Howard Price, Principal Policy Officer, Chartered Institute of Environmental Health (representing local authority officers responsible for the regulation of contaminated land):
New guidance containing rules on dealing with contaminated land will shortly be brought into effect by the Department for Environment, Food and Rural Affairs (Defra). The rules replace statutory guidance from 2006 made under Part 2A of the Environmental Protection Act 1990. Importantly, they will bind local authority regulators who, unusually, must ‘act in accordance with’ them.
Some 300,000 hectares of land is estimated to be affected to some degree by contamination caused by:
- Leaks and spillages.
- Waste.
- Industrial activities.
It needs to be dealt with because it can pose a risk to human health and pollute water supplies. Just the possibility of contamination causes anxiety and blight, preventing the sale of homes and presenting a barrier to regeneration.
Most contaminated sites are identified in the course of development. But for land not undergoing redevelopment, local authorities have powers to ensure decontamination. The most important of those are in Part 2A of the Environmental Protection Act 1990, implemented in 2000.
Usually, “contaminated land” presents chronic, rather than acute, risks and its identification turns on assessing the possibility of harm arising in the future. That currently involves looking at:
- The toxicological properties of contaminants; and
- How much of those contaminants the potential receptors, especially people, might come into contact with.
Too complicated to detail in legislation, bodies of both procedural and technical guidance were always planned in support of that. The ‘Statutory Guidance’ is the principal piece of procedural guidance. What is meant by ‘harm’ and when the possibility of it arising is significant enough to mandate enforcement action are set out there.
Central to the regime, however, were plans for complementary technical guidance containing the contaminant concentrations that would establish a presumption of a significant possibility of significant harm (SPOSH) and against which soil samples from suspect sites would be compared. Unfortunately, such soil guideline values (SGVs) have never emerged from the Environment Agency and Defra, which announced in 2008 that the ‘scientific and legal difficulties’ of producing them were ‘insuperable’. Without this technical guidance though, some early mistakes were made and decisions on some less obviously contaminated sites are still being avoided.
Developers too have been unable to tell with certainty:
- Whether sites they own or propose to buy are ‘contaminated’ in the legal sense; or
- What they have to do to show they are not.
Four years on, Defra’s attempt to resolve these difficulties raises at least equal problems, however. Sweeping the issue of the missing technical guidance under the carpet, it:
- Waters-down the need for science at all.
- Brings a more qualitative approach to risk assessment and the identification of contaminated land.
- Means toxicology will now play little part, and instead introduces four categories of land from ‘definitely contaminated’ to ‘definitely not’ with two in the middle bracketing the point at which contamination becomes serious enough to require action. Authorities are directed to place sites in one or another on the basis of whether ‘similar land or situations are known, or are strongly suspected…to have caused such harm before…’ .
The trouble with such a ‘show us the bodies’ test, however, is that it relies on the evidence having been recognised and correctly attributed or, alternatively, that the absence of evidence of risk is evidence for the absence of risk while Defra’s own Impact Assessment admits ‘…it is inherently difficult to prove causality.’
Where decisions on whether to require action or not are not clear-cut, authorities are now told to add ‘a broad consideration’ of the social, economic and environmental costs and benefit of clean-up. In other words, these decisions will no longer be taken on health grounds alone, but on some sort of vague ‘net risk’ calculation instead.
With some understatement, the UK Environmental Law Association (UKELA) commented that this ‘could cause regulators significant difficulty and uncertainty…’.
Having, apparently, not complicated things enough, the Guidance muddies the waters further in a series of novel paragraphs about ‘normal’ contamination (and Defra debated hard over whether to call it ‘normal’ or ‘background’), heavy with encouragement to ignore it if it ‘is within the bounds of what might be considered normal: (a) locally…and/or (b) regionally or nationally…’. The inequitable result is, for example, that higher levels of heavy metal contamination will be condoned in land downwind of a former smelter than would be condoned elsewhere.
More technical criticisms include:
- Several passages which appear to go beyond what section 78 of the Environmental Protection Act 1990 permits to be included in Statutory Guidance.
- A number of paragraphs purport to alter the operation of the 1990 Act, in its powers of inspection for example, and, more pointedly, in the standard of information needed to decide whether land is contaminated.
- Parts are contradictory.
- New terms are introduced without explanation, for example, “significant contaminant” .
Overall, the new Guidance fails to meet any of its stated objectives of being shorter, simpler or better focussed. Crucially, it leaves everyone no more enlightened about where to draw the line between what is ‘contaminated’ and not than before. That is not good for health protection or for the property industry, to which Defra notes all the monetised benefits will flow.
Ironically, we have a Government that likes to champion ‘better regulation’; but its new Statutory Guidance is a good example of just the opposite.