Directorate of Community Services

Directorate of Community Services

Environmental Health Division

Contaminated Land Strategy

Contents

Section

Page

1

Introduction………………………………………………….

2

2

Executive summary…………………………………………

3

Part 1 – Regulating Contaminated Land

3

Regulatory context………………………………………….

5

4

The role of the District Council…………………………

6

5

The role of the Environment Agency…………………..

7

6

Contaminated land - definition…………….……………

8

7

Pollutant linkages and risk assessment……………….

9

8

Principles of risk assessment…………………………...

11

9

Contaminated land – action required…………………..

12

Part 2 – The District

10

Characteristics of the District of North East Derbyshire

14

Part 3 – A Strategic Framework

11

Statutory requirements of the strategic approach.

18

12

Aims of the strategy document………………………….

19

13

Detailed aims and objectives of the strategy……….

20

14

The scale of the problem…………………………………..

21

15

Priorities……………………………………………………...

22

16

Risk assessment…………………………………………….

24

17

Internal management arrangements for inspection and identification……………………………………………

25

18

The Council’s interest in its own land…………….….

26

19

Data collection………………………………………………

27

Part 4 – Consultation, Communication and Enforcement

20

Enquiries and complaints………………………………..

30

21

Interaction with other regulatory regimes…………...

31

22

Consultation, communication and enforcement strategies….

32

23

The public register …………………………………………

34

24

Provision of information to the environment agency………

35

25

Review mechanisms………………………………………..

36

Appendices

Appendix 1

Potentially contaminative site uses…………………….

38

Appendix 2

Information collection…………………………………….

40

Appendix 3

Consultees…………………………………………………..

41

Appendix 4

Glossary of terms……………………………………………

42

Appendix 5

References……………………………………………………..

44

North East Derbyshire District Council

Contaminated Land Inspection Strategy

1. Introduction

In April 2000, Part IIA of the Environmental Protection Act 1990 (EPA) came into force introducing a new regime for the regulation of contaminated land in England. The main purpose of Part IIA is to provide a system for the identification of land that is posing unacceptable risks to health or the environment, and for securing remediation where unacceptable risks cannot be controlled by other means.

Part IIA is not the only legislation that is relevant to the management of land contamination. The development control system will remain a key mechanism for managing land contamination as part of the wider process of land redevelopment and regeneration and the control of untidy sites. Powers are also available under Integrated Pollution Control (IPPC) and the waste management licensing provisions of the Environmental Protection Act 1990 for dealing with contamination that results from a breach of an operating Authorisation, permit or licence. Action can also be taken to prevent or remedy pollution of controlled waters under the Water Resources Act 1991, while health and safety legislation is relevant in most, if not all, land contamination applications.

The Government’s intention is that Part IIA will:

• improve the transparency and focus of regulatory controls;
• ensure that regulators take a strategic approach to land contamination problems;
• allow all contamination problems to be dealt with as part of the same process;
• increase consistency in regulatory approaches; and
• provide a more tailored regulatory mechanism, including liability rules, that is better able to reflect the complexity and range of circumstances found on individual sites.

Other expected outcomes of the implementation of Part IIA are:

• more remediation carried out on a voluntary basis;
• greater scope on the part of responsible parties to plan investment in remediation in advance of any regulatory intervention;
• greater certainty on the part of developers and others about any residual liabilities associated with the redevelopment of former industrial and similar land.

The responsibility for enforcing the provisions of Part IIA lies both with local authorities and the Environment Agency. The primary regulators are local authorities, who have responsibility for the identification of contaminated land, and the regulation of all such land that is not a ‘Special Site’.

This document sets out a framework for identifying and dealing with contaminated land within the area of North East Derbyshire District Council. It is intended as a working document to assist Members and employees in protecting and conserving the environment and improving the health of the local community.
2. Executive Summary

Under the new statutory regime, the Council is required to inspect land in its District for contamination. A strategy must be submitted to the Environment Agency by the end of June 2001, detailing how the Authority will take a rational, ordered and efficient approach to the inspection, recording and monitoring of contaminated sites.

The Council’s priorities in dealing with contaminated land will be:

• to protect human health;
• to protect controlled waters;
• to protect ecosystems;
• to prevent damage to property;
• to prevent any further contamination to land;
• to encourage voluntary remediation;
• to encourage re-use of brownfield land.

A rolling programme of inspections will be undertaken, running from July 2001. Priority will be given to inspecting land owned by the Council, land scheduled for development in the Council’s Local Plan and land known to have had a potentially contaminative former industrial use. Controlled waters and protected areas of the environment will also be examined and a final prioritisation exercise undertaken to establish the order in which problem sites should be cleaned up.

Certain sites may be identified outside this pro-active approach to inspection that will require urgent action. These will be dealt with as and when they arise. The Council will support people wishing to undertake voluntary remediation and will encourage re-use of brownfield land for development, in preference to greenfield development.

The District Council is the lead regulator on contaminated land but, wherever necessary, it will work in partnership with other organisations, particularly the Environment Agency. Detailed consultation will also be undertaken with Parish Councils and all statutory consultees and other stakeholders.

