Once land has been investigated and found to be statutorily contaminated, there is a cumbersome procedure which must be followed relating to declaration and enforcement. Roger Braithwaite tackles these issues in this final part of EHJ's contaminated land series

Once a local authority officer has decided that the land is contaminated, based on at least one significant pollutant linkage(1), the authority must prepare a written record of the determination including:

• a description of the pollutant linkage(s), identifying all three components (pollutant, pathway, receptor)
• a summary of the evidence (factual) upon which the evidence is based
• a summary of the relevant assessment of this evidence
• a summary of the way the authority considers that the requirements of the statutory guidance have been satisfied.(2)

For example, imagine the pollutant was benzene, the pathway soil and the receptor property. The factual evidence would be obtained from the site investigation, explaining the technical procedures, the identification of the pollutant, its spatial distribution, concentration on the site and its proximity to the property in question (usually pvc services).
The assessment will be the scientific basis for the officer's decision and should include a conceptual model, why this pollutant has been considered significant as opposed to the other constituents of petrol or any other contaminants present or likely to be present (which will most likely relate to its relationship to the receptor), and why other pollutant linkages have been discounted such as those to water or humans.

Finally all the relevant aspects of the statutory guidance must be shown to be satisfied including matters relating to:

• significant harm
• significant possibility of significant harm
• pollution of controlled waters
• the likelihood of the pollution of controlled waters
• consultation procedures
• agreements and consistency with other regulatory bodies (or if otherwise, why)
• determination of the physical extent of the land which may be affected
• why the land is / is not considered to be a special site.(3)

NOTIFICATION
The local authority must now initiate the formal notification procedure to start the consultation process on what kind of remediation might be appropriate.
In respect of each part of the land in question, the authority must establish who is the owner, the occupier(s), and the appropriate person(s),(4) and notify them, together with the Environment Agency, that the land has been identified as contaminated. Further guidance on the form of this notification, which must be in writing, will be issued in due course.(5) In many cases the authority may not have been able to establish with certainty who falls into these categories, particularly the appropriate person. It must, however, act without delay on the best information available to it at the time, while continuing investigations.

Included in the notification may be:

• the written record of determination
• site investigation reports (or their availability)
• statements relating to who appears to be appropriate persons and why
• details of all other parties notified
• information on tests for exclusion and apportionment.

Having identified the land as contaminated, the authority must decide whether it is a special site.3 If it decides that it is, the authority must ask the Environment Agency if it agrees. Where the agency agrees, or fails to notify the local authority that it disagrees within 21 days, the land is formally designated a special site and the agency becomes the enforcing authority. Where there is a dispute, the local authority must refer the decision to the Secretary of State together with written statements from both parties. The local authority still has the duty to notify the relevant persons where special sites are determined.

LIABILITY
When all significant pollutant linkages have been identified, the procedure relating to the apportionment of liability must commence. This has five distinct stages as follows:
1. identifying potential appropriate persons and liability groups
2. characterising remediation actions
3. attributing responsibility to liability groups
4. excluding members of liability groups
5. apportioning liability between members of a liability group

These are complex issues, so this will just be restricted to key points. The process commences with the establishment of liability groups. All appropriate persons for any one linkage are a "liability group". These may be class A or class B persons.

Appropriate persons - Class A
These are, generally speaking the polluters, but section 78F(2) includes persons who "knowingly permit".4 So, should a developer choose to leave contamination on a site which subsequently results in the land being declared contaminated, he/she may become an appropriate person and thereby liable for remediation. These are known as class A persons.
The test of "causing or knowingly permitting" has been used as a basis for establishing liability in environmental legislation for more than 100 years, primarily in relation to water pollution. The draft guidance considers the meaning of these terms including a comment from the House of Lords in July 1995 while debating the Environment Bill:
The test of "knowingly permitting" would require both knowledge that the substances in question were in, on or under the land and the possession of the power to prevent such a substance being there.6
As such, it is suggested that innocent owners with knowledge should never become class A persons.
The matter of appropriate persons must be considered for each pollutant linkage. Therefore where a site has had a series of contaminating uses over the years, each significant pollutant linkage must be identified separately and liability considered for each.

Appropriate persons - Class B
Where no class A persons can be found, liability reverts to the owner or the occupier. These are known as class B persons. The local authority must, however, make all reasonable enquiries to identify class A persons first.
Generally speaking the members of a liability group will have the total costs falling on the group as a whole apportioned between them. It may also be necessary to apportion costs between liability groups.
There are three basic principles which apply to exclusion and apportionment tests:
1. The financial circumstances of those concerned should have no relevance.
2. The local authority must consult persons affected to obtain information on a reasonable basis having regard to the cost. If someone is seeking to establish an exclusion or influence an apportionment to his benefit then the burden of providing the authority with supporting information lies with him.
3. Where there are agreements between appropriate persons the local authority should try to give effect to these agreements. This is subject to the caveat that an agreement must be disregarded to the extent that it would increase costs borne by someone who would benefit from limitation on cost recovery (thereby adding to the cost to the public purse.

The latter point is interesting. Clause D38 of the draft circular provides guidance on liability agreements. These, not surprisingly, have become known as D38 Agreements, and are being drawn up in relation to the development of contaminated sites all over the country. Unfortunately, however, the definition of an applicable agreement is less than straightforward and parties merely agree to share the costs of a remedial action leaves plenty of scope for uncertainty.

