Scottish Government

Part 5 - Chapter III: Articles 9-14 - Soil Contamination

Article 9 - Prevention of soil contamination

Content

5.1 This provision is about preventing new contamination rather than dealing with already contaminated land. Provisions for identifying and dealing with land where contamination is present are drafted at Articles 10-14.

Existing EC/domestic legislation

5.2 This provision largely overlaps with other community legislation which aims to prevent pollution and where contamination occurs requires its remediation. This includes:

• The Integrated Pollution Prevention and Control Directive: the Pollution Prevention and Control Regulations which implement this set up a licensing system for current activities which may cause pollution, and include clean-up mechanisms for new contamination, and a requirement to leave sites in a "satisfactory state" at the end of authorised activity. The Regulations cover all environmental media including soil and cover over 4500 industrial installations in the UK.
• Environmental Liability Directive: the Environmental Liability Directive ( ELD) includes measures to secure remediation of new environmental damage, and provides a further lever for the prevention of contamination by operators of potentially polluting activities. The ELD covers the prevention of contamination issues addressed by the proposed Soil Framework Directive, but not historic contamination.
• Waste Framework Directive and Landfill Directives: licensing arrangements, and licensing exemptions, introduced to implement these Directives aim to prevent waste management activity causing land contamination (amongst other risks). The controls also include measures to remedy the effects of illegal dumping and fly-tipping on land.

Issues raised

5.3 It is not clear that this provision is necessary considering existing legislation. In addition, having this additional provision without the thresholds, exemptions and other detail of the Directives referred to above, causes legal uncertainty as to exactly what Member States are required to do. Clarity is required in the text as to how Article 9, as drafted, relates to these existing Directives.

5.4 The use of the term "appropriate and proportionate measures" creates uncertainty - it is not clear exactly what Member States must do and whether judgement as to the measures which are appropriate is for Member States or for the Commission.

5.5 Clarity is also required as to the relationship between the proposed Article 9 and Article 4. In particular, is Article 9 intended to cover all forms of contamination and is this in effect excluded from Article 4?

Questions

• Q.24 Are there any benefits in having this provision?
• Q.25 How do you think this proposed Article could be amended to improve it? Examples include:
• • So the proposed Directive states that full implementation of existing pollution prevention and waste legislation might be sufficient for implementation.
  • So the proposed Directive states specifically what risks or activities must be addressed.

Articles 10 and 11 - Inventory of contaminated sites

Content

5.6 These proposed Articles deal with the establishment of a national inventory of contaminated sites. Article 10, as drafted, requires a public inventory of contaminated sites, as defined, to be compiled and reviewed every 5 years. Article 11 goes on to describe the process by which Member States should go about identifying these contaminated sites.

5.7 Contaminated sites are defined as those "where there is a confirmed presence, caused by man, of dangerous substances [as defined in the proposed Article 2] of such a level that Member States consider they pose a significant risk to human health or the environment".

5.8 In considering whether the risk posed to human health or the environment is significant, account should be taken of what the site is being used for currently, and also of any approved future use of the site. The above description of "contaminated sites" gives Member States some discretion in deciding what level of dangerous substance should be regarded as causing a significant risk.

5.9 The proposed Article 11 lays down the process by which Member States must identify contaminated sites. This involves a three stage procedure:

1. Identify at least all sites where "potentially soil-polluting activities" listed in Annex II ¹² are taking place, or have taken place in the past. This must be completed within 5 years of the proposed Directive being transposed into domestic legislation. The list of sites identified at this stage should be reviewed regularly.
2. For the sites identified under (i), competent authorities must "measure the concentration levels of dangerous substances".
3. Where the concentration levels determined are such that there may be sufficient reasons to believe that a site poses a significant risk to human health or the environment, an "on-site risk assessment" must be carried out. Where this on-site risk assessment confirms that the site is a "contaminated site" it must be recorded on the inventory.