The regulations set clear criteria that must be met before land can be formally designated as contaminated land. The Council must also maintain a public register containing information prescribed by the Regulations.

Part 1

Regulating Contaminated Land

3. The Regulatory Context

The regime under Part II(A) adopts a risk-based ‘suitable for use’ approach to remediation, and applies the ‘polluter pays’ principle to apportionment of liability. The ‘appropriate person’ (or persons) to bear responsibility for remediation will normally be the person(s) who caused or knowingly permitted the contamination. If, after enquiry, such a person cannot be found, or no longer exists, then the ‘appropriate person’ is the person who currently owns or occupies the land. In certain circumstances, for example, where an appropriate person cannot be found, the local (or enforcing) authority may initially have to bear the costs of remediation.

Where the authority has carried out remediation itself, it is entitled to recover the reasonable costs it has incurred in doing so. It has no power, however to recover costs incurred in the inspection of land to determine whether it was contaminated.

Relevant Legislation/Guidance

• Part IIA Environmental Protection Act 1990

• Environment Act 1995
• The Contaminated Land (England) Regulations 2000
• DETR Circular 02/2000

4. The Role of the District Council

District Councils have been given the primary regulatory role under the Part IIA regime as they have historically had responsibility for dealing with statutory nuisances caused by land contamination and are also the lead authorities on land use planning.

The Council has a statutory duty to:

• cause its area to be inspected for contaminated land;
• establish who may be the appropriate person(s) to bear responsibility for remediation of the land;
• decide, after consultation, what remediation might be required in any individual case and ensure that such remediation takes place, by serving a remediation notice, where necessary;
• record information on a public register about its regulatory actions; and
• act as the enforcing authority for all contaminated land, unless the site meets the definition of a “special site” - in which case the Environment Agency will act as the enforcing authority.

The Council is obliged to set out its approach for inspection as a written strategy, which must be formally adopted and published by 1 July 2001.

5. The Role of the Environment Agency

The Environment Agency has an important complementary role under the Part IIA regime. This includes:

• the provision of information and advice, including site specific guidance, to local authorities;
• the regulation of ‘Special Sites’;
• the preparation of a national report on the state of contaminated land.

The ContaminatedLand (England) Regulations 2000 define “Special Sites”, which includes land associated with the following situations:

• pollution of controlled waters as defined in the Regulations;
• contamination by certain chemicals used as pesticides;
• contamination by waste acid tars;
• refining of petroleum;
• manufacture of explosives;
• nuclear sites;
• land owned by the Ministry of Defence;
• land on which prescribed processes designated for central control have been carried out.

6. Contaminated Land - Definition

A legal definition of contaminated land is given in Section 78A(2) of Part IIA of the Environmental Protection Act 1990.

Contaminated land is any 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:

a)significant harm is being caused or there is significant possibility of such harm being caused; or,

b)pollution of controlled waters is being, or is likely to be caused.

Section 78A(5) requires the regulatory authority to act in accordance with guidance issued by the Secretary of State in determining significance and likelihood. (This guidance is contained within DETR Circular 02/2000).

So, although land may be polluted, unless it presents a significant risk to a receptor such as a human being, or an aquifer used to supply water, the mere presence of contaminants does not require immediate action by the local authority.

7. Pollutant Linkages and Risk Assessment

For a site to meet the definition of contaminated land, a pollutant linkage must be established. This consists of three parts:

1. A source of contamination in, on or under the ground.
2. A pathway by which the contaminant is causing significant harm (or which presents a significant possibility of such harm being caused).
3. A receptor of a type specified in the Regulations.

If the linkage is incomplete, the land does not fulfil the statutory definition of ‘contaminated land’.

The receptors recognised as being potentially sensitive are:

• human beings;
• ecological systems or living organisms forming part of a system within certain protected locations, including:

- sites of special scientific interest (SSI’s),

- national nature reserves,

- marine nature reserves,

- nature reserves,

- special areas of conservation (SAC’s),

- special protection areas (SPA’s),

- candidate SAC’s,

- Ramsar sites,

- areas of special protection for birds.

• property in the form of buildings, including Ancient Monuments,

• property in other forms e.g. crops, livestock, home-grown produce, owned or domesticated animals, wild animals subject to shooting or fishing rights,
  
• controlled waters:

- surface waters, e.g. rivers, lakes, and streams,

- drinking water abstractions,

- source protection zones,

- groundwater-private abstractions,

- groundwater-major aquifers.

If the three components of the pollutant linkage exist, a risk assessment will be undertaken to determine the likelihood of harm being caused and the likely nature and extent of the harm caused if the predicted event actually occurred. An area of land can only be designated ‘contaminated land’ if a significant risk has been proven.

8. Principles of Risk Assessment

DETR Circular 02/2000 promotes a risk-based approach to dealing with contaminated land. “Risk” is defined as the combination of:

• the probability, or frequency, of occurrence of a defined hazard (eg. exposure to a property of a substance with the potential to cause harm);

• the magnitude (including the seriousness) of the consequences.

The aim of this type of approach is to protect human health and the environment without unnecessarily wasting finances on cleaning up sites that do not pose a significant risk. The need for and extent of any remediation will be based on a site-specific risk assessment of the facts.

