Water pollution liability limits EPA 1990 s. 78J
EPA 1990 s. 78J limits remediation notices for water pollution on Class B persons and pre-31st December 1999 abandoned mine water discharges.
This section applies where any land is contaminated land by virtue of paragraph (b) of subsection (2) of section 78A above (whether or not the land is also contaminated land by virtue of paragraph (a) of that subsection). Where this section applies, no remediation notice given in consequence of the land in question being contaminated land shall require a person who is an appropriate person by virtue of section 78F(4) or (5) above to do anything by way of remediation to that or any other land, or any waters, which he could not have been required to do by such a notice had paragraph (b) of section 78A(2) above (and all other references to pollution of controlled waters) been omitted from this Part. If, in a case where this section applies, a person permits, has permitted, or might permit, water from an abandoned mine or part of a mine— to enter any controlled waters, or to reach a place from which it is or, as the case may be, was likely, in the opinion of the enforcing authority, to enter such waters, no remediation notice shall require him in consequence to do anything by way of remediation (whether to the contaminated land in question or to any other land or waters) which he could not have been required to do by such a notice had paragraph (b) of section 78A(2) above (and all other references to pollution of controlled waters) been omitted from this Part. Subsection (3) above shall not apply to the owner or former operator of any mine or part of a mine if the mine or part in question became abandoned after 31st December 1999. In determining for the purposes of subsection (4) above whether a mine or part of a mine became abandoned before, on or after 31st December 1999 in a case where the mine or part has become abandoned on two or more occasions, of which— at least one falls on or before that date, and at least one falls after that date, the mine or part shall be regarded as becoming abandoned after that date (but without prejudice to the operation of subsection (3) above in relation to that mine or part at, or in relation to, any time before the first of those occasions which falls after that date). Where, immediately before a part of a mine becomes abandoned, that part is the only part of the mine not falling to be regarded as abandoned for the time being, the abandonment of that part shall not be regarded for the purposes of subsection (4) or (5) above as constituting the abandonment of the mine, but only of that part of it. Nothing in subsection (2) or (3) above prevents the enforcing authority from doing anything by way of remediation under section 78N below which it could have done apart from that subsection, but the authority shall not be entitled under section 78P below to recover from any person any part of the cost incurred by the authority in doing by way of remediation anything which it is precluded by subsection (2) or (3) above from requiring that person to do. In this section “ mine ” has the same meaning as in the Mines and Quarries Act 1954.
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
Section 78J places limits on when an enforcing authority can issue a remediation notice regarding contaminated land that affects controlled waters. Under this provision, land owners or occupiers who are appropriate persons under section 78F(4) or (5) solely because no original polluter can be found cannot be required to clean up water pollution.
It also provides specific protection regarding water escaping from abandoned mines. A person who permits water from an abandoned mine to enter controlled waters cannot be served a remediation notice for that discharge, provided the mine or part of the mine became abandoned on or before 31st December 1999. If the mine became abandoned after 31st December 1999, the mine owner or former operator loses this protection.
While enforcing authorities retain powers under section 78N to carry out remediation work themselves on these sites, section 78P prevents them from recovering those remediation costs from any person who is protected by this section.
When it applies
- A current land owner facing a remediation notice to clean up water pollution caused by historical soil contamination they did not create.
- A former mine operator fighting a remediation notice regarding water flowing into a river from a mine abandoned on or before 31st December 1999.
- An enforcing authority determining whether cost recovery is barred after carrying out water remediation on contaminated land.
What this section does not say
- Mines or parts of mines that became abandoned after 31st December 1999, where former operators remain liable.
- Original polluters who caused or knowingly permitted contaminating substances to enter the land.
- Enforcing authority powers to carry out cleanup work directly under section 78N.
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This page reproduces the text of EPA 1990 s. 78J in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.