Determining Responsibility for Contaminated land?

Have you ever wondered who is responsible for contaminated land when the original polluter no longer occupies or owns the land? The current position of the law is that the polluter who caused or knowingly permits the contamination of the land should pay for the remediation caused by his actions. However, if the polluter can no longer be traced, then the owner or occupier of the contaminated land in question may be classified as an appropriate person regarding the remediation of the contamination.

The issue of an appropriate person was raised in the National Grid Gas Plc case, where the polluters could not be traced and the Environment Agency exercised it discretion not to pursue any of the current owners or occupiers on the contaminated land. Rather the agency directed its cost recovery efforts against National Grid Gas Plc (previously Transco), being a company which had been established as part of the corporate reorganization of British Gas Plc a few years after the privatisation of the Gas industry. This was based on the argument that the person who caused or knowingly permitted the contamination should be construed to include every person who became by statue the successor to the liabilities of the actual polluter.

The history behind this case was that Bawtry and District Gas Company and South Yorkshire and Derbyshire Gas Company constructed the gas works on the site that caused the pollution. The gas industry was then nationalised by the Gas Act 1948 which provided that all property, rights, liabilities and obligations of Bawtry and District Gas Company and South Yorkshire and Derbyshire Gas Company be brought under the ownership and control of the East Midlands Gas Boards. Gas production on the site was then discontinued shortly after nationalisation. The Gas Act of 1972 then transferred the property, rights, liabilities and obligations of the Area Gas Boards to the British Gas Corporation. This transferred any liabilities of the East Midlands Gas Board arising out of its previous ownership of the contaminated site or inherited under section 17(1) of the 1948 Act from Bawtry and District Gas Company and South Yorkshire and Derbyshire Gas Company to the British Gas Corporation. The site was later sold to Kenton Homes Ltd and then to Kenneth Jackson Ltd, which applied for and obtained planning permission to build houses on the site. Following this eleven residences were built , seven of which were, for a time, owned by the Secretary of State for Defence but subsequently all eleven passed into private ownership. According to the section 78F of the Environment Act, Bawtry and District Gas Company and South Yorkshire and Derbyshire Gas Company, and East Midlands Gas Board were classified as appropriate persons, as were Kenton Homes Ltd and Kenneth Jackson Ltd for knowingly permitting the contamination to remain. But all these companies have been dissolved! The present owners and occupiers of the eleven residences could also be classified as appropriate persons but the Environment Agency decided not to pursue them, rather they decided to pursue the National Grid Gas Plc based on the proposition that the statute includes every person who became by statute the successor to the liabilities of the actual polluters.

The courts held that National Grid Gas Plc had not itself caused or knowingly permitted the presence of the contaminating substances, since it had only come into existence 20 years after the site had been sold for housing; and there is nothing in the Act to impose on a company innocent of any polluting activity a liability to pay for remediation of the contamination caused by a polluter. Despite being the statutory successor to the original polluters, National Grid Gas Plc is not an appropriate person within the meaning of the Act. Thus an appropriate person according to the Act shall include the original polluters that caused the contamination, persons who knowingly permit the contamination, the current owners or occupiers where the polluter cannot be identified - but would not include the statutory successor of the polluter.

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Adekunle Osibogun - Environmental Law for Polymer Users
http://www.elpu.net