5.10 This procedure must be carried out in 5-25 years from the date of transposition, with 10% having to be identified within 5 years, 60% within 15 years and the remainder within 25 years.

Existing EC/domestic legislation

5.11 There is no EU-wide legislation that specifically addresses historically contaminated land. Some of the Directives identified at paragraph 5.2 do however effectively require remedial action where, for example, activities such waste management or operating specified industrial activities give rise to new land contamination. In addition, the Water Framework Directive and Groundwater (Daughter) Directive, which are currently being implemented, may effectively require remediation of contaminated land where it is found to affect water quality. The requirements under these Directives are explained in paragraphs 5.16-5.17.

5.12 In terms of domestic legislation, the Commission states that, as of September 2006, only 9 Member States had a specific domestic regime in place.

5.13 We already have a comprehensive regime for identifying contaminated land, covering all contaminants (i.e. not limited to dangerous substances) and all activities or sources (except where remedies are available in other domestic legislation). Development is the main driver for bringing such land back into beneficial use and the aim of planning policy is to facilitate sustainable development that takes appropriate account of contaminated land issues. This means that property developers generally meet the costs of remediation. Local Planning Authorities should require an applicant for planning permission where contamination is known or suspected to provide sufficient information to determine the existence or otherwise of contamination, its nature and the risks it may pose, and whether these can be satisfactorily reduced to an acceptable level. Further investigation and remediation can be required as a condition of planning permission to secure the removal of unacceptable risk and make the site suitable for its new use. The planning register will record details of the permission, conditions and discharge of conditions.

5.14 The planning system is complemented by a pro-active approach under the Environmental Protection Act 1990. Under Part IIA of this Act, Local Authorities have an ongoing duty to inspect their areas for "contaminated land" as defined - in broad terms this covers land in such a condition, by reason of the presence of substances, that it presents unacceptable risk to human health or the environment. Appropriate remedial action must be secured. Contaminated land and actions taken in respect of it are recorded in a public register. In England and Wales, sites are only placed on a register when a remediation notice, statement or declaration is issued. In Scotland details appear at an earlier stage, when contaminated land is identified. In England and Wales, local Authorities are the lead regulators, but certain specified descriptions of contaminated land, once identified, are dealt with by the Environment Agency, which is better placed to enforce in those cases.

5.15 Part IIA strongly encourages voluntary action (by agreement rather than through formal enforcement action), allows liability to be passed on when land changes hands, ensures land condition and liabilities are reflected in land values, and encourages buyers, sellers, lenders and conveyancers, etc, to exercise considerable care in land transactions wherever there is a possibility of contamination. Much investigation and remediation takes place either voluntarily or under the planning system, without formal action being taken under Part IIA.

5.16 Scotland, Wales and England all have similar measures in place, and Northern Ireland is due to implement provisions similar to the above shortly.

5.17 In addition to the existing measures already in place to address contamination, a number of other measures will be implemented in the near future. For example, the Water Framework Directive ( WFD) establishes a process for setting environmental targets for bodies of water which Member States are required to meet through the implementation of programmes of measures. Historic land contamination is among the continuing sources of water contamination. The Water Framework Directive will thus act as a driver for increased remediation of contaminated sites (largely via existing mechanisms such as the Water Resources Act in England and Wales, the Controlled Activities Regulations in Scotland, or Part IIA of the Environmental Protection Act), thus enabling the UK to meet the objectives established under the WFD. Consultation papers are being issued in 2007 concerning the issue of new diffuse pollution which can arise when land is used in ways which enable harmful substances to enter groundwater or other water bodies.

5.18 The new Groundwater Directive (a daughter Directive to the Water Framework Directive) includes specific obligations to prevent and/or limit the entry of listed pollutants into groundwater. Historic land contamination can give rise to the ongoing entry of such pollutants. As with the Water Framework Directive, this is expected to act as a driver for Member States to increase the levels of protection afforded to water courses by utilising existing measures.

