[Enter name of Borough/City/District Council here]
Statutory
Contaminated Land Inspection Strategy
Month 2013
Required under the provisions of the
Environmental Protection Act 1990 Section 78B
Executive Summary
This revised version of the Contaminated Land Inspection Strategy sets out [Enter name of Council here] strategy for the inspection of land suspected of being contaminated as instructed under Part2A of the Environmental Protection Act 1990. It replaces the Council’s previous strategy (Enter relevant date]and incorporates changes detailed in the revised Statutory Guidance 2012.In deciding what constitutes significant harm or pollution of controlled waters the Council will act in accordance with this new Statutory Guidance. Legislation under Part2A requires the Council to inspect its district for historic contamination and where found provides powers to the Council to instruct the remediation of that land. This strategy outlines a process, principally for the protection of human health, which runs parallel to, but differentiates from, planning redevelopment, in that it focuses on land being suitable for existing use rather than future, planned land use.
A section on the background to the legislation has been provided at the beginning of the strategy which further expands on the Government approach to dealing with the legacy of contaminated land in the UK (Section 1).The aims and objectives of the strategy have been updated to better reflect changes made in the new statutory guidance (Section 2).While the aims speak of adopting a proportionate approach, focusing on those sites with an unacceptable level of risk and encouraging voluntary remediation where possible, the objectives outline how this will be achieved. This is followed with details on how the Councils own planning aims and objectives compliment Part2A requirements. The inspection duties of the Council have been updated in Section 3 and a description of the changes introduced by the new guidance in Section 4.
As the main statute has not changed there are no rule changes in relation to the identification of appropriate persons, the exclusion test and the apportionment of liability. Radioactively contaminated land has now been removed from the Statutory Guidance and separate guidance will be issued for this by the Department of Energy and Climate Change. The strategy’s approach to liaison and communication, the Councils strategic approach to dealing with contaminated land and the prioritisation of sites remain as per the previous version of the strategy (Sections 5 to 8).The chapters on Risk Assessment (Section 9), Definition of Contaminated Land (Section 10), The Determination of Contaminated Land (Section 11) and Remediation of Contaminated Land (Section 11) have been expanded to include changes made in the new Statutory Guidance. Council’s will now need to consider normal background concentrations (Section 9.2) as not being contaminated land and use of generic assessment criteria (Section 9.3)has been given improved clarification. Risk Summaries (Section 9.4) are now to be produced prior to deciding that land is contaminated land. These will help residents to understand the decision making process.
Of the changes made in the new guidance perhaps the most radical is the introduction of the four category test, to help decide whether land is contaminated or not. This is explained in Section 10.4. There is also a change in the definition of contaminated land with the introduction of controlled waters. Descriptions of these are included within Section 10.Remediation is considered at length in the new Statutory Guidance and this has been reflected in this strategy by awarding it a section of its own (Section 12).In particular there is now a strong emphasis on the reasonableness of remediation and how the benefits of remediation should be balanced against both the health and environmental impacts by undertaking such remediation. Section 14 on Financial Implications has been included to address the importance of dealing with hardship as well as cost recovery. The remaining sections on liability, information management, resources and review procedures are largely unaffected by the introduction of the new guidance. Section 18 has been updated to reflect the programme of inspection going forward.
For a quick comparison of changes made between this Strategy and its previous version please refer to Appendix VIII.
