Contaminated Land Changes to the Regime & Future Implications for Effective Regulation

1. Contaminated Land Changes to the Regime & Future Implications for Effective Regulation Dr Bill Baker Independent Environmental Consultant Contaminated Land Adviser to the Chartered Institute of Environmental Health

2. Scope of Presentation • Brief history of land contamination regulation 1990 - 2012 • Part 2A consultation, development & introduction 2000 • Review of application & experience • Early mistakes – SPOSH or Minimal Risk • SGV Task force – Way forward 2005/06 • LQM/CIEH Initiatives – GAC workshops 2006/09 • Defra changes 2007 • New Government – deregulation and localism policies 2010 • LQM/CIEH SPOSH workshop - dose response road-maps 2011 • Revised Statutory Guidance 2012 • National Planning Policy Framework 2012 • Need for replacement environmental guidance – pps 23 etc • Causes for concern - new strategies

3. Part 2A development • Environmental Protection Act - 1990 • Environment Act – 1995 – section 57 • Introduction – Statutory Guidance – 2000 • CLEA - Environment Agency – 2002 • Development of risk –based approach, toxicology, exposure scenarios etc • Minimal risk SGVs – not SPOSH values for determination • Slow Agency progress with SGV and Tox report publication • CRISIS !! - 2005

4. Part 2A Crisis • Cabinet Office - SGV Task Force 2005/06 • Extensive consultation with consultants, academics, regulators and industry led by Defra team of specialist advisers • “Way Forward” - CLAN6/06 – proposed a set of benchmarks for unacceptable intake derived from consideration of toxicology, exposure scenarios, national risk assessment policy and practicability check – 2006 • Further consultation - long delays with no decisions made • 2007 – Complete change of Defra team

5. Revised Part 2A Statutory Guidance • More delay – silence • Caretakers – new Defra team • Concern at determinations based on marginal exceedance of SGV/GAC s , delays in progressing declared sites – community concern and blight • Guidance on Legal definition of Contaminated Land –no new values 2008 • New proposed revised Statutory Guidance – consultation Dec 2010 -March 2011 – introduced April 2012

6. Revised Part 2A Statutory GuidanceBackground • “Uncertainties associated with technical & scientific assessment of to human health are generally considered to be so high that a defendable quantitative assessment can rarely be made” • “Scientific & legal difficulties of the development of contaminant SPOSH values are considered to be insuperable” • Nevertheless local authority regulators are expected to use their expertise and experience to make scientifically-based judgements for Part 2A determinations without the guidance presumed to be necessary in the originally conceived regime.

7. Revised Part 2A Statutory GuidanceDefra motivation for changes • Clarity in precautionary and proportionate regulatory approach to decision making on determination of land. • Simplification of regulatory procedures. • Priority on dealing with high risk highly contaminated land. • Balance between dealing effectively with risks from contamination and potential impacts of financial costs , health and environment, impacts of taking remedial action, property blight and burdens on affected people. • Reducing the costs of unnecessary remediation.

8. Revised part 2A Statutory guidanceCategorisation of land affected by contamination 1 & 4 • Category 1 – SPOSH condition exists with unacceptably high probability of harm – capable of part 2A determination if :- similar land, situations or degrees of exposure are known or strongly suspected to have caused such harm in the UK or elsewhere; if significant harm may already have been caused by contaminants in, on or under the land & that there is a an unacceptable risk that it might continue or occur again if no action is taken; it is likely that significant harm is being caused but it is considered that there is insufficient evidence to be sure of meeting the “balance of probability” test for demonstrating this is so, or that such would cause unreasonable delay the time needed to demonstrate, cost, or disruption and stress to affected people particularly in cases involving residential properties. • Category 4 – A SPOSH condition is unlikely to exist on land if it is considered that there is no risk or that the level of risk associated with an contaminants present is low. The following types of land can be considered to be classified as Category 4 land :- land where there is no relevant contaminant linkage ; land where there are only normal levels of contaminants in the soil; land where contaminant levels do not exceed relevant generic assessment criteria; land where estimated levels of exposure to contaminants are likely to form a small proportion of what a receptor might anyway be exposed to through other sources of environmental exposure.

