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In the context of Part 2A contaminated land is that land which is causing significant harm or there is a significant possibility of such harm being caused. Statutory Guidance defines what constitutes significant harm and in the case of human health it includes death, disease, serious injury, genetic mutation, birth defects or the impairment of reproductive functions.
The definition of contaminated land under Part 2A of the Environmental Protection Act 1990 does not necessarily include all land where contamination is present.
No land or property within the Dudley borough has been determined as 'contaminated land' as defined under Part 2A of the Environmental Protection Act 1990.
Within the Dudley borough a considerable number of properties are situated within close proximity to past and present industrial and other potentially contaminative activities. Many other properties have been built on former industrial land. The Council is required to inspect the whole borough so whilst some will be more of a priority than others we cannot discount any property. Also, there is the possibility that circumstances with respect to individual properties might change in the future. Given the extensive industrial heritage of the Dudley Borough and the number of potentially contaminated sites, the complexities of Part 2A and the resources available the council cannot speculate on when any particular property will be investigated.
The presence of contamination does not mean that there is a risk. Whether there is a risk depends on a number of site specific factors. There must be a source of contamination, someone or something affected (receptor) and a pathway by which the receptor is exposed to the contamination. The stringent tests as to whether any substance is causing significant harm or there is a significant possibility of significant harm also need to be satisfied. The council cannot speculate about whether any land or property is likely to be 'contaminated land'.
Under Part 2A the responsibility will usually lie with the original polluter (i.e. the person or company who allowed the contamination to occur) or with those who were subsequently in control of the land and aware of the presence of contamination but did not take steps within their power to deal with it. If the polluter cannot be ‘found’ (for example, if the company went bankrupt or the persons responsible are deceased) then the liability for the contamination may pass to the owner or occupier of the land. When looking to recover costs from owners or occupiers the regulator (the council) has to consider whether hardship would be caused and the public interest.