The contaminated land regime - is it working?

Introduction

The Environmental Protection Act 1990 requires the Environment Agency to produce a report on the state of contaminated land "from time to time". The most recent report (which covers England only) was published in April 2016, and follows reports produced in 2002 and 2009.

Local authorities and the Environment Agency were asked to respond to a survey conducted on behalf of DEFRA, which raised queries on matters such as site inspection, determination decisions, the way in which remediation was carried out and who paid for it. The queries related to the period from April 2000 (when the contaminated land regime came into force) up to 31 December 2013.

Whilst the report will be of interest to a wide range of organisations who could be faced with liabilities under the regime (including owners and occupiers of land used for industrial purposes, property developers and landlords), its findings must be treated with caution, as only 60 percent of local authorities responded to the survey, and of those not all provided a response to every question. Nevertheless, the report provides an interesting snapshot of the implementation of the regime.

Site inspection and identification of contaminated land

Approximately half of the local authorities who responded to the survey, noted that they were behind target in terms of making progress towards achieving the objectives set out in their inspection strategies (local councils must have a written inspection strategy in place describing their strategic approach to identifying contaminated land in their areas). Notwithstanding such responses, the survey suggests that the vast majority of potentially contaminated sites had come to the attention of local authorities through their process of carrying out preliminary inspections. For only about five percent of those sites identified had a detailed inspection actually been started; it therefore appears that there is a lot of work still to be done.

Determining land as being "contaminated"

There was a low response rate to the question of how many sites local authorities had determined as being contaminated under the regime (by way of reminder, land fits within this definition where there is not only a source of pollutant (eg arsenic in the soil) but also a receptor which could be impacted (eg a nearby stream or people living or working on the land) and a pathway between the two). According to the report, 511 contaminated land sites had been determined between April 2000 and the end of 2013. This figure is, however, fairly meaningless given that the 2009 report referred to above, indicated that 659 sites had been determined up to March 2007!

From the responses received, it appears that the risk of harm to human health is the main reason given for determining sites as contaminated, followed by risks to water and then to property. In terms of substances, metals are those most frequently identified as leading to a contaminated land determination (and of those, the most frequent are arsenic and lead, then nickel, chromium and cadmium) and then organics (notably benzo(a)pyrene and PAHs).

Remediation

For those sites where remediation had commenced (whether completed or not), over 60 percent followed a voluntary agreement, with just over 30 percent taking place following the service of a statutory notice.

So far as treatment options are concerned, capping was the technique used at nearly 70 percent of the relevant sites, followed by excavation with off-site disposal of the source material at 65 percent (noting of course that more than one technique may be used per site).

Who bears the cost?

Responses to relevant queries indicate that local authorities pursued the polluter in just over 60 percent of sites, followed by owners and occupiers at 26 percent. However, the report also notes that in 80 percent of the cases for which responses were received, it was the regulator or Environment Agency who actually paid for the remediation. This suggests that in the matters dealt with to the end of 2013, there were difficulties in either finding the polluter (for example companies no longer existing) and/or in getting them to pay (for example because of hardship)

Conclusion

Whilst the relatively low response rate to the survey means that firm conclusions cannot be drawn from the report, it is interesting to note the reasons given for identifying land as contaminated and the substances most frequently referred to. It also seems that despite the regime having been in place for 16 years, local authorities are still in the early stages of the identification process; the issue of contaminated land is not going away!

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