Issues raised

5.19 The proposed Directive's approach to identification of land requiring action differs from our approach in a number of key areas: (1) it is confined to 'dangerous substances', as defined in the proposed Article 2, and requires measuring "levels" of these substances to assess risk; (2) it lays down a list of potentially polluting activities; (3) it requires the locating and sampling of all sites upon which such activities have ever taken, or are taking, place, regardless of circumstances; and (4) identification of all 'contaminated sites' must be carried out to a prescribed timetable.

5.20 Based on our preliminary analysis (see Annex I of the Initial RIA), we anticipate that the costs of establishing a national inventory of contaminated sites according to the proposed Directive's requirements would far outweigh any benefits that such an inventory might deliver.

5.21 The approach under these proposals is only partially risk-based. For example, risks to human health and the environment are not only associated with concentrations levels of substances in soil. Landfill gas is one example where severe risk might not be reflected in surface soil concentrations. The provisions also appear to require Member States to sample the concentration levels of all dangerous substances at sites on which a potentially soil polluting activity has taken place, even though only a small number of substances are normally associated with any particular potentially polluting activity ¹³.

5.22 Furthermore, sampling of potentially polluted sites is required without any regard to whether this is justified by the available facts on each site. A more risk-based approach would allow for consideration of, for example, existing information about the site and its history; of previous investigations or remedial measures; and the likelihood that if there are dangerous substances present on the site they could actually cause harm to human health or the environment (in particular to consider whether there is a potential pathway by which the substance might reach a vulnerable receptor, and also whether there is such a receptor present or likely to be present under the current or approved future use).

5.23 There is a risk of unnecessary property blight as a result of the sampling obligation applying to whole classes of land. There may also be a risk of blight where land is identified as a contaminated site (in compliance with the timetable) but resources to undertake remediation are not immediately available. Since the extent of contamination and the unit costs of dealing with it are considerable, this scenario is likely to arise under the proposed Directive's timetable for identification.

Initial Regulatory Impact Assessment - costs and benefits

5.24 The cost of mandatory sampling of every 'Annex II' site, to establish concentration levels of dangerous substances which may be on site is high. The Commission estimate that 100,000 ¹⁴ sites would require such preliminary sampling in the UK. This figure is based on an Environment Agency report, relating to England and Wales only. The actual figure could be significantly higher. Based on a sampling and analysis cost averaging £10-20k for a 2 hectare (average size) site, the estimated total cost of this sampling is £1-2 billion ¹⁵. This is largely an additional cost to those incurred under our domestic system, under which sampling is not an automatic requirement across whole classes of land, and which does not contain a national timetable for the identification of sites. The reliable identification of all Annex II sites would be costly, because the status of many historic locations may not be clear from available records (for example, numbers of employees or turnover, or quantities of dangerous substances held at the location).

5.25 Where the level of contamination determined by the preliminary sampling of Annex II sites suggests a possible significant risk to human health or the environment, a full site investigation and site-specific risk assessment will be required. In Great Britain, this costs on average £50-75k per site (average 2 hectare). If 5-20% of identified Annex II sites require this further investigation, total costs in excess of £250 million - £1.5 billion could arise. Some of this cost will be incurred in any event under our domestic approaches to land contamination, but the proposed Directive's timetable means that this will need to be incurred at an earlier date.

5.26 The strict timetable for the inventory may also present capacity problems as sampling and risk assessment is a highly skilled, complicated job.

5.27 The requirement to review the inventory of contaminated sites also likely to incur very significant costs (though these are not analysed in the Commission's Impact Assessment).

5.28 The benefits which are difficult to quantify would include earlier identification and remediation of contaminated sites with potential benefits for human health and the environment.

