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Contaminated Brownfield Sites

I am most grateful for the opportunity to debate the crucial problem in my constituency of land contamination. It has a direct and personal effect on the lives of some of my constituents and wider implications for the Environment Agency and the Government in respect of pollution issues and the Government's brownfield site development strategy. The contaminated site is a mainly owner-occupied residential area in the village of Littleport, near Ely in east Cambridgeshire. Part of the site was previously a coal-gas works, while the remainder was adjoining school playing fields. Its industrial use ceased in the 1960s and housing, as well as a fire station, was built on the site between 1967 and 1992, with little or no clean-up works being undertaken at any stage. Thirty-one families now live in houses on the site, which they are unable to sell or remortgage, and their children are prohibited from playing in their gardens. Theirs is truly a truly nightmare scenario: they live in fear for their health, but are unable to move on in their lives. In fact, their properties are completely blighted by the discovery of contamination by chemicals that are frequently associated as a by-product of coal-gas production, but the legislation that by rights should be helping them is proving both obstructive and unworkable. The residents are unable to pin down who is responsible for the contamination, as the two sites in question have changed hands many times, including between private and county council ownership. The Gas Board, later British Gas, never cleaned up its part of the site. The local district council's planning department gave both outline and detailed planning consent for housing on the site. The National Home Builders Registration Council denies any responsibility and the last developer/builder on the site has gone bankrupt. Although the environmental health department of East Cambridgeshire district council considers that the contamination poses no increased health risk for the majority of residents, potential buyers of the properties are deterred by information revealed in local land charge searches. In fact, that all came to light about three years ago as a result of diligent searches by a prospective purchaser's solicitor. The local council, whose responsibility it is to investigate the contamination at the site, has been endeavouring since the problem was discovered to find a solution that would result in remediation of the site. It maintains that it has been hampered by inadequate guidance from both the Department for Environment, Food and Rural Affairs and the Environment Agency, which has prevented it from resolving the situation. The main stumbling block is that the contaminating compound found on the site, benzo(a)pyrene, is so widespread at levels exceeding the standard acceptance criteria in the gardens of properties beyond the footprint of the original gasworks—those built on the former school playing field. The council is unable to define accurately the area of land contaminated as a result of the industrial activity, because higher than acceptable readings of the compound were discovered on some properties outside the development site. It seems highly unlikely that the contamination readings outside the site are even associated with the gasworks. They are far more likely to be attributable to the anthropogenic practices of past residents, who spread the ashes from domestic coal fires on the garden areas. It is firmly believed that further sampling and analysis of soil from properties around the gasworks site would merely extend the area found to contain the contaminant, presumably until the edge of the village and greenfield land was reached. Working within the guidance available could therefore entail remedial work to hundreds of houses in Littleport where levels of the contaminant are present without any conceivable link to the activities of the former gasworks. If we extrapolate from that scale to the national level, we could catch hundreds of thousands, if not millions, of older properties that were in existence when coal was our primary domestic fuel. The widespread presence of the compound is causing huge problems across the whole contaminated land sector—a sector that is fundamental to achieving the Government's national brownfield redevelopment targets. Benzo(a)pyrene is one of a large group of polycyclic aromatic hydrocarbons formed by the incomplete combustion of organic materials. Man-made sources include motor vehicle engines, coal and wood fires, refuse incineration, and even cigarette smoke. It is often present in ash. The overall conclusion of a health working group in 1987 was that benzo(a)pyrene was probably carcinogenic to humans. There were no adequate human data then and, to my knowledge, there are still none, but there was"““sufficient evidence of carcinogenicity in experimental animals””." It therefore comes as no surprise that acceptable threshold doses of the compound for both oral and inhalation routes have been set at very low levels indeed. Benzo(a)pyrene is of paramount importance in the investigation of contamination at the gasworks and the associated site in Littleport. The governing legislation for land contamination of such a nature was first introduced under the Environmental Protection Act 1990—or, more particularly, part IIA of that Act, which finally came into force, after extensive statutory guidance was issued, on 1 April 2000. Unfortunately, that was some eight years after the latest houses at Littleport were built. The guidance addressed such issues as what constitutes contaminated land, what course of action will be required, to what extent remediation will be required and who will have to bear the costs. An essential ingredient of that guidance was the role of the Environment Agency and ultimately DEFRA in defining soil guideline values. Those values are designed to answer the question: does the soil concentration of contaminant x pose a risk to human health or the environment? Unfortunately the Environment Agency has yet to issue its soil guideline values for benzo(a)pyrene, and the current rate of production of SGVs—there have been none since December 2004—suggests that it is unlikely to do so in the near future. Perhaps the Minister can say something about when that particular SGV might be published. In the absence of an SGV for benzo(a)pyrene, local authorities have had to fall back on the contaminated land exposure assessment—CLEA—model, which sets an acceptable level for benzo(a)pyrene of 1 mg per kg of soil. The readings at Littleport of between 6 and 15 mg per kg are unfortunately well in excess of that. However, in a document of April 1986 entitled ““Notes on the Redevelopment of Gas Works Sites””, the interdepartmental committee on the redevelopment of contaminated land—the precursor to the CLEA—set trigger concentrations for polycyclic aromatic hydrocarbons, including benzo(a)pyrene, at a threshold of 50 mg per kg of soil in domestic gardens, and