New pollution prevention regulations too vague

At a joint Environment Agency and Confederation of British Industries (CBI) conference on the new regime, Mark Brumwell, a partner with SJ Berwin & Co, specialising in environmental law, outlined the importance of carrying out adequate site surveys in order for companies to protect themselves against future legal and environmental risks.

The new IPPC regulations are being phased in between 2001 and 2007, starting with the paper and pulp industry at the end of February this year, following a three year preparation period by the Environment Agency, an Agency spokesperson told edie. The new regime will require companies which are intending to carry out potentially polluting activities to compile two site reports, one prior to the activity, and one following it, which will indicate how the site has deteriorated. However, according to Brumwell, the Government’s regulations are vague, leaving the detail and precise scope of the reports to the companies concerned. “How much effort should be devoted to the preparation of a site report?” asks Brumwell. “The answer lies in the site operator’s attitude towards risk, and the potential for cost savings in preparing one report for many purposes.”

“The less investigation undertaken and information provided in the initial site report, the greater the risk that a permit holder will be required to clean up contamination caused before the … permit is granted,” explained Brumwell. “A less comprehensive site report is also unlikely to satisfy commercial purchasers and funders and would not be desirable for a company keen to emphasise its ‘green’ credentials.”

The drawback to a thorough preliminary site survey, however, is that un-remediated contamination from previous activities may be identified, which could cause the site to fall under the much tighter controls of the contaminated land regime of the 1990 Environmental Protection Act, said Brumwell. However, a ‘better-not-to-know’ approach to the problem is unlikely to protect a site operator from future liability due to the probability of such high levels of contamination being discovered by a third party, as well as being ethically unacceptable. “Turning the Nelsonian blind eye to a foreseeable pollution risk is a dangerous practice and is unlikely to provide long term protection against liability,” he said.

Henry Derwent, Director of Environment and Risks at the DETR, emphasised the importance of industry for the infrastructure of the UK, but pointed out that it is important to ensure that their activities are sustainable. “While we have no intention to impose excessive costs on industry and lumber them with a regulatory mess, we will not tolerate gross polluters,” he said.

The new regime will promote consistency and clarity of regulation, for the regulator, industry and the public, said Derwent, also emphasising other advantages of the scheme, such as its provision to take account of noise pollution, waste minimisation, and could significantly cut carbon dioxide emissions. “It will also represent a significant step towards our goal of a single integrated pollution control regime covering all waste management operations, as announced in the new waste strategy,” he said.

“This process has been a good example of effective dialogue between Government, industry and other stakeholders,” said Derwent. “I look forward to seeing this spirit of constructive co-operation continuing through to its implementation.”