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Contaminated Land News

Paul Nathanail looks at the draft guidance for Part IIa of the Environment Protection Act.

THE LONG awaited draft statutory guidance needed to bring Part IIa of the Environmental Protection Act 1990 into force on 1 April 2000 has been released by the Department of the Environment, Transport and the Regions. Copies can be downloaded in PDF format from under the consultation papers section. Comments are invited to reach DETR by 6 December 1999. The guidance will only apply to England since, under devolution, the environment is a matter for the Scottish Parliament and Welsh Assembly.

Government policy on contaminated land is clearly restated as being firstly to prevent new contamination and secondly to deal with the legacy of contamination resulting from the failure of previous decision makers to take account of the impact of economic growth on human health and the environment.

Also restated is the pragmatic 'suitable for use' approach pioneered in the UK and now being adopted by many of our European neighbours with its three pillars: ensuring land is suitable for its current use; ensuring land is made suitable for any new use - as official permission is granted for that new use; and of limiting remediation to the work necessary to prevent unacceptable risks to human health or the environment in relation to the current use or officially-permitted future use of the land.

Every policy has an exception - in this case, contamination related breaches of a licence or permit will lead to the polluter having to remove the contam- ination (hazard rather than risk management).

Much of the structure is familiar, such as the role of the local authorities and the Environment Agency of England, the definition of contaminated land. The links with the planning system are strengthened and will be further reinforced by guidance amplifying the provisions of PPG 23 Planning and Pollution Control.

The requirements of the Building Regulations remain unchanged by the new regime. However it must be borne in mind that much current documentation referring to contaminated land refers to the general sense of these words rather than the particular definition given in Part IIa. The terms land contamination, land quality or contamination being used to express 'chemically challenged' land not falling under the Part IIa definition.

The interaction between waste management licensing and remediation has been a contentious one over the last few years. The provisions of Part II (licenced sites) and s59 (illegal disposal of waste) take precedence over Part IIa of the EPA 1990. However warning is given that remediation activities may still require (site or mobile plant) licensing under Part II.

The source-pathway-receptor pollutant linkage is identified as a necessary, and established prerequisite for land to be identified as contaminated land. This will further reduce the extent of contaminated land to a very small proportion of land affected by contamination.

The local authorities have until June 2001 (assuming a 1 April start date) to publish their strategy for inspecting its area. So it looks as if we are at least two years or so away from most local authorities having a completed inspection and the beginning of remediation notices being served. The LA may use information it gathers, receives from another regulator or receives from members of the public, businesses or voluntary organisations.

This raises the interesting possibility of concerned local residents using publicly available guidance (eg CLR3, CLR6) to provide information on sites of concern to themselves and could short circuit the time frame for remediation notices to be served. Local authorities will keep Public Registers of Remediation Notices served. The information used to determine whether or not land is contaminated may or may not be disclosable under the Environmental Information Regulations - on an authority by authority and site by site basis. A recent case suggests that disclosure may be less, rather than more, likely.

The role of English Nature and Environment Agency in contributing to the process of identifying contaminated land is highlighted. The criteria for Special Sites have been clarified and specific geological formations of concern listed. The issue of small amounts of contamination entering controlled water and remediation being required has been identified as a concern and the Government intends reviewing and if necessary amending the wording of primary legislation.

Several issues relating to liability touch on the ground engineer's domain. The test of 'causing or knowingly permit- ting' for inclusion in a liability group appears to be limited to the introduction of contaminants on to a site and not to the creation of pathways or introduction of new receptors. However the final arbiters are acknowledged to be the courts.

The test of 'sold with information' for exclusion from liability, still includes a provision for purchases by large organ- isations or public bodies since 1990, where permission was given for the buyer to carry out its own site investigations.

Overall the draft guidance is much more clearly presented and structured than previous editions. There will be a seminar on the final draft consultation document run jointly by FOCIL and the Waste Management Forum on 17 November 1999 at the Institution of Civil Engineers in London.

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