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Environment Protection Act 1990: Part IIA Contaminated Land

PART 6 - The Practicability, Effectiveness and Durability of Remediation

C.44 The statutory guidance in this Part is issued under section 78E(5)(b) and is relevant to the guidance given in Part 4 on the standard to which land and waters should be remediated.

General Considerations

C.45 In some instances, there may be little firm information on which to assess particular remediation actions, packages or schemes. For example, a particular technology or technique may not have been subject previously to field-scale pilot testing in circumstances comparable to those to be found on the contaminated land in question. Where this is the case, the enforcing authority should consider the effectiveness and durability which it appears likely that any such action would achieve, and the practicability of its use, on the basis of information which it does have at that time (for example information derived from laboratory or other "treatability" testing).

C.46 If the person who will be carrying out the remediation proposes the use of an innovative approach to remediation, the enforcing authority should be prepared to agree to that approach being used (subject to that person obtaining any other necessary permits or authorisations), notwithstanding the fact that there is little available information on the basis of which the authority can assess its likely effectiveness. If the approach to remediation proves to be ineffective, further remediation actions may be required, for which the appropriate person will be liable.

C.47 However, the enforcing authority should not, under the terms of a remediation notice, require any innovative remediation action to be carried out for the purposes of establishing its effectiveness in general, unless either the person carrying out the remediation agrees or there is clear evidence that it is likely that the action would be effective on the relevant land or waters and it would meet all other requirements of the statutory guidance in this Chapter.

The Practicability of Remediation

C.48 The enforcing authority should consider any remediation as being practicable to the extent that it can be carried out in the circumstances of the relevant land or waters. This applies both to the remediation scheme as a whole and the individual remediation actions of which it is comprised.

C.49 In assessing the practicability of any remediation, the enforcing authority should consider, in particular, the following factors:

(a) technical constraints, for example whether

(i) any technologies or other physical resources required (for example power or materials) are commercially available, or could reasonably be made available, on the necessary scale, and

(ii) the separate remediation actions required could be carried out given the other remediation actions to be carried out, and without preventing those other actions from being carried out;

(b) site constraints, for example whether

(i) the location of and access to the relevant land or waters, and the presence of buildings or other structures in, on or under the land, would permit the relevant remediation actions to be carried out in practice, and

(ii) the remediation could be carried out, given the physical or other condition of the relevant land or waters, for example the presence of substances, whether these are part of other pollutant linkages or are not pollutants;

(c) time constraints, for example whether it would be possible to carry out the remediation within the necessary time period given the time needed by the person carrying out the remediation to

(i) obtain any necessary regulatory permits and constraints, and

(ii) design and implement the various remediation actions; and

(d) regulatory constraints, for example whether

(i) the remediation can be carried out within the requirements of statutory controls relating to health and safety (including engineering safety) and pollution control,

(ii) any necessary regulatory permits or consents would reasonably be expected to be forthcoming,

(iii)any conditions attached to such permits or consents would affect the practicability or cost of the remediation, and

(iv) adverse environmental impacts may arise from carrying out the remediation (see paragraphs C.51 to C.57 below).

C.50 The responsibility for obtaining any regulatory permits or consents necessary for the remediation to be carried out rests with the person who will actually be carrying out the remediation, and not with the enforcing authority. However, the authority may in some circumstances have particular duties to contribute to health and safety in the remediation work, under the Construction (Design and Management) Regulations 1994 (S.I. 1994/3140).

Adverse Environmental Impacts

C.51 Although the objective of any remediation is to improve the environment, the process of carrying out remediation may, in some circumstances, create adverse environmental impacts. The possibility of such impacts may affect the determination of what remediation package represents the best practicable techniques for remediation.

