Councils in England and Wales made just nine determinations under part IIA of the Environmental Protection Act 1990 in 2006/07 (see table).
Of the 659 sites determined to date, 31 are ‘special sites’ regulated by the Agency. However, getting a clear view of activity is difficult because some councils have made multiple determinations at residential properties, which has inflated the figures. If these are excluded, there are only about 100 cases under the regime.
The good news is that 105 remediation statements were published in 2006/07 for sites where work to clean up contamination is planned or under way.
One of the main barriers to progress has been the confusion surrounding contaminated land risk assessments. In 2005, the Environment Department (DEFRA) admitted that soil guideline values (SGVs) and related risk assessment tools do not meet councils’ needs in determining whether sites should be designated under the regime (ENDS Report 369, p 37 ).
DEFRA established a ‘way forward’ group which last December proposed fundamental changes to the assessment methodology, including making SGVs less conservative. The department promised to publish improved guidance by the end of 2007 (ENDS Report 383, pp 20-21 ).
But the timetable is slipping badly, according to Bill Baker, the Chartered Institute of Environmental Health’s contaminated land adviser. DEFRA was due to update council officers on progress with its work programme at a CIEH conference in May. But officials said they have yet to evaluate the huge number of responses to the proposals and could not provide much insight into progress.
Dr Baker said councils’ frustration was growing: "DEFRA has little understanding of how important these issues are for local authorities and the remediation industry." The department and Environment Agency lack the resources to do the work, he said.
DEFRA did confirm there would only be one set of revised SGVs aimed at meeting the requirements of part IIA, rather than having a second set for the planning regime which is also used to deal with polluted sites.
The CIEH fears this may mean councils could give planning permission to sites which - although not technically contaminated - may contain pollution levels unacceptable to residents.
ERM consultant Phil Crowcroft was more sanguine: "You can use one number in two different ways," he said, arguing that models can be designed to apply the data to both planning and contaminated land scenarios.
Slow progress on SGVs means that other assessment criteria are filling the vacuum, much to DEFRA’s chagrin. The Agency refuses to endorse third-party criteria, which it feels are no substitute for official SGVs.
Consultants LQM has sold 500 copies of the CIEH-LQM generic assessment criteria since its December publication. The advantage of the 31 criteria is that the underlying basis for their derivation is transparent.
Consultants Atkins has around 150 subscriptions to its assessment criteria, which are more expensive. They are also less transparent for reasons of commercial confidentiality.
Phil Crowcroft said: "Local authorities have quite rightly backed off making determinations on marginal sites until the uncertainty surrounding SGVs has been resolved."
Agency contaminated land policy manager Sheena Engineer commented: "I find it disappointing when people say that, because there are no SGVs, part IIA should grind to a halt."
Data on part IIA did not give a fair reflection of progress, she added. The regime has successfully pushed councils to identify polluted sites, many of which are dealt with under planning rules.