In April, local authorities will be faced with the daunting task of identifying the contaminated land around them. This will involve significant resources and throw up many problems for decision-makers and landowners. In a three-part series Roger Braithwaite looks at the issues and asks whether the Government has adequately prepared local authorities and the Environment Agency for the difficult decisions to come

For decades, and particularly since the Second World War, development has taken place on cleared sites previously used for some potentially contaminating use. Twenty years ago local authorities and others asked the Department of the Environment, acting on behalf of the Interdepartmental Committee on the Redevelopment of Contaminated Land, to provide guidance on over 200 cases of contaminated land.(1) In 1986 almost half of all new development took place on reused land.(2)

This year, as of April, local authorities will, in many cases for the first time, be required to search their archives, their old development records and old OS plans, in an attempt to discover what previously occupied their recently developed areas. Over and over again they will find factories, foundries, chemical works, scrap yards, tanneries, knackers yards, gas works, sewage works, landfill, and so on, lie below their housing estates and schools.

Even in the green belt there will have been many farm sites developed, invariably occupied without a thought for what may lurk beyond the muck hill and tractor shed. Closer examination of these sites may reveal principal aquifers, major sources of contamination, and no identifiable remediation. What will this mean? What will the next step be for already overstretched environmental health staff? How will remediation be funded?
The new regime(3) will have five main stages:
1. strategy formulation
2. inspection
3. investigation
4. declaration
5. enforcement.
In part I of this series some of the contentious issues associated with strategy formulation are highlighted. In part II site investigation, hazard identification, and the thorny subject of risk assessment will be considered. Finally, in part III the complex matter of liability and enforcement procedures will be examined.

AN IMPROVED SYSTEM
The Government's aim has been to provide an improved system for the identification and remediation of contaminated land.(4) The regime has been designed to reflect the approaches already in place relating to statutory nuisance(5) and pollution of controlled waters.(6) The stated primary objectives are:(7)

• To improve focus and transparency of the controls, ensuring authorities take a strategic approach to land contamination.This relates to the Contaminated Land Strategy that local authorities must produce and publish. This will be "enforced" via performance indicators.
• To enable all problems resulting from contamination to be handled as part of the same process; previously separate regulatory action was needed to protect human health and to protect the water environment. This emphasises that only one enforcement agency (local authorities) are empowered to declare land as contaminated.
• To increase the consistency of approach taken by different authorities. Local authorities, the NRA, and subsequently the Environment Agency, have all had differing views, levels of expertise, and attitudes to enforcement, relating to soil and water contamination.
• To provide a more tailored regulatory mechanism, including liability rules, better able to reflect the complexity and range of circumstances found on individual sites.

The first three may be practical, but this fourth has formed the stumbling block and provided the legal draghtsmen(8) with the most headaches as the true complexity of the issues dawned.
The primary legislation forms a highly complex framework in 33 pages of carefully drafted legalese.(3) The statutory guidance and secondary legislation will multiply that tenfold, while the technical guidance will ultimately require heavy lifting equipment and reinforced bookshelves to accommodate it. This has been a high price to pay to "tailor the regulatory mechanism", to achieve the Government's aim. When finally completed, however, the local authorities, originally pleased to be given such awesome responsibility, may be left with the task of trying to achieve the impossible.

STRATEGY FORMULATION
Section 78 B (1) merely requires local authorities to inspect their areas from time to time to identify contaminated land. Environmental health staff will be familiar with this terminology as it has been used in relation to statutory nuisances for over 100 years.(9) While EHOs are diligent in their duties, tours of the district to seek out and remedy nuisance have, in the past, been a luxury not usually afforded by managers. The significant difference in this enactment follows in paragraph (2) in that the authority must act in accordance with any guidance issued by the Secretary of State.

This demands a very new approach in an attempt to satisfy the need for "transparency and focus", including a requirement to produce, formally adopt and publish, a written strategy within 15 months of implementation (by June 2001).

