Contaminated land regime makeover
13-Nov-08
Rob Bell reports
The Environment Department (DEFRA) and Environment Agency have finally made concrete moves to restart the stalled Part IIA regulatory regime, including the publication of new guidance on the legal definition of contaminated land. A new version of the contaminated land exposure assessment (CLEA) software has been published, along with – for the first time – an ecological risk assessment framework for establishing risk to non-human receptors.
The contaminated land research organisation, CLAIRE, has also produced a voluntary code of practice on the re-use of soils, aimed at solving the ‘when do soils cease to be waste?’ issue. And the EU’s soil framework Directive – which could have far-reaching implications for the UK’s approach – keeps flickering on and off the radar.
However, problems remain. The Part IIA regime was brought into law by the Environmental Protection Act 1990 – and imposes a duty on local authorities (LAs) to identify potentially contaminated sites, rank them in terms of potential risk to human health, then begin inspecting and remediating them, but it soon became clear that the soil guideline values (SGVs) published by DEFRA to inform decision-making were conservative in the extreme.
The final straw came when East Cambridgeshire District Council made a Part IIA determination in the town of Littleport, where homes on a former gasworks site were found to be contaminated with benzo(a)pyrene. However, the council discovered that – due to the age-old custom of spreading ashes from house fires on gardens as a soil conditioner – no matter how far from the site it tested soil, the SGV for benzo(a)pyrene was exceeded. Local MP Malcolm Moss was furious – demanding action in the House of Commons to address the risk of blight to local residents, and the Part IIA process stuttered to a halt.
Which way forward?
A stakeholder group was set up to resolve the problems holding Part IIA back, and in late 2006 DEFRA published its findings in a document titled 'The way forward', which called for broad changes to the regime to make it more workable.
However, nothing very much happened, with the situation not helped by DEFRA’s entire contaminated land team leaving voluntarily as the Department made cuts in the wake of the ‘single payments scheme’ debacle. Finally, in July, DEFRA published The outcome of the way forward exercise on soil guideline values – to almost universal ridicule.
The central issue is that of SGVs, and their role in determining whether sites fall under Part IIA. Practitioners, particularly in local authorities, were hoping for “a set of numbers”: that DEFRA would publish threshold levels of each relevant contaminant over which a site could be determined as contaminated, thereby simplifying the Part IIA process and giving local authorities confidence that their decisions were legally robust.
But it was not to be. DEFRA said that while it had intended to implement the pleas of the Way Forward working group, “as the work was being finalised it became clear that scientific and legal difficulties were insuperable”.
In the Department’s view, taking a stand on what constituted risk to health is impossible because the toxicological science is so uncertain. Also: “Government lawyers advise against using non-statutory guidance to indicate where the government considers the legal trigger point of ‘significant possibility of significant harm’ (SPOSH) should lie (given that there are no such thresholds in the law).
“Even if we had full scientific backing, it is ultimately for the courts to decide what is SPOSH, and they would be under no obligation to take heed of non-statutory guidance. The lack of scientific backing would raise a high risk that if the matter were ever tested legally a court would take a different view.”
LA contaminated land officers were furious, describing the paper as “a waste of time” and “passing the buck”. The Chartered Institute of Environmental Health said it was disappointed DEFRA “couldn’t provide the clarity and consistency local authority officers and developers require in determining whether land is contaminated”.
CIEH principal policy officer Howard Price said: "While DEFRA has previously acknowledged the shortcomings of the existing technical materials and agreed that local authority officers should not be left to make case-by-case decisions in this highly technical area without central guidance, 'The way forward' has so far turned out to be a dead end."
Industry reaction
Local authorities believe DEFRA’s soil team have thrown up their hands in despair and left them to make their own decisions on risk, based on (expensive) site-specific surveys. Concern is rife that – with no steer from government on what level of contamination should be considered dangerous and in need of remediation – inconsistencies will occur and legal challenges spiral as determinations by one LA are undermined by the decisions of others.
But now that the dust has settled, it is becoming clear that while DEFRA has certainly failed to give local authorities what they want, it has at least given them what they need to restart the stalled Part IIA process. Legal experts point to the new guidance on the legal definition of contaminated land, which sets out the government’s position on the legality of local authority Part IIA decisions. It states: “In the past, some local authorities have been concerned that they may be vulnerable to successful legal challenge, particularly in cases where there is unavoidable scientific uncertainty underlying the risk assessments on which decisions are based.
“However, Part IIA puts local authorities in as strong position legally provided they make decisions in accordance with the law, which clearly makes LAs responsible for deciding whether or not land is contaminated, and gives them considerable leeway to exercise their judgement, provided decisions are taken reasonably, on the basis of a risk assessment based on sound science and consideration of the site and circumstances."
