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7. Determining remedial measures

Chapter 7 sets out how remedial measures are determined. It introduces the approaches to be used to identify potential measures and how those measures should be evaluated.

Process for determining remedial measures

7.1 In many cases it is envisaged that operators will be well placed to identify remedial measures themselves and the Regulations give them the opportunity to propose measures which the authority must take into account in taking decisions. It is envisaged that the process of identifying remedial measures should be a collaborative one whereby the authority and operator co-operate with each other to ensure that the most appropriate measures are identified without undue cost or delay to either party. Ultimate responsibility for deciding the measures to be undertaken rests with the authority.

7.2 Once it has notified the operator that the damage is relevant under the Regulations, it is expected that the authority will consult the operator as soon as possible on whether or not he intends to propose measures. The operator should be given a main point of contact for the case although depending on the circumstances input from several officers within or across authorities may be required.

7.3 In practice authorities and operators may not have all the necessary expertise or capacity in house to identify remedial measures and will need to obtain the appropriate expertise from other bodies.

Where the operator proposes measures

7.4 If the operator informs the authority that he will propose measures, the authority must then inform him that measures must be proposed without delay. Proposals will need to be consistent with Schedule 3 of the Regulations (this chapter provides guidance on Schedule 3). The operator may wish to consult the authority while developing measures to increase the likelihood that any measures proposed are acceptable to the authority. It should be noted that authorities will recover costs incurred from the operator.

7.5 It is for the operator to decide what information to include in proposing measures and how many options to include. Some of the types of information that authorities are likely to need to be able to take decisions are given below.

7.6 When the operator has submitted any measures to the authority, the authority must then evaluate the options for remediation including those submitted by the operator and any others it sees fit to consider. The authority may request further information from the operator relevant to the damage, to measures that the operator has proposed or to different measures.

Where the operator does not propose measures

7.7 If the operator informs the authority that he does not wish to propose measures, or if the authority does not hear from the operator, the authority will identify remedial measures.

Where the operator appeals actions required by the competent authority

7.8 If the operator appeals and the appeal is unsuccessful or the operator withdraws the appeal, the same processes as above will then apply.

CHAPTER 7 FLOWCHART: DETERMINING REMEDIAL MEASURES

Identifying potential remedial measures (water and species and habitats)

7.9 This section provides introductory guidance on the approach to identifying potential remedial measures for damage to species and habitats and water damage. The Regulations require a different and more comprehensive approach to remediation of damage to water or protected species or natural habitats compared to that for damage to land. The approach required introduces new terms and concepts, most of these are explained in the text below but it is worth explaining briefly two terms that are used throughout.

• Natural resources: In this context natural resources refers to protected species and natural habitats, and the water covered by the Regulations.
• Services or impaired services refer to the functions performed by a natural resource for the benefit of another natural resource or the public.

Remediation objectives

7.10 The Regulations require that where there is damage to water or protected species or natural habitats the environment should be fully restored through a package of primary, complementary and compensatory remediation. (Part I of Schedule 3).

• Primary restoration consists of those measures which return the damaged resources or impaired services to or towards the condition they were in before the damage took place.
• Complementary restoration consists of measures to compensate for where primary restoration does not fully return the damaged natural resources or impaired services to the condition they were in before the damage took place. Where primary restoration does not secure return of resources to their previous condition, complementary restoration must be undertaken. Measures can either be taken at the damaged site or an alternative site but where possible and appropriate the alternative site should be geographically linked to the damaged site taking into account the interests of the damaged natural resources or impaired services.
• Compensatory restoration consists of measures to compensate for interim losses of natural resources or services that arise from when the damage took place until primary and complementary restoration have achieved their full effect. Compensatory restoration must be undertaken where there are interim losses. Compensatory restoration can be taken either at the damaged site or an alternative site. It does not consist of financial compensation to the public.

Primary, complementary and compensatory restoration

7.11 Restoring damaged resources and impaired services (or what the Regulations term primary restoration) will be a familiar notion to most readers as several existing regimes already require that resources and services are restored to or towards their original condition. The central principle behind requirements for complementary restoration and compensatory restoration in addition to primary restoration is to make those who have caused environmental damage responsible for the full consequences of the damage.

