UK contaminated land statutory guidance is being updated with the aim of reducing uncertainty and inconsistencies with current controls that have been in place for over 10 years. Revised regulations are due by early April 2012.
A consultation on the changes to the contaminated land regime under Part 2A of the Environmental Protection Act 1990 was undertaken by the Department for Environment, Food and Rural Affairs (DEFRA) and the Welsh Assembly Government between December 2010 and March 2011. The aim of the consultation was to understand views on the DEFRA proposals to update and revise the statutory guidance which forms a key role in the contaminated land regime in England and Wales. The consultation also gathered views on the minor changes being proposed to the Contaminated Land (England) Regulations 2006 and the Contaminated Land (Wales) Regulations 2006.
In early February, following the public consultation, the revised draft statutory guidance for contaminated land, together with associated draft regulations, were laid before Parliament and the National Assembly for Wales. Assuming there are no concerns, the revised regulations for England and Wales will come into force on 6th April 2012, with guidance issued soon after. Until the new guidance is issued, the existing statutory guidance will remain in force for England and Wales.
The contaminated land regime has been in place for over a decade, and places responsibility on regulators to deal with contaminated land sites that pose a risk to the environment and/or human health in their community. The new statutory guidance is generally thought to be easier to interpret than the current guidance, and refines the previous regime rather than reinventing it. The guidance is intended to explain and elaborate upon the concepts of Part 2A, such as how local authorities should approach implementation of the regime, and how the authorities should decide whether land is contaminated in the legal sense of the term.
The Government’s main policy regarding liability and remediation remains the same but has been largely condensed, and the rationale of undertaking remediation projects will still be a main concern. A new ‘four category test’ will be introduced to simplify the determination of whether land is deemed as contaminated and in need of remediation. This will aim to enable regulators to efficiently target high risk sites. Category 1 describes land which is clearly problematic since similar sites are known to have caused a significant problem in the past. Categories 2 and 3 are for complicated sites where more detailed consideration is needed before determining whether land is contaminated. This will depend on whether the regulator believes there is a strong case for regulatory action and thus whether it should be placed into Category 2 (contaminated land) or Category 3 (not contaminated land). This will be done by first considering human health risks and then wider socio-economic factors (cost, views of local people, etc). Category 4 describes land that is clearly not contaminated land (i.e. only normal background levels of contamination that does not cause a problem).
The new guidance has adapted the definition of contaminated land with regards to controlled waters (e.g. rivers, aquifers, lakes, canals etc.). Instead of considering the pollution of controlled waters and the likelihood for pollution, the guidance refers to the significant pollution of controlled waters or the significant possibility of significant pollution of controlled waters. This is in line with the approach of significant possibility of significant harm (SPOSH) for human health.
The Scottish Government is planning to consult on revisions to the statutory guidance for Scotland this year. The Department of the Environment Northern Ireland reviewed their consultation on the proposals to amend waste management and contaminated land legislation and The Waste and Contaminated Land (Amendment) Act came into force on 10th February 2011.