Last reviewed 3 April 2012

As a follow-up to an earlier feature on Defra’s proposed revisions to Part 2A of the Environmental Protection Act 1990 governing contaminated land, Rob Bell garners industry opinion and considers whether the new guidance is a step in the right direction.

The Department for Environment, Food and Rural Affairs (Defra) made the decision to revise the statutory guidance underpinning the Part 2A regime — designed to provide local authorities with the tools to identify and clean up those highly contaminated sites unlikely to be addressed through the planning system — in the hope its changes would satisfy council environmental health officers who have expressed dissatisfaction with Part 2A ever since it was first implemented.

Various attempts have been made over the years to kickstart progress under Part 2A. But tinkering around the edges has patently failed to deliver Part 2A rules which both Defra and the local authority officers tasked with implementing the regime can live with, so the Department went to the source. However, as might be expected with an issue that has caused such long-lived and deep-seated controversy within the contaminated land sector, many remain unhappy with the results.

Claims and counter-claims

The Chartered Institute of Environmental Health (CIEH) was quick off the mark with criticisms of the new guidance. The CIEH says: “The guidelines would water down current science-based risk assessments, which could result in fewer sites being treated before they are built on.

“Other changes include introducing consideration of social and environmental costs into decisions which previously have been made on health grounds and a number of detailed amendments which will discourage authorities from declaring land to be contaminated.”

The Institute explained the crux of the problem in a single paragraph. It said: “According to the Government, local authorities’ powers have played a very important role in dealing with land contamination, but the original guidance failed adequately to explain how to decide if land is sufficiently contaminated to require clean-up or not. That has been a cause of uncertainty, which has been responsible for slow progress and some poor decisions.”

However, the CIEH disputes the Government’s position, “placing responsibility squarely back on the Government”.

Trade body the Environmental Industries Commission immediately challenged the CIEH’s views. Director of Policy Michael Lunn says: “Unfortunately, the CIEH claims the new guidelines would water down current science-based risk assessments. We suggest this is not the case at all.

“The new guidance provides a better foundation for making scientifically robust decisions. It recognises the importance of uncertainty in the decision-making process, little mention of which was in the old guidance.

“Also, CIEH want Defra to define what the boundary is between acceptable and unacceptable risk. CIEH believe this is a science-only decision and one the Government can decide on. But the acceptability of risk not only depends on the level of risk, but the context that risk sits within.”

Priority status

Clearly, arguments about how Part 2A should, can and does function will continue. But what are the thoughts of those actually using the new rules?

Ruth Willcox, Environmental Protection Officer (Land Quality) for Plymouth City Council, says: “The increased focus on prioritisation should lead to council resources being directed toward the highest (relative) priority sites.

“However, most sites will require active intrusive ground investigation to confirm their priority status and/or quantify risk in order to determine whether clean-up is actually required. Currently, there are significant constraints on local authority budgets, and the Environment Agency Contaminated Land Capital Projects Programme (CLCPP) considers remediation to be a higher priority than investigation for funding purposes.

“Also, the new requirement for consideration of subjective societal cost/benefit in addition to quantified/quantifiable health benefit incorporated into the new guidance is likely to lead to difference in new guidance interpretation and further difference in approach between individual local authorities. So I believe measurable progress under the new regime will be limited.”

Angus Middleton, Director of consultancy Renaissance Environmental, is even more pessimistic that the revisions will lead to progress. He says: “The requirement for regulators to take into account wider socio-economic considerations will make Part 2A all the more complex and open to challenge. I have talked to some Contaminated Land Officers (CLOs) who will now deal with all contaminated land under planning regulations and forget Part 2A altogether. One even said this is what the regulations are all about: making Part 2A the very last resort for particularly problematic sites that are not likely to be redeveloped.”

Sticking points and problems ahead

Most practitioners in the contaminated land field feel Defra has more to do to achieve its goal of a workable Part 2A. One of the biggest sticking points has always been the Government’s view it cannot legally or scientifically set concrete limits on what levels of contamination definitely require intervention. The issue remains unresolved.

One contaminated land officer who prefers to remain anonymous says: “There is still a body of opinion that wants to see the statutory guidance give ‘numbers’ that define SPOSH (significant possibility of significant harm).

“There was a widespread belief CLEA (the Environment Agency’s Contaminated Land Exposure Assessment software) would provide the numbers, but they have never materialised. This has been a huge disappointment to a small (but noisy) minority of the contaminated land community, and they will continue to loudly express this disappointment.”

Angus Middleton says: “The changes will make legal challenges more likely, so we will see some cases going all the way to Judicial Review. Many councils will quietly abandon all Part 2A action and shift to addressing all sites through the planning system, which will cause a stink in a few years when commentators and central government cotton on to it.”

There are a range of views on what still needs to be done, and who should do it. One CLO says: “Many of the problems encountered in achieving progress with Part 2A could be dealt with through an EU Soil Framework Directive (SFD). This would require a national approach and could result in the concentration of expertise in a body (such as the Environment Agency) that would be capable of making nationally consistent technical decisions, but would still leave scope for local decisions by elected politicians. However, the SFD is a long way off."

Ruth Willcox believes further UK guidance will need to be produced to support the new document. She says: “Many of the barriers that prevent successful implementation of Part 2A are associated with out of date or lack of accompanying CLEA guidance.

“As this guidance underpins Part 2A, I believe focus on production of updated guidance across a broad chemical range will provide much firmer ground for decision-making.”

Another CLO says: “There is a lack of funding for local authorities, as funding for action on contaminated land is allocated through non-ring-fenced revenue support grants. There is also a lack of funding through the CLCPP scheme — it needs to be increased back to at least £10 million.

“And there is a lack of coherent technical guidance to support the statutory guidance, such as SGVs to effectively screen out sites.”

So while most in the contaminated land field see at least some positives in the revised Part 2A Guidance, none feel the new document effectively addresses the majority of their concerns and the weaknesses and lack of coherency that has held back progress under the regime since the outset.

The new guidance may be a step in the right direction, but as an attempt to settle the issues once and for all, it can only be considered a failure.