7.12 Complementary restoration recognises that in some cases it will not be possible or desirable to restore resources or services to their previous condition or to do so within a reasonable timeframe. Extreme examples of this may be where an incident of damage has removed the last individuals of a particular species or where an ancient woodland has been damaged and it may be better to take measures to improve some other part of the woodland or another woodland than to plant and manage new woodland over a sufficient timescale. It may also be that the authority is satisfied that measures taken at an alternative site are equally beneficial to measures at the damaged site, and significantly cheaper.

7.13 Generally where environmental damage arises it will take some time before the resources and services recover to their previous condition. During this time, and as a result of the environmental damage, the public or other natural resources will not be able to benefit from them. Extreme examples of this may be where an incident has removed bird populations for a period of time from an area regularly visited by birdwatchers, or where an incident has removed a breeding ground for fish. Compensatory restoration recognises this, requiring measures to be taken to compensate for it.

7.14 There is flexibility in the combination of primary, complementary and compensatory restoration measures that can be proposed by the operator or chosen by the authority. Measures where primary restoration does not fully restore resources or services can be chosen as long as an equivalent level of resources and services is provided as complementary restoration. Likewise measures where primary restoration restores resources or services to their previous condition more slowly can be chosen as long as compensatory restoration provides a similar level of resources and services to those lost pending recovery. The extent to which this flexibility is exercised is for the authority's judgement on a case-by-case basis. The section on the evaluation of options sets out the criteria that authorities are required to use in deciding which measures should be carried out.

Primary, complementary and compensatory restoration: potential measures

7.15 Primary restoration encompasses the full range of possibilities for returning resources and services to or towards the condition they would have been in but for the damage. Primary measures will depend on the natural resources damaged and the circumstances of the case.

7.16 Possible primary measures include 'natural recovery' which entails allowing the resources and services to recover naturally. Natural recovery should always be considered and in many cases will be the best option. Natural recovery does not necessarily mean doing nothing as it will often involve some active intervention such as removing the factors or pressures ( e.g. chemicals or physical obstructions) that were responsible for the decline of the natural resources or services or containing the area to facilitate recovery. In general natural recovery will be a managed process, with at least some degree of monitoring.

7.17 Primary measures might also involve a wide range of other actions such as:

• Removing or protecting against other pressures on the resources and services ( e.g. other obstructions or alien species)
• Re-stocking or re-introductions of damaged species ( e.g. fish)
• Seeding, planting or replanting vegetation
• Engineering works to provide habitats ( e.g. riffles and eddies in rivers)
• Removing bottlenecks like impassable weirs and culverts
• Providing fish passes
• Providing conservation staff to manage and maintain sites
• Developing and implementing strategic management plans
• Implementing restrictions to access
• Implementing improvements to access ( e.g. to increase the capacity for the public to benefit from a service)
• Providing monitoring capacity

7.18 In some cases the options for measures that directly improve or recover damaged resources directly may be limited. This may be the case especially in the marine environment. In these cases options which contribute to the prevention or mitigation of other pressures may be more normal.

7.19 Complementary and compensatory measures involve providing, enhancing or improving resources and services either at the site of damage or at an alternative site. In the case of compensatory remediation, measures may be additional improvements to those resources and services that were damaged. The range of actions undertaken as complementary and compensatory remediation is similar to those for primary remediation, except that:

• Natural recovery is not an option unless it results from specific actions taken as complementary and compensatory remediation
• Complementary and compensatory remediation may involve providing resources and services that were not previously present at a site

Introduction to quantitative assessment approaches

7.20 This sub-section provides introductory guidance on the approaches for assessing how to provide a similar level of resources or services in the form of complementary and compensatory remediation ¹¹. There are alternative approaches available for identifying and quantifying measures and the Regulations specify a preference for which should be used, as follows:

• The use of resource-to-resource or service-to-service equivalency approaches shall be considered first: if possible providing resources or services of the same type, quality and quantity and if not providing alternative resources or services. The approaches that come under this bracket considered in this guidance are 'Resource Equivalency Analysis' and 'Habitats Equivalency Analysis'.
• If this is not possible then alternative valuation techniques shall be used: if possible providing resources or services whose value is the same as the value of the lost resources or services and if not whose cost is the same as the value of the lost resources or services.

