CIV819 Management of Hazardous Wastes and Industrial Wastewaters Contaminated Land Regime

1. CIV819 Management of Hazardous Wastes and Industrial WastewatersContaminated Land Regime • Objectives • to understand how the new ‘Contaminated Land Regime’ provides a statutory framework for dealing with contaminated land • to understand the responsibilities of polluters, land owners and the regulators • to know how PPC will be used to control the future contamination of land

2. References http://www.staff.ncl.ac.uk/p.j.sallis/ USER/PASSWORD = ‘cassie’ (all lower case) • Policy and Legal • http://www.defra.gov.uk/environment/landliability/circ2-2000/ • Local Authorities websites • Converging Policy Approaches to Contaminated land - Paul Steadman (see copy at http://www.staff.ncl.ac.uk/p.j.sallis/teach.html) • http://www.environment-agency.gov.uk/gwcl/LC_Policy.htm • Contaminated Land - Tom Graham • Contaminated Land - Stephen Tromans & R Turrall-Clarke

3. The Legacy Parliamentary Office of Science and Technology 1993 Expert Estimates:- • 50,000 to 100,000 potentially contaminated sites in UK • 100,000 to 300,000 hectares • (significantly less which pose risk to human health)

4. History of Contaminated Land Policy USA • CERCLA 1980 (SUPERFUND) • SARA 1986 Netherlands • Soil Clean-up Act 1982 • policy reversal 1987 UK • ICRCL 1976 (guidance) • EPA 1990 (STATUTORY LAW) • 1993 “consultation” • EA 1995 (STATUTORY LAW) • PPC Regulations (2000) (STATUTORY LAW)

5. Framework Policy Objectives • Prevent new contamination • Deal with unacceptable risks to human health and the environment • Bring contaminated land back into beneficial use • to limit cost burdens to proportionate, manageable and economically sustainable levels

6. Contaminated Land Regime • Environment Act 1995 • Section 57 (EA 1995) inserts Part IIA into the Environmental Protection Act 1990 • Local Authority responsible • LA to formulate Strategy by mid-2002 • LA actively identify contaminated sites & cause them to be remediated

7. Definition Contaminated land is any land which appears to be in such a condition, by reason of substances in, on or under that: a) significant harm is being caused or there is significant possibility of such harm being caused: or b) pollution of controlled water is being or is likely to be caused. source “EPA 1990”

8. Definition Harm” is defined as: “harm to the health of living organisms or other interference with ecological systems of which they form part, and in the case of man, includes harm to his property.” source “EPA 1990”

9. Risk Management For a contamination to present a risk there must be: • a potentially harmful Source • a pathway along which the contaminant can travel. • a Receptor • a plausible Pollution Linkage. SOURCE RECEPTOR PATHWAY

10. Cause their area to be inspected to identify Contaminated Land To determine whether a particular site is “contaminated” To Act as enforcing authority for contaminated sites (other than Special Sites) Establish responsibility for remediation. Determine what remediation is required and to ensure that it takes place. Arbitrate on the who bears what proportion of consequent liability. Record and maintain prescribed information in a Public Register. EA 1995Enforcement ResponsibilitiesDutiesTasks

11. Section 108 Environment Act 1995 :- enter at any reasonable time make any examination or investigation necessary take photographs or samples require the giving of information order that premises or parts be left undisturbed Powers of Inspectors

12. EA 1995Information and Inspection L.A’s may derive information form a number of sources to enable an assessment to be made • Other Statutory Bodies • Its own Land Use records • Public Complaint • Land Owners

13. Part I Assessment Preliminary prioritisation of sites into groups for Part II Assessment under the following headings. Development Surface Waters Groundwater (This will comprise a desk top study and can be carried out by non- specialist personnel) Part II Assessment Sites in each group will be categorised using individual risk assessment Priority given first to group A Site information examined Site Visit Establish contaminants, pathway and risk Detailed exploratory survey where indicated (Expert help will be required) Prioritisation/Categorisation

14. Part I Assessment Residential development, school playground or allotment within 50 m YES Not Known GROUP A NO YES Not Known GROUP B Industrial, commercial development within 50 m or residential within 250 m NO YES Not Known Site in agricultural or amenity use including Parks and playgrounds GROUP C NO

15. CLASS “A” Any person who causes or knowingly permitted contaminating substances to be IN, ON or UNDER the site CLASS “B” Where reasonable enquiry has failed to identify a person fitting the definition of “Class A”, the owner or occupier of the land Appropriate Person If no Class A or Class B then site is an Orphan Site (ownership passes to LA)

16. Appropriate Persons - Exclusions • Class A – for abandoned mines • Class B - where pollution is to controlled water • Class B – for contaminants escaping to adjacent land • Class B - when they act in official capacity e.g. ‘insolvency practitioners’, ‘official receiver’ • Class A – where land was sold with ‘information’ regarding level of contamination

