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Environmental Liabilities and the ProfessionsEnvironmental Liabilities and the Professions
Valerie Fogleman
Partner and Head of Environmental Liability Group
Barlow Lyde & Gilbert
solicitors, London
Valerie Fogleman
Partner and Head of Environmental Liability Group
Barlow Lyde & Gilbert
solicitors, London
BLG
Types of pollution liabilities
remediation of current and future pollution incidents/offences
remediation of historic pollution incidents
common law claims
Professions at risk
surveyors
accountants
solicitors
brokers
environmental consultants
Types of pollution liabilities
remediation of current and future pollution incidents/offences
remediation of historic pollution incidents
common law claims
Professions at risk
surveyors
accountants
solicitors
brokers
environmental consultants
BLG
Remediation of Current and Future Pollution Incidents/Offences
Remediation of Current and Future Pollution Incidents/Offences
Unauthorised water pollution
Unlicensed disposal of waste
Pollution prevention and control
site condition survey
Unauthorised water pollution
Unlicensed disposal of waste
Pollution prevention and control
site condition survey
BLG
Remediation of Historic Pollution IncidentsRemediation of Historic Pollution Incidents
Part IIA of Environmental Protection Act 1990
remediation required whether or not contaminated land is to be developed
does not supersede planning regime
primarily administered by local authorities with Environment Agency or Scottish Environment Protection Agency for “special sites”
local authorities’ strategic plans for inspecting their areas: 1 July 2001 (England), 14 October 2001 (Scotland) and 1 October 2002 (Wales)
Part IIA of Environmental Protection Act 1990
remediation required whether or not contaminated land is to be developed
does not supersede planning regime
primarily administered by local authorities with Environment Agency or Scottish Environment Protection Agency for “special sites”
local authorities’ strategic plans for inspecting their areas: 1 July 2001 (England), 14 October 2001 (Scotland) and 1 October 2002 (Wales)
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Local authorities must inspect their areas for “contaminated land”, that is, land which, because of substances in, on or under it:
“significant harm is being caused or there is a significant possibility of such harm being caused; or
pollution of controlled waters is being, or is likely to be, caused”
Local authorities must inspect their areas for “contaminated land”, that is, land which, because of substances in, on or under it:
“significant harm is being caused or there is a significant possibility of such harm being caused; or
pollution of controlled waters is being, or is likely to be, caused”
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Pollutant linkage
source or potential pollutant
pathway
receptor or target (people, domestic and commercial animals and crops, wild animals subject to hunting and fishing rights, buildings, designated ecological areas and controlled waters)
Contaminated land + pollutant linkage = significant pollutant linkage
Pollutant linkage
source or potential pollutant
pathway
receptor or target (people, domestic and commercial animals and crops, wild animals subject to hunting and fishing rights, buildings, designated ecological areas and controlled waters)
Contaminated land + pollutant linkage = significant pollutant linkage
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Risk assessments and remediation standard based on current and likely use of site not requiring planning permissionRisk assessments and remediation standard based on current and likely use of site not requiring planning permission
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Identification of “liability group” of “appropriate persons” for each “significant pollutant linkage”
Class A persons: “caused or knowingly permitted the substances … by reason of which the contaminated land in question is [contaminated] land to be in, on or under that land”
Identification of “liability group” of “appropriate persons” for each “significant pollutant linkage”
Class A persons: “caused or knowingly permitted the substances … by reason of which the contaminated land in question is [contaminated] land to be in, on or under that land”
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Cause
strict liability
Knowingly permit presence of pollutant
knowledge
power
time
Cause
strict liability
Knowingly permit presence of pollutant
knowledge
power
time
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If Class A person not “found” after “reasonable inquiry”
Class B persons: “owner or occupier for the time being of the land in question” but only liable in respect of owned or occupied land
If Class A person not “found” after “reasonable inquiry”
Class B persons: “owner or occupier for the time being of the land in question” but only liable in respect of owned or occupied land
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Exclusion tests designed to shift liability to most recent “knowing permitter”
Apportionment criteria designed to impose several not joint and several liability
Attribution of responsibility between liability groups
Hardship and other considerations
Exclusion tests designed to shift liability to most recent “knowing permitter”
Apportionment criteria designed to impose several not joint and several liability
Attribution of responsibility between liability groups
Hardship and other considerations
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Exclusion tests for Class A persons