the trigger for remedial action at a remarkable 500 mg per kg. It is therefore not surprising that among both polluters and the polluted there is considerable confusion about the appropriate levels of risk for benzo(a)pyrene. In reality, SGVs allow levels of contaminants that under current interpretations represent an acceptable level of risk; they do not signify the level of unacceptable risk. Unlike the Netherlands, the UK does not have an intervention level at which the regulatory authority must intervene and remove the risk presented by the contaminated land. In the absence of other Government guidance, however, the release of SGVs by the Environment Agency has naturally led the regulatory authorities to use those figures as cut-off levels. Any levels that exceed the SGV are considered unacceptable, although that was not the intention. As I have already said, that has the potential to blight huge swathes of pre-second world war housing in this country. DEFRA has warned councils that determinations based on a simple exceeding of SGV levels will not necessarily satisfy a legal challenge. The test is how far above the published level the concentration of soil contaminant would have to be to meet the definition of ““unacceptable””. DEFRA guidance published by the Environment Agency is silent on that issue. That worst-case scenario may be appropriate for brownfield, undeveloped sites, but for existing sites—not redevelopment sites—it is not practical, because the levels are very low and are often exceeded by background, naturally occurring contamination across the United Kingdom. Those whom the figures should help—regulators, developers, private companies and the general public—do not find them particularly useful and their investigations may be significantly hindered by them. The first requirement is that the contaminated land sector be given a full complement of SGVs for all contaminants of concern; currently only about half have been determined. Secondly, some indication is needed of what level above the SGVs would be considered acceptable. Perhaps two levels need to be set for each compound—a target level and an intervention level—like the Dutch do. If it is decided that that approach cannot or will not be adopted, some more comprehensive and practical guidance on how to use the existing SGVs must be issued to provide a clear steer to investigating authorities. Until clear advice and support is available, local authorities have to proceed without all the necessary SGVs, which in their present form are of limited use anyway. The regulators are in a very difficult position as they struggle to approve site-specific reports prepared using figures borrowed from various sources, including the Dutch, the now defunct interdepartmental committee on the redevelopment of contaminated land—ICRCL—recommendations, various American studies, and the out-of-date CLEA model. The reports may then be disputed by the Environment Agency, which inevitably is reluctant to approve standards that vary from those that it has published as guidance. The system is incomplete and already out of date, which puts a huge strain on the resources of local authorities and the Environment Agency and means that basic investigations do not always reach a conclusion, because the system is not sufficiently structured. As a result, developers, councils and council tax payers end up paying more for investigations. Recently the rate at which remediation notices are issued has dramatically decreased nationally, as many councils choose to wait for more substantive guidance before proceeding with determinations. However, in the case of the Littleport site, the financial implications for the residents living there are too severe to delay progress to the determination of this site. Under the regime of part IIA of the Environmental Protection Act, local authorities and the Environment Agency have increased responsibilities to investigate contaminated land, but the programme is often driven by their own resources. To increase the efficiency of that process and make the implementation of the regime less onerous, the determination of contaminated land issues needs to be evaluated according to a more structured set of values for any site. The rate at which councils are tackling sites is extremely slow, partly as a result of the strain on resources that the process puts on individual authorities. If the demands placed on local authorities are considered too great, the answer might be to place more emphasis on the Environment Agency to deal with more sites, particularly the more complicated ones. However, if that were done, the Environment Agency's resources in this sector would need to be significantly bolstered, as it is grossly understaffed in certain regions. The current position on benzo(a)pyrene is untenable. Multiple local authorities, and the Environment Agency in the case of special sites, are pursuing site-specific solutions. To increase efficiency, it is essential that a solution be put in place to allow more joined-up working between the different tiers of authorities. Sites could be assessed much more quickly with less strain put on resources if a partnership approach was advocated by all levels of government. That would help ensure that the silo mentality was eliminated and that all parties were committed to reaching agreement on the best practical solution in each case. It is therefore vital that the Health Protection Agency and the Environment Agency support local efforts to reach practical solutions and adopt an approach that recognises the need for local public accountability in each case. The interests of members of the public affected by the contaminated land legacy should be paramount, yet on the one hand, given the presence of contaminants above the published thresholds, residents find their properties defined as contaminated and therefore blighted, and on the other, even if a subsequent, site-specific risk assessment finds that the contamination presents no additional risk to their health, the residents will still not be able to sell their homes. That has been the situation for nearly three years at the Littleport site, as the local authority struggles to make sense of the regime in the face of understandable public concern. If the process of investigation does not proceed to determination, the perception of health risk will continue to blight the properties; if determination proceeds, a legal challenge may arise. I trust that the Minister agrees that that is a totally unacceptable situation, not least from the point of view of my constituents, who are now desperate for a solution that will release them from that living hell. It is simply not good enough to tell the residents to take the matter to the courts, because universal standards for contamination have not been produced and the residents do not have the financial resources to fight a protracted case. Their plight is not of their making and it behoves legislators to rescue them from their nightmare. I look forward to a positive response from the Minister.