EXCLUSIONS
There are six tests specified to identify class A groups who should be excluded from liability. These should be applied in sequence and separately for each pollutant linkage. The exclusion of class B persons is much less complex with the purpose of the single test merely excluding those who do not have an interest in the capital value of the land. Therefore tenants etc who occupy under licence with no marketable value, or who pay rack rent with no other beneficial interests, are excluded.
Where a local authority has apportioned the costs of each remediation action(7), and before serving remediation notices, it must consider whether any of those liable may not be able to afford it. If, after taking into consideration the detailed guidance in annex 3, chapter E, it decides that one or more of the parties could not, it can not serve a remediation notice on any of the parties. It must, instead, consider carrying out the work itself and produce and publish a remediation statement.(8)

Before remediation notices can be served, an extensive consultation process must be completed and ample encouragement given to arrive at an informal solution. The local authority must make reasonable endeavours to consult the appropriate person(s), owners, occupiers etc about their views on the state of the land. This is unusual and could result in some real nightmares and delays for local authority officers. Where a housing estate is affected, for example, it would not be unreasonable to expect house owners, landowners, lenders, insurers, builders, geotechnical engineers, residents groups, etc all to have differing views according to their position in the jigsaw.

It should be noted that the Government requires that remediation notices are served only as a last resort, and then only after this lengthy consultation process.
Notices can be authorised after two tests are satisfied:
1. that the remediation actions will not be carried out otherwise
2. that the local authority has no power to carry out the work itself.

If these are met, the authority must serve a remediation notice on each appropriate person. It can not be served less than three months after formal notification that the land is contaminated unless urgent action is deemed necessary (where there is imminent risk of serious harm).
The form and content of remediation notices will be the subject of regulations and further guidance. Given the extent of the information to be included in the notices and the likelihood that they will be contested, drafting will demand the utmost vigilance.

SPECIFYING REMEDIATION
Local authority officers will have the onerous task of specifying remediation measures. These must be both appropriate and cost-effective. The aim of any remediation should be to ensure that the land is no longer contaminated, taking the shortest and lowest cost route. This means in most cases attention will be focused on the pathway, rather than the contaminant or receptor. The draft circular defines the standard for remediation by reference to the concept of "best practicable techniques".
An interesting hybrid between best practicable means and best available techniques. There will be plenty of "practice" identified in the tomes of technical guidance which will eventually accompany the provisions, but whether "BPT" will emerge from this is still unclear. Perhaps a series of RGs (remediation guidance notes) would be a good idea, akin to the part 1 PGs.
Reasonableness is, however, the key. This is determined in relation to the cost of carrying out the remediation against the cost of failing to (ie the costs, or potential costs, resulting from the continuing pollution).
Like hardship, which must be considered at the outset of the enforcement process, the matter of reasonableness and complex cost benefit analysis is bound to become a major stumbling block to progress in remediating contaminated land.

REMEDIATION BY THE LOCAL AUTHORITY
Before notice(s) can be served, the local authority must determine first whether it has the power to carry out any of the remediation actions. There are five specified circumstances where this may be the case:
1. where urgent action is required
2. where no appropriate person can be found
3. where one or more appropriate persons are excluded (on grounds of hardship)
5. where the local authority has made an agreement with the appropriate person(s) that it should carry out the remediation
6. in default of a remediation notice.
Urgent remediation action should be authorised where there is imminent danger of serious harm or serious pollution of controlled waters.

CONCLUSIONS
In part one of this series it was suggested that the Government's attempts to provide a tailored system which was both fair and flexible had proved a stumbling block to the legal draughtsmen. A close look at these final rules reveals proposals which are so complex as to potentially defeat their objectives of clarity and flexibility. In particular, the "polluter pays" principle has been significantly compromised and uncertainties as to who may be polluters, may lead in many circumstances to innocent occupiers being found liable.

The issues and vagaries around the terms such as significant, significant possibility, hardship, best practicable techniques, reasonableness and so on, could lead one to wonder whether the system now in place is in any way clearer or, indeed, going to lead to greater consistency of identification and enforcement. There are openings for counter argument at every step in the process, therefore the first advice any company is likely to receive following receipt of any formal notification will be: appeal.
The only certainty seems to be that there are enormous potential earnings for lawyers and a guaranteed significant increase in the UK local government grey hair count.

References
References to the "circular" relate to Draft DETR Circular - Environmental Protection Act 1990: Part IIA Contaminated Land, September 1999.
1. Significant pollutant linkage is defined in the circular as "a pollutant linkage which forms the basis for a determination that a piece of land is contaminated land".
2. Circular annex 3, chapters A and B.
3. Land to be designated a special site is defined in regulation 2 of the draft Contaminated Land (England) Regulations 1999
4. Appropriate person is defined in the circular as "any person who is an appropriate person, determined in accordance with section 78F... to bear responsibility for anything which is to be done by way of remediation in any particular case". That is to say, those liable for the pollution and against whom action would be taken.
5. New procedural guidance for local authorities has been promised from DETR by April, 2000.
6. Earl Ferrers - House of Lords Hansard [11 July 1995] col 1497.
7. Remediation action is defined in the circular as "any individual thing which is being, or is to be, done by way of remediation".
8. Remediation statement is defined in the circular as, "a statement prepared and published by the responsible person detailing the remediation actions which are being, have been, or are expected to be done, as well as the periods within which these things are being done".

Roger Braithwaite is an independent EHO and public sector training specialist, tel: 01926 624966, fax: 01926 624926, e-mail: roger@zeroenvironment.co.uk