C.52 Specific pollution control permits or authorisations may be needed for some kinds of remediation processes, for example:

(a) authorisations under Part I of the Environmental Protection Act 1990 (Integrated Pollution Control and Local Air Pollution Control);

(b) site or mobile plant licences under Part II of the Environmental Protection Act 1990 (waste management licensing);

(c) discharge consents under Part II of the Control of Pollution Act 1974; or

(d) authorisations under the Groundwater Regulations 1998 (disposal or tipping of matter containing listed substances to land or activities other than disposal or tipping which might lead to indirect discharges of listed substances to groundwater).

C.53 Permits or authorisations of these kinds may include conditions controlling the manner in which the remediation is to be carried out, intended to prevent or minimise adverse environmental impacts. Where this is the case, the enforcing authority should assume that these conditions provide a suitable level of protection for the environment.

C.54 Where this is not the case, the enforcing authority should consider whether the particular remediation package can be carried out without damaging the environment, and in particular:

(a) without risk to water, air, soil and plants and animals;

(b) without causing a nuisance through noise or odours;

(c) without adversely affecting the countryside or places of special interest or damaging habitats; and

(d) without adversely affecting a building of special architectural or historic interest (that is, a building listed under town and country planning legislation or a building in a designated Conservation Area) or site of archaeological interest (as defined in Article 2 of The Town and Country Planning (General Permitted Development) (Scotland) Order 1992).

C.55 If the enforcing authority considers that there is some risk that the remediation might damage the environment, it should consider whether:

(a) the risk is sufficiently great to mean that the balance of advantage, in terms of improving and protecting the environment, would lie with adopting an alternative approach to remediation, even though such an alternative may not fully achieve the objectives for remediation set out at paragraph C.18 above; or

(b) the risk can be sufficiently reduced by including, as part of the description of what is to be done by way of remediation, particular precautions designed to prevent the occurrence of such damage to the environment (for example, precautions analogous to the conditions attached to a waste management licence).

C.56 In addition, the enforcing authority should consider whether it is likely that the process of remediation might lead to a direct or indirect discharge into groundwater of a substance in either List I or List II of the Schedule to the Groundwater Regulations 1998 (S.I. 1998/2746). (For these purposes, the terms direct discharge, indirect discharge and groundwater have the meanings given to them in the 1998 Regulations.)

C.57 If the enforcing authority considers that such a discharge is likely, it should (where that authority is not SEPA) consult SEPA, and have regard to its advice on whether an alternative remediation package should be adopted or precaution required as to the way that remediation is carried out.

The Effectiveness of Remediation

C.58 The enforcing authority should consider any remediation as being effective to the extent to which the remediation scheme as a whole, and its component remediation packages, would achieve the aims set out in paragraph C.18 above in relation to each of the significant pollutant linkages identified on the relevant land or waters. The enforcing authority should consider also the extent to which each remediation action, or group of actions required for the same particular purpose, would achieve the purpose for which it was required.

C.59 Within this context, the enforcing authority should consider also the time which would pass before the remediation would become effective. In particular, the authority should establish whether the remediation would become effective sufficiently soon to match the particular degree of urgency resulting from the nature of the significant pollutant linkage in question. However, the authority may also need to balance the speed in reaching a given level of effectiveness against higher degrees of effectiveness which may be achievable, but after a longer period of time, by the use of other remediation methods.

C.60 If any remedial treatment action representing the best practicable techniques will not fully achieve the standard set out in paragraph C.18 above, the enforcing authority should consider whether additional monitoring actions should be required.

The Durability of Remediation

C.61 The enforcing authority should consider a remediation scheme as being sufficiently durable to the extent that the scheme as a whole would continue to be effective with respect to the aims in paragraph C.18 above during the time over which the significant pollutant linkage would otherwise continue to exist or recur. Where other action (such as redevelopment) is likely to resolve or control the problem within that time, a shorter period may be appropriate. The durability of an individual remediation action is a measure of the extent to which it will continue to be effective in meeting the purpose for which it is to be required taking into account normal maintenance and repair.

C.62 Where a remediation scheme cannot reasonably and practicably continue to be effective during the whole of the expected duration of the problem, the enforcing authority should require the remediation to continue to be effective for as long as can reasonably and practicably be achieved. In these circumstances, additional monitoring actions may be required.

