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Act will make 'polluter pay'

CONSULTANTS ARE to gain immunity against de-contamination orders served by local authorities, the Department of Environment Transport and the Regions promised this week.

Part IIa of the much anticipated Environmental Protection Act, now unlikely to come into force before January 2000, is to work on a 'polluter pays' principle, said a DETR spokesman.

The legislation would operate a 'mechanism for making sure people aren't culpable who are not responsible'. Consultants would be immune from prosecution arising from 'uncertainty' due to re-definitions of safe contaminant levels, identification of new categories of dangerous pollutant and changes in contamination levels over time.

Local authorities will police decontamination compliance. They will be able to prosecute current owners or clients where the original polluter cannot be found if contaminant levels are found not to comply with the law.

However, environmental and construction lawyers pointed out that consultants would still be open to legal action if they were found to be professionally negligent.

Stephen Sykes, legal director of contaminated land insurer Certa, said consultants could be sued if contamination were mobilised as a result of their recommendations, or if site investigations or contamination analyses proved inadequate.

He claimed clients would also seek warranties for consultants' work on contaminated sites to try to minimise their risk.

'Consultants are still exposed,' said Sykes.

Guidance notes clarifying the legislation will be published by the DETR in July.

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