9. Contaminated Land – Action Required

Once an area of contaminated land has been identified and risk-assessed, the approach for dealing with it will be the same regardless of whether the local authority or the Environment Agency is the regulator. There are four main stages to this approach:

1. To establish whom is the “appropriate person” to bear responsibility for the
   remediation or clean up of the land.

1. To decide what remediation is required and to ensure that this occurs, through:
   

• reaching a voluntary agreement;
• serving a remediation notice, if agreement cannot be reached;
• carrying out work themselves, in certain circumstances.

1. To determine whom should bear what proportion of the liability for meeting the

cost of the work.

4. To record certain information about regulatory action in a public register.

Part 2

The District

10. Characteristics of the District of North East Derbyshire

Location

North East Derbyshire District covers some 100 square miles and extends from the edge of Sheffield in the north almost to Alfreton in the south. In the centre of the District, and virtually encircled by it, is the town of Chesterfield. To the west is the Peak District, whilst to the East are the towns of Bolsover and Mansfield.

Fig. 1

Location Map of NE Derbyshire showing Principle Towns, Villages and Roads

Geography

North East Derbyshire contains a rich variety of contrasting landscapes. The western part extends up to and includes the edge of the Peak District, and comprises highly scenic landscapes with rolling hills, river valleys and small attractive villages. A significant amount of the northern and western parts of the District are designated as Special Landscape Areas (SLA’s), recognising the importance of the landscape in Derbyshire. Further east, the rolling nature of the landscape becomes less pronounced and the settlements are larger and their immediate surroundings show evidence of an industrial past. A substantial part of the northern half of the District is also covered by the North East Derbyshire Green Belt.

The District also has a rich variety of sites and features, which contribute to the quality of the natural and built environment. The Three Valleys Area, comprising the valleys of the River Rother, River Drone, and River Moss, is an area of important landscape. It contains special features, important biological sites, natural history sites and heritage sites, which are managed and enhanced to improve access, encourage conservation, foster environmental improvements and support appropriate tourism initiatives. There are also Country Parks at Williamthorpe and Grassmoor, with similar facilities available at the reservoirs of Linacre and Ogston. There are also a series of tracks and trails suitable for walking and cycling, including the Five Pits Trail and the Chesterfield Canal Cuckoo Way.

Population and Housing

The population in 1999 was 98,900. Two thirds of the District’s population live in the areas of Clay Cross, Dronfield, Eckington, Killamarsh, North Wingfield and Wingerworth. Dronfield has the largest population, at 22,280.

The District has a total housing stock of over 41,000 dwellings, approximately 31,500 of these are in private ownership and 9,500 are publicly owned.

Key Property Types

The District has a rich and varied architectural heritage. This has been recognised by the listing of almost 500 historic buildings, ranging from country houses to medieval barns. There are also some 29 Conservation Areas, which is a clear indicator of the high quality, individual character, and historic development of many of the District’s settlements.

Current and Past Industrial History

Employment in North East Derbyshire has traditionally been based on coal, steel and heavy engineering. However, the last ten to fifteen years has seen a rapid decline in the more traditional industries, especially in coal and steel. Kiveton Park Colliery, which had previously merged with High Moor Colliery at Killamarsh, was closed in 1994 and represented the end of the former British Coal deep mine industry in the District. Towns that had been created around the pits were severely affected by their closure. Communities were faced with high unemployment and social deprivation. The resulting job losses were not just in the coal industry, but in the related industries as the supply chain was seriously affected.

Since these closures and resulting job losses, work has been ongoing to promote the area for start-up companies, expansion of existing companies and inward investment. There is now a waiting list for managed work spaces at the Council-run Midway Centre at Clay Cross, which opened in 1997, and a larger business centre is currently under construction at Coney Green, also at Clay Cross.

Many existing companies wanting to remain in the District, have either expanded on site or had purpose-built premises constructed in the area. The designation of the Holmewood Enterprise Zone in 1995, formerly the Williamthorpe Colliery site, ensured that employment was safeguarded in the area. The District’s major sites for future development and expansion are at WesthorpeFieldsBusinessPark, at Killamarsh, formerly the site of Westhorpe Colliery, and the Avenue Coking Works at Wingerworth.

Key Water Resource/Protection Issues

The water companies Severn Trent and Yorkshire Water supply the majority of the District’s drinking water.

The District Council regularly inspects and samples the quality of approximately 200 private drinking water supplies in its area, comprising of a combination of springs, wells and bore-holes. The majority of them are situated in the parish of Ashover, in the rural south-west of the District.

Geological Characteristics

The geology of the area is varied and lies on the eastern margin of the South Pennine anticline where there are exposures of Namurian gritstones, shales and sandstones of the Lower Coal Measures, which overlie the Carboniferous limestone. In the Ashover area there is a dome of exposed limestone which is mineralised. The strata dips eastwards at an angle of approximately 15 degrees and this, coupled with river action, has led to the development of distinctive escarpments or edges with, behind them, a series of dip slopes on which a variety of soils and climax communities developed, depending on the nature of soils, climate and substrate as well as subsequent land use.