9. Revised part 2A Statutory guidanceCategorisation of land affected by contamination – 2 & 3 • Category 2 land is such that there is a strong case for considering that the risks from the land are of sufficient concern that it poses a significant possibility of significant harm (SPOSH). It may include land where there is little or no direct evidence that similar land, situations or levels of exposure have caused harm before, but it is considered on the basis of the available evidence, including expert opinion that there is a strong case for taking action under part 2A on a precautionary basis. • Category 3 land where the strong case described above for Category 2 classification doses not exist and therefore the test for significant possibility of significant harm (SPOSH) is not met. Category 3 may include land where risks are not low, but nonetheless the authority considers that regulatory intervention is not warranted.

10. Guidance for categorisation with respect to other receptors • Ecological systems – atable has been developed to describe what conditions represent Significant Harm and Significant Possibility of Harm (SPOSH) for a range of ecologically protected sites to facilitate the effective regulation of such sites affected by contamination in such a way as to satisfy the relevant regulations. • Property Effects – similarly there is a table describing the crops, livestock and buildings covered by the Part 2A regime and what is seen to represent Significant Harm and SPOSH relative to these receptors. • Pollution of Controlled waters – the guidance identifies 4 types of pollution of controlled waters which can be defined as to represent significant pollution of controlled waters, and three types of circumstance which should not be considered to be contaminated land on water pollution grounds. There is also guidance about the categorisation of land where there is or may exist a Significant possibility of Significant Pollution of Controlled Waters where regulatory action under the Part 2A may or not be considered in consultation with the Environment Agency.

11. Development of Category 4 Screening Levels for assessment of land affected by contamination • An essential condition for the introduction of the proposed revised Part 2A Statutory Guidance was that there must be a prospect of a financial advantage to industry or the community arsing from its implementation. • The main component of such an analysis was concerned with the perception that the generally accepted procedure for the protection of human health and the environment in the context of remediation of land contamination either arising from Part 2A regulation or through the planning process using the SGV/GAC minimal risk levels as remediation targets led to a high degree of “unnecessary” remediation and excess costs. • An essential part of the Defra strategy was therefore to develop a new set of Category 4 Screening Values which would be more pragmatic( but still strongly precautionary). These would effectively expose communities to a higher level of risk than generally accepted but result in national estimated savings for the industry of £140m. • A contract has been let to CLAiRE for this purpose but it is generally accepted that such a development is unlikely to be feasible if based upon a scientific basis and would therefore require a policy decision about what level of risk would be acceptable for local communities. • Such a development would be unpopular amongst local communities, and house-builders would also be reluctant to be responsible for new developments which left them with a higher residual liability.

12. Consultation responses and post consultation guidance development • The consultation response drew a large proportion of adverse comment generally but particularly from the regulatory communities and the representatives of those who are charged with managing the regulation of land contamination in the context of both Part 2A and the planning process. • In this situation Defra sought further advice and support for its proposals from a small group of supporting bodies and consultants to refine the guidance but excluded any significant engagement with those who took a dissenting and critical position. • A process managed by officers ( Career Civil Servants)having little or no scientific background or understanding of the most complex regulatory environmental protection regime is most likely to settle for a pragmatic strategy which is unlikely to be successful rather than soundly science-based solutions

13. Summary of Issues of Concern • Determination under Part 2A should be primarily science-based – but under the revised SG the decision can be qualified by a range of socio-economic circumstances detailed previously. • Decision by EA & Defra not to support research into quantitative understanding of SPOSH conditions and reducing uncertainty – “Scientific difficulties are insuperable”. • Determinations are now relegated to merely qualitative decisions. • Decisions dependent upon “knowledge of similar land or situations which are known or strongly suspected to have caused such harm before”. • The general acceptance that normal or background levels of contaminants should not be considered as representing a significant risk. • The new SG does not meet its stated objectives of being “ shorter, simpler or better focused" but is likely to result in a deterioration in the general level of protection of human health by the introduction of the proposed new higher risk category 4 “acceptable screening levels”

