Contaminated Land CIV819

• Objectives– to know the legal frameworks and drivers for

contaminated land remediation

– to understand ‘pollution linkage’, and the method of risk assessment for contaminated land.

– to know the major traditional and innovative remedial techniques used in site clean-up.

Referenceshttp://www.staff.ncl.ac.uk/p.j.sallis/ USER/PASSWORD = ‘CASSIE’

• Policy and Legal– Converging Policy Approaches to Contaminated land - Paul Steadman

(see copy at http://www.staff.ncl.ac.uk/p.j.sallis/teach.html)

– http://www.environment-agency.gov.uk/gwcl/LC_Policy.htm – Contaminated Land - Tom Graham– Contaminated Land - Stephen Tromans & R Turrall-Clarke

• Remediation

– Remediation engineering of contaminated soils Donald L. Wise (2000) – Reclaiming Contaminated Land - Tom Cairney– Contaminated Land Treatment Technologies - John F. Rees– Full Scale Treatment Technologies for the Remediation of Contaminated

Land - Ian Martin & Paul Bardos 628.55 MAR– Several Detailed Publications by Robert E. Hinchee– US EPA site http://www.frtr.gov/matrix2/section1/toc.html#Sec4

The Legacy

Parliamentary Office of

Science and Technology

1993

Expert Estimates:-• 50,000 to 100,000

potentially contaminated sites in UK

• 100,000 to 300,000 hectares

• (significantly less which pose risk to human health)

Potentially Contaminating Industries

Landfill and other waste disposal sites.

Gas works, coal-carbonization plants and ancillary by-product works.

Sewage works and farms.

Scrapyards.

Railway land, especially large sidings, depots and breaking yards.

Roads, airports and abandoned wartime airfields.

Docks, canals and abandoned or infilled port ancillaries, shipbreaking yards.

Oil refineries, petroleum storage and distribution sites.

Metal mines,, foundries, steelworks, metal finishing works.

Mineral extraction sites not yet infilled (quarries, coal)

Glass works.

Chemical works.

Munitions production and testing sites, wartime installations.

Asbestos works and building incorporating asbestos.

Tanneries and fellmongeries.

Paper and printing works.

Industries making or using wood preservatives, herbicides and pesticides.

Cotton and other textile mills and bleach works.

Metal plating works and yards.

Brickworks, potteries and ceramic works.

Nuclear power stations, radioactive storage/disposal installations.

Type of Contaminant Industry/Activity Hazard

Toxic metals e.g. cadmium, Metal mines, iron and steel Harmful to health of humans or

lead, arsenic, mercury foundries, works, smelters. Electroplating, animals if ingested directly or

anodising and galvanising. indirectly.

Other metals e.g., copper, Engineering works, e.g. May restrict or

nickel, zinc shipbuilding. Scrap yards prevent plant growth

Combustible substances, Power stations, railway land. Underground fires.

e.g. coal and coke dust

Flammable gases, e.g. methane Landfill sites, filled dock basins. Explosions

“Aggressive substances Made ground Chemical attack on building

e.g. sulphates, chlorides, acids materials e.g. concrete foundations.

Oily and tarry substances, Chemical works, Contamination of water supplies

phenols refineries by deterioration of service mains.

Asbestos Industrial buildings. Waste Dangerous if inhaled.

disposal sites.

Contaminated Land

Contaminated land is any land which appears to be in such a condition, by reason of substances in, on or under that:

a) significant harm is being caused or there is significant possibility of such harm being caused: or

b) pollution of controlled water is being or is likely to be caused.

source “EPA 1990”

Harm” is defined as:

“harm to the health of living organisms or other interference with ecological systems of which they form part, and in the case of man, includes harm to his property.”

source “EPA 1990”

Contaminated Land

Risk Management

For a contaminant to present a risk:

• It must be potentially harmful (e.g. toxic)

• There must be a pathway along which the contaminant can travel.

• There must be a Target.

• The Source / Pathway / Target scenario must be plausible.

Pollution Linkage

SOURCE RECEPTOR

PATHWAY

Nature of the Pollution

• Some important factors which determine the fate of chemicals in soil.– Organic or Inorganic– Charge (ions)– Volatility, Molecular weight – Solubility / Hydrophilic character - (polar , functional groups) – Hydrophobic character - interaction with soil colloids– Quantity or Concentration– Toxicity, Biodegradability and Bioavailability

• substituent groups like -Cl,

– Density or Specific Gravity

Soil Structure and Hydrology

• Soil Depth and Horizons

• Organic Matter content– Plant Residues

– Humic Acids, Fulvic Acids, Humin.

• Particle size distribution– Sand, Silt and Clay Fractions

• Soil Permeability

• Groundwater, Water table– Vadose zone

– Unsaturated zone

Movement in the Soil

Liquids• Gravity

– vertical movement until sorption by soil matrix dominates.

– LNAPL - as far as Capillary Zone or Water Table

– DNAPL - through water table, stops at Impermeable Layer

• Advection– transported by the flow of the bulk liquid (water) if dissolved in it.

