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What regime governs liability for soil pollution (including the allocation, transfer and limitation of liability)?
Part 2A of the Environmental Protection Act 1990 and the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 regulate the clean up of contaminated land. It sets out a framework for identifying and remediating land that poses a significant risk to health or the environment where there is no alternate solution. The regulations focus on the most significant cases of damage to the environment, including, in relevant part, risks to human health arising from the contamination of land.
Under Part 2A, liability for remediating contaminated land initially sits with the parties that caused or knowingly permitted the contamination (ie, the Class A liability group). Unless otherwise exempted or no longer in existence, liability for contaminating the land remains with polluters or knowing permitters that no longer own or occupy the land. Where it is impossible to identify any members of the Class A liability group, liability for remediation falls on the existing owners or occupiers of the land, regardless of their responsibility for, or awareness of, the contamination. Liability is strict and joint and several.
Part 2A provides that parties buying or selling land may allocate (ie, effectively transfer) liability for contamination on that land between themselves contractually, so that one party (often the buyer) accepts liability for the contamination to the exclusion of the other party (often the seller). It further provides that if parties enter into such an agreement to allocate liability, the enforcing authority (ie, the Environment Agency) should generally give effect to the agreement on the allocation of liability as between those parties. A similar provision under Part 2A applies where the land is sold with information regarding the contamination thereon. There is a presumption that where a large organisation buys land, it will have made inquiries as to the presence of contamination. Law Society guidance encourages solicitors to make inquiries as a matter of course.
What environmental due diligence measures are recommended before concluding land transactions?
Common due diligence measures include:
- a review of any historic environmental reports, statements, findings or audits relating to the land’s condition;
- inquiries to the local authority to assess whether the land is included in any register of potentially contaminated land in the relevant area;
- a review of vendor records of disclosed or publicly available information concerning any spills, leaks or emissions of contaminants or hazardous substances on, near or under the land;
- a review of any contractual obligations entered into by the target or its precursors in relation to the land;
- a review of any ongoing rights or obligations that may run with the land with respect to environmental remediation or management; and
- intrusive investigations conducted on the land in order to ascertain the presence and level of contamination (rare).
What remediation and clean-up measures are typically applied and how can remediation costs be recovered?
Remediation requires the removal, treatment or control of contamination such that:
- the risk that it presents is reduced to an acceptable level (determined by the regulator); or
- the land is rendered suitable for its existing use under an agreed remediation strategy.
Common soil remediation techniques include:
- on-site treatment, excavation and removal;
- cover systems (where the source contamination is contained, but not removed); and
- solidification and stabilisation.
Failure to comply with a remediation notice is a criminal offence. In the event that remediation does not occur or is inadequate, the regulator can take any necessary remedial steps and recover the costs from the liable parties (although, in practice, this is rare and limited to more serious instances).
Air and water pollution
How are air emissions regulated? What air quality standards and emission limits apply?
Unauthorised discharges into air are criminal offences under Regulation 38 of the Environmental Permitting (England and Wales) Regulations 2016.
EU air quality standards are implemented in the United Kingdom through the Air Quality Standards Regulations 2010.
What rules govern the discharge of wastewater and the protection of water resources?
Unauthorised discharges into water are criminal offences under Regulation 38 of the Environmental Permitting (England and Wales) Regulations 2016.
EU water quality standards are implemented in the United Kingdom through the Water Supply (Water Quality) Regulations 2016.
What are the consequences of non-compliance with air and water regulations?
Non-compliance with Regulation 28 of the Environmental Permitting (England and Wales) Regulations 2016 is punishable by an unlimited fine (although the guidelines for the sentencing of environmental criminal offences provide an indicative range of between £50 and £3 million for organisations depending on the impact of the non-compliance and the organisation’s culpability and size). If the offence is committed by a body corporate – and it is proved that an officer of the body corporate consented to the offence or that the offence is attributable to any neglect on the officer’s behalf – both the officer and the body corporate may be guilty of an offence and can be liable to be prosecuted. In practice, such prosecutions of directors and managers are unusual.
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