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May 2001 |
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PERILS AND PITFALLS |  Back to contents | |
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Most local authorities will have now completed the contaminated land strategies that they were required to produce under section 78B of the Environmental Protection Act 1990. There has been much complaining about the arduous task of producing a comprehensive strategy, but it has meant that those with responsibility for contaminated land in local councils have had to spend several weeks coming to terms with the complexities of Part IIA and have, hopefully, thus been able to make realistic estimates of the demands of the next stages of identification and quantification. So what have you done so far?
2) Describes in general terms the district and how it is unique in the way contaminants and receptors exist and react together, and any particular areas of concern. 3) Explains the crucial process of carefully inspecting the whole district with a view to identifying the specified receptors, areas of likely contamination, and potential pollutant linkages. Then, how these will be ranked in order of importance for the invariably time consuming and complex process of risk assessment. 4) Explains how, after having identified a site for further investigation, the council will carefully, and incrementally, seek to obtain further information about the site without:
5) Describes the unusual processes that must be followed once a site has been declared contaminated by definition. 6) Explains the relationships required with other organisations, agencies, and individuals to implement the strategy and how expert help will be obtained where it is needed. 7) Makes clear that these processes, which are required by statute, will be carried out in accordance with the strategy and the strict timetable therein. Only in exceptional circumstances will priorities be changed for the benefit of individuals. So what are the pitfalls? SUITABILITY It is not, however, external contractors that this article wishes to draw attention to, rather the long-suffering council officer who must make the ultimate decision as to whether land is contaminated land by definition. Paragraph B 31 of the statutory guidance states: "The local authority has the sole responsibility for determining whether any land appears to be contaminated land. It can not delegate this responsibility (except in accordance with section 101 of the Local Government Act 1972) although in discharging it the local authority can choose to rely on information or advice provided by another body such as the Environment Agency, or by a consultant appointed for the purpose".2 There will be no cause for concern in the most straight- forward of cases. However, in situations with potentially dire consequences the contaminated land officer is likely to find him or herself strangely alone. As England-wide inspections commence, the Environment Agency will start to receive a slow trickle of requests for advice on potential risks to water resources. This will quickly become a flood with many hundreds, or thousands, of sites being identified by each local authority. The answer to the question - "In the Environment Agency's opinion, does this site pose a risk to water resources?" - will be almost impossible to answer with any certainty. It is anticipated that Environment Agency officers will become so busy on these controlled water risks they will have little opportunity to get involved with other requests for site specific advice. Even when they can, they will rarely be able to guarantee that their advice is the best advice, given the limited knowledge they have of the site and the resources available to them. Officers and the hierarchy with responsibility for Part IIA must be named in the contaminated land strategy in a similar way that responsibilities must be clearly identified in a health and safety policy. Therefore, it is essential that whoever has responsibilities under Part IIA is fully aware of the extent of their duties and also the skills, knowledge and resources required to perform them effectively. VIGILANCE VERSUS UNDUE HASTE If a local authority failed to act and, for example, toxic leachate broke the bank of an old landfill site causing a serious incident which could have readily been avoided, the consequences could be damaging for the authority. On the other hand, where it is not clear that a pollutant linkage exists, or if it does, it is difficult to ascertain whether or not it is significant, it is important to proceed with caution. The new law has been carefully designed to discourage undue haste in declaring a site contaminated.3 Many mechanisms should be built into the strategy for regular review of information and decisions. Where an officer has good reason to be unsure, they can make a statement to that effect and arrange to review it at a later date. Paragraph 3.24 of annex two of the circular states: "An inspection may yield insufficient information to enable the local authority to determine, in the manner described at paragraphs 3.26 to 3.35 below, whether or not the land appears to be contaminated land. In such cases the local authority will need to consider whether carrying out further inspections (for example, taking more samples) or pursuing other lines of enquiry (for example, carrying out or commissioning more detailed scientific analysis of a substance or its properties) would be likely to provide the necessary information. If it is not possible to obtain the necessary information, the local authority will need to proceed to make its determination on the basis that it cannot be satisfied, on the balance of probabilities, that the land falls within the statutory definition of contaminated land. The local authority may, nevertheless, decide that the question should be reopened at some future date, or when further information becomes available". Similarly, in the previous paragraph, it is suggested that officers may have a difficulty in deciding whether land falls within the definition of contaminated land where the level of concentration of a contaminant falls "just below an appropriate guideline value". It does not consider the more likely scenario that there is no appropriate guideline value. Or, for those who are familiar with several international values, the level may be well below some and well above others. In a recent paper on international guideline values a range of 1.4 to 1,800 mg/kg for cadmium