Part IIA Environmental Protection Act 1990

Historically the definition of what constitutes contaminated land has been unclear – Land that has contaminants in it? This is clearly insufficient since this would capture many areas of land which we would intuitively not think of as contaminated, and imply that almost all land in the UK is in need of remediation!

The concept of risk is a well accepted and useful means by which land can be judged as contaminated or not. Part IIA of the Environmental Protection Act 1990 is the most significant piece of legislation in this area and has this concept of risk at its core. This Act is the first to define Contaminated Land in law as:

“any 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 CONTROLLED WATERS is being caused, or there is a SIGNIFICANT POSSIBILITY of such pollution being caused”.

The impacts of contamination are judged on RECEPTORS which are linked to SOURCES of contamination via a PATHWAY and all of these elements need to be present as a complete POLLUTANT linkage for land to be defined as Contaminated Land. The RECEPTORS are defined and include human beings, controlled waters, property (including building, crops, livestock etc.) and ancient monuments. So for land to be Contaminated Land we need to incorporate risk assessment and to understand the pollutant linkage and particularly in the concept of ‘SIGNIFICANT POSSIBILITY’. Part IIA goes into great detail on these aspects.

The Part IIA Act however is largely meant for land contaminated through historical activity. Much of its content however is still valid within the Planning Regime which includes contamination as a ‘material planning consideration’ meaning that part of a redevelopment project may be land remediation. Indeed most contaminated land remediation is secured through the planning system since this provides both the opportunity and the resources to act. Planning Policy Statement 23 (PPS23) cross references the planning regime to Part IIA although a wider range of contamination and receptors are relevant to planning because of its wider spatial context but the degree of harm or pollution relevant to planning and the approach to remediation are essentially the same.

But how is this legislative framework actually put into practice? In the case of site redevelopment this is dealt with by the Environment Agency document Contaminated Land Report (CLR) 11 ‘Model Procedures for the Management of Land Contamination’. This 204 page document describes the process to land management of:

  1. An iterative process of risk assessment where the contaminated land risks of a piece of land are determined. This happens through a process of information gathering through site history and environmental setting, site data through sampling and investigation and generic or site specific risk assessment. At each stage if a potential risk is present then further, more expensive and time consuming, work is justified to bottom-out the risk. The conclusion fo this is there is a risk or there is not a risk.
  2. Carry out an options appraisal of remediation that will be required. Here feasible options can be considered depending on the nature of the pollutant linkage(s). Solutions can be very broad and can include-
    - source removal to landfill,
    - source treatment (chemical / biological / physical) on site either in-situ or ex-situ to reduce its harmfulness,
    - modification of the pathway to prevent the connection between the source and the receptor (e.g. barriers, capping, groundwater pump and treat)
    The overall strategy is decided at this stage
  3. Preparation of an implementation plan, design and implementation of the works complete with validation to demonstrate the earlier risks identified have been mitigated.

In practise there are many methods and approaches to solve the issues on any particular site. There is always a trade-off between cost, risk and timescale. As an experience land remediation contractor we are happy to take this risk away from our clients and provide certainty around regulatory sign off, fixed timescales and lump sum (i.e. fixed) prices.

The government have just completed a consultation on proposed new statutory guidance for Part IIA. More on this to follow in future updates.

Take a look at how we have help many customers mange the risk of land contamination click here.