Contaminated Land (Part 2a, EPA 1990)

Question 1

What Legislation concerns Contamination?

Answer 1

The Environment Act 1995, EPA 1990, BS10175:2012

Question 2

What is the definition of Contaminated Land?

Answer 2

“Land which appears to the Local Authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land that –

a) significant harm is being caused or there is a significant possibility of such harm being caused; or
b) Significant pollution of the water environment is being caused or there is a significant possibility of such pollution being caused.

Question 3

What is Part 2a Legislation?

Answer 3

All local authorities are required to maintain a public register of contaminated land within their borough to comply with Part 2A of the Environmental Protection Act (EPA) 1990 and the Contaminated Land (England) Regulations 2012 and the Water Act 2003.

Question 4

What is Section 78?

Answer 4

Section 78 of the Environmental Protection Act 1990 (as inserted by Section 57 of The Environment Act 1995) provides the regime for the identification and remediation of Contaminated Land in England, Scotland & Wales.

Question 5

What is an adequate Investigation?

Answer 5

Identify all likely sources of contamination, Define extent of contamination - lateral and vertical.
Determine nature and concentration of contaminants.
Assess risks.
Not possible to confirm absence of contamination.
Detection limits - consider in relation to site end use.

Question 6

What is the normal process?

Answer 6

Desk review, Conceptual Model, Sampling, Risk Assessment (iterative), Options Appraisal, Strategy Implementation.

Question 7

What are we looking for in sustainable risk/ management?

Answer 7

A Contaminant (source), a Pathway and a Receptor. And the linkage between them.

Question 8

Why remediate?

Answer 8

Reduce health risks, increase land value, control environmental liability, comply with legal requirement.

Question 9

Who pays?

Answer 9

Class A: Historic polluter

Class B: Inheritor of pollution

Question 10

How is risk assessed?

Answer 10

In the context of anticipated use, relevance and receptors. Cost Benefit Analysis. Aiming for Category 4.

Question 11

How do we appraise remedial options?

Answer 11

Reduce or Control. Identify remediation options, evaluate feasibility, produce strategy.

Question 12

What are the common methods?

Answer 12

Either remove/treat the Source.
Or remove/modify the pathway.
Or remove/modify the receptor.

Question 13

Name some common engineering based remediation methods.

Answer 13

Excavation with: disposal or processing.

Containment: Covers, Vertical Barriers, horizontal barriers, isolation, displacement, funnel screening.

Question 14

Why is remediation of contaminated land difficult?

Answer 14

“…the main difficulty faced by the government in addressing this issue has been how to bring back land into beneficial use without imposing unnecessary burdens on society, and more specifically in tackling the thorny question of who should pay for past pollution”

Question 15

So, where did Part 2a come from again?

Answer 15

After extensive consultation, Part 2a was added to EPA 1990 by the Environment Act 1995.

Question 16

The presumption that land is not polluted, unless there is reason to consider otherwise comes from where?

Answer 16

The Environment Act 1995

Question 17

What is the current legislative approach?

Answer 17

Prevention of further pollution at source (migration of pollutants through soil).

Promotion of sustainable development (brownfield site use).

The suitable for use approach (polished earth too costly)
Polluter should pay.

Realistic clean-up costs/liability cost effectiveness.

Question 18

What are Sections 78A-78YC?

Answer 18

They identify all the responsibilities of all the actors involved and provides the basis on which liability is to be imposed.

Question 19

Who enforces section 78A?

Answer 19

The Local Authority.

Question 20

Who enforces section 78A ‘special sites’ and what are they?

Answer 20

The Environment Agency. This is land where contamination is serious and would benefit from EA expertise. This is very common where pollution of controlled waters is likely.

Question 21

What do we look for during the risk assessment?

Answer 21

Source

Pathway Target

Question 22

How are contaminated lands identified and designated.

Answer 22

The Local Authority must examine from time to time. Section 78B is used to inform all concerned. The LA have a duty to serve a remediation notice via Section 78E and register Section 78R.

Question 23

What does a Section 78N notice enable?

Answer 23

Section 78N enables the regulating authority to enter the land and undertake the work itself in certain situations

Question 24

Who is liable for the remediation?

Answer 24

Class A - the polluter (person/s who caused or knowingly permitted the substances…)
Class B –  (if no class A person is found), the owner/occupier for the time being.

Question 25

Name some defences against liability.

Answer 25

For Class A Persons - Selling with knowledge.
Making payments for remediation (such as a price reduction)

For Class B Persons
-Being an occupier or tenant with no long term interest in the land

Question 26

How is an owner defined?

Answer 26

Section 78A: a person who is entitled to receive the rack rent.

Question 27

Why is Corby Group Litigation v. Corby DC relevant?

Answer 27

A local authority had been in breach of its duty to take reasonable care to prevent the dispersal of mud and dust containing a range of contaminants from land reclamation sites which it owned or operated. Pregnant women in the local area had thereby been exposed to teratogenic substances which had caused some children to be born with birth defects consisting of shortened or missing arms, legs and fingers. The local authority was also liable for public nuisance in causing, allowing or permitting the dispersal of dangerous or noxious contaminants and was in breach of its statutory duty under theEnvironmental Protection Act 1990 s.34.

Question 28

What is the ‘Polluter Pays’ principle?

Answer 28

EPA 1990 (as amended by the EA 1995) means:
Establishing classes of Appropriate Persons;
Providing a framework under which they can be ordered to remedy contamination (or pay for the Local Authority to do so).

Question 29

What is the aim of Part 2a?

Answer 29

Identify and remove unacceptable risks to human health and the environment.
Seek to ensure that contaminated land is made suitable for current use.
Ensure that the burdens faced by all are proportionate, manageable and compatible with the principles of sustainable development.
Part 2a should only be used as last resort.

Question 30

What does SPOSH mean?

Answer 30

Significant Possibility of Significant Harm

Question 31

Name the three main aims of Part 2a.

Answer 31

1. Remove unacceptable risks.
2. Make land suitable for use.
3. Make burdens proportionate (costs)