14. The National Planning Policy FrameworkGovernment Motivation • Deregulatory policies • The Localism policy which aims to delegate decision-making to the lowest representative level • The primacy of local & neighbourhood plans • Reduction of bureaucracy, “red-tape” and unnecessary administration • More freedom for enterprise and developers • Promotion of economic growth

15. Established Planning Policy • “Old” planning policy aimed to avoid demonstrable harm. The LPA needed to show that there will not be unavoidable consequences from any development. • 2004 planning policy still follows this line, but aims to encourage development to deliver positive outcomes. SUSTAINABLE PLANNING ECONOMIC SUCCESS Requires respect for all three agendas. The onus is upon the applicant/developer to provide the justification. ENVIRONMENTAL PROTECTION & IMPROVEMENT SOCIAL COHESION

16. Some Quotes • “Town hall officials who take forever with those planning decisions that can be make or break for a business – and the investment and jobs that go with it” • David Cameron, Prime Minister • “If I am being completely frank … it’s the drag anchor to growth” • Eric Pickles, Secretary of State for Communities and Local Government • “We want local communities to benefit from growth, and the standard answer to be yes, not no” • Vince Cable, Business Secretary

17. Extract from Chancellor’s Budget speech in section called ‘Planning for Growth’: • “The planning system has a key role to play … ensuring that the sustainable development needed to support economic growth is able to proceed as easily as possible” • “The Government's top priority in reforming the planning system is to promote sustainable economic growth and jobs. Government's clear expectation is that the answer to development and growth should wherever possible be "yes", except where this would compromise the key sustainable development principles set out in national planning policy.” • “Secretrary of State for Communities and Local Government … will attach significant weight to the need to secure economic growth and employment.” • “[so will the] SoS for Culture, Olympics, Media and Sport, the SoS for the Environment, Food and Rural Affairs, the SoS for Energy and Climate Change and the SoS for Transport.”

18. Initial “Radical Changes” • Abolition of the Standards Board - responsible for the monitoring & regulation of the relationship between Councillors & developers - Central Government targets – Scrapped with immediate effect • e.g. 3m new houses by 2020, 2m by 2016 • Regional Spatial Strategies – Scrapped with immediate effect • Split national targets into regions • Government Offices for the Regions – Scrapped by 2011 • Worked out how to deliver the regional targets • Infrastructure Planning Commission – Scrapped by 2011 • Forward planning issues for infrastructure of ‘national importance’, to be subsumed into CLG

19. Principles of the National Planning Policy Framework • Presumption in favour of Sustainable development involving economic, social & environmental considerations • Presumption of approval for all planning applications ( unless they can be proved to be not sustainable) • Withdrawal of all regional strategies • Withdrawal of 44 pieces of published planning guidance documents to be replaced by simplistic 50 page Policy framework • Primacy of local & neighbourhood plans • Application of the precautionary principle • Abolition of the National Brownfield Development policy on Housing

20. Application of Localism • Open Source Planning (Conservative ‘Green Paper’ No 14) is being followed: • This will “Free” LAs from top down central control & encourage local authorities to work together to resolve issues • give neighbourhoods much greater ability to determine the shape of the places in which their inhabitants live • Each community to develop “Neighbourhood Development Plan” to shape area. When done LAs will have to honour them • Developers must consult before planning application and show how the elements of the NDP have been substantially taken into account • So far this has been blamed (along with RSS withdrawal) for planning applications for some ~85,000 houses being withdrawn • Been called a NIMBYs charter • BANANA – Build Absolutely Nothing Anywhere Near Anything ( or Anyone!) • NOPE – Not On Planet Earth