1. Excluded activities
2. Payments made for remediation
3. Sold with information
4. Changes to substances
5. Escaped substances
6. Introduction of pathways or receptors
Exclusion tests for Class A persons
1. Excluded activities
2. Payments made for remediation
3. Sold with information
4. Changes to substances
5. Escaped substances
6. Introduction of pathways or receptors
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Three month consultation period for “voluntary” remediation
If voluntary remediation; remediation statement
If no voluntary remediation; remediation notice
Fines for non-compliance with remediation notices; up to £20,000 plus up to £2,000 per day for industrial, trade or business premises
No defences but 24 grounds of appeal
Remediation notice suspended during appeal
Three month consultation period for “voluntary” remediation
If voluntary remediation; remediation statement
If no voluntary remediation; remediation notice
Fines for non-compliance with remediation notices; up to £20,000 plus up to £2,000 per day for industrial, trade or business premises
No defences but 24 grounds of appeal
Remediation notice suspended during appeal
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Common Law Claims Common Law Claims
Negligence
Rule in Rylands v. Fletcher
Private nuisance
Public nuisance
(Trespass)
Negligence
Rule in Rylands v. Fletcher
Private nuisance
Public nuisance
(Trespass)
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Surveyors
Management of client’s estate or property
direct liability for environmental offence, remediation costs or common law damages
negligent advice resulting in client being liable for environmental offence, remediation costs or common law damages
Valuations of property
negligent advice resulting in incorrect valuation of property due to contamination
Surveyors
Management of client’s estate or property
direct liability for environmental offence, remediation costs or common law damages
negligent advice resulting in client being liable for environmental offence, remediation costs or common law damages
Valuations of property
negligent advice resulting in incorrect valuation of property due to contamination
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Agency work
negligent advice resulting in client inadvertently becoming liable due to acquisition of freehold or leasehold interest in contaminated property
negligent advice resulting in client retaining remediation liabilities when disposing of contaminated land
leases
common covenants
Agency work
negligent advice resulting in client inadvertently becoming liable due to acquisition of freehold or leasehold interest in contaminated property
negligent advice resulting in client retaining remediation liabilities when disposing of contaminated land
leases
common covenants
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Accountants
Failure to take account of environmental liabilities when valuing company
Failure to account for environmental liabilities under Financial Reporting Standard 12
Appointment as receiver or liquidator
some protection from Part IIA liabilities for insolvent company with assets including contaminated land
conflict between insolvency law and environmental law
Accountants
Failure to take account of environmental liabilities when valuing company
Failure to account for environmental liabilities under Financial Reporting Standard 12
Appointment as receiver or liquidator
some protection from Part IIA liabilities for insolvent company with assets including contaminated land
conflict between insolvency law and environmental law
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Solicitors
Law Society’s warning card on contaminated land liabilities
Failure to:
advise client of potential environmental liabilities in residential or commercial transaction
recognise that contaminated land liabilities have been shifted to (or remain with) client
recognise environmental significance of lease provisions
conduct adequate environmental due diligence
prepare adequate contractual provisions to allocate liability
obtain necessary permit or other approval for client
ensure permits are transferred when facility/land is sold
Solicitors
Law Society’s warning card on contaminated land liabilities
Failure to:
advise client of potential environmental liabilities in residential or commercial transaction
recognise that contaminated land liabilities have been shifted to (or remain with) client
recognise environmental significance of lease provisions
conduct adequate environmental due diligence
prepare adequate contractual provisions to allocate liability
obtain necessary permit or other approval for client
ensure permits are transferred when facility/land is sold
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Brokers
Failure to retain policies against which environmental claims are made
Provide incorrect advice about insurance cover for environmental claim
Brokers
Failure to retain policies against which environmental claims are made
Provide incorrect advice about insurance cover for environmental claim
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Environmental consultants
Failure to advise client of presence or nature of contamination
Provide incorrect advice due to misunderstanding environmental law
Cause contamination during investigatory or remedial work
Environmental consultants
Failure to advise client of presence or nature of contamination
Provide incorrect advice due to misunderstanding environmental law
Cause contamination during investigatory or remedial work