Part IIA of the Environmental Protection Act 1990 was inserted by section 57 of the Environment Act 1995, and was introduced in England on 1 April 2000. The primary legislation is implemented by the Contaminated Land (England) Regulations 2000 and by the Contaminated Land Statutory Guidance (April 2012) published by Defra.
Under Part IIA of the Environmental Protection Act 1990 the statutory definition of contaminated land is:
- land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land, that:
- significant harm is being caused or there is a significant possibility of such harm being caused; or
- pollution of controlled waters is being, or is likely to be, caused.
For harm to be caused, or there to be a possibility of harm being caused, there are three key factors that must be present:
- a contaminant must be present in the soil at a concentration that could cause harm to health (e.g. arsenic),
- a receptor that could be affected by the contamination (e.g. adults or children),
- a pathway capable of exposing the receptor to the contaminants in the soil (e.g. dust or soil ingestion, growing of vegetables).
When all three factors are present, it is considered that there is a significant pollutant linkage and it is probable that the land will be classed as contaminated land.
The purpose of this legislation is to deal with the historical legacy of land contamination that has arisen from past, largely industrial, activities. It is retrospective, in that certain persons or companies can be held liable for their actions that occurred in the past. The legislation is consistent with the "polluter pays principle" since it places the financial responsibility for dealing with the contamination with the polluter, where they can be found
Sources of land contamination
Land contamination can arise from naturally occurring contaminants (e.g. caused by the underlying geology), from our industrial legacy or from pollution incidents. Activities such as lead smelting, lime burning, producing town gas, landfill sites, petrol stations, vehicle repair garages, and chemical and engineering works all have the potential to contaminate the land on, or around, which they are situated. Accidents such as chemical leaks or domestic oil tank leaks also have the potential to contaminate land. Some contaminants will degrade overtime, but many will remain in the soil and may pose a risk to human health.
More information on naturally occurring contaminants can be found on the Contaminated Land FAQs page.
Identifying contaminated land within our local authority boundary
Part IIA of the Environmental Protection Act 1990 ("Part IIA") was introduced to provide a system for the identification and remediation of land where contamination is causing, or is likely to cause, an unacceptable risk to human health or the wider environment.
Under Part IIA, all councils had an additional duty to produce a 'Contaminated Land Inspection Strategy' by July 2001 to identify all areas of land that are potentially contaminated within each local authority boundary.
The council has produced a Contaminated Land Inspection Strategy, which is available to download below, explaining how we intend to fulfil our duties under Part IIA of the Environmental Protection Act 1990 to identify, inspect and remediate contaminated land.
This strategy was revised in early 2007, and an updated version can be downloaded from the related documents section. The strategy is currently being reviewed following the publication of revised Contaminated Land Statutory Guidance (April 2012) published by Defra.
The district council will identify historic sites that may have resulted in land contamination and may complete a site investigation either through the Contaminated Land Regime or through a planning condition. Site investigations can involve soil sampling, groundwater sampling and the assessment of ground gas. The results of these are used with a conceptual site model to identify the risks posed to human health and the wider environment.
Once land is determined as contaminated, its details are entered into a Contaminated Land Public Register. Currently no sites have been determined as contaminated within Derbyshire Dales, and accordingly there are no entries on the Public Register.
Officers also advise Planning colleagues and developers to ensure that new developments, or material changes of use, are undertaken in such a way to ensure that the land is suitable for its proposed use and poses no risk to human health or the wider environment
Naturally occurring lead and development
On all land there are background levels of substances in soil and water, including substances that are naturally occurring as a result of the underlying geology.
The National Planning Policy Framework requires the risks arising from natural hazards or former activities such as mining to be taken into account.
In Derbyshire Dales, parts of the District are underlain by Lower Carboniferous (Dinantian) limestone. Mineralisation has occurred in the faults and cavities of the limestone, leading to elevated concentrations of lead in soils in these parts of the District. The British Geological Survey (BGS) have investigated normal background concentrations of various contaminants in English soils[1], reporting the upper limit of normal soil background concentrations to be 180 mg/kg in non-urban areas, 820 mg/kg in urban areas and 2,400 mg/kg areas of mineralisation. Data supplied by the Geochemical Baseline Survey of the Environment (G-BASE) project[2], run by the BGS, reports average topsoil (0 - 150 mm depth) lead concentrations in Derbyshire Dales of 996 mg/kg (median 314 mg/kg) and subsoil (300 - 450 mm depth) lead concentrations of 470 mg/kg (median 140 mg/kg). The highest recorded concentrations for topsoil and subsoil in the District were 35,930 mg/kg and 24,700 mg/kg respectively. Soil concentrations maybe further elevated in areas where minerals were processed e.g. smelting sites.
