Contaminated Land F.A.Q.

  1. What is Contaminated Land?
  2. What causes contaminated land?
  3. What substances are found on industrial land that cause contamination?
  4. Is contaminated land a concern?
  5. How does this affect me?
  6. How is it regulated?
  7. Who are the Enforcing Authorities?
  8. How can contamination be dealt with?
  9. Who is responsible for the cost of cleaning up the land?
  10. What do I have to do if the Enforcing Authority approaches me?

What is Contaminated Land?
Any land which appears to the local authority, in whose area it is situated, to be in such a condition, by reason of substances in, on or under the land, that:

  • Significant harm is being caused or there is significant possibility of such harm being caused; or
  • Pollution of surface waters and ground water is being, or is likely to be, caused."

The term 'harm' is used here to describe damage to any of the following, which are known as receptors:

  • Human beings;
  • Ecological systems or living organisms which form part of such a system;
  • Property in the form of crops, produce, livestock, owned or domesticated animals and wild animals which are the subject of shooting or fishing rights; and
  • Property in the form of buildings.

The source of contamination, which could be a pollutant in, on or under the land, must be linked to a receptor such as humans, surface waters and ground water etc. A pathway of exposure must also be identified such as inhalation of dust or skin contact.

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What causes contaminated land?
Many industries use chemicals or substances in the manufacturing process. However, some industries use hazardous chemicals. You may expect to find some contamination on land that has been used for processes such as gasworks, galvanisers, electroplaters, chemical manufacturers, steel works, foundries and landfill sites.

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What substances are normally found on industrial land that result in contamination?
The contamination will depend on what industrial activity has taken place, but typically some industrial processes can give rise to contamination due to the use of the following:

  • Heavy metal contaminants, such as arsenic, cadmium, lead, mercury, copper, zinc, chromium, boron etc.
  • Organic Material, such as fuel, diesel, oil, cleaning fluids, solvents & phenols
  • Acids and alkalis

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Is contaminated land a concern?
There are thousands of contaminated sites in the UK that have been contaminated by past activities or practices. These may present a threat to the environment and/or pose a risk to human health.  The hazards associated with land will depend on the chemicals or substances present and whether persons are exposed to them. Exposure to hazardous compounds can occur in several ways. These include:

a) Ingestion of substances in food, water or inadvertently by hand contact
b) Inhalation of substances when exposed to dust or vapours.
c) Skin contact with substances causing damage or injury. This relates to strong acids or alkalis.

On landfill sites, the biodegradation of organic waste produces landfill gas. Landfill gas consists of two main gases, which are methane and carbon dioxide. Methane gas is flammable and it is explosive when it reaches a concentration of 5% gas.

Indeed many people are investing in the clean up process of contaminated land to reclaim it, as development land is scarce.

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How does this affect me?
People that cause or knowingly permit land to become contaminated or who own, or occupy, land that is contaminated will be responsible for complying with the Environment Protection Act 1990.

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How is it regulated?
In England, Wales and Scotland Part IIA provides a framework for the identification and remediation of contaminated land. It will not apply to all land that is contaminated, only land that meets the definition contained in Part IIA. Regulations and Statutory Guidance have also been issued to deal with the detail of the regime.

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What about enforcement?
The Local Authorities are the primary enforcement for the Part IIA regime. The Part IIA regime imposes a duty on every Local Authority to identify contaminated land. Where a Local Authority identifies that land is contaminated then it is required to notify:

(i) The Environment Agency, SEPA or EHS, which ever is relevant;
(ii) The owner of the land;
(iii) Anyone who occupies the whole or any part of the land; and
(iv) Any other appropriate person.

The Local Authority will then proceed with the following action points:

  • Determine what needs to be done by way of remediation, and
  • Serve a remediation notice on each “appropriate person” (any of the people identified in (ii) to (iv) above), which states how and by when they must remedy the condition of the land.

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How can contamination be dealt with?
There are many methods to deal with contamination. Problems only occur when a receptor, such as a person, is exposed to the contamination. By removing the contamination and providing a barrier between the contaminant and receptor, or by preventing the receptor from gaining access to the land, exposure can be controlled.

When developing land it is common for the more hazardous contaminants to be dug out and removed off site. If the contamination is then low, clean materials or surfacing can be brought on site to cover the land and prevent contact by persons. New techniques are now being used to treat the land on site, such as bio-remediation, which means that bacteria is used to digest the contamination.

On landfill sites gases can be collected through pipes and either burnt or used to produce power such as electricity.

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Who is responsible for the cost of cleaning up the land?
Appropriate persons are identified by the enforcing authority and are liable for all or part of the remediation of the land. There are two classes of appropriate persons:

  • “Class A” appropriate persons are those who cause or knowingly permit the pollutant(s) to be in, on or under the land.
  • “Class B” appropriate persons are the owner(s) or occupier(s) of the land.

Where no Class A appropriate person(s) can be identified, then the Class B appropriate person(s) may become liable.  Several appropriate persons may be identified for one site.

Detailed guidance on the allocation of such remediation liability, as well as when appropriate persons may be exempt or excluded from having to pay, is contained in the Statutory Guidance.

Where an appropriate person can no longer be found (the person may have died, or their company has gone into liquidation), the enforcing authority may be required to take on the missing persons share of liability, and undertake the remedial works themselves.  Any other appropriate persons for that piece of contaminated land will still be required to pay their share of the remediation costs.

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What do I have to do if I am approached by the Enforcing Authority?

  1. You must, if requested to do so by your Enforcing Authority, agree access by persons authorised by the Enforcing Authority to inspect and, possibly, take samples to establish whether the land is contaminated.  Your business should only be required to allow access in this way if the Enforcing Authority has already established that there is a reasonable possibility that the land is contaminated as defined by the legislation. If you do not give permission, a warrant may be issued by a magistrate (Sheriff Court in Scotland) to compel you.
     
  2. You must agree with the Enforcing Authority, or its representatives, any health and safety measures that must be implemented or followed with respect to inspection and sampling.
     
  3. You should, if you receive notification that your land has been identified as Contaminated Land, consider whether or not you need legal or technical support.
     
  4. You should, in order to avoid the need for service of a remediation notice, agree a remediation scheme with the enforcing authority. This must be published in the form of a remediation statement and will define the measures that must be taken to remediate the contaminated land.  It may accommodate a phased programme for implementation.
     
  5. You must comply with the requirements of any remediation notice issued by the enforcing authority. Such notices will be issued in the case of emergencies or if you fail to agree a remediation scheme voluntarily. They will identify the actions that must be taken and will specify deadlines for their completion. Except in the case of emergencies, you will have been consulted prior to a remediation notice being issued.
     
  6. You will have to bear your proportion of the cost of remediation even if the enforcing authority undertakes it.  Where several 'appropriate persons' have been identified, the enforcing authority will decide how the burden of cost is to be shared between them. This will be embodied in a 'remediation notice'.
     
  7. Prior to undertaking remediation, you must seek the consent of the owner of the land if your business is not the owner.
     
  8. You must ensure that any relevant health and safety and planning legislation is complied with prior to and during the remediation works.
     
  9. You will have to notify the enforcing authority when work specified in a remediation notice has been carried out. Include details of that work in the notification.

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Related Articles:

Contaminated Land

Land Remediation


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