Vapours• Diffusion

– random molecular movement

• Advection– transported by bulk flow of soil vapour

Movement of Contaminants within an Aquifer

Spill

Vadose Zone

Saturated Zone(Aquifer)

Soil Surface

Capillary Zone

Spill

LNAPL

Spill

DNAPL

Plume of solublecomponents

Legislation

•Common Law•case law, not specific to CL

•Statutory Law•new regulations specific to CL

Common LawCivil liability

Law of Tort (breach of legal duty) i.e. Case Law• Rylands v. Fletcher 1866

– an individual bringing a dangerous item or substance onto his own land does so at his own risk

– strictly liable for the consequences of any escape onto another’s land

– substance must be ‘unnatural’

– damage must be reasonably foreseeable

– conduct of the defendant is irrelevant

• Trespass– direct, unauthorised interference with another’s property

– could cover spillage or deposit of pollutants

– not yet tested in the courts

Common Law• Negligence

• fault based - failure to take care in situations in which damage is reasonably foreseeable

• “care” extends to ‘future users’

• liability is variable depending on the amount of care taken

• does not cover purely economic losses

• Nuisance (interpretation of degree of harm)• activity that interferes with another’s enjoyment of land

• On-going interference - can obtain an injunction

• Concluded interference - can obtain damages

• foreseeable “omission to do what a reasonable man would do”

• Time Limit - 6 Years – (begins from time of discovery)

Cambridge Water (CW) v.Eastern Counties Leather (ECL) Ltd

• Perchloroethylene solvent escaped from tannery

• Contamination of groundwater

• Water company failed new EC standards

1. CW failed in High Court– case of negligence, nuisance, Rylands v. Fletcher dismissed

2. Upheld in Court of Appeal– ECL deemed liable (focused on Nuisance)

3. House of Lords Decision (in favour of ECL)– reversed the Court of Appeal decision

– no liability under Rylands v. Fletcher as “not foreseeable”

History of Contaminated Land PolicyUSA

– CERCLA 1980 (SUPERFUND)– SARA 1986

Netherlands– Soil Clean-up Act 1982– policy reversal 1987

UK– ICRCL 1976 (guidance)– EPA 1990 (STATUTORY LAW)– 1993 “consultation”– EA 1995 (STATUTORY LAW)– PPC Regulations (2000) (STATUTORY LAW)

Framework Policy Objectives

• Prevent new contamination

• Deal with unacceptable risks to human health and the environment

• Bring contaminated land back into beneficial use

• to limit cost burdens to proportionate, manageable and economically sustainable levels

“Suitable for Use” (risk based)

• Remediation to a standard appropriate for the intended end-use of the site

“Multi-functionality”• Remediation to prescribed standards allowing

every potential type of end-use.

History of Contaminated Land Policy

Sustainable Development and The PolluterPays Principle

“people or organizations should normally be held liable for any responsibility under statute which they may have, even if indirect, for contamination”.

“the preliminary responsibility for any pollution must, ….., rest with the person who caused or knowingly permitted the contamination to occur (the ‘polluter’)”.

Contaminated Land Regime

• Environment Act 1995• inserts Section 57 into Part IIA of the Environmental Protection Act 1990• Local Authority responsible• LA to formulate Strategy by mid-2001• LA actively identify contaminated sites & cause them to be remediated

EA 1995 Enforcement Responsibilities

Duties Tasks• Cause their area to be inspected

to identify Contaminated Land

• To determine whether a particular site is “contaminated”

• To Act as enforcing authority for contaminated sites (other than special sites)

• Establish responsibility for remediation.

• Determine what remediation is required and to ensure that it takes place.

• Arbitrate on the who bears what proportion of consequent liability.

• Record and maintain prescribed information in a Public Register.

Powers of Inspectors

Section 108 Environment Act 1995 :-• enter at any reasonable time• make any examination or investigation necessary• take photographs or samples• require the giving of information• order that premises or parts be left undisturbed

EA 1995 Information and Inspection

L.A’s may derive information form a number of

sources to enable an assessment to be made

• Other Statutory Bodies

• Its own Land use records

• Public Complaint

• Land Owners

EA 1995 Remediation Notices

Served on each “appropriate person”

• Can cover assessing site condition, preventative works and restoration/monitoring

• Must be “reasonable” having regard to cost and seriousness of harm/pollution

• Must be preceded by consultation

Appropriate Person

• CLASS “A”

Any person who

causes or knowingly

permitted contaminating

substances to be IN, ON

or UNDER the site

• CLASS “B”

Where reasonable enquiry

has failed to identify a

person fitting the

definition of class “A”, the

owner or occupier of

the land

Apportionment of Liability

Inherited Problems

Contaminated land Adjoining Land

X Y

Contaminant

• “Person A” causes contamination of “Contaminated Land X”

• Innocent “Person B” becomes owner/occupier of “Contaminated Land X”

• “Person B” not liable to remediate “Adjoining Land Y” unless he had knowledge of the contamination at purchase (Caveat emptor)

migration

Non-Compliance withRemediation Notice

• Enforcing Authority can carry out the remediation and recover costs.

