The land that regulation forgot

According to a new report released by a government-backed taskforce, the current regulatory regime is a major barrier to cleaning up contaminated land. Jason Rayfield reports.

The issue of contaminated land is and has been for a long time, if you’ll pardon the pun, a sticky one. Brownfield regeneration holds the key to so many objectives – not least the government’s targets for building new homes on brownfield land, as well as its plans for rural development. With such a lot riding on the clean-up of polluted land, you would be forgiven for thinking that the regulatory path to this much sought-after goal would be relatively free of obstructions. Unfortunately, the reality is a much bleaker landscape.

Government plans say that 60 per cent of the estimated three million homes required to meet housing demand over the next 15 years should be located on reclaimed derelict and redundant sites. Failure to meet this target will inevitably mean further development in rural areas or encroachment on to greenbelt land, no doubt enraging already angry environmental and countryside campaigners.

The report has been welcomed by the Environmental Industries Commission (EIC), who on behalf of its members has long called for a new dedicated regime for land remediation to improve protection of the environment and encourage clean-up of the polluted legacy of our industrial past. The organisation’s director, Merlin Hyman, states that: “Cleaning-up contaminated land is a key part of releasing brownfield sites for regeneration and relieving pressure on greenbelt and rural sites. Yet this vital work is being undermined by bad regulation.

“The government must act now to implement the recommendations of the Remediation Permit report for a new regulatory regime.”

The cross-industry group that crafted the report was chaired by Urban Taskforce member and Lattice Property general manager, Phil Kirby OBE, and set up to develop the Taskforce’s recommendation to streamline the rules for cleaning up previously used land. The Remediation Permit Taskforce comprised a wide range of stakeholders including property owners, developers, land remediation companies and the Environment Agency and Department for the Environment, Food and Rural Affairs (DEFRA).

Brownfield land

Mr Kirby comments: “It is not uncommon for one regulator to agree with landowners on an approach to clean up, only for another to issue an instruction albeit in line with its regulatory framework, which is wholly incompatible with the aims and objectives of the project. It is hard enough to get developers to bring brownfield land back into use without putting up additional bureaucratic hurdles to regeneration. This is not about deregulation, but it is about better regulation.”

The group’s report proposes replacing current regulations controlling remediation with what it calls a remediation permit, which Lord Rogers describes as the most important, practical step the government could take to kick-start urban regeneration. The report also proposes other ways in which the process of cleaning up sites can be made clearer for both regulators and developers.

Commenting on the plans to be unveiled to industry at John Prescott’s Urban Summit late in October, Jon Rouse, director of the Commission for Architecture and the Built Environment, said: “If the government doesn’t take action to sort out the rules for cleaning up brownfield land, the rest of their plans to revitalise cities will be severely undermined. This is the key which will unlock the potential of many a former inner city industrial site.”

The report itself takes forward the proposal in the Urban Task Force report, Towards an Urban Renaissance, for ‘a single regeneration licence’. It sets out the context, discusses the issues and presents proposals for the creation of a Remediation Permit to be regulated by the Environment Agency.

The Remediation Permit is intended to replace the current waste management licensing regime for the remediation of land contamination in both soil and groundwater. It would apply to the technical process of remediation of land contamination, for example in circumstances where the remediation is required by the planning authority because of redevelopment, or by the local authority under the contaminated land regime (Part IIA Environmental Protection Act 1990).

The permit is not intended to replace the controls in systems which set the remediation objectives, for example under the Part IIA regime or as part of site restoration under the Pollution Prevention and Control system. Nor would it replace the setting of objectives or wider development controls under the planning process, such as the need for an environmental impact assessment for certain developments. It should however provide a clear, complementary control system having transparent interfaces with the other systems.

The report also makes other recommendations both for interim improvements to the existing system and for longer-term streamlining of the control of regeneration activities.

Case for change

Section 2 of the report presents the case for change. It provides the context – for example over 55 per cent of new housing sites are potentially affected by the current waste management licensing regime, whilst the total market for remediation is estimated as being in the order of £500 million per year – and reviews the reported problems with the current system. These primarily stem from the application of the waste management

licensing regime to sites involving regeneration or redevelopment, relating to the wide application of this system, as well as to specific issues relating to site licences and to mobile plant licences. Other difficulties relate to the interaction with other systems, and overall there are concerns that the current system does not encourage the use of sustainable solutions for remediation of land contamination.

Section 3 starts with a review of the risks to the environment and the economy if there is no regulatory control system. It suggests that an ideal system should deliver:

  • proportionate, but precautionary, control of risk to the environment,
  • ‘better regulation’,
  • long term environmental, economic and social objectives.

This section also lists detailed objectives to deliver these aims and introduces the need to consider other factors, particularly the parameters governing the design of a regulatory system and the practical and market needs.

