The first appeal to the Secretary of State against the service of a remediation notice under Section 78L of the Environmental Protection Act 1990 was brought earlier this year. The case concerns a site which is the source of extensive groundwater pollution that has impacted drinking water supplies in the form of a chalk aquifer near St Albans in Hertfordshire. Remediation (pump and treat) commenced in 2000 and is likely to take a further 10 years. The overall cost of the remediation is expected to be at least £16M.
The site in question is the former Steetley Chemicals Works site located at Sandridge, a few miles north east of St Albans, Hertfordshire. Over a 30 year period the site manufactured industrial products, including potassium bromate (an oxidizing and raising agent).
The developers, Crest Nicholson, bought the site in 1983. Contaminated surface soils were removed to a depth of approximately 1 metre and replaced with clean material. Having thus remediated the site, Crest redeveloped it in 1987 as St Leonard’s Court, an estate comprising 66 homes.
In 2000 groundwater contamination in the Hatfield area became a concern for the local water company, Veolia Water Three Valleys (“Veolia”) as well as Thames Water.
The concern related to elevated concentrations of bromate (a suspected human carcinogen) and bromide (which can be toxic at high concentrations), discovered in mid 2000 to be in excess of drinking water standards. St Leonard’s court was identified in late 2000 as a likely source of this groundwater contamination.
A leading UK soil and groundwater consultancy has described the polluted area as “almost definitely the largest groundwater contamination plume in Europe: 20km of bromate in the chalk aquifer of Hertfordshire” (ref: http://www.esinternational.com/residential-plc-against-remediation-notices-served-by-the-environment-agency-dated-08-november-2005.html).
Nine public supply boreholes were closed as a result. Veolia has since spent £13M removing more than 1,500 kilograms of bromated. It has also had to utilize its Hatfield pumping station to pumping bromate contaminated water to sewer for treatment.
The Sandridge site was designated as a contaminated site by the local authority in 2002, and later that year as a “special site” requiring regulation by the Environment Agency under Part IIA of the Environmental Protection Act, “Part IIA” of the “EPA”).
In November 2005 the Environment Agency identified Crest Nicholson and Redland Minerals Limited (which acquired Steetley in 1992) as the “appropriate persons” under Part IIA. Remediation notices were then served on both companies requiring them to further investigate groundwater at the site. They were promptly appealed to the Secretary of State for the Environment under section 78L against the service of the notices.
This has been a convoluted and probably very expensive process. After a hearing in 2007, it was only in July 2009 that the Secretary of State finally rejected the appeal, and reissued the original remediation notice, requiring Crest and Redland to start to pay for the interim remediation work (estimated at £3M: see below) by the end of August 2009.
One of Crest’s grievances about having a remediation notice served upon it was that the pollution was brought about by the operation of the chemical works. However, in a letter accompanying the revised remediation notice, the Secretary of State noted: “as a result of action and inaction in the way it dealt with the site [Crest] caused contaminants that would otherwise have been removed to remain and also caused contaminants to be flushed deeper and faster into the ground”. There may be lessons here for other developers who take some – but ultimately insufficient – steps to deal with known pollutions conditions at or under the site.
The Secretary of State apportioned clean-up costs as follows; bromate contamination – 85% Redland, 15% Crest; bromide liability – 45% Redland, 55% Crest.
The financial consequences
The financial consequences for Crest and Redland, may well be severe.
At the time of the appeal, the water companies indicated that the bill for future remediation work would most probably run to a further £3m over the next ten years.
In addition, it is quite possible that Veolia and Thames Water will seek to recover some of the remediation costs which they have incurred to date from Crest and Redland. It is thought that the water companies have spent about £13M thus far to deal with the problem. .
Long-term management costs may also apply. Moreover, the plume is believed to be impacting other land uses in the area and this may also have repercussions.
If an appellant loses an appeal under section 78L, then their remedy is to bring a judicial review of the Secretary of State’s decision which, in order to succeed, would have to show that the decision was defective / unreasonable.
To date there has been no public announcement that Crest or Redland will be bringing a judicial review. Indeed, it is thought that the deadline for bringing a judicial review has now passed.