Arsenic and cadmium are known to co-occur with lead in areas of mineralisation.
Phase 1 Desk Study Assessment (also known as a Preliminary investigation – desk study and site reconnaissance, under British Standard 10175)
Any desk-based assessment should include a geological report, which will typically provide detailed information on the geology of a site, including estimated background soil chemistry data. When considering naturally occurring substances, this data should be taken into account when identifying potential contaminant sources in the development of the initial conceptual site model (CSM).
Category 4 Screening Levels (C4SLs) have been published for arsenic, cadmium and lead, and may be of use to the risk assessor when developing the initial CSM and identifying potential sources of contamination that may pose a potential risk to human health in the context of the proposed land use (e.g. residential, commercial, allotments). In many parts of Derbyshire Dales, background concentrations of these substances exceed the C4SL for the most sensitive land use.
Phase 2 Intrusive Exploratory or Detailed Site Investigation
Where the risk estimation and categorisation for potentially complete contaminant linkages includes linkages with one or more naturally occurring substances as a potential source with a potential risk of ‘moderate/low’ or higher, these contaminants should be included in the in soil sampling strategy.
Category 4 Screening Levels (C4SLs) or other generic assessment criteria should be used to as part of the generic quantitative risk assessment (GQRA).
Bioaccessibility testing maybe used on a site-specific basis as part of a detailed quantitative risk assessment (DQRA). It is expected any such testing will be undertaken by a UKAS accredited laboratory and follow the BARGE method or a current British Standard for bioaccessibility testing. The resulting data should be used to derive site-specific assessment criteria using the Contaminated Land Exposure Assessment (CLEA) tool, and presented alongside full justification of the number of samples tested and the location of samples tested (e.g. depth, soil type etc).
[1] https://www.bgs.ac.uk/geology-projects/applied-geochemistry/g-base-environmental-geochemistry/nbc-defra-project/
[2] https://www.bgs.ac.uk/geology-projects/applied-geochemistry/g-base/
Capping requirements as part of a remediation strategy
In 2024 the National Contaminated Land Officers Group (NCLOG) has developed A Regulator’s Guide to Cover Systems and their Verification.
The Council expects developers to take consignment of this Guide where a soil cover system has been identified as a suitable remedial measure. Normally, this remediation will have been agreed by the Council with the developer and/or their consultant through the planning system, following an initial desk-based assessment, an intrusive site investigation and the preparation of a remedial options appraisal / remediation strategy.
A simple cover system seeks to reduce or break exposure pathways by placing a layer (or layers) of material, such as soil or aggregate, between receptors and the residual contaminated material. An engineered cover system is more complex and consists of several layers of different materials, designed to perform a variety of functions.
One difficulty with any type of cover system can be where a development site is required to retain trees on the site, which may be impacted by the placement of a cover system. The Guide sets out the potential impacts on existing trees and provides some details of engineered tree root protection within cover systems.
In most cases, soils will need to be imported to the development site for the cover system (see below).
Re-use and importation of soils at a development site
Development sites, irrespective of land contamination, may have a surplus or deficit of topsoil and/or subsoil. Therefore the site may need to export soils off-site (for waste disposal, or to another development site where there is certainty of use) or the site may need to import soils onto the site. It is the developers’ responsibility to ensure that all relevant legislation and guidance is complied with when soils are being moved off-site or imported to site.
Where a cover system has been identified as a suitable remedial measure and agreed with the Council, in most cases there will be a need to import materials (e.g. topsoil and subsoil) from off-site to construct the cover system. On other occasions, suitable uncontaminated soils may be available elsewhere on-site that can be used to construct the cover system in a different part of the site.
All soils used in the cover system, either site-won or imported, must be demonstrated to be suitable for use and not pose a risk to human health or the environment. Example verification testing suites are presented in Table 7-1 of the National Contaminated Land Officers Group (NCLOG) A Regulator’s Guide to Cover Systems and their Verification, noting that additional chemical analysis may be required depending on the history of the site.
