Analysis: Ecological Risk Assessment

As new environmental damage regulations loom, the Environment Agency has launched a methodology to assess risks to ecosystems from land contamination. Samantha Deacon and Nicola Eury of Environ discuss the benefits of what may soon become the new blueprint for UK contamination investigations

Back in October, the Environment Agency launched a new methodology for assessing risks to ecosystems from land contamination - an area of environmental assessment that has so far largely been ignored in the UK.

Ecological receptors are commonly more sensitive and exposed than humans are to environmental contamination, although human health risks tend to dominate rule-making, remedial actions and other regulatory decisions.

However, many of the UK's plants, animals and habitats are legally protected under a range of local, national and international legislation. The extent of wildlife protection is usually legally defined but the scope often varies between regulations.

Nevertheless, there are sufficient similarities between the definitions of what constitutes harm that the assessment of the nature, extent and effects of contamination can be investigated using a common approach - the ecological risk assessment (ERA) framework. It is anticipated that the new ERA guidance will become the new blueprint for conducting contamination investigations and risk assessments in the UK.

Is there a market for ERA?
The primary regulators for dealing with land contamination and potential risks to ecosystems are the local authorities, with the support of the national conservation agencies. At the recent ERA launch, the represented authorities welcomed the new guidance but acknowledged that potential eco-receptors are likely to be low priority, while the risks to human health are still being addressed.

The market will therefore largely be driven by responsible corporates, industry and developers who are seeking to address corporate social responsibility aims and also deal with known or potential land, water or sediment contamination liabilities.

In addition, the commercial ERA process will involve and be driven by financial institutions, lawyers, insurers and conservationists looking to minimise or mitigate ecological impacts and liabilities. The timely arrival of the new ERA methodology
will enable the market to be in a position to meet the imminent environmental damage regulations, an area of responsibility of increasing interest to corporates.

The framework
The ERA Framework is a process for judging whether the protection of ecological systems is being or is likely to be adversely affected by chemical contamination now or in the future. The main features of the methodology are:
  • A conceptual site model for organising information about the site and confirming the plausibility of a pathway between a specific source of contamination and the ecological receptors
  • A causal link used to determine whether the incident or historical activities under investigation are the cause of contamination and are attributable to detrimental effects and, therefore, liability
  • The measure of damage or harm and the reference for restorative action is a comparison with the baseline condition and, if an operator is to avoid under- or over-compensatory action, then an accurate understanding of the baseline is vital
  • To ensure assessments are practical and measurable, indicators can be used to make reliable and consistent decisions. Examples of indicators for damage include growth and survival of populations and these parameters are compared with a baseline condition ("non-contaminated") often employing statistical confidence for a measure of "significance"
Ecosystems are complex and the process for assessing risks is necessarily sophisticated employing a range of tools for early screening or detailed risk assessment, including soil-screening values, toxicity testing and ecological survey methods.

Historic contamination
Risk to protected species and habitats from historic soil contamination are a statutory consideration under a range of regulatory regimes. ERA can be used to investigate historical contamination where operators may be liable for remedial work under such regimes as Contaminated Land (Part 2A), Water Resources and Habitats Regulations or through land or property sales or development in compliance with the planning regimes.

The method may yet be adopted for carrying out bespoke risk assessments where ecological receptors may need to be considered under environmental permitting applications and reviews, such as in the Environment Agency's H1 guidance. Specific protected habitats and organisms are defined receptors under Part 2A and "harm" is defined as harm to the health of living organisms or other interference with the ecological systems.

As such, the potential for contaminated soils to affect ecological receptors and protected habitats should form part of any contaminated-land assessment.
Development plans and decisions on individual planning applications take into account the potential sensitivity of the area to adverse effects from pollution, including nature conservation sites, under Planning and Pollution Control (Planning Policy Statement 23). The remediation of contaminated land through the planning process should secure the removal of unacceptable risk, and as a minimum, the land should not be capable of being determined as contaminated land under Part 2A of the Environmental Protection Act.

Risk to ecological receptors is a consideration under the Habitat Regulations, where an application under the UK system of land use planning, such as a review of permits, licences etc, is likely to impact on sites protected under the Conservation (Natural Habitats, &c) Regulations 1994 (Habitats Regulations).

The Environment Agency estimates that there may be 5,000 potentially polluting activities sited on or within 500 metres of a Part 2A designated "ecological receptor" location (such as a Site of Special Scientific Interest).

The ERA method originated in the USA and as the prototype for risk assessment methodologies has been used in product health and safety evaluations, contaminated site management and natural resource damage assessments by experts at environmental consultancy Environ for more than 20 years. Although the principles can be used in chemicals assessment (such as REACH), the primary role of the Environment Agency's new guidance is in investigating chemical contamination at or near commercial and industrial sites.

In recent months, there has been increasing awareness and interest on the part of corporate organisations on how to prepare for the enactment of the Environmental Liabilities Directive (ELD) in to UK law. The directive's transposition into UK law is imminent and is based on the polluter pays principle, making operators responsible for immediately responding to environmental damage and to take preventative actions if an imminent threat of damage exists. The scope covers specific types of damage to:
  • European protected species or natural habitats
  • Surface water or groundwater
  • Human health risks from land contamination
In the event of a pollution incident, the new ELD legislation makes operators liable for taking restorative and remedial action for environmental damage. The ERA framework will be used to assess the damage.

The ELD is similar in philosophy to the long-established US Natural Resource Damage (NRD) regulations where the monetary costs of restoring injuries to natural resources are evaluated by comparing the reduction in "services" provided by a natural resource to an appropriate baseline level of services.

Ecological services
Ecological services include natural biodiversity and services that benefit people such as food, timber, flood regulation and non-material benefits such as recreation and aesthetic enjoyment. The concept of ecological services increases the scope for damage and high settlement values as a consequence. Environ's NRD practitioners have negotiated settlements with an average of 90% saving for clients relative to the initial NRD claim. But, even with this level of saving, the company has participated in settlements totalling more than £686M.

In the UK, the government's estimate of the impact of ELD to domestic regulation is more cautious than the US experience of damage assessment and probably rightly so, given our lower tendency to litigate and greater reliance on self-regulation. In consultation documents, Defra estimates there could be 18 to 33 cases a year of damage to biodiversity (including occasional severe cases) in England, Wales and Northern Ireland. The corresponding estimates for total costs of damage are between £700,000 and £6.9M a year. Due to limited biodiversity information, the government admits that quantifying costs and predicting the numbers of cases of damage was difficult with many data gaps being filled by expert judgment.

What are the actions?
Whether for ELD or contaminated land regulation, assessing the risks posed to ecosystems from chemical contamination can no longer be overlooked. In practice, it is anticipated that the assessment of damage to ecosystems will quickly become mainstream in the UK, whether to mitigate potential liabilities as part of land or company transactions, or to demonstrate corporate commitment to reducing the impact on the environment. ERA will become routine in due diligence, contaminated land, planning, environmental permitting, underwriting of environmental insurance and habitats regulation.

It will be important for land owners and industrial operators to know how to prepare their operational activities for environmental damage under ELD and, in particular, to know their site's baseline condition. Ecosystems may not be in equilibrium with their environment either because of past contamination or changes in external factors such as human disturbance. As the legislation requires ecosystems to be returned to a state that would have existed had the damage not occurred, it is crucial that accurate baseline conditions are known and operators do not wait for an accident to happen. Now there is an approved regulatory methodology, there is good reason to foresee and reduce liabilities.

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