Anyone operating a site or process where contamination is a possibility needs to consider the legal issues and be prepared for attention from the regulators.
The register can be accessed from the Environment Agency’s website. Your site or an adjacent one may be on the register (see the Environment Agency website).
Not all potentially contaminating activities are industrial. Even if your site was a ‘greenfield‘ site, the previous ‘agricultural‘ activity may have resulted in contamination.
Other examples could be a tannery, where chlorinated solvents may have been used, or if your site is crossed by an old railway, it may be contaminated and, therefore, possibly on the register.
Anyone responsible for the environmental aspects of a site will need to be aware of these legal provisions and ready to deal with problems which may arise.
As well as setting up the register, the Contaminated Land Regulations give the authorities powers to pursue the persons responsible for causing contamination and to ensure that remediation is carried out to the required standard.
The provisions of the Regulations can be summarised as:
- Local authorities are required to inspect their areas from 'time to time' to identify contaminated land.
- Special sites are to be referred to the Environment Agency (as appropriate).
- Remediation Notices are to be issued where appropriate (taking into account – costs, seriousness of the problem, and intended use of the site).
- Notices are to be served on 'appropriate persons' (those who 'caused or knowingly permitted' the contamination, or where this person is not known the current occupier/owner).
- There is a three-month consultation period before a Notice is served so that the appropriate person(s) can agree to carry out remediation work (the Notice is not served if such agreement is reached, but a Remediation Statement of what work is agreed is required).
- Remediation may mean prior investigation and monitoring as well as clean-up.
- Remediation Notices and Remediation Statements go on to the public register.
- Under certain circumstances (e.g. where urgent remediation action is required), the enforcing authority can undertake the remediation work and recover the cost from the appropriate person(s).
Local authority involvement
Local authorities in England and Wales are the regulatory authorities for the Contaminated Land Regulations. They are responsible for inspecting their areas from time to time. They identify any contaminated sites which are registered and, if remediation work is necessary, they carry out enforcement action. If sites have potential for causing particularly serious harm, they become the responsibility of the Environment Agency (see below).
Environment Agency responsibility – special sites
Once a local authority has inspected a site and found it to be ‘special site’ under the Regulations, responsibility for registration and enforcement passes to the Environment Agency. Several types of previous use will make a site a special site: these are listed in Schedule 1 of the Regulations. Some examples of materials and previous use are:
- Land contaminated by:
- waste acid tars;
- explosive waste; or
- refining waste.
- Land:
- within a nuclear site;
- owned by MoD; or
- used for manufacture of chemical weapons.
- Some polluted controlled waters, e.g. if used for drinking.
Class A & B appropriate persons
The regulators will initially pursue whoever caused or knowingly permitted the contamination – the 'Class A appropriate person'. If that person cannot be found (e.g. because contamination was caused a long time ago or by a company that is no longer a legal entity), then the current owner or occupier of the land will be sought for remediation – the ‘Class B appropriate person'. The regulators also have final recourse to public funds.
With many sites likely to be the result of historic contamination, there are many circumstances where liability is likely to fall on the owner or occupier of the land. However, there are restrictions to the liability of owners and occupiers in relation to the pollution of controlled waters (these are set out in Section 78J of the Act) (SI 2001/663 see EEF Register of Environmental Legislation).