Contents Page No
Executive Summary ii
INTRODUCTION AND OVERVIEW
1.0 INTRODUCTION 1
1.1 Background to the legislation 1
1.2 National Objectives of the Regime 2
1.3 About This Strategy 2
2.0 AIM, OBJECTIVES AND PRIOITIES OF THE STRATEGY 3
2.1 Aims Of The Strategy 3
2.2 Objectives Of The Strategy 3
2.3 Priorities Of The Strategy 3
2.4 Aims and Objectives of the Council 3
3.0 LOCAL AUTHORITY INSPECTION DUTIES 7
3.1 Responsibilities 7
3.2 Role Of The Environment Agency 8
3.3 Liability For Another Local Authority’s Land 8
3.4 Inspection Duties 9
4.0 LEGISLATION, STATUTORY AND NON STATUTORY GUIDANCE 11
4.1 Legislative Requirement 11
4.2 Legislation Where Part2A Does Not Apply 11
4.3 Statutory Guidance 13
4.4 Non-Statutory Technical Guidance 14
4.5 Land Under Ownership Of The Council 14
5.0 LIAISON AND COMMUNICATION 15
5.1 External Agencies 15
5.2 Internal Agencies 15
THE STRATEGY
6.0 DESCRIPTION OF [Enter name of Council here] AND HOW ITS CHARACTERISTICS IMPACT THE STRATEGY 16
6.1 Description Of [Enter name of Council here] 16
6.2 Historic Land Use Of [Enter name of Council here] 17
7.0 STRATEGIC APPROACH TO THE IDENTIFICATION OF
CONTAMINATED LAND IN [Enter name of Council here] 18
7.1 Introduction 18
7.2 Receptors 18
7.3 Contamination Pathways 22
7.4 Potential Sources of Contamination 23
8.0 IDENTIFICATION OF POTENTIALLY CONTAMINATED SITES AND THEIR PRIORITISATION ACCORDING TO RISK 25
8.1 Introduction 25
8.2 Identification of Potentially Contaminated Land 26
8.3 Prioritisation Process 27
8.4 ConSEPT 27
8.5 Summary 27
9.0 RISK ASSESSMENT 28
9.1 The Process Of Risk Assessment 28
9.2 ‘Normal’ Presence Of Contaminants 30
9.3 Use Of Generic Assessment Criteria 30
9.4 Risk Summaries 31
9.5 Uncertainty 31
10.0 THE DEFINITION OF CONTAMINATED LAND 32
10.1 Definition of Contaminated Land
10.2 Significant Harm to Human Health
10.3 Significant Possibility of Significant Harm (SPOSH) 32
10.4 Deciding On Whether a Possibility of Significant Harm Is
Significant – Human Health 33
10.5 Significant Harm and Significant Possibility of Significant
Harm – Non-Human Receptors 35
10.6 Significant Pollution of Controlled Waters and Significant
Possibility of Such Pollution 35
11.0 THE DETERMINATION OF CONTAMINATED LAND 38
11.1 Deciding That Land Is Not Contaminated Land 38
11.2 Determining That Land Is Contaminated Land 38
11.3 Physical Extent Of Land To Be Determined 38
11.4 Informing Interested Parties 38
11.5 Postponing Determination 39
11.6 Written Record Of The Determination Of Contaminated Land 39
11.7 Reconsideration, Revocation And Variation Of Determinations 40
12.0 REMEDIATION OF CONTAMINATED LAND 40
12.1 Definition of Remediation 40
12.2 Voluntary Remediation 41
12.3 Standard of Remediation 42
12.4 Reasonableness of Remediation 42
12.5 Remediation by the Local Authority 42
12.6 Urgent Action 43
12.7 Revision of Remediation Notices 43
12.8 Appeals Against Remediation Notices 43
12.9 Offences 44
13.0 LIABILITY 44
13.1 Appropriate Persons 44
13.2 Apportionment Of Liability 44
13.3 Limitation On Costs To Be Born By Appropriate Persons 45
13.4 Apportionment of Costs 46
13.5 Orphan Linkages 46
13.6 Costs Associated With Council Liabilities 46
14.0 FINANCIAL IMPLICATIONS 47
14.1 Introduction 47
14.2 Cost Recovery 47
14.3 Hardship 47
14.4 Cost Recovery Considerations In Addition To Hardship 48
14.5 Claims For Compensation For Rights Of Entry 48
14.6 Sources Of Funding 48
15.0 INFORMATION MANAGEMENT AND DISCLOSURE 49
15.1 Information Management 49
15.2 Information Disclosure 49
15.3 Public Registers 49
15.4 Information Received From Members Of The Public 50
16.0 ENQUIRIES PROCEDURE AND ARRANGEMENTS FOR REVIEW 50
16.1 Enquiries Procedure 50
16.2 Enquiries from the Public 50
16.3 Review 51
17.0 RESOURCE AVAILABILITY 52
17.1 Resource Availability 52
18.0 PROGRAMME OF INSPECTION 52
18.1 Introduction 52
18.2 Programme of Inspection 53
REFERENCES 55
FIGURES
Figure 1 Outline of [Name of Council] with Major Towns and Villages 17
Figure 2 Schematic diagram of a contaminant linkage 19
Figure 3 Groundwater Vulnerability Zones for [Name of Council] 20
Table 1 SAC’s and SSSI’s in [Name of Council] 21
Table 2 Contamination Pathways 23
Table 3 Comparison of Consequence Against Probability 28
Table 4 Description of the Classified Risks and Likely Action Required 29
APPENDICES
Appendix I Glossary 58
Appendix II Significant Harm and Significant Possibility of Such
Harm (Non-Human Receptors) 61
Appendix III Special Sites 63
Appendix IV List of Consultees and Contact Points 64
Appendix V Powers of Entry and the Appointment of ‘Suitable
Persons’ 70
Appendix VI List of Potentially Contaminative Land Uses 75
Appendix VII Authorized Processes and Former Landfills 77
Appendix VIII Comparison Table Between Old and New Strategy 80
ii
INTRODUCTION AND OVERVIEW
1.0 INTRODUCTION
1.1 BACKGROUND TO THE LEGISLATION
1.1.1 In 1985 the Government, in its response to the 11th report of the Royal Commission on Environmental Pollution, announced the Department of the Environment was preparing a circular on planning aspects of contaminated land.
