Responsibilities of Contaminated Land

The Law
Sources and Types of Contamination
Remediation
Responsibility for Contaminated Land
Council Owned Land
Planning and Contaminated Land
Specific Site Enquiries
The Way Ahead

The Law

Part IIA of the Environmental Protection Act was introduced in April 2000. It aims to identify land that may be contaminated and then make sure that it is not causing significant harm to people's health or the environment.

Taunton Deane Borough Council are required to inspect the borough for potentially contaminated sites and where sites are found to be "contaminated land" as defined in the legislation, ensure appropriate action is taken to remediate or clean up the site.

Contaminated land is defined in section 78A(II) of Part IIA of the Environmental Protection Act 1990. The legislation defines contaminated land as land either causing, or likely to cause, significant harm to human health or the environment or the pollution of controlled waters.

'Significant harm' is defined on risk based criteria and must be the result of a 'pollutant linkage'. In order to meet the terms of the definition and allow the Council to determine an area as being contaminated land there must be:

1. A source of contamination.

2. A receptor (human or environmental; including crops, animals and buildings) which is sensitive to the contamination present.

3. A pathway by which the receptor is being, or could be, exposed to the contamination.

If a site meets the definition of 'contaminated land' the Council has powers to require the people responsible to take action to remove the risk. There may be sites which have high levels of contamination but pose no significant risk to health or the environment, these sites cannot be classed as 'contaminated land' so the Council will not be able to take legal action to remediate this land.

For certain types of contaminated land the Environment Agency will take enforcement action rather than the Council.

Sources and types of contamination

The causes of contaminated land and the type of land uses that have the potential to be contaminated are very varied. They can include gas works, sewage works, waste disposal sites, tanneries and petrol stations.

These activities use or produce substances which can pose a risk to human health or the environment. The contamination can be caused by malfunctions of equipment, incorrect storage of materials or the disposal of waste on site.

There are a wide range of contaminants that may be harmful or likely to cause pollution. Some of the common examples are heavy metals, landfill gas, oils and other hydrocarbons.

Remediation

Remediation means carrying out work to prevent contamination from causing significant harm to human health or the environment and making it 'Suitable for Use'. The methods that are used should be based on how well they deal with any contamination, the current or proposed uses of the site and issues such as the costs and the wider environmental impact.

Remediation can include removing the contaminated soil from the site, using a barrier to contain the contamination, treating the contamination on the site, or controlling the use of the site to restrict any activities that bring people into contact with any contamination.

A detailed site investigation should be carried out and specialist advice sought before deciding which methods should be used to remediate a site.

Responsibility for contaminated land

If any sites are found to be "contaminated land" as defined by the law the Council will:

• Identify who is responsible for causing the contamination;
• Liaise with the people responsible and the owners or occupiers of the site to seek the voluntary remediation of the land;
• If this is not successful; take legal action which will require the people responsible to carry out the necessary remedial work;
• Ensure that the remediation of the site is carried out.

One of the aims of the legislation is to attempt to follow 'the polluter pays' principle.

If any contaminated land is found, the Council will find out who is responsible for carrying out and paying for any remediation. This could be the person who caused the contamination, or a developer who built on a site that was known to be contaminated.

However, there may be cases where these people cannot be traced, particularly if the contamination occurred a long time ago. If they cannot be found, the responsibility could then be passed to the owner or occupier of the land.

If it is not possible to find the person responsible or the owner/occupier of a site the Council may carry out the work to make sure that the site is not posing a threat to health or the environment. These sites are known as Orphan sites.

The Council may also carry out the remediation of a site if it poses an immediate threat, and the legal process is likely to cause unacceptable delays. In some cases the Council may later be able to recover the cost from the people responsible for the site.

Council owned land

The Council will be investigating its own land for contamination. Any contaminated sites that are found will be inspected to decide what remediation will be required.

The Council will arrange for suitably qualified contractors to carry out any work that is necessary. If the contamination was caused by another person the Council will liaise with them to decide who will be responsible for carrying out and paying for the work.

Planning and contaminated land

The Environmental Protection Team provide consultation to the Development Control Department on a range of issues for planning applications including the likelihood of contaminated land.

If the previous use of a site could have led to contamination, a planning condition will require the developer to investigate the site and prepare a remediation strategy. This must ensure that the site is suitable for its proposed use.

These works must then be carried out before the development is completed. Some sites may require on-going monitoring to ensure that the measures put in place have been successful.

The Environmental Protection Team has produced a guide for developers entitled The Assessment and Remediation of Contaminated Land (284 KB).

Specific site enquiries

If you have an enquiry regarding a specific site the Environmental Protection Team may be able to provide information such as previous uses of the land or pollution incidents.

The information that is held is being added to constantly and so may not be a complete record of a site's history. It should also not be used to determine whether land is, or is not, contaminated.

The way ahead

By carrying out a planned inspection of the borough for contaminated land the Council should discover if there are any areas of land that could cause harm to human health or the environment. These can then be assessed and remediated before any problems occur.

The potential for contamination on sites throughout the country can hinder the re-use of previously developed land. It also increases the pressures on new or Greenfield sites. The inspection of the borough could highlight areas where the land can be used more effectively. These sites can then be investigated and remediated as they are developed.