Research and Support for Developing a UK Strategy for Managing Contaminated Sediments (ME 1104):Task 2: Exploring Liability and the Polluter Pays Principle

This report comprises the output of Task 2 Exploring Liability and the Polluter Pays Principle of Project ME 1104: Research and Support for Developing a UK Strategy for Managing Contaminated Sediments. The wider project produced a 'Synthesis' document (May 2010): http://archive.defra.gov.uk/corporate/consult/ports-marinas/task-7.pdf, which formed the basis of a 'Draft Decision Framework' issued for consultation in August 2010: http://archive.defra.gov.uk/corporate/consult/ports-marinas/condoc.pdf Key Findings from the Task/Report include: The application of liability regimes, and the different variables, to particular fact patterns found in the CMS Case Studies suggests that there are no general answers to questions relating to the recovery and transfer of costs and liabilities incurred as a result of operational dredging activities to those who were responsible for historic contamination. Each set of facts will give rise to different considerations. It is possible, however, to identify some general points raised by the application of the polluter pays principle (‘PPP’) in the context of liability for the management, movement and disposal of historic CMS: A Costs and liabilities cannot be transferred or recovered unless there is some specific legal mechanism which allows them to be transferred or recovered. B The application of liability regimes and principles to CMS Case Studies suggests that liability on the part of ‘historic polluters’ will not be imposed in most cases of ‘Operational Management’ liabilities C Whilst liability for remedial works required to address CMS in situ might be more readily established, such cases are generally outside the scope of the project D Even where the requirements for establishing liability in law can be met, there may be significant legal and practical obstacles to actually securing money or actions from other parties E The application of the Environmental Liability Directive (‘ELD’) is limited to Contingent Liabilities F Consideration of the ‘Hypotheticals’ relating to novel operational management techniques suggests that the nature of Contingent Liabilities which might arise can be complex G Ownership of CMS sites, and disposal sites, is important as it can result in liability, but will not usually do so where remedial works are not required H The identity of the ‘polluter’ can be considered from different perspectives, including that of the person creating environmental risks, so that there are justifications for applying the PPP to those undertaking CMS Operational Management activities I A range of structures and techniques for the management of Contingent Liabilities can be employed in order to allocate and address legal risks