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A Look into the Future for Contaminated Land

This article explores the current issues and proposed changes in the regulation and management of contaminated land, including the DEFRA and WAG consultation on statutory guidance, concerns over risk assessment and harm to human health, and the proposed EU Soil Framework Directive.

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A Look into the Future for Contaminated Land

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  1. A Look into the Future for Contaminated Land Richard Moules

  2. Introduction • DEFRA and WAG consultation on the Statutory Guidance on Part 2A • draft EU Soil Framework Directive

  3. Consultation on statutory guidance • Guidance does not explain adequately how to decide if land is contaminated land • Causes inconsistency • Intervention at low levels of contamination • Insufficient targeting of high risk sites

  4. Key features of the regime will remain • Local authorities as primary regulator • Environment Agency responsible for special sites • Definition of contaminated land in Part 2A • Provisions on remediation and liability

  5. Issue 1: shorter, simpler guidance • Makes guidance more transparent • But loose terminology used e.g. “pollutant” and “contaminant” treated interchangeably

  6. Issue 2: separation of radioactively contaminated land guidance • Separate guidance for radioactively contaminated land • Any real practical impact? • Danger of inconsistent approaches in the 2 documents

  7. Issue 3: Broad objectives of the regime • Only reference currently in non-statutory annex • New section 12 detailing broad aims of Part 2A • (i) protect health and environment from significant risks; and (ii) avoid disproportionate impact on society and business

  8. Issue 4: Risk assessment • Adds 5 new features • Description of the process • Use of external expertise • Generic assessment criteria • Uncertainty • Risk summaries

  9. Issue 6: Background presence of contaminants • Clarification that background levels of contaminants should not qualify as contaminated land generally • Concern that authorities are taking too long to dismiss sites with normal levels of contamination

  10. Issue 7: Significant harm to human health • “Death, disease, serious injury, genetic mutation, birth defects or the impairment of reproductive functions. For these purposes, disease is to be taken to mean an unhealthy condition of the body or a part of it and can include, for example, cancer, liver dysfunction or extensive skin ailments. Mental dysfunction is included only in so far as it is attributable to the effects of a pollutant on the body of the person concerned.”

  11. Issue 7 cont’d • Option 1 • Clarify definition of disease so only applies to serious unhealthy conditions • Remove reference to genetic mutation • Option 2 • Revised definition of significant harm to human health • Some harm always significant e.g. Death • Other forms significant only if prescribed test passed

  12. Issue 8: Significant possibility of significant harm(human health) • Source of major uncertainty • No numerical test • Clarify entails 2 stage analysis: understand risk then assess significance • Traffic light system

  13. Issue 9: Significant possibility of harm to non-human receptors • No problems here • Wording revised slightly

  14. Issue 10: Pollution and controlled waters • Changes definition of contaminated land in respect of controlled waters • Introduces s.86 of the Water Act 2003 • Part 2A will only apply to significant pollution of controlled waters

  15. Issue 11: determining whether land appears to be contaminated • 4 additions • Clarify process to speed it up • Reconsideration of determinations • Informing affected persons • Postponing determinations

  16. Issue 12: Remediation • Merely makes guidance more concise

  17. Issue 13: Liability • Gov’t considers liability provisions to be “fit for purpose”

  18. Issue 14: Recovery of costs of remediation • Clarifying para 8.6 to encourage part-charging in cases of hardship

  19. Issue 15: Appeals procedure • Regulation 8 appeal right • Regulation 11 anomaly to be removed • Should appeal be to Environment Chamber of Tribunal system?

  20. Proposed EU Soil Framework Directive • Proposed in 2006 • Covers • Degradation • Identification and remediation of contaminated land • Soil protection in national policy making • Control of loss of soil resources to development

  21. Main requirements • Article 9 prevention of soil contamination • Article 10 inventory of contaminated land • Article 11 identification procedure • Article 12 soil status reports • Article 13 remediation • Article 14 national remediation strategy

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