Contaminated Land

1. I am directed by the Secretary of State for the Environment, Transport and the Regions to consult you on the guidance which he proposes to issue in respect of England on the application of the new regime for contaminated land under Part IIA of the Environmental Protection Act 1990. Part IIA was inserted in the Environmental Protection Act 1990 by section 57 of the Environment Act 1995.

2. This consultation is intended to enable the Secretary of State to complete the process started in September 1996 when I wrote to you and others seeking comments on draft statutory guidance. The material attached to this letter includes the guidance that the Secretary of State is currently minded to issue, in the light of the comments that have been received. Subject to consideration of any further comments and the necessary Parliamentary procedures, the intention is to make the necessary orders and regulations and to issue the statutory guidance in sufficient time that the new regime can enter into force from 1 April 2000.

Powers to issue guidance

3. Part IIA provides that the Secretary of State may issue guidance to local authorities and the Environment Agency in a number of respects:

a. under section 78A(2) and (5), the Secretary of State may issue guidance on the definition of contaminated land in accordance with which local authorities must act in determining whether any land appears to be contaminated land;

b. under section 78B(2), the Secretary of State may issue guidance on the identification of contaminated land and special sites in accordance with which local authorities must act in causing their areas to be inspected for the purpose of such identification;

c. under section 78E(5), the Secretary of State may issue guidance on the remediation of contaminated land, to which enforcing authorities (that is, the Environment Agency for special sites and the local authority for other sites) must have regard in determining various questions on what remediation should be required or carried out;

d. under section 78F(6) and (7), the Secretary of State may issue guidance on exclusion from, and apportionment of, liabilities for remediation in accordance with which enforcing authorities must act when determining who is the appropriate person to bear responsibility for remediation and how, where there are several appropriate persons, the responsibility shall be shared between them;

e. under section 78P(2), the Secretary of State may issue guidance on the recovery of the costs of remediation, to which the enforcing authority must have regard in determining whether, and (if so) the extent to which, it should recover from an appropriate person its costs in itself carrying out remediation (by virtue of sections 78H (5)(d) and 78N(3)(e) this guidance may also be relevant to other questions).

4. Before exercising any of these powers in respect of England, the Secretary of State must consult the Environment Agency and such other bodies or persons as he may consider it appropriate to consult in relation to the guidance in question. In respect of guidance under sections 78A(2) and (5), 78B(2) and 78F(6) and (7), the Secretary of State must also lay a draft of the guidance before each House of Parliament and the guidance may not be issued before a period of 40 days has elapsed from the laying or if either House resolves within that period that guidance should not be issued in the form of that draft.

Steps so far

5. In September 1996, two volumes were issued under the title "Consultation on Draft Statutory Guidance on Contaminated Land". This consultation covered England, Scotland and Wales. The first volume contained a draft of the proposed statutory guidance, and the second volume a procedural description, a bibliography and a description of the regulations that it was proposed to issue. In November, draft regulations and compliance cost assessment were issued for consultation.

6. Many comments were received on these documents. The Environment Select Committee of the House of Commons considered the questions and made a report.

7. After May 1997, the Government considered the issues and made clear in August 1997 that, subject to certain qualifications, they accepted the general thrust of the proposed guidance. The Government concluded, however, that more resources were needed for local authorities and the Environment Agency. In August 1998, after the completion of the Comprehensive Spending Review, they decided that an extra £50 million should be made available.

8. In October 1998, a revised working draft of the guidance was circulated to certain bodies and groups who had commented in detail in 1996. This version took account of the report of the Select Committee and all the comments received from the consultation in the autumn of 1996.

9. The draft guidance and the accompanying material has now been further revised in the light of the comments from those consulted in October 1998.

The current consultation

10. Since responsibility for Part IIA of the 1990 Act in Scotland and Wales now rests with the Scottish Executive and the National Assembly for Wales, this consultation is in respect of England only.

11. In the light of many comments, we have tried to explain more clearly how the various policies affecting contaminated land fit together, how the new regime is intended to operate and how the statutory guidance is organised. Attached to this letter is a draft of the DETR circular that (along with new regulations) would be needed to give effect to Ministers' intentions. It contains:

a. a statement of Government policy in this field, dealing in particular with the relationships between the contaminated land regime and various other regulatory and planning regimes;

b. a description of the new contaminated land regime, showing all the various steps and processes that are involved; in reading this, it is important to remember that the regime must allow for complex sites where many contaminants and several operators may be involved; not all the detail is required for the simpler cases where there is one operator and one contaminant;

c. the draft statutory guidance itself; this contains all the material which Ministers consider is needed to give effect to the new regime in respect of each of the five aspects on which the Secretary of State has power to issue guidance;

d. a guide to the draft regulations;

e. a note on the savings provision in the commencement order;

f. a glossary of the terms which are defined in Part IIA, the regulations or the statutory guidance.

12. A draft of the Contaminated Land (England) Reg ulations referred to above is attached. A regulatory impact assessment (RIA) is also enclosed, developed from the earlier draft of the compliance cost assessment and the comments received upon it.

13. Any comments which you wish to make on the attached draft circular, draft regulations or draft RIA should be submitted to the Department by 6 December 1999. They should be sent to:

Land Quality Team
Marine, Land and Liability Division
Department of the Environment, Transport and the Regions
Zone 3/B4, Ashdown House
123 Victoria Street
London SW1E 6DE
Tel: 020 7944 5287
Fax: 020 7944 5309
E-mail: landquality.enquiries@defra.gsi.gov.uk

14. Copies of responses will be placed in the Department’s library in due course. Please state clearly in your response if you would prefer that it is not made publicly available in this way. We will include all responses in any numerical summary of the results.

15. These documents will also be available on the DETR internet website: www.dtlr.gov.uk/

Yours faithfully,

Alan Simcock

This document is made available in Adobe Acrobat format for downloading.
The Adobe Acrobat Reader can be freely downloaded.

• Covering Letter (41kb)
• Draft DETR Circular (592kb)
• Draft Statutory Instrument (61kb)
• Draft Regulatory Impact Assessment (42kb)

Copies of this publication are available from:

Land Quality Team
Marine, Land and Liability Division
Department of the Environment, Transport and the Regions
Zone 3/B4, Ashdown House
123 Victoria Street
London SW1E 6DE
Tel: 020 7944 5287
Fax: 020 7944 5309
E-mail: landquality.enquiries@defra.gsi.gov.uk