from 25 values could be identified, which varied according to the particular pollutant linkage identified.4 Whether contaminated land does fall within the statutory definition will rarely be clear cut. Generally, judgements will be based on neither hard science (using facts) nor soft science (established on probabilities), rather a combination of the two. The contaminated land officer must therefore be finely tuned to the risks a particular site presents and ensure that the right balance of priorities is achieved. In most circumstances caution will be the watchword, but in a very small percentage disaster may be just around the corner. SLIGHT POLLUTION OF CONTROLLED WATERS The circular says that: "Such cases may well give rise to problems. The Government has indicated its intention of reviewing the wording of the legislation on this aspect and of seeking amendments to the primary legislation". Such an amendment has been drafted for inclusion in the Water Bill, but this has 61 clauses at the time of writing and more are planned. Parliamentary time this session (and probably this year) is out of the question. The Environment Agency must always be consulted on risks to pollution of controlled waters, but it must be absolutely clear that even though they may not be "concerned" pollution may still be occurring. Experience in recent cases has shown that the Environment Agency, not unreasonably, uses its traditional approach to establish whether there is any pollution occurring which forms a risk to important bodies of water. If that were to be the case, the contaminated land would become a special site. Other, important information officers should be interested in includes:
If the answer to both these questions is yes, then the land is contaminated land by statutory definition. The consequences of the pollution may be insignificant and the controlled waters being affected may already be badly polluted, or be of no interest or value to anyone. What should be done? This situation will be commonplace in shallow groundwater (which may not fall within the definition of a special site) especially where fuels are stored. The key to this answer lies in the reasonableness of remediation. This is covered at length in the statutory guidance (chapter C) and it is important to be fully conversant with these complex issues before the first questions are asked of the Environment Agency. CREATING BLIGHT At first reading, the requirements of the Data Protection Act 1998 and the Environmental Information Regulations 1992, seem to be in clear conflict. The former suggests:
But under the latter, the information that authorities hold is clearly environmental information and it must be disclosed upon reasonable inquiry (unless defined as confidential in some way). There is also concern that the Human Rights Act 1998, may have implications on the way this information is handled. In the cases Guerra v Italy and McGinley & Egan v UK, breaches of Article 8 were alleged. The first followed a failure to provide information to persons who lived close to a factory classified as high risk. In the second, the applicants had an interest in obtaining access to documents on radiation levels. At the time of writing, the author has instructed leading London Counsel on these matters and will be making the advice available to local authorities in due course. Solicitors and licensed conveyancers will likely (if they are not already) be asking additional questions on property searches, such as: "Has this, or any adjacent land, been identified as contaminated, or potentially contaminated and requiring further investigation, under the council's duties under Part IIA of the Environmental Protection Act 1990?" A firm policy must be adopted by local authorities on these matters and appropriate "disclaimers" issued with any information provided. CREATING NEW POLLUTANT LINKAGES A site may not be causing pollution of groundwater or resulting in any other pollutant linkage because the contamination is contained within underground structures. Local authorities must therefore obtain the maximum information possible about a site prior to any intrusive investigation, so that these can be carefully targeted and the most appropriate techniques used which will not encourage further gas production, or the migration of contaminants. Gasworks are a particular case in point, where little intrusive work should be necessary other than to confirm contaminant concentrations for waste disposal and landfill tax reasons. Often a whole series of investigations over many years results in the mobile contaminants spreading over large areas of the site and, in some cases, off site. The value of geophysical investigations cannot be overstated here, though the most appropriate techniques must be employed by an established expert in the field. They are undoubtedly expensive but this should be assessed against what can be saved by the carefully targeting if further intrusive work. IS IT REALLY YOUR PROBLEM? There are many reasons why Part IIA may not apply. If a heap of contaminating materials is found on land, which looks as though it has been dumped there in recent years, there are questions which can be asked. Is this contaminated land to be dealt with under Part IIA? Is it illegal tipping of controlled waste and therefore an offence under Part II? Or even worse, is it "land in a contaminated state" (causing harm or likely to cause harm) and exempted from statutory action under both Parts IIA and III? Once the contaminated land officer has become familiar with the new law, he or she must be fully aware when another system of enforcement takes precedent.3 This may not always be clear. These are just a selection of the pitfalls awaiting local government as it attempts over the next few years to steer its way through this minefield of complex legislation and scientific conundrums. Very little seems straightforward and the first signs are that this will remain the case for some time. Each site will have to be dealt with on its merits and assessments made on a site-specific basis. It will ultimately be for the courts to decide whether any hard and fast rules can be developed out of it all. Roger Braithwaite is an independent environmental health officer, Law Society approved expert witness and public sector training specialist. He is also director of Zero Environment Ltd. Tel: 01926 62 49 66. Fax: 01926 62 49 26 E-mail: roger@zeroenvironment.co.uk Web: www.zeroenvironment.co.uk REFERENCES:
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