Legislative issues

Part IIA of the Environmental Protection Act 1990 follows the 'polluter pays' principle. The cost of any clean-up will normally lie with the person who knowingly caused the contamination. The local authority will ensure the clean-up is carried out either by agreement with those responsible for the contamination, or by serving a 'remediation notice' on them requiring them to clean up the site. In the case of an emergency the council will remediate the site and recover the costs afterwards.

The local authority has primary responsibility for the identification of contaminated land, although the Environment Agency will respond to requests for information from the local authority on site or land that it is considering to prioritise for inspection.

Where a local authority determines a site as 'contaminated land', it must have regard to any information held by the Environment Agency on issues of water pollution. Where the local authority believes that a site may be a special site it will request that the Environment Agency carry out a detailed inspection on its behalf. The Environment Agency will become the enforcing authority of special sites only when the local authority has determined the land as contaminated.

The Contaminated Land Regulations 2012

The 2012 Guidance included a new section of statutory guidance, which set out the objectives of Part 2A of the EPA 1990 and the government's policy on contaminated land. The main objectives are stated as follows:

• to identify and remove unacceptable risks to human health and the environment;
• to seek to ensure that contaminated land is suitable for its current use;
• to ensure that the burdens faces by individual, companies and society as a whole are proportionate, manageable and compatible with the principles of sustainable development.

Generally, the main responsibilities assigned to the local authority under Part IIA are to:

• prepare a statutory register for the inspection of the jurisdiction for contaminated land and review this every 5 years, including a requirement to consult with landowners before inspecting land for this purpose
• determine whether any particular areas of land are 'statutorily contaminated' in accordance with the Part IIA definition 
• the 2012 Regulations introduced more guidance on risk assessment refined into a new definition of risk, which is said to be a combination of 'a) the likelihood that harm, or pollutiion of water, will occur as a result of contaminats in, on or under the land; and b) the scale and rseriousness of such harm or pollution if it did occur.'
• a 4-category test was also introduced to assist with considering and assessing risks to human health and controlled waters; this ranges from category 1 where there is an unaccepable risk of significant harm; to category 4 where there is no risk or the level of risk posed is low. Categories 2 and 3 consider intermediate scenarios between categories 1 and 4; in particular, it is worth noting that category 3 includes land where the risks are not low, but regulatory intervention under part 2A is not warranted, which is not an uncommon situation;
• decide, in consultation with the Environment Agency, whether any contaminated land should also be designated as a 'special site', in accordance with the Contaminated Land (England) Regulations 2012; 
• undertake immediate remedial action where there is imminent danger of serious harm;
• decide whether other statutory regimes provide a more applicable means of control than Part IIA;
• identify and notify those who may need to take action in respect of a particular contaminated or special site; 
• determine who may be liable to bear responsibility for remediation;
• consult with the relevant parties on what remedial action is required;
• serve a remediation notice unless restrictions apply;
• maintain a public register containing details of regulatory actions taken under Part IIA or other means; and
• report progress under Part IIA to the Environment Agency to allow preparation of a National Report on contaminated land.

The Environment Agency has 3 main roles under Part IIA, they are to:

• assist local authorities in identifying contaminated land, especially where water pollution is an issue;
• provide site specific guidance to local authorities on contaminated land; and
• publish periodic reports on the status of contaminated land.

The local authority is duty bound to provide a public register containing information about land that has formally been identified as potentially contaminated, and the action that has been taken to remediate it. Any land that has satisfactorily been remediated prior to a remediation notice being served will not appear on the public register. Furthermore, if land is to be redeveloped in the near future it is unlikely that a notice will be served.

Under section 78B a local authority is under a duty to cause its area to be inspected periodically to:

• identify contaminated land; and
• enable the authority to decide whether any such land should be designated as a special site.