Environmental Protection Act 1990
Past industrial use of a site does not necessarily mean that it is “Contaminated Land” in the statutory sense; it is merely an indicator that more investigation of the site is required. The process of inspecting the borough is being carried out on the basis of the risk posed by the pollutant linkage(s) present, with the aim being that the sites posing the greatest risk will be identified first.
Following this stage, sites will be prioritised in order of potential risk, with the most pressing and serious sites then being subject to further investigation.
Details of how we are going to inspect East Staffordshire Borough can be read in our Contaminated Land Inspection Strategy.
Main Features of the Part 2A Regime
The primary regulatory role under Part 2A rests with us as the Local Authority. This reflects our existing functions under the statutory nuisance regime, and also complements our role as a planning authority.
In outline, our role under Part 2A is:
(a) To cause our areas to be inspected to identify contaminated land;
(b) To determine whether any particular site is contaminated land;
(c) To act as enforcing authority for all contaminated land which is not designated as a “special site” (the Environment Agency will be the enforcing authority for special sites).
Legal Definition of Contaminated Land
Contaminated Land is defined by Part 2A of the Environmental Protection Act 1990 as:
"Land which appears to the authority 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)POLLUTION OF CONTROLLED WATERS is being, or is likely to be, caused."
Note that the focus of Part 2A is on unacceptable risks to human health and the environment. It should be noted that the Water Act 2003 amends this description slightly by inserting the word ‘significant’ at the start of (b) above, however this section of the Act has not yet come into force.
An enforcing authority has four main tasks:
(a) To establish who should bear responsibility for the remediation of the land (the “appropriate person” or persons);
(b)To decide, after consultation, what remediation is required in any individual case and to ensure that such remediation takes place, either through agreement with the appropriate person, or by serving a remediation notice on the appropriate person if agreement is not possible or, in certain circumstances, through carrying out the work themselves;
(c) Where a remediation notice is served, or the authority itself carries out the work, to determine who should bear what proportion of the liability for meeting the costs of the work; and
(d) To record certain prescribed information about their regulatory actions on a public register.
Part 2A follows the “polluter pays principle”; therefore the cost of clean-up or “remediation” will normally lie with the persons who caused or knowingly permitted the contamination (a Class A person). Where this person cannot be found then liability may fall to the current owner of the site (a Class B person). This latter step does not apply where the problem caused by the contamination is solely one of water pollution: this reflects the potential liabilities for water pollution as they existed prior to the introduction of Part 2A. Responsibility will also be subject to limitations, for example where hardship might be caused; these limitations are set out in Part 2A and in the statutory guidance.
Where there is imminent danger of serious harm from an identified significant pollutant linkage, ESBC can remediate the site themselves and recover the costs afterwards from the person(s) responsible.
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