for which there is a Class A liability group, the enforcing authority should attribute all of the cost of carrying out that action to that Class A liability group.

D.108 For any shared action which is referable to an orphan linkage and also to two or more significant pollutant linkages for which there are Class A liability groups, the enforcing authority should attribute the costs of carrying out that action between those liability groups as it would do if the orphan linkage did not exist.

D.109 For any shared action which is referrable to an orphan linkage and also to a significant pollutant linkage for which there is a Class B liability group (and not to any significant pollutant linkage for which there is a Class A liability group) the enforcing authority should adopt the following approach:

(a) where the remediation action is a common action, the enforcing authority should attribute all of the cost of carrying out that action to the Class B liability group; and

(b) where the remediation action is a collective action the enforcing authority should estimate the hypothetical cost of the action which would be needed to remediate separately the effects of the linkage for which that group is liable. The enforcing authority should then attribute the costs of carrying out the collective action between itself and the Class B liability group so that the expected liability of that group does not exceed that hypothetical cost.