The strategy must:

• be rational, ordered and efficient
• be proportionate to the seriousness of any actual or potential risk
• seek to ensure the most pressing and serious problems are located first
• ensure that resources are concentrated on investigating in areas where contaminated land is most likely to be found
• ensure that the local authority efficiently identifies requirements for the detailed inspection of particular areas of land.

The document must also "merit individual inspection". While there are no statutory provisions for formal approval of the strategy, it must consider liaison with other bodies, including the Environment Agency, who must be consulted and receive a copy following publication. The authority must also keep the document under "periodic" review.

Although the strategic approach is seemingly a reasonable requirement, when local authorities begin to write their strategies they may find some policies rather difficult to formulate. Strategies must relate to local circumstances - this means no "off-the-shelf" strategies will be acceptable. The author must be familiar with the geology and hydrogeology of the area, the industrial past, potential sources of contamination (including natural contamination), location of all potential specified receptors,10 the quality of remediation already carried out on developed sites, the likelihood of significant pollutant linkages being identified, and the location. Strategies are expected to vary between local authorities and between different parts of an authority's area.

Each authority must explain its aims and objectives, how the characteristics of the area have influenced the strategy, and propose timescales for inspection and investigation.
Authorities must carry out extensive consultation. When producing the strategy the author must consult with the Environment Agency, county council (where appropriate), neighbouring authorities, statutory regeneration organisations, English Nature, English Heritage, MAFF, and any other relevant bodies who may have information regarding the possibility of significant pollutant linkages.

Detailed arrangements and procedures must be included for:

• land which the council owns (or did own)
• obtaining information on pollutant linkages
• evaluating information
• evaluating risk
• liaison
• dealing with representations and complaints
• planning and reviewing inspection programmes
• site investigations
• reviewing and updating assumptions and managing new information
• data handling.

It quickly becomes evident, that the person(s) writing the strategy must not only be very knowledgeable about the general subject of contaminated land, the legislation, and the procedures, but must also have (or obtain) a detailed knowledge of the area(s) in question. Some of the more difficult decisions to be made can be illustrated by the following practical examples.

Property built on known contaminated sites but levels of remediation unknown
Every local authority will have houses built on sites known to be of a type normally associated with contamination. Common examples are sewage works, scrap yards, landfill sites and even town gas works. In many cases records relating to how the site was prepared prior to development will be either absent or incomplete.

In such circumstances the authority will have to consider how it will approach these sensitive cases. After the usual (desktop) procedures have been exhausted, investigations will have to commence on site. When the strategy is submitted to committee for formal approval, the political issues will be likely to dominate. Where there is a suggestion that houses may have been developed on land which is potentially a risk to the occupants, the question "why?" will invariably be asked. This will apply particularly with recent developments and to land which the council owns.

Property built on known contaminated sites and levels of remediation known to be unsatisfactory
In the past 10 years many contaminated sites have been developed with the knowledge and blessing of local authorities. Controls will have been imposed via the town and country planning development control system. With the publication of new guidelines, however, these controls may in many cases be shown to be inadequate.

Liaison with the Environment Agency
Formal arrangements will need to be made with the Environment Agency to enquire, in every potential case of contaminated land, whether the pollutants would be likely to form a risk to water resources. This will put an enormous burden on local agency offices and local authorities would be well advised to work together to ensure officers are not overwhelmed with requests in the first operational months of their strategies.

Who will investigate special sites?
Only a local authority can declare land statutorily contaminated, but authorities are expected to authorise agency officers to undertake investigations on their behalf on defence and other sites which would be special sites if contaminated. Will local authorities be happy with this? How will the strategy ensure consistency and a quality assured approach between agencies?

