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

PART 3: Cost Recovery Decisions

Cost Recovery Decisions in General

E.10 The statutory guidance in this Part sets out considerations to which the enforcing authority should have regard when making any cost recovery decision. In view of the wide variation in situations which are likely to arise, including the history and ownership of land, and liability for its remediation, the statutory guidance in this Chapter sets out principles and approaches, rather than detailed rules. The enforcing authority will need to have regard to the circumstances of each individual case.

E.11 In making any cost recovery decision, the enforcing authority should have regard to the following general principles:

(a) the authority should aim for an overall result which is as fair and equitable as possible to all who may have to meet the costs of remediation, including national and local taxpayers; and

(b) the "polluter pays" principle, by virtue of which the costs of remediating pollution are to be borne by the polluter; the authority should therefore consider the degree and nature of responsibility of the appropriate person for the creation, or continued existence, of the circumstances which lead to the land in question being identified as contaminated land

E.12 In general, this will mean that the enforcing authority should seek to recover in full its reasonable costs. However, the authority should waive or reduce the recovery of costs to the extent that the authority considers this appropriate and reasonable, either:

(a) to avoid any hardship which the recovery may cause to the appropriate person; or

(b) to reflect one or more of the specific considerations set out in the statutory guidance in Parts 4, 5 and 6 below.

Information for Making Decisions

E.13 In general, the enforcing authority should expect anyone who is seeking a waiver or reduction in the recovery of remediation costs to present any information needed to support his request.

E.14 In making any cost recovery decision, the authority should always consider any relevant information provided by the appropriate person. The authority should also seek to obtain such information as is reasonable, having regard to:

(a) how the information might be obtained;

(b) the cost, for all the parties involved, of obtaining the information; and

(c) the potential significance of the information for any decision.

E.15 The enforcing authority should, in all cases, inform the appropriate person of any cost recovery decisions taken, explaining the reasons for those decisions.

Cost Recovery Policies

E.16 In order to promote transparency, fairness and consistency, an enforcing authority which is a local authority may wish to prepare, adopt and make available as appropriate a policy statement about the general approach it intends to follow in making cost recovery decisions. This would outline circumstances in which it would waive or reduce cost recovery having had regard to hardship and the statutory guidance in this Chapter.

E.17 There SEPA is making a cost recovery decision with respect to a special site falling within the area of a local authority which has adopted such a policy statement, the Agency should take account of that statement.