What is the "Polluter Pays" principle?
This case brings back into sharp focus the "polluter pays" principle. This principle underpins Part 2A of the Environmental Protection Act 1990 which now includes radioactive contaminated land by virtue of the Radioactive Contaminated Land (Scotland) Regulations 2007. At its most basic, the principle is that whoever made the mess has to clear it up, or foot the bill for it being cleared up.
In a world where we expect to live in a greener and more pleasant environment, the cost that the polluter may face may be quite significant where land is contaminated.
Who is the "polluter"?
A straightforward view may well be that the polluter would always be the party which is responsible for carrying out an activity upon the site which involved a particular contaminant. However, this would be an over simplification.
Generally this analysis might provide the answer, but my experience is that, particularly when dealing with complex sites which have undergone development, this is only a starting point. The solicitor's role effectively expands into that of a forensic investigator. He must try to understand how something has come about and must bear in mind that the Appropriate Person ie. the polluter, is the person who has caused the contamination to be in the land. In the case of development, this will often mean that the first question a solicitor asks is how has the land which is regarded as contaminated come to be such. Could it be that waste has been moved in undertaking a development to provide, say, a commercial centre or housing? Where do you start in your search?
What investigations might need to be done to determine the "polluter"?
One might simply ask, how long is a piece of string? The task will often involve a site visit, an examination of the titles and a search of various information sources including the Scottish Archives, British Library, Local Authority Libraries, newspapers, aerial photography, National Archives, Health & Safety Executive Library regarding risk assessment, Hansard, London Gazette, Edinburgh Gazette, any monitoring and assessment reports, relevant correspondence, the planning and building control files and witness statements.
This can be a very considerable undertaking, not only in terms of time, but also expense, and the solicitor needs to bear this in mind relative to what the potential costs could be if liability was to attach to his client. However, the risk of not carrying out these investigations is that the person that thinks he may have been the original polluter accepts liability for substantial remediation costs for which he is not actually the Appropriate Person.