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The
Mott MacDonald vs E.P Case GENERAL In the aftermath of what is a landmark legal case for the Geoenvironmental Profession it is worth considering what lessons can be learned from the case. In doing so, we must all reflect that nobody can claim a special privilege or think other than there but for providence and good luck potentially go we all. While the events argued in the case are now relatively old (around 10 years ago) many of the issues are still relevant. In addition with the public and private concerns on building on contaminated land increasing, it is important to reflect on the issues raised in this case. In the following notes I have highlighted some of the things that have struck me as important in the Judge's report, in terms of his view on how we as Geoenvironmental Specialists work. COMMUNICATIONS The judge stressed the importance of communications between all parties, that is: Client - Consultant and as importantly communications within each organization. On this latter point the Judge clearly felt that internal communication within any one organization was vital in forming a coherent team with a single focus. It was a critical issue in his view. We should all take note of the need for establishing, and recording, our internal communications. As important as making communications, was the recording of informal communications such as telephone calls and meetings. This case spread over a long period of time, and generated a huge amount of paper. Communications and records were seen to be the thread that held the project together and the linkage that, if broken or disrupted, could lead to project failure. CONTAMINATION STANDARDS The setting of standards to which sites are to be remediated is as relevant today as it was at the time the case developed. I would note one quote from the Judge: "the word "contamination" is not, unfortunately, used with a consistent or precise meaning in the environmental sphere". While we have moved on, the writer considers that for each project there is still a need to debate what is the level of contamination, and against what standard should it be assessed. It is clear however, that whatever standards are used, or approach is adopted, it needs to be one that is clear to all parties involved in the project at the earliest opportunity. RISK ASSESSMENT AND DEVELOPMENT PLANNING The use of risk assessment was discussed and debated during the case. The Judge gave his view of what a systematic approach could be and how it could be adopted. This is not just relevant to the general approach of risk assessment but is also as relevant to the development of contaminated sites in particular and possibly brownfield sites in general. The Judge set 8 key questions, that the parties to the project should have been able to answer, if not at the outset of the project, then at least by the time a remediation contract was being formulated: 1. What is the history of the site. 2. What is the intended use of the site. 3. What hazards are likely to affect that use. 4. Which contaminants give rise to those hazards. 5. Are those contaminants present, and if so, in what concentration and with what distribution. 6. Are there any hazards. If so, how might they be removed or at least reduced. 7. Could the hazards be more effectively removed or reduced by choosing a different land use. 8. What remedial treatment is practicable, and what monitoring is needed, to enable the site to be used for the chosen purpose. Under recent legislation covering contaminated ground the concept of risk assessment based on linkages formed by a pathway between hazard and receptor is clearly reinforced. From the above it is clear that the best approach to investigating and assessing any site, must be a progressive one done in stages. This would enable the answers to the above questions to be discussed, and the plans and proposals for the site to be reconsidered. This writer also considers that there is a need, now more than ever for Local Planning Authorities to adopt a flexible attitude when it comes to developing contaminated sites in particular and brownfield sites in general. PERCEPTION The recent television programme Panorama, broadcast on the 20 March highlighted the problems of contaminated ground, and in part, how the public perception was as an important element in development strategy as were the technical issues. The issue, of perception, appears to have had a major influence on developing the strategy for remediation. A developer witness in the MM v EP case, highlighted the need for recognised standards for remediation, so that prospective purchasers (in this case house purchasers), would both know of the site history, but be assured that the site had been remediated to a recognised standard. Finally, as a reminder to ourselves of two words that are often used synonymously but do have different meanings.
The former is often used loosely by
non-specialists to mean the latter. Choose your words carefully, and MAKE SURE
YOU RECORD ACCURATELY WHAT YOU SAID AND DID. Implementation of the Integrated Pollution Prevention and Control Directive [IPPC] Implications associated with contaminated land. By Sarah Longstaff and Hugh Mallett (Enviros Aspinwall) 1. The EC Directive 96/61 concerning integrated pollution prevention and control has been implemented in UK law by the Pollution, Prevention and Control Act 1999, which was implemented in October 1999. The purpose of the Directive is to achieve prevention and control of pollution arising from a range of industrial activities (see para 3). 2. The regulatory authorities operating the permitting system will be the EA for England and Wales and SEPA in Scotland. The legislation will be applied to a permitting system using a series of statutory guidance notes. These are intended to provide indicative standards and provide the regulators with a benchmark. The timetable for the production of the guidance notes is not currently known, however guidance already exists is some areas from the former Integrated Pollution Control (IPC) and Local Air Pollution Control (LAPC) regimes. Generic guidance is being prepared for areas not included for example energy efficiency, site remediation and noise and these are scheduled for early autumn. 3. Industries covered by the new Directive are as for IPC but extended to include intensive farming, food and drink installations and landfill sites. All installations included in these categories will require an IPPC permit for new or substantially changes installations. Sites with an existing IPC permit will have until October 2007 to apply for a replacement IPPC permit. 4. New environmental considerations also included in IPPC are noise and vibration, energy efficiency, environmental accidents and site protection. Permits will be issued for 'installations' rather than a process or activity. 5. Applications for a permit will require information to be supplied by the applicant, which includes the condition at the site of the installation. The information on ground conditions will be obtained via comprehensive site investigations and presented in a site report. The EA will be issuing guidance as to what constitutes a "comprehensive initial investigation". The site report is intended to fulfil two purposes:
6. A further site report, supported by additional investigation data, will be required when the IPPC permit is surrendered to determine whether contamination of the site has occurred during the period of the permit. If any such contamination has occurred during this period, the licensee will be required to remediate the site such that the land is restored to the condition that it was in before the IPPC authorised activities commenced. 7. There are therefore substantial differences between the contaminated land regime in 557 of the EPA 1995 and IPPC.
[Note: There may be practical difficulties with such an approach for example how do you remove part of the contamination from beneath a facility which may still be operational].
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