Section 4 describes the constraints set by EU requirements, the legal process in England, the practical context and the market needs. The section reinforces the need for a new system to:

  • transpose the necessary requirements under a number of EU directives,
  • fit into an appropriate legal system in England,
  • deliver change within a suitable time frame,
  • be proportionate in each of the circumstances where it applies,
  • be specific about the remediation activities to which the controls apply,
  • provide clear and appropriate mechanisms of control,
  • ensure appropriate regulatory resources for delivery of the system,
  • provide a speedy and predictable permitting system, appropriate to the nature of the project,
  • achieve efficiency, economy and effectiveness of any costs,
  • allow for the transfer of mobile plant licenses into the new system,
  • allocate responsibilities clearly and appropriately and provide mechanisms for the transfer of risk within the market.

The Working Group is aware that DEFRA intends to consult on revisions to the existing Waste Management Paper 4 Licensing of Waste Management Facilities, and has already provided some limited advice to DEFRA in preparation for this consultation. This may help some of these areas. Industry should consider these issues in more detail during the consultation, feeding their concerns and recommendations to DEFRA.

On-site remediation

Pursuing these changes to the current system in isolation is not an ideal option, as problems of stigma and cumbersome legislation will remain. It is also expected to be a slow process. The Working Group’s recommendation is to create a new, specific set of regulations to cover the on-site remediation of land contamination.

The Working Group therefore recommends that the general powers under the Pollution Prevention and Control Act 1999 be used to introduce a new regulatory system specifically focussed on providing a permit for the remediation of land contamination. Clearly, any new permitting regime must transpose the necessary requirements from relevant EC Directives in a legally robust but practical way – the Working Group has attempted to do this in its detailed recommendations.

The purpose of the new system is to address risks to the environment arising from the remediation of contamination in soil and groundwater during:

  • trials of a new technology,
  • remediation of a site under legislation dealing with harm or pollution,
  • restoration of a site under the PPC system,
  • ‘voluntary’ remediation of land (for example prior to its sale),
  • redevelopment
  • other construction works on land.

Where a remediation permit is in force, it should consider primarily the emissions to, and consequent burden on, the environment resulting from remediation activities.

The Working Group considers that the name of the system is a critical factor in its success. The Group recommends the term ‘Remediation Permit’, which makes it clear that obtaining the permit is aimed at obtaining approval for the method of cleaning up the site.

The system should cover all remediation activities which could present a risk to the environment as a result of contamination in soil or groundwater, and which could require controls to meet the requirements of the EU Directives. It will also need to clearly exclude activities not justifying controls. Details of the analysis to identify how to describe these activities and what should be covered in practice are explained below.

The Working Group proposes that the new permit should attach to a site and should control:

  • any process or combination of processes for remediation applied to the site,
  • the method of working on the site,
  • the quality and quantity of emissions to the environment,
  • site security and emergency precautions,
  • who holds the permit and transfer of a permit,
  • the competence of the person or organisation who carries out the work or oversees the site,
  • provision of financial security.

There should be flexibility for the permit to identify separately different zones within the site as a whole. This will facilitate phased completion.

The Working Group recommends that the Environment Agency provides a mechanism to clearly identify the separate controls on remediation, on landfills and on off-site recovery or disposal, but with clear boundaries and a single point of contact for one site. The new permit will apply until the end of the activity it is required to control – this completion point must be specified in the permit.

The application should be based on standardised outlines or templates for permit information in order to speed up the approval process. These should identify key technical factors.

A number of ways, discussed in the report, of speeding up the process are suggested, covering timeframes for issuing permits, development of generic conditions, pre-registration of individual contractors and fast tracking for small scale or outline applications.

Implementation process

The regulations introducing the new permit system need to include all the main elements of the system. The Working Group is clear that the implementation process for the new system must build in a recognition of the significant investments of time and effort already made by both remediation companies and the Agency in taking forward individual MPL applications, allowing this investment to be used in the new system.

The eighth, and final section of the report looks to the future. It makes the point that the existing system is not working, and that developers, their advisors and technology vendors all report specific hurdles with the current system. Although it is still hard to quantify the exact nature and impact of the problems, the extent of the comment and individual case studies presented indicate that there is at best confusion and at worst real obstacles.

The report also points out that the market in brownfield sites is sufficiently fragile for confusion to be sufficient to have a real impact on achieving the government objectives for reuse of land. But the real constraints of the current system, and above all the blight that is increasingly associated with ‘waste’, add to the cost of any brownfield redevelopment and make some unviable. The Working Group is adamant that change is needed, and that change can only be for the better.

Finally, and of paramount importance, the report recommends that DEFRA, the EA and industry continue to work together to implement the recommendations and in particular to develop the details of the new system.

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