C.63 Where a remediation method requires on-going management and maintenance in order to continue to be effective (for example, the maintenance of gas venting or alarm systems), these on-going requirements should be specified in any remediation notice as well as any monitoring actions necessary to keep the effectiveness of the remediation under review.

PART 7 - What is to be Done by Way of Remediation?

C.64 The statutory guidance in this Part is issued under section 78E(5)(a) and provides guidance on the determination by the enforcing authority of what is to be done by way of remediation — in particular, on the circumstances in which any action within the three categories of remediation action (that is, assessment, remedial treatment and monitoring actions) should be required.

Assessment Action

C.65 The enforcing authority should require an assessment action to be carried out where this is necessary for the purpose of obtaining information on the condition of the relevant land or waters which is needed:

(a) to characterise in detail a significant pollutant linkage (or more than one such linkage) identified on the relevant land or waters for the purpose of enabling the authority to establish what would need to be achieved by any remedial treatment action;

(b) to enable the establishment of the technical specifications or design of any particular remedial treatment action which the authority reasonably considers it might subsequently require to be carried out; or

(c) where, after remedial treatment actions have been carried out, the land will still be in such a condition that it would still fall to be identified as contaminated land, to evaluate the condition of the relevant land or waters, or the incidence of any significant harm or pollution of controlled waters, for the purpose of supporting future decisions on whether further remediation might then be required (this applies where the remediation action concerned would not otherwise constitute a monitoring action).

C.66 The enforcing authority should not require any assessment action to be carried out unless that action is needed to achieve one or more of the purposes set out in paragraph C.65 above, and it represents a reasonable means of doing so. In particular, no assessment action should be required for the purposes of determining whether or not the land in question is contaminated land. For the purposes of this guidance, assessment actions relate solely to land which has already been formally identified as contaminated land, or to other land or waters which might be affected by it. The statutory guidance in Chapters A and B sets out the requirements for the inspection of land and the manner in which a local authority should determine that land appears to it to be contaminated land.

Remedial Treatment Action

C.67 The enforcing authority should require a remedial treatment action to be carried out where it is necessary to achieve the standard of remediation described in Part 4, but for no other purpose. Any such remedial treatment action should include appropriate verification measures. When considering what remedial treatment action may be necessary, the enforcing authority should consider also what complementary assessment or monitoring actions might be needed to evaluate the manner in which the remedial treatment action is implemented or its effectiveness or durability once implemented.

Monitoring Action

C.68 The enforcing authority should require a monitoring action to be carried out where it is for the purpose of providing information on any changes which might occur in the condition of a pollutant, pathway or receptor, where:

(a) the pollutant, pathway or receptor in question was identified previously as part of a significant pollutant linkage; and

(b) the authority will need to consider whether any further remedial treatment action will be required as a consequence of any change that may occur.

C.69 Monitoring action should not be required to achieve any other purpose, such as general monitoring to enable the enforcing authority to identify any new significant pollutant linkages which might become present in the future. This latter activity forms part of the local authority’s duty, under section 78B(1), to cause its area to be inspected from time to time for the purpose of identifying any contaminated land.

What Remediation should not be Required?

C.70 The enforcing authority should not require any remediation to be carried out for the purpose of achieving any aims other than those set out in paragraphs C.18 to C.24 above, or purposes other than those identified in this Part of this Chapter. In particular, it should not require any remediation to be carried out for the purposes of:

(a) dealing with matters which do not in themselves form part of a significant pollutant linkage, such as substances present in quantities or concentrations at which there is neither a significant possibility of significant harm being caused nor a likelihood of any pollution of controlled waters being caused; or

(b) making the land suitable for any uses other than its current use, as defined in paragraphs A.26 and A.27 in Chapter A.

C.71 It is, however, always open to the owner of the land, or any other person who might be liable for remediation, to carry out on a voluntary basis remediation to meet these wider objectives.

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