7.21 Whichever approach is used the basic principle is to find a way of expressing the losses of resources and services in the same units as the gains to be provided through complementary and compensatory remediation. This is in order to calculate the scale of (or "to scale") measures needed to be equivalent to the losses. This is illustrated first through resource equivalency approaches below.

Resource and Habitats Equivalency Analysis ( REA and HEA)

7.22 These approaches have been developed in recent years to assess remedial measures required under US environmental liability regimes. Resource Equivalency Analysis and Habitats Equivalency Analysis are the main approaches relevant to the Regulations. In essence these two approaches are similar, the main difference is the first generally measures numbers of a particular resource ( e.g. birds, fish, trees) and the second measures the area or extent of a particular resource ( e.g. hectares of grassland or miles of river). The next few paragraphs introduce in simple terms how these approaches work.

7.23 First the losses of resources or services must be identified and quantified. The units used in REA consist of two parameters:

number of individuals lost X the time for which they are lost

So if 1000 fish are killed and replaced (as primary remediation) after 2 years, the loss would be 2,000 fish-years. Damage to habitats in particular may generally not divide into individuals in the same way and so the units used in Habitats Equivalency Analysis consist of three parameters:

% reduction in service X area affected X time service reduction lasts

So if an area of 10 hectares of wetland is damaged, the service loss is estimated to be 50% and measures are implemented (as primary remediation) so that the wetland starts to provide 100% of its service again after 10 years, the loss would be 50 service-hectare-years.

7.24 Once the losses have been established, projects that compensate for them should then be identified and quantified. In the cases both of the fish and the wetland above it is assumed that primary remediation achieves return to original condition but there is an interim loss so compensatory remediation is necessary. To compensate for the interim loss of fish a nearby river is identified as being under-stocked and benefiting from stocking. It is estimated that each fish restocked will last 6 years and so every fish replaced would represent 6 fish-years. Likewise it is identified that the damaged wetland could beneficially be extended to encompass an area of wasteland. The wasteland currently provides the equivalent of 0% service, that turning it into wetland will increase its services to 100% which will last for 30 years. Each hectare provided would therefore represent 30 service-hectare-years (100% x 1 x 30).

7.25 In practice as the losses and gains occur across time in the past, present and future, and potentially arise at different times from each other it is necessary to 'discount' the units to express them in 'present value' terms ¹². Discounting may be a familiar concept from the financial arena where investments made in different time periods are similarly discounted so that they can be compared on an equal basis.

7.26 The next step is to work out the scale of remediation projects necessary to compensate fully for losses. This is done by dividing the number of 'lost' units by the number of units gained per fish/hectare /etc. of remediation. For the fish illustration this would mean restocking with 382 fish (1966 ÷ 5.15) and for the wetland example it would mean creating 3.2 hectares of wetland (43.0 ÷ 13.5).

Identifying remedial measures (land)

7.27 This section provides guidance on identifying remedial options for damage to land. In some cases of 'damage' there may be damage to land and damage to water or damage to species or habitats, or there may be all three types of damage. In these cases the requirements in the Regulations for both damage to land and for the other type/s of damage need to be met.

7.28 Part II of Schedule 3 to the Regulations deals with remediation of damage to land. It states:

2. The necessary measures shall be taken to ensure, as a minimum, that the relevant contaminants are removed, controlled, contained or diminished so that the contaminated land, taking account of its current use or approved future use at the time of the damage, no longer poses any significant risk of adversely affecting human health.

3. The presence of such risks shall be assessed through risk-assessment procedures taking into account the characteristic and function of the soil, the type and concentration of the harmful substances, preparations, organisms or micro- organisms, their risk and the possibility of their dispersion.

4. Use shall be ascertained on the basis of the land use regulations, or other relevant regulations, in force, if any, when the damage occurred.

5.If the use of the land is changed, all necessary measures shall be taken to prevent any adverse effects on human health.

6. If land use regulations, or other relevant regulations, are lacking, the nature of the relevant area where the damage occurred, taking into account its expected development, shall determine the use of the specific area.

7. A natural recovery option, that is to say an option in which no direct human intervention in the recovery process would be taken, shall be considered.

