Environmental Protection Act 1990 - Part II as amended by the Environment Act 1995 (EA95) - Part II
Section 57 of EA95 inserts a new Part IIA into the Environmental Protection Act 1990 (EPA90)
Sections 78A to 78YC of EPA90 provide the legal definition of contaminated land and set out the regulatory framework for dealing with it. The provisions are implemented by regulations and statutory guidance.
The provisions are based on the ‘suitable for current use’ approach. Remedial action will be required where there is actual or potential significant harm or pollution to controlled waters; where there are appropriate and cost effective means available to take such action; and by taking into account the actual or intended use of the site.
Local Authorities are the regulatory authorities. They are required to inspect their areas from time to time to identify contaminated land, issue remediation notices where appropriate and maintain a register of such notices (and subsequent actions). Special sites, however, are the responsibility of the Environment Agency (section 78Q). The determination of special sites is set out in regulations (eg land contaminated by waste tars, land on which manufacture of weapons has taken place).
Remediation notices specify what measures must be taken (based on costs, seriousness of the problem, and intended use of the site) and include the timetable for action. They will be served on ‘appropriate persons’. An ‘appropriate person’ is the person who ‘caused or knowingly permitted the contamination’, or in the event of the person responsible not being known, then the current owner or occupier of the site causing the problem (section 78F). Where two or more persons could be ‘appropriate persons’, statutory guidance is to be used to determine if anyone should not be so designated and how to divide up responsibility for remediation.
Section 78H requires a three month consultation period before a notice is served. This is to allow the appropriate person/s to agree to carry out remediation work without the need to serve such a notice. However, a remediation statement of the agreed work must be issued.
Remediation notices and statements are to go onto the public register (section 78R) maintained by the enforcing authorities.
Under certain circumstances (e.g. where urgent action is required), the enforcing authority can undertake the remediation work and recover the cost from the appropriate person/s.
The Contaminated Land (England) Regulations 2000 (SI 2000/227) as amended by SI 2001/663
The Contaminated Land (Wales) Regulation 2001 (SI 2001/2197)
These regulations set out requirements for contaminated land regulatory regime. Local authorities are under a duty to inspect their area from time to time to identify ‘contaminated land’. Where land is identified as contaminated or as a special site, it will be referred to the Environment Agency.
Local authorities, or in the case of special sites, the Environment Agency, are required to keep a register of particulars relating to the contaminated land regulations, including remediation notices served by that authority and convictions for any offences. The 2006 regulations replace the 2000 Regulations and associated amendments.
The most significant change made by the 2006 regulations is the inclusion of land contaminated by radioactive activity as special sites under the regime. In addition, the 2006 regulations identify all those categories of site (known as "special sites") in relation to which the Environment Agency is to be the enforcing authority. Local authorities are the enforcing authority in relation to any other type of site.