Contaminated land regime

Professor Robert Lee | 8 years ago

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Much work will need to be done in relation to mapping out the remediation process itself.  Even applying ‘suitable for use’ standards, many questions arise in relation to the practicability of certain types of work, and the cost of undertaking remediation.  It will be necessary to particularise suitable for use standards where it is vital that conditions, which lead to the site being classed as contaminated, are no longer to apply.  Also, questions arise as to the durability of any work done.  It is wrong to think that remediation always means removing contaminants from the site.  Often there are questions of containment, and little guidance exists at the moment in relation to the longevity of solutions.  These in turn may depend on the future of the site itself.  Given continuing pressure to bring brown land back into use, might we accept much lower standards of remediation where a site is to be put to some temporary use?

Best practicable technique for the pollution linkage in question is to be applied both to the elimination of any significant pollution linkage and also to the remedying of any harm caused. Where elimination is not possible, the standard becomes one of best practicable means of reducing the harm and remedying its impact, or at least minimising its effect.  The decision as to what represents best practicable technique (“BPT”) is to be assessed according to its effectiveness in achieving the aims set out above.  However regard must also be had to a number of other factors including whether it is reasonable and also whether it represents a good balance of the following factors:

  • the effectiveness of the remediation programme;
  • the durability of the remediation over the timescale of likely pollution;
  • the practicability in the circumstances;
  • the efficiency of achieving results with minimum resources.

Effectiveness and durability are mentioned because remediation of contaminated sites can take a long time.  Indeed the work may spread over years, and even when completed, ongoing monitoring may be necessary.  Given that the local authority will be keen that the appropriate persons actually fund the remediation, it may also be necessary to allow a timescale over which this is affordable.  In the case of the worst sites, it may be difficult to afford actual remediation, and the best solution that may be achieved might be some ongoing site assessment.  Remediation may be not affordable on some sites at the present time, but it could be that other remedial works are required (such as water filtration) at least pending a later point in time when better technology makes the remediation possible and affordable.

The guidance does not set out or recommend remediation methods, but it gives some indication of the important factors to be taken into account.  First, it allows that assessment, and on-going monitoring can be included as ‘remediation’ alongside preventative and restorative works. The remediation action must be reasonable having regard to the likely cost and bearing in mind the seriousness of the harm, and the benefits that can be achieved. This can include environmental as well as financial costs (e.g. landfill impacts of ‘dig and dump’ remediation). Technical advice will be necessary.  Where best practice is clearly established for a particular remediation process, this will be taken as BPT, assuming cost considerations are met.  However there may be doubt as to best practice especially when one factors in questions of speed of remediation, or problems caused when no one process will be fully effective. Remediation processes should also be practicable. Technologies and resources should be commercially available according to the guidance and regard should also be had to:

  • questions of access;
  • the physical condition of the land
  • health and environmental hazards posed by the remediation;
  • the creation of other pollution linkages;
  • the adverse impact on other remediation programmes;
  • the likely availability of any necessary consents or authorisations to complete the work;
  • ongoing management costs;
  • costs of disruption.

As is stated above the remediation may consist of assessment or monitoring actions only.  There are a number of situations in which assessment may be necessary including the characterisation of the pollution linkage and the drafting of the technical specification for remediation.  Assessment is allowable also to check the effectiveness of any remediation activity carried out on a site, and to establish the base-line condition of the site where it is known to remain contaminated even following enforced remediation.  Monitoring may be necessary to assess changes in pollutant or pathway and the on-going need for remedial treatment.

Remediation can include assessment processes to establish the presence of a pollution linkage and actions to eliminate or minimise its impact by removing or treating the pollutant, interrupting the pathway or protecting the receptor.  It is also permissible to make good damage that has occurred.  Other than the purposes set out above, the guidance states that local authorities that they cannot demand remediation, and in particular that they cannot deal with substances in on or under land where no pollution linkage is established. Moreover,  no remediation can be demanded under this legislation to make land suitable for anything other than current envisaged usage.

Section 78E(4) requires action on the part of the local authority to be reasonable, and the guidance requires this also in relation to the cost of the remediation.  Whether or not the cost is reasonable has nothing to do with the financial resources of the person paying for the remediation –  though this might affect questions of costs recovery – see below. However where an organisation deploys its own resources to clean-up, these should be fully costed and considered. in this cost equation. The authority is told to take no account of remaining environmental damage following clean-up. The test for reasonableness of costs is that there is no alternative remediation scheme that would achieve the same standard for lower costs.  Given the availability of competing remediation techniques, this costs test can become something of a battleground.

It is necessary to measure the total costs against the benefits of intervention, and this itself involves weighing seriousness of harm or pollution and the remedial or minimising effects of the works.  Seriousness is judged by considering a number of factors relating mainly to the receptor.  These include the size of the receptors, their nature and importance (taking into account their existing state), the impact upon them and whether it would be lasting. Similar factors apply where the receptor is water. Authorities must also take into account whether harm is already being caused (and if not then the probability of such harm) and any wider environmental risks.  Finally costs issues may affect the timetable for remediation in terms of the expense of immediate intervention weighed against the benefits of early remediation.

The next part of our guide to the Contaminated Land  Regime will be available online next week. If you are interested in receiving the complete (referenced) printed guide at a cost of £50 + postage and packing, please contact us.

About the author

Professor Robert Lee

ERIC Director and Head of Birmingham Law School, Professor Robert Lee was co-director of the publicly funded Centre for Business Relationships, Accountability, Sustainability and Society at Cardiff University (BRASS). He is an expert on regulation, including environmental regulation and regulation of biotechnology and biomedicine. He previously worked for two top 10 UK law firms, and remains a professional-development consultant to one of the largest law firms in Europe, working on pan-European delivery of legal services.