7.29 The Model Procedures for the Management of Land Contamination ( CLR 11) ¹³ provide extensive guidance for developing the remedial measures and objectives in a systematic manner, reflecting current best practice in the contaminated land field. It also provides guidance on the actions to assess the effectiveness of remediation actions that have been undertaken, or of natural recovery (monitoring actions).

7.30 When dealing with cases of 'land damage', it will be advantageous to refer to any requirements of any permits, licences or permissions to which the land or activity is subject, to ensure a coherent approach to remedying the damage. It will also be advantageous to consider the possibility that there may be pre-existing contamination on, or affecting, the site which is presenting risk (for examples to other aspects of the environment as well as to human health) which could also be dealt with at the same time. Similarly, there may be contamination arising from the incident or event being addressed under the regulations that may have adverse effects in addition to human health effects. It will be advantageous to consider these to avoid future liability and legal action.

7.31 Where land contamination is a feature of cases that are also or may also be water damage or damage to protected species or natural habitats, whether or not human health effects are present, the above guidance may be taken into account.

7.32 The Regulations require a minimum standard of recovery of "the elimination of any significant risk of adversely affecting human health".

7.33 Where land use changes subsequent to remediation, local authorities will be able to ensure, in particular through the planning system and building control system, that any risk that might arise in connection with a proposed new use of the land is considered and appropriate action taken. They should also takes steps to ensure that remedial measures are not prejudiced through subsequent development or other actions on the land (for example, that containment systems for contaminants or monitoring measures are not damaged through ignorance of their existence or function)

Decisions on remedial measures

Measures proposed by operators

7.34 Where the operator has agreed with the authority to identify measures he must submit them to the authority as soon as possible. It is for the operator to decide what information to include in proposing measures and how many options to propose. The authority will need sufficient information on any options proposed to be able to take them fully into account in deciding which option should be chosen. Information that may be useful to the authority will include:

• Time and location of damage
• A description of the resources and services damaged including the nature, severity and extent of damage
• A description of each option including:
  • Objectives of remediation
  • Actions taken as primary, complementary and compensatory measures and their location
  • Results expected
  • Measures to address uncertainty
  • The calculations and workings informing estimates of the scale of any complementary and compensatory measures
• Other information to inform the authority's consideration of the criteria identified below.
• Methods statement
• Project management and monitoring arrangements
• Identification of data, modelling and expertise used to inform identification of remedial measures.

Evaluation of options for remediating damage to water or to protected species and natural habitats

7.35 In the case of damage to water or to protected species or natural habitats the authority must evaluate the options it considers may be appropriate including any options proposed by the operator on the basis of specific criteria. Evaluating options may for example, include deciding between improving different natural resources or services, between similar resources but at different sites or between restoring the damaged resources and services to different levels or at different speeds. The criteria are as follows:

(a) the effect of each option on public health and safety,

(b) the cost of implementing the option,

(c) the likelihood of success of each option,

(d) the extent to which each option will prevent future damage, and avoid collateral damage as a result of implementing the option,

(e) the extent to which each option benefits to each component of the natural resource and/or service,

(f) the extent to which each option takes account of relevant social, economic and cultural concerns and other relevant factors specific to the locality,

(g) the length of time it will take for the restoration of the environmental damage to be effective,

(h) the extent to which each option achieves the restoration of site of the environmental damage,

(i) the geographical linkage to the damaged site.

7.36 The authority will need to be satisfied that the measures it chooses are sufficient to restore the natural resources or habitats to their condition before the damage took place, or equivalent, through a combination of primary, complementary and compensatory restoration. It will need to exercise judgement on how to balance the criteria above in any particular case and will need to record the basis on which the decision was made. It should use the best data, models, quantitative methods and expertise appropriate to the nature and scale of the case under consideration.

7.37 The authority may decide that no further measures need be taken if

• The remedial measures already taken have removed any significant threat of adversely affecting human health, water or protected species and natural habitats, and
• The cost of the remedial measures needed for restoration to its state before the incident would be disproportionate to the environmental benefits to be obtained

Consulting interested parties

7.38 Before approving remedial measures, the authority must consult any person:

• who is affected or likely to be affected by environmental damage;
• who has a sufficient interest in the environmental decision making relating to the environmental damage;
• who alleges a title to sue; or
• the owner or occupier.

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