Ciara Longman, contaminated land officer for Bath & North East Somerset Council, comments: "A few LAs are very bravely continuing with Part IIA and risking legal challenge from any decision they make...But local authorities are generally wary about proceeding to the site investigation stage with regards to potential Part IIA sites, as a result of the possible financial and legal implications. What it comes down to is accepting responsibility for decision making and that now rests with LAs. It is evident that DEFRA is not going to define SPOSH so we have to accept the hand we have been given and move forward. We don't have a recognised scientific and authoritative body to assist us.
"I would truly welcome being invited by DEFRA to form a Local Authority consultation group so that we can work together on these issues before a lot more time and money is wasted," adds Ms Longman.
Keith Davidson, Part IIA lawyer at Pannone, says: "The new guidance gives local authorities more confidence to designate. In cases where a Part IIA decision is likely to be controversial, they should obtain an external legal opinion. That will protect the authority. But if they stay within the terms of the statutory guidance (which provides considerable latitude) the decision will not readily be capable of challenge. With the uncertainty surrounding the technical guidance however, I do not expect a mad rush."
Kevin Eaton, principal at consultancy Environ’s Leeds office, has similar doubts. He says: “While the recent documentation issued provides some clarification on this matter, and a revised CLEA risk model is welcomed by the industry, there still appear to be varying opinions within government (i.e. between the Health Protection Agency and DEFRA) regarding the approach that should be taken.
“This apparent uncertainty is echoed by CIEH regarding the level of interpretation expected by local authority technical officers in the implementation of this guidance. Also I think that given the mistakes in applying Part IIA legislation in the past, there is a general reluctance for the regulatory authorities to address this with any real conviction.”
Further guidance
So while local authorities may not be happy with the results of 'The way forward', they have in fact been provided with one, along with a wealth of further guidance and software to guide the process. This includes – for the first time – an ecological risk assessment (ERA) framework for Part IIA, which provides a three-tiered approach to establishing risk to ecological receptors (Environment Analyst, 17-Oct-08).
The first tier is a screening step, which uses soil screening values (SSVs) – twelve of which have initially been published by the Agency, with more to come. The second tier uses ecological surveys and bioassays to gather evidence of harm to receptors, and the third seeks to establish a connection between the established harm and the soil contamination.
Speaking at the launch of the ERA framework, Paul Whitehouse of the Agency’s science group said: “Tier one is about designing and undertaking a site investigation to determine the level of chemical contamination based on its history in order to refine decision-making based on the available data. Do contamination levels exceed SSVs?
“If so, move to tier two – or voluntary action by the site owner, working with the conservation authorities. Here we’re asking: is there evidence of significant harm or significant risk of harm? This is established through eco-surveys or bioassays. For tier three it was quite difficult to develop hard guidance, but documents are available. Does the evidence at tier three point to harm caused by the contamination found at tier one? The tools are there to attribute harm to causes.”
The Environment Agency has also completely revamped the CLEA model – both the software itself and the framework reports on deriving toxicological data. The Agency says: “We have completely re-written the old CLR9 and CLR10 reports (now called the TOX guidance report and the CLEA report) to implement 'The outcome of the way forward' and other changes to the underlying science, to improve clarity and accessibility. Our guidance sets out the method for deriving health criteria values and soil guideline values.”
Further SGVs will be published by March of next year. However, Part IIA remains – as was always intended – peripheral to the main business of remediating contaminated land, which is dealt with mainly through the planning system, with government brownfield redevelopment targets meaning local authorities can require developers to clean up land before new developments are built.
This is where action by CLAIRE, along with industry stakeholders, to find a way around the European Court of Justice decision known as 'Van de Walle' – a judgement on the status of contaminated soils as waste – may prove crucial to bringing down costs (and reducing the amount of contaminated soils dumped in landfills) by providing a legally robust route to the reuse of treated soils.
Waste definition
CLAIRE launched its Definition of waste: development industry code of practice in September. This “provides a clear and concise process to determine if excavated materials on a development site are waste in the first place and identifies the point when treated waste is no longer considered to be a waste."
The Environment Agency has published a position statement on the issue. While restrictions remain on where soils can be reused following treatment, the Agency says: “We will take account of the code of practice in deciding whether to regulate excavated materials to be used in development projects as waste." This should provide a welcome respite for developers, particularly at a time when the sector is in meltdown. And with Part IIA activity in the past further hampered by the resource pressures placed on LA contaminated land teams to assess development proposals, it may be the temporary collapse of the house-building sector that does more to progress Part IIA than the government’s much belated efforts to provide updated and more useable tools for the job.
As Environ’s Kevin Eaton says: “It will be interesting to see if the downturn in property development - which will inevitably lead to a reduction in planning applications and ultimately the number of sites being remediated through the planning process - may become a factor in kick-starting the Part IIA process. LAs may find that they have more available time to look at the current situation in more detail.”
Finally, while a revised draft of the European Commission’s proposed soil framework Directive is circulating, political agreement seems a distant possibility. Both the Scottish Environment Protection Agency (publicly) and DEFRA (quietly) have indicated that the Directive may provide an opportunity to rethink Part IIA – if, of course, member states can agree on yet another ‘way forward’.
Further Information
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