Legislation: The new statutory guidance; simplification Or reducing the application of part 2A of the Environmental Protection Act 1990?

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Keywords: Part 2A, EPA 1990, contaminated land, 2012 SG

On 1 April 2012, new statutory guidance came into effect for Part 2A of the Environmental Protection Act 1990 (EPA 1990). The guidance (2012 SG) was introduced both to simplify the former statutory guidance and to reflect experience in implementing the regime to remediate contaminated land.1 This article reviews Part 2A and its implementation, discusses the key changes to the regime resulting from the 2012 SG, and comments on their implications.

PART 2A OF THE ENVIRONMENTAL PROTECTION ACT 1990

Part 2A of the Environmental Protection Act 1990 entered into force on 1 April 2000. Its purpose was 'to provide an improved system for the identification and remediation of land where contamination is causing unacceptable risks to human health or the wider environment'.2 The statutory guidance is crucial to Part 2A; implementation and enforcement of the regime are impossible without the guidance and accompanying regulations,3 which add flesh to the skeletal provisions of the statute.

Under the regime, a person who caused or knowingly permitted land to be contaminated land - called a Class A appropriate person - is liable for the costs of remediating the contamination.4 If a Class A person cannot be found after a reasonable inquiry, the owner or occupier of the land, known as a Class B person, is liable.5

Part 2A defines 'contaminated land' as:

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 (a) significant harm is being caused or there is a significant possibility of such harm being caused; or (b) significant pollution of controlled waters [that is, surface, ground or coastal waters] is being caused or there is a significant possibility of such pollution being caused.6

Local authorities are the primary enforcing authorities for Part 2A. They are directed to inspect their areas and, in accordance with the statutory guidance, designate land that they determine meets the above criteria as contaminated land.7 In making such a determination, a local authority must assess whether there is a significant contaminant linkage, that is, a contaminant, a pathway and a receptor.8 The statutory guidance identifies the following as receptors: people (human health), specified ecological areas (such as sites of special scientific interest), specified property (such as crops, livestock and buildings), and 'controlled waters' (i.e. surface, ground and coastal waters).9 The Environment Agency is the enforcing authority for a sub-set of contaminated land known as special sites.10

If a local authority makes a determination that a site is contaminated land, it must notify the relevant appropriate person or persons.11 If an appropriate person does not agree to remediate the contamination after a three-month consultation period,12 either the local authority or the Environment Agency serves a remediation notice requiring it to do so.13 The appropriate person may appeal against the notice, during which time the notice is suspended.14

Part 2A did not come into force until nearly five years after its enactment.15 The delay was due, in large part, to preparation of the statutory guidance, DETR Circular 02/2000.16 The term 'statutory guidance' was a misnomer, as only 65 of the 162 pages of the circular were statutory guidance.17

DETR Circular 02/2000 was complex. It set out conditions to indicate whether there was significant harm or a significant possibility of significant harm (colloquially known as SPOSH) to each of the specified receptors.18 It introduced tests to exclude specified appropriate persons from liability under the regime,19 and criteria to apportion liability between members of a 'liability group' (i.e. persons who are liable to remediate a 'significant pollutant linkage'),20 to attribute responsibility between liability groups,21 and to determine whether an enforcing authority should waive or reduce the recovery of costs from a liable person on the basis of hardship.22

Implementation and enforcement of Part 2A was slow. Not until late 2004, over three years after the deadline for doing so, had all local authorities completed their strategies to inspect their areas.23 By early 2005, only four remediation notices had been served and only 38 remediation statements (i.e. documents indicating remedial actions that had been or were expected to be carried out in the absence of a remedial notice) had been prepared in England.

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