When importing soils to site, either for a cover system, for earthworks (e.g. to alter site levels) or where there is a deficit of soils at the site, developers are normally expected to follow the Development of Waste Code of Practice (DoW CoP) for the sustainable reuse of soils (soon to be rebranded as a Soil Passport Scheme). The DoW CoP relates to materials movements between development sites, and enables the developer (or their contractor / consultant) to demonstrate when excavated materials at a development site are not waste. Following the requirements for with liaison with the Regulator under the DoW CoP, the Council will respond to email requests to review relevant documentation relating to the excavation and reuse of materials as part of the production of a Materials Management Plan (MMP) by the developer (or their contractor / consultant).
What is contaminated land?
Land can be contaminated by substances in or under the land, in solid, liquid or gaseous form, that are currently, or have the potential to be, hazardous to human health or the environment. “Contaminated Land” is used to mean land which meets the legal definition of contaminated land under Part 2A of the Environmental Protection Act 1990.
Other terms, such as “land affected by contamination” or “land contamination” are used to describe the broader categories of land where contaminants are present but usually not at a sufficient level of risk to be legally classed as “Contaminated Land” under Part 2A. Such land may still need to be investigated and cleaned up under other regimes (e.g. the planning system) or as part of due diligence.
Part 2A of the Environmental Protection Act 1990 was inserted by section 57 of the Environment Act 1995, and was introduced in England on 1 April 2000. The primary legislation is implemented by the Contaminated Land (England) Regulations 2000 and by the Contaminated Land Statutory Guidance (April 2012) published by Defra.
Under Part 2A of the Environmental Protection Act 1990 the statutory definition of contaminated land is:
- land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land, that:
- significant harm is being caused or there is a significant possibility of such harm being caused; or
- pollution of controlled waters is being, or is likely to be, caused.
For harm to be caused, or there to be a possibility of harm being caused, there are three key factors that must be present:
- a contaminant must be present in the soil at a concentration that could cause harm to health (e.g. arsenic or lead),
- a receptor that could be affected by the contamination (e.g. adults or children),
- a pathway capable of exposing the receptor to the contaminants in the soil (e.g. dust or soil ingestion, growing of vegetables).
When all three factors are present, it is considered that there is a significant pollutant linkage and it is probable that the land will be classed as contaminated land.
The purpose of this legislation is to deal with the historical legacy of land contamination that has arisen from past, largely industrial, activities. It is retrospective, in that certain persons or companies can be held liable for their actions that occurred in the past. The legislation is consistent with the "polluter pays principle" since it places the financial responsibility for dealing with the contamination with the polluter, where they can be found.
Sources of land contamination
Land contamination can arise from naturally occurring contaminants (e.g. caused by the underlying geology), from our industrial legacy or from pollution incidents. Activities such as lead smelting, lime burning, producing town gas, landfill sites, petrol stations, vehicle repair garages, and chemical and engineering works all have the potential to contaminate the land on, or around, which they are situated. Accidents such as chemical leaks or domestic oil tank leaks also have the potential to contaminate land. Some contaminants will degrade overtime, but many will remain in the soil and may pose a risk to human health.
More information on naturally occurring contaminants can be found on the Contaminated Land FAQs page.
Identifying contaminated land within our local authority boundary
Part 2A of the Environmental Protection Act 1990 ("Part 2A") was introduced to provide a system for the identification and remediation of land where contamination is causing, or is likely to cause, an unacceptable risk to human health or the wider environment.
Under Part 2A, all councils have an additional duty to produce a 'Contaminated Land Inspection Strategy' to identify all areas of land that are potentially contaminated within each local authority boundary.
The Council has produced a Contaminated Land Inspection Strategy, which is available to download below, explaining how we intend to fulfil our duties under Part 2A to identify, inspect and remediate contaminated land.
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The Council has completed desk-based assessments of historic sites that may have resulted in land contamination, and . None have been identified as a high priority for further investigation under Part 2A, and no detailed intrusive inspections have been undertaken.
If land is determined as Contaminated Land under Part 2A, the details are entered into a Contaminated Land Public Register. Currently no sites have been determined as contaminated within Derbyshire Dales, and accordingly there are no entries on the Public Register.
Officers also advise Planning colleagues and developers to ensure that new developments, or material changes of use, are undertaken in such a way to ensure that the land is suitable for its proposed use and poses no risk to human health or the wider environment.
