Carrying out remedial work on contaminated sites can be a messy business – legally as well as physically. The trigger for remediation is frequently planning requirements on redevelopment, but it may be done voluntarily or under the contaminated land legislation.
The remediation process is governed by different statutory regimes, including the Health and Safety at Work Act, the Building Regulations, controls on unacceptable noise and dust and consents regulating discharges to watercourses and sewers. Potentially, the greatest difficulty is the uncertain impact of the waste management licensing system, which can delay projects and cause blight. Additionally, licences can be difficult to surrender.
The uncertainty stems from the meaning of 'waste' in the European Community Framework Waste Directive, where it is defined as material that the holder “discards”. Interpretation by the European Court of Justice and the Environment Agency's guidance is less than clear. In essence, contaminated soil is generally waste, particularly if it needs to be remediated; but if it is to be reused without the need for special precautions it is probably not waste.
The traditional escape routes from the licence requirement – exemptions and mobile plant licences – do not always operate satisfactorily. Some exemptions under the Waste Management Licensing Regulations 1994 may apply. Exempt activities must be registered with the Environment Agency and only apply to the extent that they are carried out consistently with certain environmental objectives.
A mobile plant licence avoids the need for a site-based waste management licence. However, when it is to be used for a project, the licence-holder must submit a site-specific working plan to the agency for approval, demonstrating how the licence requirements will be met in site-specific circumstances. High fee levels, high time costs in making applications, the length of response time and the burden of the financial security requirements can all make mobile plant licences unduly onerous requirements.
The difficulties with the present system led to the formation of the Urban Task Force Working Party in 2001, with a view to driving forward recommendations of the Urban Task Force aimed at encouraging the redevelopment of brownfield sites. In autumn last year, the working group produced its report, which is under consideration by the Department for Environment, Food and Rural Affairs.
The recommendations are to introduce some modifications to the existing system, as well as a new remediation licensing regime. Some proposals for modifying the present system require legislative change and some do not. The latter include: improved user guidance and regulatory procedures; better explanation of the interface between different systems; more expertise on the part of regulatory staff, applicants and professional advisers in dealing with the regulatory process; greater shared technical understanding; and the introduction of codes of practice on how to manage remediation work.
Modifications requiring changes in the law relate to site licensing exemptions and mobile plant licences. Exemptions are proposed for: increased volumes under existing exemptions; the reuse, on site, of soils from the site following treatment; and the reuse of soils not needing treatment, for earthworks or regrading for example.
Changes are recommended to the rules relating to mobile plant licences to: allow site owners or main contractors to make financial provision and appoint a suitably qualified remediation supervisor in appropriate cases, for example, when the mobile plant licence holder is only a minor player in the project; cover liquid wastes such as contaminated ground water, as well as waste soils, which is the current limitation; and limit the current maintenance fee to the agency's costs of dealing with site-specific working plans.
The working group recommends the introduction of new remediation permits under the jurisdication of the Environment Agency to address risks to the environment arising from trials of a new technology, remediation of a site under environmental legislation, voluntary remediation, redevelopment, or other construction works. The permit would not set the standards to be achieved by the remediation, as that would be laid down under the system triggering the remediation – planning controls or the contaminated land legislation, for example.
The permit would apply to any on-site treatment of contaminated soil, whether in the ground or following excavation. It would also cover the excavation process and storage on site. However, the proposals do not apply to the deposit of contaminated material on site by way of landfilling or to the disposal, treatment, recovery or use of material off site.
The report is equivocal as to whether the remediation permit should cover the use of material on site that does not require special measures to protect the environment. The risk of leaving this outside the permitting process is the uncertainty as to whether a waste management licence is required. If the proposed modifications to the existing system do not address this problem, it may be necessary to bring this activity within the umbrella of the permit.
It is proposed that the new permit should control: remediation processes; working methods; the quality and quantity of emissions to the environment; site security and emergency precautions; record-keeping; permit holders and permit transfer, allowing for landowners to be holders if appropriate; technical competence of operators/ supervisors; and financial security provision.
The new permit would apply until the end of the controlled activity, and could be surrendered by notification from the permitholder that it is no longer required.
Although the new proposals do not pretend to achieve a one-stop shop, if implemented they should reduce the barriers to the regeneration of brownfield land.
Andrew Wait is a partner in the planning & environment department and coordinator of the environment group at Berwin Leighton Paisner