Contaminated land regime

Professor Robert Lee | 7 years ago

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Local authorities were asked on the introduction of the regime to adopt a formal written strategy for periodic review which is capable of being can be conducted in an orderly and efficient manner and should contain an emphasis on protection of public health and of the environment.  Virtually all local authorities did so  within 15 months of the issue of the guidance though local authorities have performed less well in keeping such documents  under periodic review.  Local authorities were asked to obtain and use information in a manner that efficiently identified specific areas of land. This again implies linkages to the planning function of the local authorities.

In addition to any programme of priorities, local authorities must adopt procedures to respond to complaints or information from the public or from statutory bodies.  Local authorities should inform owners and occupiers of information received, and equally inform the informants of any outcome.  However, they are asked to discourage malicious or unfounded representations.  The local authority strategy must be forwarded to the Environment Agency.  The Agency and other enforcement bodies may act as sources of information to the local authority.

In establishing timescales for inspections, local authorities must give priority to the most serious problems, and these are likely to arise where vulnerable receptors, especially water, are exposed to the threat of pollution.  However, in determining priorities for inspection, local authorities can take into account existing sources of information, the known history of the land and previous attempts to remediate.  This is of course in addition to other questions of sources, pathways and receptors.

Although the local authority can enter onto premises and take samples under section 108 of the Environment Act 1995, the guidance suggests any intrusive investigation to locate pollutants (sources) should only be carried out where there are clear targets (receptors) and pathways.  However, once the land is found to be contaminated, a full assessment by the local authority is unnecessary, since such a condition may be a requirement under the remediation notice/statement.  Indeed, according to the guidance, intrusive investigation should not be carried out where a local authority holds sufficient information (e.g. provided by the Agency or the owner) upon which to make a determination, or where such information is promised within a reasonable and specified time. Where the authority wishes to carry out an intrusive survey, it must establish the reasonable possibility of a source, pathway and receptor. Having said all of this it is the common practice of authorities to seek funding to carry out intrusive investigation before making a designation of contaminated land.

Where, if contaminants are found, it is likely that the site will be classified as a “Special Site” the matter should be referred to the Agency which should be involved in any further investigation and which should determine its designation. Local authorities are generally keen to see the involvement of the Agency and may press therefore for classification of the land as a ‘special site’ because, for example of the impact on groundwaters (see below).  The Contaminated Land (England) Regulations 2006 (2006/1380) provide the classification of special sites, and the Agency will retain control of the following sites:

  • Land subject to IPC authorisation under Part 1 of the EPA 1990, or prescribed central control;
  • Land contaminated by waste acid tars;
  • Land occupied for the purposes of the Ministry of Defence or other defence purposes;
  • Land used for petroleum refining, or the manufacture of explosives;
  • Land used for the manufacture or disposal of chemical or biological weapons;
  • Land within a nuclear site;
  • Land designated under section 1(1) of the Atomic Weapons Establishment Act 1991;
  • Land adjoining the above which is contaminated by substances escaping from special sites;
  • Land contaminated by listed defined chemicals which are now affecting certain groundwaters;
  • Land with a major impact on drinking waters;
  • Land affecting certain controlled waters by reason of its contamination.

A local authority will be required to make clear why it has determined that land under its remit is contaminated, detailing the significant harm, or significant possibility of significant harm, or the pollution or likely pollution of controlled waters and it must also identify the suspected pollution linkage.   This may require the local authority to carry out some scientific assessment – e.g. where a local authority determines that significant harm or pollution of controlled waters is being caused.  Such evidence should be disclosed, at least in summary, in making a determination. However, the guidance is adamant that “the authority is not to attempt to produce a complete characterisation of the nature and extent of pollutants, pathways and receptors…” That characterisation may be demanded of the recipient of the remediation notice and required in the notice itself.

In determining that land is contaminated on the basis of significant harm, a local authority must be satisfied on the balance of probabilities that such harm exists. Where the local authority fears future harm, it may need to consider guideline values to assess the significant possibility of significant harm emanating from concentrations of particular pollutants. It must be sure that the guideline values and the assumptions underpinning them are relevant, and that conditions relating to them have been observed. Also appropriate adjustments may be required to take account of the particular circumstances of the land in question. Having done so they must conclude that this shows the significant possibility of significant harm. In relation to water pollution, similar technical consideration will need to be given to issues of geomorphology in order to assess likelihood of pollution. Where this is merely threatened, a ‘more likely than not test’ applies. Finally, the local authority will need to consider any existing risk management systems (monitoring, venting, etc) and, where these are adequate, the local authority is not entitled to find a significant possibility or likelihood of significant harm/pollution.

The next part of our guide to the Contaminated Land  Regime will be available online next week. If you are interested in receiving the complete (referenced) printed guide at a cost of £50 + postage and packing, please contact us.

About the author

Professor Robert Lee

ERIC Director and Head of Birmingham Law School, Professor Robert Lee was co-director of the publicly funded Centre for Business Relationships, Accountability, Sustainability and Society at Cardiff University (BRASS). He is an expert on regulation, including environmental regulation and regulation of biotechnology and biomedicine. He previously worked for two top 10 UK law firms, and remains a professional-development consultant to one of the largest law firms in Europe, working on pan-European delivery of legal services.