• Non-compliance is a criminal offence punishable by imposition of a fine of up to £20,000 plus £2,000 a day.

EA 1995 Public Registers

Will be maintained to include:

• Remediation notices and appeals.

• Remediation work carried out following a remediation notice.

• Conviction for offences.

Recovery of Costs

Authorities must take into account:

• HARDSHIP

Authority must bear in mind any hardship that may be caused.

• BUSINESS CLOSURE OR INSOLVENCY

Where remediation costs would make a business insolvent, the authority should consider a reduction in costs. The main aim is to recover as much as possible without making them insolvent.

Identifying Liability Groups

• Class “A”For each pollution linkage

• All those who have caused or knowingly permitted the pollution in question to be present

• If non identified and pollution relates solely to controlled waters there is no “liability group” and will be treated as “orphan linkage”

• Class “B”For each pollution linkage

• Where no class “A” liability group can be identified, the owners and or occupiers will be the identified “liability group”.

• If neither class A or class B persons can be identified for a pollution linkage, then there will be no “liability group” and it will be treated as an “orphan linkage”

Attributing Costs

• Common Action• Single class “A” group full cost.

(there will be no class ”B” costs)

• Two or more class”A” groups full costs to be divided equally (there will be no class”B” costs)

• If no class”A” groups full costs to be divided equally between all class “B” groups

• Collective Action• similar principle

Prioritisation/Categorisation

• Part I AssessmentPreliminary prioritisation of sites

into groups for Part II Assessment

under the following headings.

• Development

• Surface Waters

• Groundwater

(This will comprise a desk top study

and can be carried out by

non- specialist personnel)

• Part II AssessmentSites in each group will be

categorised using individual risk

assessment

• Priority given first to group A

• Site information examined

• Site Visit

• Establish contaminants, pathway and risk

• Detailed exploratory survey where indicated

(Expert help will be required)

Part I Assessment

Residential development, school playground or allotment within 50 m

Industrial, commercial development within 50 m or residential within 250 m

Site in agricultural or amenity use including Parks and playgrounds

GROUP AYES

Not KnownNO

GROUP B

NO

YES

Not Known

YES Not Known

NO GROUP C

EA 1995 Conclusion

• EA 1995 in force from mid-2001.

• New regime extremely complex and bureaucratic

• Lack of significant new resources

• Responsibility for “orphan sites”

Pollution Prevention & Control (PPC) Regulations 2000

• IPPC Directive (96/61/EC)– enacted in UK as “The Pollution Prevention

and Control (England and Wales) Regulations 2000”

– Contaminated land covered under requirements for ‘Site Reports’

– Regulator is ‘Environment Agency’

Pollution Prevention & Control (PPC) Regulations 2000

Principle of PPC• Specific Industrial Sectors are regulated

• Aim to preserve land quality rather than deal with Historic pollution (I.e. stop future pollution)

• Linked to Permit Application– authorises the site (or installation) to conduct specified industrial activity

• Process requires ‘Site Report’ – a detailed investigation of current state of the land that acts as a ‘baseline’

• Closure of Site (or Change of Use)– Cessation Site Report compared with Original Site Report– Site must be remediated to ORIGINAL CONDITION and not ‘Suitable for

use’

Pollution Prevention & Control (PPC) Regulations 2000

• Purpose of a Site Report– To document the condition of the site with particular reference to

substances in, on or under the land that may constitute a pollution risk– All land of the installation is covered

• Phased approach– 1a Desk Study (Conceptual Model)– 1b Further Desk Study and Exploratory Investigations– 2 Main Intrusive Investigation– Complex activities may be zoned– Technical Content

• presentation of lateral and vertical distribution of contaminants

• Site Report sent to LA (as statutory consultee)– Data can be used by LA under Part IIA EA 1995 legislation

Other Statutory Law

Water Resources Act (1991)

• Section 85

– criminal offence to “cause or knowingly permit any poisonous, noxious or polluting matter to enter any controlled waters”

– conviction of an offence can incur 3 months imprisonment or up to £20,000 fine

• Section 161

– To prevent polluting matter from entering controlled waters

– To remove or dispose of polluting matter from controlled waters

– To restore waters to their state immediately before the pollution event (as far as is practicable)

– Works notices can be served by EA

• EA can claim costs when pollution enters, or is likely to enter, any controlled water

Other Statutory Laws

• Health & Safety at Work (HSWA) Act, 1974

• Management of Health & Safety at Work Regulations, 1992

– welfare of employees

• Control of Substances Hazardous to Health (COSHH) Regulations, 1994

– prevent exposure to hazardous substances

– OEL set by HSE

• Occupiers’ Liability Act, 1984

– duty of care to trespassers

• Construction (Design & Management) Regulations, 1994

– consider contamination when planning work

Other Statutory Laws

Air Quality• Control of Pollution Act1974

– local authority can investigate any commercial premises

• Clean Air Act 1993– burning and smoke on demolition sites

Planning• Town & Country Planning Act 1990

– Planning Policy Guidance (PPG) Note 23 (LA must consider consequences of contamination on their Development Plan)