17. Apportionment of LiabilityInherited Problems Contaminated land Adjoining Land X Y Contaminant • “Person A” causes contamination of “Contaminated Land X” • Innocent “Person B” becomes owner/occupier of “Contaminated Land X” • “Person B” not liable to remediate “Adjoining Land Y” unless they had knowledge of the contamination at purchase (Caveat emptor) migration

18. Special Sites Environment Agency becomes the enforcing authority after LA designates a site as a Special Site on the basis of: • Water Pollution Cases • Controlled water used for Drinking Water abstraction • Ecologically important sites (SSSI, reserves) • Major Aquifers • Industrial Cases • Pollution from sites involving Acid tar, Oil, Explosives, and Nuclear (excludes coal processing) • Defence Cases • Army, Navy, Airforce, Weapons Testing sites Extends to contaminated sites adjacent to above cases

19. EA 1995Remediation Notices Where Pollution Linkage is confirmed Remediation Notice served on each “appropriate person” • Can cover assessing site condition (detailed intrusive Site Investigation), preventative works, remediation and monitoring • Must be “reasonable” having regard to cost and seriousness of harm/pollution • Must be preceded by consultation

20. Non-Compliance withRemediation Notice • Enforcing Authority can carry out the remediation and recover costs. • Non-compliance is a criminal offence punishable by imposition of a fine of up to £20,000 plus £2,000 a day.

21. Recovery of Costs Local Authorities must take into account: • HARDSHIP LA must consider any hardship that may be caused. • BUSINESS CLOSURE OR INSOLVENCY Where remediation costs would make a business insolvent, the authority should consider a reduction in costs. The main aim is to recover as much cost as possible without causing insolvency.

22. EA 1995Public Registers Will be maintained to include: • Remediation notices and appeals. • Remediation work carried out following a remediation notice. • Conviction for offences.

23. Remedial Targets “Suitable for Use” (risk based) • Remediation to a standard appropriate for the intended end-use of the site “Multi-functionality” • Remediation to prescribed standards allowing every potential type of end-use. “Original Condition” • PPC regulations

24. EA 1995Conclusion • CL Regime brought into force 2000. • Local Authorities publish Strategy 2002 • New regime extremely complex and bureaucratic • Lack of significant new resources • Responsibility for “orphan sites”

25. Pollution Prevention & Control (PPC) Regulations 2000 • IPPC Directive (96/61/EC) • enacted in UK as “The Pollution Prevention and Control (England and Wales) Regulations 2000” • Contaminated land covered under requirements for ‘Site Reports’ • Regulator is ‘Environment Agency’

26. Pollution Prevention & Control (PPC) Regulations 2000 Principle of PPC • Specific Industrial Sectors are regulated • Aim to preserve land quality rather than deal with Historic pollution (i.e. stop future pollution) • Linked to Permit Application • authorises the site (or installation) to conduct specified industrial activity • Process requires ‘Site Report’ • a detailed investigation of current state of the land that acts as a ‘baseline’ • Closure of Site (or Change of Use) • Cessation Site Report compared with Original Site Report • Site must be remediated to ORIGINAL CONDITION (defined by first Site Report) and not ‘Suitable for use’

27. Pollution Prevention & Control (PPC) Regulations 2000 • Purpose of a Site Report • To document the condition of the site with particular reference to substances in, on or under the land that may constitute a pollution risk • All land of the installation is covered • Phased approach • 1a Desk Study (Conceptual Model) • 1b Further Desk Study and Exploratory Investigations • 2 Main Intrusive Investigation • Complex activities may be zoned • Technical Content • presentation of lateral and vertical distribution of contaminants • Site Reportsent to LA (as statutory consultee) • Data can be used by LA under Part IIA EA 1995 legislation

28. Other Statutory LawWater Resources Act (1991) • Section 85 • criminal offence to “cause or knowingly permit any poisonous, noxious or polluting matter to enter any controlled waters” • conviction of an offence can incur 3 months imprisonment or up to £20,000 fine • Section 161 • To prevent polluting matter from entering controlled waters • To remove or dispose of polluting matter from controlled waters • To restore waters to their state immediately before the pollution event (as far as is practicable) • Works notices can be served by EA • EA can claim costs when pollution enters, or is likely to enter, any controlled water

29. Other Statutory Laws • Health & Safety at Work (HSWA) Act, 1974 • Management of Health & Safety at Work Regulations, 1992 • welfare of employees • Control of Substances Hazardous to Health (COSHH) Regulations, 1994 • prevent exposure to hazardous substances • OEL set by HSE • Occupiers’ Liability Act, 1984 • duty of care to trespassers • Construction (Design & Management) Regulations, 1994 • consider contamination when planning work

30. Other Statutory Laws Air Quality • Control of Pollution Act1974 • local authority can investigate any commercial premises • Clean Air Act 1993 • burning and smoke on demolition sites Planning • Town & Country Planning Act 1990 • Planning Policy Guidance (PPG) Note 23 (LA must consider consequences of contamination on their Development Plan)