1.1.2 In January 1990 the House of Commons Select Committee on the Environment (1990) published its first report on contaminated land, introducing the requirement by local authorities to compile a register of contaminated land.
1.1.4 If enacted this would have required local authorities to maintain registers of land which was, or may have been contaminated, as a result of previous use. Due to concerns over property blight, however, the Secretary of State announced that proposals for contaminated land registers were to be withdrawn and a belt and braces review of land pollution responsibilities was to be undertaken.
1.1.6 This resulted in the Department of the Environment consultation paper, Paying For our Past (1994a). The outcome of this was the policy document, Framework for Contaminated Land, (1994b). This useful review emphasised a number of key points:
· The Government was committed to the, ‘polluter pays principle’, and, ‘suitable for use approach’;
· Concern related to past pollution only;
· Action should only be taken where contamination posed actual or potential risks to health or the environment with affordable ways of doing so.
1.1.7 The proposed new legislation was first published in June 1995 in the form of section 57of the Environment Act which amended the Environmental Protection Act 1990 by introducing a new Part 2A (DoE, 1995). After lengthy consultation on statutory guidance the legislation finally came into force in April 2000.
1.1.8 As part of the new legislation all local authorities were required to have an Inspection Strategy in place by July 2001 and to keep this document under periodic review. Following an amendment to the Statutory Guidance in 2012 all local authorities were required to revise the content of their strategies to take account of the changes.
1.1.9 This strategy is intended to explain how [Name of Council]will implement the contaminated land regime as required by part 2A of the Environmental Protection Act 1990 over the period 2013-2018(?) and includes amendments resulting from the recent revision of the Statutory Guidance.
1.1.10 This strategy presents the aims and objectives, as well as the inspection duties of the Council. It outlines the relevant legislation and the strategic approach to the identification and prioritisation of contaminated land at [Name of Council]. Subsequent sections focus on how the Council will undertake risk assessments, a detailed description of the legal definition of contaminated land and the updated procedure for determination and remediation based around the new statutory guidance. The final part of the strategy describes liability, financial implications and discusses the issues surrounding information management and disclosure, before finally referring to the Council’s plans for inspection.
1.2 NATIONAL OBJECTIVES OF THE REGIME
1.2.1 The first priority for dealing with the legacy of historical contaminated land in England is to identify unacceptable risks to human health and the environment. Where no appropriate alternative solution exists local authorities are required to use the Part2A regime for the purposes of ensuring historical contaminated land is brought “back into everyday use” (Benyon, 2012).
The overarching objectives relating to Government policy on contaminated land and Part2A are:-
a) to identify and remove unacceptable risks to human health and the environment;
b) to seek to ensure that contaminated land is made suitable for its current use;
c) to ensure that the burdens faced by individuals, companies and society as a whole are proportionate, manageable and compatible with the principles of sustainable development.
(Defra, 2012a, para 1.4)
1.2.2 Where appropriate alternative solutions exist (e.g. voluntary action) these are to be encouraged to ease the burden on the tax payer.
1.2.3 The Part2A process will further aid contaminated land investigations conducted under existing planning laws by ensuring land is made suitable for use following redevelopment.
1.2.4 The legislation came into force in 1st April 2000 and. The first Inspection Strategy was reported to and approved by the [Enter name of Committee] on [Enter relevant date]. Periodic reviews were carried out in [Enter relevant dates if applicable].
1.3 ABOUT THIS STRATEGY
1.3.1 The Environment Act (1995) s.57, inserts into s.78 of the Environmental
Protection Act (1990) the Part 2a Contaminated Land legislation. Under s.78B (1) it states that:
Every local authority shall cause its area to be inspected from time to time for the purpose –
(a) of identifying contaminated land; and
(b) of enabling the authority to decide whether any such land is land which is required to be a special site.
(See Appendix III for a description of special sites)
1.3.2 Section 78B (2) states that the authority must act in accordance with guidance issued by the Secretary of State. Specific technical guidance on the drafting of inspection strategies was published in 2001, intended to assist local authorities in fulfilling their statutory obligations and complying with the principles of the Part 2A regime (DETR, 2001).
1.3.3 The statutory guidance makes clear that in order to carry out this duty local authorities must produce a formal contaminated land strategy document which clearly sets out how land, which merits detailed individual inspection, will be identified. This document must be kept under periodic review. Since its initial publication in 2001, the strategy for [Enter name of Council] has undergone changes in its method by which contaminated land is investigated. This has been necessary to ensure investigations proceed in a