The contaminated land regime: time for a regime that is fit for purpose (Part 1)

• Author: Valerie Fogleman
• Position: School of Law, Cardiff University, Cardiff, UK and Stevens & Bolton LLP, Guildford, UK

I Introduction

Part 2A of the Environmental Protection Act 1990 (EPA 1990)¹ is unfit for purpose. The revisions to the statutory guidance to Part 2A in 2012 failed to resolve the many problems inherent in the regime established to remediate contaminated land in the UK². Changes are necessary to the primary legislation itself in order to establish a regime to remediate contaminated land that is effective and efficient.

Part 2A is both simple and complex³. It is simple in that its purpose is to identify and remediate land on which contamination that poses an “unacceptable risk” to human health or the environment is not being remediated voluntarily⁴. It is also simple in that the person who must pay to remediate the contamination is the “polluter”. If the polluter cannot be found, the owner or occupier of the land is secondarily liable⁵. Part 2A thus has similarities with regimes to remediate contamination in many other countries ( Clarke, 1999 ).

Part 2A has, however, more differences than similarities with other contaminated land regimes. For example, the regime was not intended to establish a national programme to remediate contaminated land. The liability system was designed to transfer the liability of the “actual polluter” to persons who purchase land that had been contaminated before they acquired it. The discretion of the authorities that implement and enforce the regime is strictly limited, with local authorities, not the national authority, having the primary role. Further, the scope of contamination to be remediated is not confined to contaminated land but also includes surface, coastal and ground water as well as protected ecological areas and property. The result is a highly complex regime that is difficult, if not impossible, to implement or enforce effectively or efficiently.

The purpose of this article is to show that flaws inherent in Part 2A have made it unworkable. The article is in two parts. Part 1 briefly examines the history of Part 2A and discusses how the statutory provisions took their final form as they progressed through Parliament. It then examines the implementation and enforcement of the regime. Part 2 examines the complex liability system created by Part 2A and discusses whether the regime has, nevertheless, been successful in remediating contamination from historic pollution. Finally, it suggests issues to be considered in deciding the future of Part 2A.

II History and introduction of Part 2A

During the late 1980s, the UK Government considered proposals to fill a gap in legislation for the remediation of land that poses an unacceptable risk to human health and the environment but which was not being remediated under the planning regime. Other legislation to remediate land contamination and water pollution, such as the statutory nuisance regime and the Water Resources Act 1991 (WRA 1991), already existed but because they had not been enacted specifically to remediate contaminated land, their overall effect in respect of its remediation was “patchy”⁶.

A Closed landfills

The proposals initially focused on the remediation of contamination from closed landfills. Legislation to supersede the waste licensing regime that had been in existence since 1974⁷ was being introduced but it did not address the remediation of contamination from landfills that had been closed before its introduction⁸. Further, prior to the new legislation⁹ entering into force on 1 May 1994, a landfill operator could unilaterally surrender its licence regardless of the environmental condition of the landfill site. Under the new regime, an operator would not be able to surrender the licence until the authority was satisfied that the landfill would not pollute the environment or harm human health¹⁰. Delays in introducing the new legislation¹¹ had resulted in operators surrendering licences for a large number of landfills in order to avoid remediating contamination at them. Between 1991 and the regime being brought into force shortly before Part 2A was enacted, nearly a quarter of waste licences were surrendered¹².

In order to remediate contamination from closed landfills, the Government had included a provision in the EPA 1990 to require waste regulation authorities to inspect their areas to detect threats to human health and the environment from closed landfills and to remedy any contamination that caused such a threat. The authority would be able to recover part or all of its reasonable costs from the current owner of the land, having regard to any hardship to the landowner in doing so. Recovery would be barred if the authority had accepted the surrender of the waste licence¹³. The provision never came into force and was eventually repealed¹⁴.

B Proposed registers of contaminative uses of land

The EPA 1990 also included a provision that directed local authorities to compile registers of land on which contaminative activities had been carried out¹⁵. The so-called section 143 registers were to be the “first step” to enable “appropriate action to be taken when necessary” ( Department of the Environment and the Welsh Office, 1991, para. 3.17 ). The term “appropriate action” was not defined nor was there any indication when such action might be necessary.

Introduction of the registers would not have been unusual. Many countries have programmes that include similar registers or inventories of sites that have been – or may have been – contaminated by historic pollution. For example, the French Ministry of Environment maintains an inventory of potentially and actually contaminated land. Sites on the inventory, which began in the 1970s, are assessed and, if necessary, remediated. The inventory, which contained 4,684 sites in May 2013, categorises sites by their status in the process¹⁶. A related inventory sets out details of specified sites at which contaminative activities were carried out¹⁷.

In Denmark, 28,000 potentially contaminated sites and 14,000 actually contaminated sites are listed on a national inventory¹⁸. The focus is on residential sites and groundwater pollution. Following a risk assessment, sites that need to be remediated are prioritised and, subsequently, remediated. Registration of a site on the inventory subjects it to various restrictions. Lightly contaminated sites are not listed¹⁹.

In Queensland, Australia, sites with “notifiable activities”, that is, specified activities that are likely to cause land contamination, are listed on the Environmental Management Register (EMR). Listing does not mean that the land must be remediated. A related register, the Contaminated Land Register (CLR), lists sites that have been confirmed to be contaminated and must be remediated or managed, for example, preventing the migration of contaminants. Owners of land proposed for listing on the registers may challenge the proposed listing. When a site listed on the CLR has been remediated, it is removed from the register. Land on the CLR subject to a site management plan so that it no longer causes environmental harm or poses a risk to human health may be transferred to the EMR²⁰.

In contrast to such regimes, however, the purpose of the proposed section 143 registers was not to establish a national inventory of sites that would, if necessary, be remediated; its purpose was simply to alert local authorities, landowners, potential purchasers and developers of the “possibility of contamination” at the listed sites and the type of contamination to be expected ( Department of the Environment and the Welsh Office, 1991, para. 6.1 ). The Government recognised that the registers could potentially cause “blight and alarm” but reasoned that the public were already aware of much of the information that would be included or could easily discover it. The Government concluded that it was preferable to have a knowledge basis so everyone concerned with the sites would be aware of the possibility of contamination ( Department of the Environment and the Welsh Office, 1991, para. 4.3 ).

Not surprisingly, the proposal to list sites that may be contaminated with no plans to assess or, if necessary, remediate them met with strong opposition from developers, chartered surveyors, insurers and lenders²¹. Despite subsequently narrowing the area of land to be covered by them by nearly 90 per cent²², the Government withdrew its proposal in 1993.

C Wide-ranging review

The Government announced that it would carry out a “wide-ranging review” of “the legal powers of regulatory public bodies to control and tackle land pollution”²³. In 1994, it issued a consultation paper entitled “Paying for Our Past” ( Department of the Environment and the Welsh Office, 1994b ), which set out proposals to establish a regime “to prevent or minimise further land contamination; and, where practicable, to remedy it where it has occurred” ( Department of the Environment and the Welsh Office, 1994b, para. 4A.1 ).

The Government stated that the “polluter pays principle […] must be central to any regulatory regime” ( Department of the Environment and the Welsh Office, 1994b, para. 4E.1 ). The proposed regime, however, would not regulate future activities to prevent or remediate contamination; it would impose liability to remediate contamination from historic pollution. Implementation of the polluter pays principle would prove to be difficult. Its purpose is to internalise environmental costs. Businesses may then include these costs in the price of goods and services. The principle has been...