The Contaminated Land Regime is a set of statutory rules to allocate liability for radioactive contaminated land that poses an ‘unacceptable level of risk’ so that the land can be remediated. It is important to understand that an owner or occupier of land may be responsible for the costs of remediation even if they were not responsible for the presence of the contaminating substance.
The Regime is set out in Part 2A of the Environmental Protection Act 1990, read alongside the changes in the Radioactive Contaminated Land (Modification of Enactments) (England) Regulations 2006 and the Radioactive Contaminated Land (Modification of Enactments) (Wales) Regulations 2006. Under the Regime, local authorities have a duty to identify contaminated land. The relevant enforcing authority (the local authority, the Environment Agency or Natural Resources Wales) will then carry out an investigation to identify the responsible organisation and take steps to ensure that the land is remediated.
When is land contaminated?
Radioactive contaminated land is defined as any land which appears (by reason of substances in, on or under the land) to cause:
- significant harm to the environment or human health or a significant possibility of such harm
- pollution of controlled waters.
The statutory guidance provides that the local authority should regard harm as being caused where lasting exposure gives rise to doses that exceed one or more of the following: (a) an effective dose of 3 millisieverts per annum; (b) an equivalent dose to the lens of the eye of 15 millisieverts per annum; or (c) an equivalent dose to the skin of 50 millisieverts per annum. Dosage is to be estimated in accordance with the Basic Safety Standards Directive
Who is responsible for remediation?
Where the contamination has been caused by an escape of particles from a licensed nuclear site, the Secretary of State is responsible for remediation. This is without prejudice to the responsibility of the operator of the site under the Nuclear Installations Act 1965.
Where the contamination has not originated from a licensed nuclear site, the Radioactive Contaminated Land Regime imposes liability on polluters or occupiers of the land, depending on the circumstances:
- The enforcing authority will seek to identify "Class A" persons first. "Class A" persons are those persons who caused or knowingly permitted the contaminating substances to be present in, on or under the land.
A person will have ‘knowingly permitted’ the contamination if they knew about it and had the power to do something about it (such as taking steps to prevent or remove the contamination and having a reasonable opportunity to do so.) "Class A" is therefore wider than the original polluter. It could include a subsequent owner or occupier who knew of the contamination but did not take any steps to prevent it from contaminating the land.
- If no "Class A" person can be found, the enforcing authority will seek to identify the current owner or occupier of the relevant land ("Class B" persons). One scenario where a Class A individual cannot be "found" is where a company has been dissolved. This scenario can occur in instances of historic contamination.
So what does this mean in practice?
The rules on identifying a "Class A" or "Class B" person are very complicated and depend on the particular circumstances of the land and the history of ownership. On the sale or lease of land, it is possible for liability to be transferred or allocated to a particular party if particular legal wording is used.
It is important for sellers and buyers, who suspect that there may be radioactive contamination present, to understand their potential liability under the Radioactive Contaminated Land Regime and to obtain advice on how they may protect themselves.
Buyers should understand that even if they did not cause the contamination to be present in the land, they could find themselves responsible for the cost of the clean-up unless the liability has been properly addressed in the sale agreement. Landlords can also become liable for contamination created by tenants and should include specific protection in the lease to ensure that the tenant bears any costs.