Contaminated land and the law
Part IIA of the Environmental Protection Act 1990 has introduced a new regulatory regime for the identification and remediation of contaminated land, which has been coming into effect over the last couple of years. This regime provides, for the first time, a statutory definition of ‘contaminated land’, which is based on risks of significant harm to human health and the environment, or pollution of controlled waters. Matthew Whitehead, Technical Advisor at the Environment Agency outlines the workings of the new legislation.
Under the new regime, adoption of the principles of risk assessment and management should ensure that contaminated land is managed effectively, based on its current use and environmental setting. The main features of the regime are as follows: Local authorities are to inspect their areas, following a strategic approach, to establish whether any land meets the statutory definition of contaminated land.
Finally, the Environment Agency is required to prepare a national report on contaminated land.
What is contaminated land?
Under Part IIA, contaminated land is defined as land which appears to the local authority to be in such a condition, by reason of substances in, on, or under the land, that significant harm is being caused or there is a significant possibility of such harm being caused; or pollution of controlled waters is being, or is likely to be, caused.
Land is only defined as contaminated land if there is a 'significant pollutant linkage'. This requires evidence of the presence of a contaminant, a receptor that could be harmed by the contaminant, and a pathway linking the two.
In addition, the type of harm that the receptor could suffer must meet the descriptions of 'significant' given in the statutory guidance. This guidance also describes the types of receptor that can be considered under Part IIA, such as humans and some ecosystems. A site where a contaminant is causing, or is likely to cause, pollution of surface water or groundwater, also constitutes contaminated land.
Local authorities are required to inspect their areas, from time to time, in line with a written strategy, in order to identify any land that meets the statutory definition of contaminated land. The Agency will provide any relevant information, that it holds, to assist in this process, and will normally carry out inspections on behalf of local authorities on potential Special Sites, that is, any sites that the Agency is likely to subsequently regulate.
For all contaminated land, the relevant enforcing authority will establish who is responsible for the remediation of the land, known as ‘appropriate persons’. The authority will then ensure that this remediation is carried out, either by the appropriate person agreeing voluntarily to do this, or by serving a formal remediation notice requiring the work to be undertaken. In certain circumstances the enforcing authority may undertake the work itself.
Further details can be found in DETR Circular 02/2000 entitled Environmental Protection Act:1990 Part IIA – Contaminated Land, available from the Stationary Office.