Industry’s contamination battlefield

Over the last year and a half one of the most demanding and complex environmental regulations has been put into practice in the UK – the Integrated Pollution Prevention and Control (IPPC) regime. The main emphasis is the prevention of pollution at source, and where that is not practicable, reducing emissions to air, water and land.

The IPPC legislation replaces the system of Integrated Pollution and Control (IPC), and Local Authority Pollution Control (LAPC). It applies to many more industries than before and has a much more extensive remit than any environmental regulation industry has come across previously. One of the obvious differences is the completion of a Site Report before any installation can operate under IPPC.

Site reporting

Carl Bro UK Ltd is working in partnership with a number of companies to help them through their IPPC permit application. The Site Report is one of the largest expenditures of the IPPC application process where operators have to investigate the condition of their land to provide a baseline report against which any future possible pollution can be measured.

Operators have found that these site investigations can be costly, but according to the Environment Agency, they are essential to the application. But there is, in fact, an incentive for the operator to carry out as full an investigation into soil and groundwater conditions at their site as is possible.

If ground contamination is missed at the time of the initial site report, but picked up as part of the preparation of the surrender report, then it may be inferred that this contamination arose as part of the operation authorised by the IPPC permit. As a consequence, the operator may be placed under an obligation, which it could otherwise have avoided, to clean up the contamination when they surrender their permit.

IPPC and contamination

Another common finding is that of confusion over Site Reporting as part of IPPC and the potential liabilities under the Contaminated Land regime (commonly known as ‘Part IIA’ of the Environmental Protection Act, 1990). The latter regime covers the clean up of historic contamination and requires local authorities to identify sites that fall within the statutory definition of contaminated land and to secure remediation by voluntary or other means. With historical contamination the ‘suitable for use’ standard is adopted for clean up, whereas with IPPC the emphasis is placed upon removing contaminants added during the permit’s operation, irrespective of the use of the land.

The Site Reporting requirement of IPPC is not intended to be a means of enforcing remediation of historical contamination which occurred before the issue of an IPPC permit, and in theory, there is no overlap between the IPPC legislation and the controls over clean up of historically contaminated land under Part IIA.

In practice, however, the information on site contamination which is a necessary part of the application for an IPPC permit will give local authorities and the Environment Agency (as regulators under Part IIA) the opportunity of identifying those sites which might be potentially designated sites under the contaminated land regime.

So the dilemma for operators is that they will have to balance a desire to portray the site in its ‘dirtiest’ state prior to commencement of the permit in order to establish a worst case comparison when it comes to site closure, against the inevitable investigations and enforcement under the Part IIA regulations where the site condition report discloses heavy historical contamination.

What’s included?

The process layout, the identification of chemicals used in the process and a site plan showing your installation boundary are just a few of the fundamental requirements of a Site Report.

A conceptual site model including all potential contamination sources, pathways and receptors is also essential, but a common mistake is the inclusion of a risk assessment within the Site Report. An analysis of the risks associated with any contamination is not required and will simply be an extra cost to the operator in terms of time and money to complete.

If your site investigation results indicate high levels of potentially contaminating substances, the best way forward would be to appoint an environmental adviser to firstly compile a separate report on the potential risks to the environment and human health to establish any possible liabilities, and secondly to help you establish whether your site could be deemed as contaminated land under Part IIA.

Be prepared

Up to now we have found that many companies have had a request from the Environment Agency for more information within their Site Report, which without doubt costs them more in the long run.

Carl Bro UK have found that these companies are primarily those that have not followed the guidance issued by DEFRA and the Environment Agency, nor have they sought appropriate advice on specialist tasks from the start.

To achieve the most accurate baseline for the Site Report, investigations should be undertaken as near to the application deadline as possible. However, our advice to companies due to fall under the IPPC regime in the future is that the earlier you start on preparing your application the more cost effective and stress-free the process will be.