New regulations loom for land remediation

The subject of land remediation has long been cloaked in confusion with contradictory regulations, confusion over permits and most legislation remaining open to interpretation. Recently some issues – such as the definition of waste – have been clarified and many in the industry agree that regulation has improved, but with a whole new raft of European Directives coming this way, is the world of remediation about to be thrown into uncertainty again?

Managing Director of Churngold Remediation, Craig Sillars thinks that the swiftly approaching regulations might cause a bit of a shake up. “The main purpose of upcoming directives like Soil and Environmental Liability is to improve de-contamination processes, but it does seem like some of the new legislation may be confusing and have less impact than expected. Some of it may not be implemented at all, causing further hold ups.”

Environmental Liability Directive

An example of a relatively low impact regulation is the Environmental Liability Directive (ELD). Although it has been described by the Environment Agency as “one of the most controversial, and potentially far-reaching, pieces of environmental legislation negotiated by the EU to date,” it now appears that the main change involved will only create opportunity for a limited number of remediation contractors – probably just applying to between 15 and 20 sites in the UK. To be transposed into national legislation by 30 April 2007, the directive has introduced a compensatory remediation regulation, whereby if an industrial activity has irreparably damaged a designated ecological site next door and it can’t be cleaned up, the operators responsible may be obliged to provide a new equivalent site elsewhere.

“If for example the area was a Site of Special Scientific Interest (SSSI), operators would be obligated to try and recreate this elsewhere,” explains Phil Crowcroft, partner at ERM. “So if a site discharged pollutants into an estuary where there were wading birds etc and the wildlife became irreversibly harmed, another area would need to be provided. However this could prove to be a tough concept to enforce, because in practice it will be very difficult to find locations for this to be followed through”.

The ELD regulations also cover the pollution of any waters protected by the Water Framework Directive and any area that could threaten human health.

Water Framework Directive

Approaching phases of the Water Framework Directive are likely to have a more noticeable effect on the industry due to the water basin portfolio. This dictates that if a company owns a number of sites, such as, for example, sewage works in the same catchment area, the pollutant effects in combination may cause the water to fail to meet quality standards, so they will have to make improvements. WFD implementation regulations for 2009 have river basin catchment plans in place to meet water quality. SitesOperators that fail will need to remediate their sites. If polluted groundwater is impacted by poor water quality from any single site, operators may also be required to remediate. Water bodies will need to meet a good quality standard by 2015.

Soil Directive

The new Soil Directive appears to be having teething problems after a report in June’s Brownfield Briefing suggested that the Soil Thematic Strategy proposal has been knocked back – just days before it was due to be adopted. The Strategy, which would have proposed a new soil directive, was likely to have imposed: national registers of contaminated sites within five years; investigation and risk assessments of sites; remediation of problem sites; land status reports for buyers; national remediation strategies and a common definition of contamination.

The proposal to re-introduce a national register (this was revoked in 1993) is likely to cause widespread controversy throughout the UK and EU industry. As Phil Crowcroft puts it,” having a register would blight everything on – and next to – a contaminated site. Also, instead of taking a risk based approach to remediation, – hazard- based standards mean that if contamination reaches a certain level, it must be dealt with, even if it isn’t causing any harm. This completely contradicts the way the UK works now, and means lots of remediation may be done unnecessarily,” he explains.

Waste Framework Directive

The waste framework directive says that if waste is treated it must be under a permit – which the UK implements through a number of statutory regimes – although primarily through the waste management licensing regime.

The waste management regime, however, only controls the activities involved in treatment. Actual remedial targets and strategies are ultimately agreed through the planning system, leaving remediators of contaminated sites having to administer to a minimum of two regulatory systems, which, in some areas are fundamentally incompatible.

“At the moment, the situation is so complex that people are either ignoring the full legal requirements, or it’s causing those seeking to work by the book a great deal of difficulty,” explains Craig Sillars. “If something is classified as a waste, it needs a licence. Getting the right one takes a minimum of four months and often much longer – when many sites could gain an exemption from licensing. Often site materials are not even classified as a waste; but getting the regulator to examine site specific issues like that can take months.”

“Also, where regulator- approved risk assessment shows that contaminated soils can remain on site with encapsulation, the planning permission may be granted, but the waste regime says that this is engineered landfill, and requires a full-scale permit. This usually means it’s more economic to take contaminated soils to landfill, in contrast to the government’s sustainability objectives. It’s also contrary to the UK’s risk based approach and based purely on arbitrary waste classification.”

There seems to be slow recognition that moving towards the general use of the planning permit is the best regulatory mechanism for the remediation of contaminated sites, but even then it won’t be a perfect solution: if it is a site that doesn’t need planning permission, where’s the regulatory control?

Potentially the soils can remain on the site without a landfill permit if they’re not dug up, but there’s still the need for a permit for treatment, and depending on its classification it may have to go to landfill anyway.

If practice makes perfect, the remediation industry will one day be run by a regulation process that works like the smoothest of oiled machines. In the mean time it’s more a case of learning on the job – for regulators and operators, until the most sensible best practice can be determined. Until then, there’s an element of ‘try it and see’, a prophecy that will likely be validated by the wave of new legislation soon to wash up on industry shores.