Hazard Identification and Risk
What if local authorities get it wrong? There will be considerable pressure on local authority officers not to make mistakes. As a result there will be a desire to undertake investigations to the letter in accordance with published guidance (such as current British Standards11 on site investigation). If these requirements are stated in the strategy, and subsequently not followed due to the cost implications, investigating officers will be laying themselves open to criticism in any future litigation.
Statistical risk evaluation is an almost impossible science at the moment, but there will be a requirement to indicate how these matters are to be considered in the strategy. The ubiquitous "site specific risk assessment" may be a noble aim, but who will carry it out and who will make the final decision?

Data handling
Imagine a housing estate built on a potentially contaminated site, with no records of remediation. Following an inspection of the district the site is given priority for a detailed investigation into the potential for significant harm arising from the occupation of the site. The site is identified on a database and GIS system which is available to the public along with the rest of the district survey12. A potential purchaser of a house pulls out because of this information which was provided to him by his solicitor. The householder complains to her councillor and MP that her property is blighted because of data the council holds in contravention of the Data Protection Act. Following the district survey, councils will hold gigabytes of data on GIS and database. Will this be legal? How best should it be handled in the interests of both the council (as respects its duties under part II A) and landowners. This must be considered in the strategy.

How to deal with complaints
In certain circumstances it may be in the interests of owners and/or occupiers to have the land which their property occupies declared contaminated land, and an individual or company found liable. This will apply particularly where sites become devalued as a result of actual or perceived risks. Conversely it will be in the interests of many to have their land taken off the "at risk register" to encourage the market. Following the district survey and identification of priorities, will complainants be allowed to jump the queue thereby setting back the published strategy timetable?

Local authorities have specific powers to authorise, "suitable persons", to inspect and investigate land.13 Who will decide who is suitable and who is not? The tasks are onerous and the responsibilities great. There will be no approved list of consultants and contractors produced by DETR or the Environment Agency. This will be left to each local authority. Specifications will need to be tight and how contractors are chosen and contract quality assurance handled must also be considered in the strategy.

Conclusion
Even at the strategy stage, it becomes clear that the issues surrounding the new contaminated land regime are complex, time consuming and bear great responsibility. Environmental health and protection officers will now have to try to go forward on this dodgy ground, without falling over.

References
1. ICRCL 38/80 - Redevelopment of Contaminated Land: Tentative Guidelines for Acceptable Levels of Selected Elements in Soil, DOE March 1980, out of print.
2. ICRCL 59/83 - Guidance on the Assessment and Redevelopment of Contaminated Land, DOE July 1987, available from DETR publications Rotherham.
3. Environmental Protection Act 1990 Part IIA, introduced by the Environment Act 1995 section 57.
4. Where Contaminated Land is referred to in this text with capital initial letters it relates to Contaminated Land as defined by statute - section 78A (2) of the Environmental Protection Act 1990.
5. Environmental Protection Act 1990 Part III
6. Water Resources Act 1991 Part VII
7. Draft DETR Circular, Environmental Protection Act 1990: Part IIA Contaminated Land, Annex 1, September 1999.
8. All references to the masculine include the feminine and vice versa.
9. Public Health Act 1875 section 92 (It is the duty of every local authority to cause to be made from time to time inspection of their District .... ).
10. Draft DETR Circular, Environmental Protection Act 1990: Part IIA Contaminated Land, Annex 3, Chapter A, Part 3, Table A, September 1999.
11. British Standard 1377: 1990, Method of test for soils for civil engineering purposes; British Standard 5930: 1981, Code of practice for site investigations; British Standard 6068: (several), Water quality; British Standard 7755: 1995, Part 3 Pre treatment of samples for physico-chemical analysis; Draft Code of Practice for the investigation of potentially contaminated sites. All available from the British Standards Institution 389 Chiswick High Road London W4 4AL
12. Draft DETR Circular, Environmental Protection Act 1990: Part IIA Contaminated Land, Annex 2, Part 3, paragraphs 3.38 and 3.39, September 1999.
13. Environment Act 1995 section 108.

Roger Braithwaite is an independent EHO and public sector training
specialist. Tel: 01926 624966; fax: 01926 624926