Enforcing authority's remediation powers EPA 1990 s. 78N
EPA 1990 s. 78N lets enforcing authority remediate itself in six cases: prevent imminent serious harm, after agreement, on notice failure, etc.
Where this section applies, the enforcing authority shall itself have power, in a case falling within paragraph (a) or (b) of section 78E(1) above, to do what is appropriate by way of remediation to the relevant land or waters. Subsection (1) above shall not confer power on the enforcing authority to do anything by way of remediation if the authority would, in the particular case, be precluded by section 78YB below from serving a remediation notice requiring that thing to be done. This section applies in each of the following cases, that is to say— where the enforcing authority considers it necessary to do anything itself by way of remediation for the purpose of preventing the occurrence of any serious harm, or serious pollution of controlled waters, of which there is imminent danger; where an appropriate person has entered into a written agreement with the enforcing authority for that authority to do, at the cost of that person, that which he would otherwise be required to do under this Part by way of remediation; where a person on whom the enforcing authority serves a remediation notice fails to comply with any of the requirements of the notice; where the enforcing authority is precluded by section 78J or 78K above from including something by way of remediation in a remediation notice; where the enforcing authority considers that, were it to do some particular thing by way of remediation, it would decide, by virtue of subsection (2) of section 78P below or any guidance issued under that subsection,— not to seek to recover under subsection (1) of that section any of the reasonable cost incurred by it in doing that thing; or to seek so to recover only a portion of that cost; where no person has, after reasonable inquiry, been found who is an appropriate person in relation to any particular thing. Subject to section 78E(4) and (5) above, for the purposes of this section, the things which it is appropriate for the enforcing authority to do by way of remediation are— in a case falling within paragraph (a) of subsection (3) above, anything by way of remediation which the enforcing authority considers necessary for the purpose mentioned in that paragraph; in a case falling within paragraph (b) of that subsection, anything specified in, or determined under, the agreement mentioned in that paragraph; in a case falling within paragraph (c) of that subsection, anything which the person mentioned in that paragraph was required to do by virtue of the remediation notice; in a case falling within paragraph (d) of that subsection, anything by way of remediation which the enforcing authority is precluded by section 78J or 78K above from including in a remediation notice; in a case falling within paragraph (e) or (f) of that subsection, the particular thing mentioned in the paragraph in question. In this section “ the relevant land or waters ” means— the contaminated land in question; any controlled waters affected by that land; or any land adjoining or adjacent to that land or those waters.
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
This section gives the enforcing authority (usually the local authority or the Environment Agency) the power to carry out remediation work itself on contaminated land or waters, instead of or in addition to serving a remediation notice on the responsible person.
The authority may act in six specific situations: (a) to prevent imminent serious harm or serious pollution of controlled waters; (b) after a written agreement with the appropriate person to do the work at that person's cost; (c) when the person served with a remediation notice fails to comply; (d) when the authority is prevented by section 78J or 78K from including a particular remediation in a notice; (e) when the authority would, under section 78P or related guidance, decide not to recover or only partially recover its costs; and (f) when no appropriate person can be found after reasonable inquiry.
In each case the authority's power is limited to what is 'appropriate by way of remediation'. It cannot do something that section 78YB would prevent it from requiring in a remediation notice. The phrase 'relevant land or waters' covers the contaminated land itself, any affected controlled waters, and adjoining land.
When it applies
- A chemical spill on industrial land is about to reach a river; the Environment Agency moves in to contain it without waiting for the owner to act.
- The owner of a contaminated site signs a written agreement allowing the council to carry out the cleanup and agrees to pay the cost.
- A person served with a remediation notice has not started the required work by the deadline; the enforcing authority arranges for a contractor to do the job.
- The authority cannot include a particular remediation measure in a notice because it relates to pollution of controlled waters that is exempt under section 78J, so it does that measure itself.
- After reasonable inquiry, no one can be found who is legally responsible for a specific contamination problem, so the authority cleans it up at public expense.
What this section does not say
- This section does not tell you who is the 'appropriate person' responsible for paying for remediation – that is governed by section 78F.
- It does not give the authority power to recover its costs; cost recovery is dealt with under section 78P.
- It does not set out the rights of appeal against a remediation notice – those are in section 78L.
- It does not define what counts as 'serious harm' or 'serious pollution of controlled waters' – those terms come from other parts of Part IIA.
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This page reproduces the text of EPA 1990 s. 78N 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.