Article Contaminated Land

CLAN 02/05

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In September 2005, the Cabinet Office led Soil Guidance Value (SGV) Task Force issued its first (and long awaited) public pronouncement – Contaminated Land Advice Note No. 2 [CLAN 02/05]. This Note has far reaching consequences and effectively signals a change of interpretation (if not policy) at the Environment Agency/ DEFRA. [].

The SGV Task Force was set up following a ‘stakeholder workshop’ in November 2004, at which the AGS was well represented. Simon Edwards (Merebrook) and Seamus Le Froy Brookes (LBH Wembley) have since attended Task Force meetings on behalf of the AGS – and the views of the AGS were canvassed by means of a ‘Mirror Group’ and via the normal meetings of the Contaminated Land Working Group.

The remit of the Task Force is very wide, embracing matters as diverse as the continuing professional development of those involved in contaminated land through to the detail of toxicological risk assessment.

It has been recognised by industry for some time that some of the published SGVs were at concentrations at or around background concentrations. There must be very few working in this area who have not struggled with the benzo(a)pyrene question! However, the initial view of the Health Protection Agency (HPA) and Environment Agency regulators were that these were very hazardous chemicals and exposure should therefore be kept as low as possible. A year of persuasion has now borne fruit in the form of CLAN 02/05 which formally recognises that there is a big difference between the published SGVs and the concentrations of contaminants in the soil which would be capable of presenting a real hazard to people living on that land – in the terminology “a significant possibility of significant harm” [or SPOSH – how we love our acronyms!].

In some of the key sections, this Note, comments that:

  • SGVs mark the concentration of contamination in soil where tolerable or minimal risks would result from exposure

  • Exceedence of the SGV indicates further assessment or remedial action may be needed

  • Concentrations at or marginally above SGVs would not necessarily meet the legal tests [in Circular 02/2000], for determining “Contaminated Land” (as defined in Part IIA of the Environmental Protection Act 1990).

Of course, helpful as these statements are, one key question now begs to be answered. Namely, how far above the SGV does the concentration have to be to meet the “unacceptable intake” test. In the deadpan language of Sir Humphrey, CLAN 02/05 says that “at the present time the published Defra/Environment Agency technical guidance on risk assessment does not address this issue”. Clearly, the publication of such guidance is critical. No timetable has been set by the Task Force, but the clamour from both regulator and regulated for urgent resolution, surely can not be ignored.

Of course one has to ask where this leaves all those affected by sites designated by local authorities as “Contaminated Land” on the basis of marginal exceedence of SGVs.

The work of the SGV Task Force continues, no longer under the auspices of the Cabinet Office, but under English Partnerships’ Brownfield Strategy, under the chairmanship of Jane Forshaw (CEO of CL:AIRE (Contaminated Land: Applications in Real Environments)). There is no doubt that pressure from industry and political determination at the Cabinet Office has at last made real progress but much remains to be done. In addition to the thorny issue of what constitutes soil concentrations capable of providing an unacceptable intake, progress on the publication of the SGVs themselves remains painfully slow.

The Agency has recently released the updated version of the CLEA UK risk assessment model for a trial period until April 2006 []. Formal ratification and publication of that model remains high on industry’s agenda.

It is clearly vital that the momentum needed to make progress in all these areas, which has started to develop as a result of the Task Force, must continue. The AGS will of course continue to support its work but it is vital that the absence of the Cabinet Office does not allow Defra/ the EA and the HPA to return to the previous snail’s pace.

Hugh Mallett