21. Reduction in Bureaucracy • “Reduction in bureaucracy” by: • New duty of cooperation on LAs (and other public bodies) to work together • 12 month guarantee for any planning application to be determined, including appeals made in a “timely fashion” • Scrapping change of use planning permission for turning premises and old houses into houses ( with big implications for contamination issues!) • A “Neighbourhood Development Order” as established in the “Neighbourhood Development Plan” will grant automatic planning permission for any type of development if local referendum approves it. • What is “local”? • There are certain guidelines to which the development will have adhere, e.g. design standards, buildings regulations, etc • 60% target of new residential housing on Previously Developed Land has been scrapped • Recent abolition of need for planning approval for domestic extensions

22. Reference in the NPPF text about dealing with contamination • Contamination covered as follows: • “Local planning authorities should ... set out environmental criteria, in line with the policies in this National Planning Policy Framework, against which planning applications will be assessed so as to ensure that permitted operations do not have unacceptable adverse impacts on the environment or human health, including from dust, tip and quarry-slope stability, differential settlement of quarry backfill and migration of contamination from the site” • Pollution covered as follows in: • “Natural and local environment” conservation by “prevent[ing] both new and existing development from contributing to or being put at unacceptable risk from, or being adversely affected by unacceptable levels of land, air, water or noise pollution or land instability.” • “Preventing unacceptable risks from pollution and land instability” LAs should: • “new development which may give rise to pollution, either directly or indirectly, is appropriately located having regard to the effects on health, the natural environment or general amenity, taking account of the potential sensitivity of the area to adverse effects from pollution; and • “the site is suitable for its new use taking account of ground conditions, pollution arising from previous uses and any proposals for land remediation. “developer’s responsibilities are confirmed for ensuring that a safe and secure development can be achieved where a site is affected by contamination or land stability issues… and adequate site investigation undertaken by a competent person should be presented.”

23. Major Problems for local authority regulators? • Removal of significant planning policy guidance • Significant reduction in resources due to cuts in local authority funds from central government How will we get agreement? Faster decisions due to maximum 12 month deadline for all planning permissions (including appeals) How will we be able to demonstrate unsustainability of proposed developments in order to recommend refusal? How will CL issues be considered and how will Conditions / safeguard be placed on development technically outside of the planning regime? How can we effectively regulate when in some circumstances Localism agenda removing need for planning permissions? How can the local authority effectively refuse approval when they cannot afford to contest the likely appeal process.?

24. Independent Guidance Initiatives in support of regulation of land contamination • LQM/CIEH Workshops with delegates - including regulators, CLOs, consultants, and academics working together to review all available toxicological and epidemiological published information for a wide range of contaminants of concern to aid the development of policy-compliant Generic Assessment Criteria (GACs) equivalent to minimal risk value SGVs using the CLEA model • 1st edition 31 contaminants Nov 2006 • 2nd edition 82 contaminants July 2009 • CIEH - The Local Authority Guide to Ground Gas Sept 2008 by Steve Wilson, Geoff Card & Sarah Haines • LQM/CIEH SPOSH Workshop– Dose Response Road-maps May 2011 an aid to Part 2A decision-making - a computer model with electronic access to all published toxicological information for a selections of common contaminants with facility to produce a graphical presentation of the cloud of dose response information for direct comparison with site-specific contaminant levels. • CIEH initiative to produce new technical planning guidance on dealing with contamination in the context of the requirements of the NPPF to replace the withdrawn PPS 23 in partnership with RTPI.

25. Spotting SPOSH: The LQM/CIEH Dose Response RoadmapsA quick and simple to use tool to help local authorities fulfil their duty under Part 2A of the Environmental Protection Act 1990 • For each substance, for specific pathways • A simple tool on which to assess estimated exposure against the full range of toxicological and epidemiological information • Difficult to produce • Simple to use; simple to understand • Remember Part 2A is a POSITIVE test

26. The dose response cloud1. Plot estimated average daily exposure2. Compare with dose response data