Contaminated Land: Lacking guidance for councils and questionable intervention levels are raising tensions

Incomplete guidance for councils and questionably low intervention levels are causing mounting tensions over contaminated land. Rob Bell reports

As local authorities step up the pace of land investigations under Part IIA of the Environment Protection Act 1990, intervention levels for soil contaminants become increasingly controversial - with rising numbers of residential areas deemed contaminated.

The problems are arising as local authority officers attempt to comply with incomplete guidance - much of which is set at levels many in the sector believe are far too low - and occupied housing is blighted by contamination rulings.

In some cases, councils have warned residents not to allow children to play in gardens, and owners have complained of difficulty in selling or remortgaging homes.

Further inflaming tensions is the legal process by which liability is assigned. This is complicated by the difficulties in identifying the culprits when redeveloped brownfield sites may not have been used for industrial activities for decades.

Where the companies in question are still in business, appeals can further lengthen proceedings, and remediation itself takes time. Many councils are also struggling to find funding for remediation where the company responsible is no longer operating.

Assigning liability
In Seaton Carew, near Hartlepool, residents of 96 properties determined as contaminated have been pressing the council to go ahead with remediation before the liability process is complete. Hartlepool Council's Engineering Manager, Alan Coulson, says the remediation process could take up to five years if liability is contested by the companies identified as likely transgressors, a state of affairs which, despite being out of the council's control, has left residents angry and frustrated.
Similar situations have led to vocal campaigns by two MPs - North East Cambridgeshire's Malcolm Moss and Birmingham Hall Green's Steve McCabe. In the Birmingham case, letters were sent to families living in 74 homes that had been built on the site of a former landfill warning that female children faced risks to their fertility if they were allowed to play in back gardens.

Investigations had found contaminants including arsenic, cadmium, lead and nickel, at levels that represented a "significant possibility of significant harm to human health through any ingestion of soil and indoor dust", according to the council.

Frightened residents
Frightened residents seeking to leave the area have been told that their houses have lost up to £30,000 in value, leaving many in what they claim is an untenable situation.
McCabe has taken up his constituents' plight, and has written to the city council's chief executive demanding immediate remediation measures are taken. McCabe says: "The council's approach throughout has been secretive, ill-considered and impossibly slow - an insulting and frankly dangerous combination leaving many residents frightened and confused."

He has accused the council of "extensive delays" in dealing with the problem but the local authority insists it is simply ensuring it complies with the relevant legislation.
An environmental health spokesman said in a statement: "We recognise the difficulties faced by the owners of the affected properties, and the council is working hard to assist these owner/occupiers with the liabilities they face under new legislation.

"However, we have to acknowledge that this is not a quick process. It is essential that the council completes properly all of the steps required by law."

In the Cambridgeshire case, Moss called a House of Commons debate after residents of Littleport found their properties were contaminated with benzo(a)pyrene. He told Parliament: "Thirty-one families now live in houses that they are unable to sell or remortgage, and their children are prohibited from playing in their gardens.

Nightmare scenario
"Theirs is truly a nightmare scenario: they live in fear for their health but are unable to move on in their lives. The legislation that, by rights, should be helping them is proving both obstructive and unworkable."

Moss believes threshold levels set by the Government are too low, and called on Environment Minister Elliot Morley to prioritise the compound in the process of re-evaluation currently being carried out by the Cabinet Office Soil Guideline Values Taskforce. However, Morley dismissed his proposal as unworkable, saying a risk-based approach was necessary, and that "it is not appropriate to have one figure that can be applied to every contaminated or brownfield site in the country".
Benzo(a)pyrene, a by-product of burning coal, is a perfect example of the problems local authorities face in determining contamination levels. A Soil Guideline Value has yet to be published but existing guidance sets maximum target levels at 1mg/kg. However, many in the remediation sector believe this is far too low, and Moss has gone as far as suggesting that, due to the tradition in the past of spreading ashes from fireplaces on gardens as a soil conditioner, millions of gardens across the country would fall foul of the levels as they currently stand.

Morley has countered by reiterating that guidelines on contaminant levels are "not binding", something he says some local authorities "fail to understand".
"Soil guideline values are not legally binding numbers," he continues. "They are not intended to be limits that must be met. Local authorities often think that they are absolute figures and limits - that is a fairly common misconception - but I emphasise that they are not. They are a tool to help to deal with the issues on site."

Unclear guidance
Morley's statement is backed up by a Contaminated Land Advice Note (CLAN 2/05) rushed out in early September, which is intended to "help ensure they [SGVs] are not used uncritically for the determination of land as contaminated land on the grounds of 'significant possibility of significant harm' to human health".

However, Mike Quint, who is technical director at consultancy ESI and sits on the Cabinet Office SGV Taskforce, says this represents somewhat of a reversal, and that the Environment Agency was "complicit in the original message that SGVs equal Part IIA".
Quint claims older guidance, which contradicts the new CLAN, has been hastily removed from the agency's website in what he calls "a rearguard action to cover their tracks". He also claims that local authorities, having been either told or "led to believe" that the guidance published over the last ten years was directly relevant to them, are furious.

Another question raised by Morley's statement is exactly what the point is of setting SGVs if they are not binding. MP Bill Wiggin was quick to pounce on the minister in the Commons debate, asking: "What is the point in having guidelines on what may or may not be harmful to people's health, that might not be understood properly, or might be used in such a way that they have a negative impact on people's sense of wellbeing or the value of their property?"

Slow progress
Either way, progress in publishing SGVs has been slow, although this has been recognised by the taskforce, with members assuring Environment Business that a statement on the problem is imminent, and that the problems will be addressed as quickly as possible. But, even if the publication of SGVs is speeded up, the issue of intervention levels remains a major problem.

Assigning liability is a legal matter that can only be streamlined so much, and there is little that can be done about the time required for the physical process of remediation.
But - if Government is serious about addressing the UK's contamination legacy, and continuing to bring brownfield land back into use - it needs to provide local authorities with workable guidelines that can be used to identify sites where remediation is really necessary. This would concentrate resources where they are needed and spare homeowners the stress of finding their gardens deemed unsafe and homes unsellable.
Moss says: "The Government's legislation to deal with land contamination has been exposed as totally inadequate. Unless this issue is addressed urgently, thousands more people will have their homes blighted in future, as well as completely scuppering the Government's policy of building large amounts of new housing on brownfield sites."
Whether this is in fact the case or whether it is simply political point scoring is
moot, but the distress of householders hit by Part IIA decisions is real, even where local authorities have managed the issues well.

It is clear that the guidance as it stands is not providing contaminated land officers with the information they need to make accurate judgements.
And, with a decision yet to be made about whether contamination disclosure will be a requirement of the proposed House Seller's Pack, action to address intervention levels needs to be taken immediately or yet more homeowners could find themselves blighted by Part IIA designations.

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