BLG

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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Professions at RiskProfessions at Risk

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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