Who is Responsible?
The law labels the responsible parties as "appropriate persons". These are divided into two classes of people. The first group, Class A persons, are those who caused or knowingly permitted the polluting substances to be in, on or under the land.
The word "cause" here just means that the person is responsible for the substances being on the land. It doesn't imply that they have done anything wrong. For example, in the past we may have engaged in industrial practices, such as land-filling waste within the vicinity of an industrial facility like a mine or paper mill, which we would not consider appropriate today. Similarly when we decommissioned industrial facilities such as a gas or steel works, we may have left contaminants on the site because that was not considered dangerous at the time. Nonetheless, the law now considers that the polluter should pay and that the appropriate persons who ran such enterprises should now clean up any remaining contamination.
The phrase "knowingly permit" suggests that certain persons may have known about polluting substances on the site but failed to do anything to remove these; instead they permitted these to remain. These persons will be considered just as responsible as those who caused the substances to be there. The terms "cause" and "knowingly permit" are also used in water pollution offences. Click here for more information.
The class A group is built up, therefore, of the parties who caused or knowingly permitted the substances to be on the land. There may be a number of such persons and they will bear responsibility between themselves as directed in any notice served. It might be the case, however, that nobody in this group can be found. This may be because the substances have been abandoned on land by persons unknown or because the substances have been there for many years and the responsible party cannot be traced or no longer exists - as when a company is wound up.
If no Class A person can be found then responsibility will pass to any Class B persons. This group is made up of the current owners or occupiers of the contaminated site. Owners or occupiers only become "appropriate persons" where no Class A person can be found. These owners and occupiers have neither caused nor permitted the pollution to be present on the land, but the law takes the view that someone should be responsible for the site. The worry here is that the owners or occupiers might be simply be living in housing built on former industrial land or small companies on an industrial estate which used have some other, more polluting use. However, the authorities have the power to clean up land themselves and they must consider the hardship that might be caused in seeking to recover the costs of clean up (see the Bawtry case study).
Section 7 gives guidance on who is responsible for what, where more than one person may be liable.
Part D of the Guidance document provides useful information on how to decide who is the appropriate person to clean up a contaminated site.