Questions

• Q.26 Do you agree with the costs and benefits identified in our preliminary analysis? How do you think the proposed Directive could be amended to reduce the costs involved whilst achieving the same benefits?
• Q.27 Should the proposed Directive enable Member States to retain their existing national approaches to the identification of contaminated land, provided these deliver some basic common requirements, or should they be required to follow a common detailed procedure? If so, what are the basic common requirements that can in your view reasonably be included in the proposed Directive?
• Q.28 What are your views on the Commission's definition of contaminated sites? Is it appropriate?
• Q.29 What are your views on the list of potentially polluting activities set out in Annex II?
• Q.30 Do you consider that it is necessary to test for dangerous substances at all sites on which potentially polluting activities have taken place or do you think testing should be targeted based on a risk assessment?
• Q.31 Do you think the timescales given in the draft Directive for compiling and reviewing the inventory are reasonable?
• Q.32 How do you think this requirement will affect land values?

Article 12 - Soil status report

Content

5.29 This obligation applies to all sites on which there has been a potentially polluting activity as listed in Annex II. It appears to apply to every proposed sale of such land in perpetuity. Whether the duty should be placed on the buyer or the seller is left to Member States to decide.

Issues raised

5.30 This proposed Article may interfere, without any benefit, with national procedures for transfers of land. In Great Britain there is provision for disclosure of information relating to contamination and buyers are free to further investigate the risk involved for them as they choose.

5.31 It risks stigmatising and blighting any land which has ever been subjected to a potentially contaminating use, even after it has been remediated. Anyone selling property or land on which an Annex II activity has taken place may find the value of that investment disproportionately reduced because of the cost and time involved in preparing this report. Such effects would be additional to any arising from the obligation in the proposed Article 10 to identify and sample all Annex II sites.

5.32 We believe that we already have a successful policy for building on previously used land, thereby preserving undeveloped land and soil functions. As drafted, any housing built on an Annex II site, even when it has been cleaned up so as to be suitable for its approved use, or found not to warrant action, would fall within the scope of the proposed Article 12.

5.33 The Commission's Impact Assessment (which accompanied publication of the proposed Soil Framework Directive) contains no information on the likely number of transactions in the EU which will require Soil Status Reports ( SSRs). We believe that millions of transactions take place annually, and are likely to result in significant costs.

5.34 We are concerned that there may not be sufficient capacity in Great Britain to conduct all the soil status reports that will be required.

Initial Regulatory Impact Assessment - costs and benefits

5.35 Millions of transactions likely across EU-25 imposing significant administrative and economic costs on all property transactions. We have not yet identified exactly what this cost will be.

5.36 There is potential for land and property blight. Whilst it is not yet fully clear how property markets will react, the requirement to produce SSRs may push down the value of this land. We are concerned that this may happen even when the land presents no risk and when the current land owner was not responsible for the contamination.

5.37 UK businesses, including major industry and property sectors likely to incur administrative and financial costs to meet SSR requirements. Homeowners would also face additional costs.

5.38 The Commission's Impact Assessment does not take account of the potentially significant additional costs associated with establishing monitoring and enforcement regimes to ensure SSR provisions are met.

Questions

• Q.33 How do you think this provision could best be amended to minimise any possible negative impacts that this proposed Article may have in Great Britain?
• Q.34 What are your views on the costs and benefits of this provision? What effect do you think this will have on land prices?
• Q.35 What do you think are the public health/environmental benefits of the requirement to produce Soil Status Reports? Do you consider that they will benefit business activity?

Articles 13 and 14 - Remediation

Content

5.39 Article 13, as drafted, requires Member States to remediate all contaminated sites appearing in their inventory. Remediation is deemed to have taken place when a contaminated site no longer poses any significant risk to human health or the environment, based on the sites current use and any approved future use. Remediation should be conducted via the "removal, control, containment or reduction of contaminants".

5.40 The proposed Directive suggests that in most cases the polluter should pay for the remediation of contaminated sites (although it does not expressly require this). Member States must set up "appropriate mechanisms" to fund remediation in cases where the polluter either cannot be found, or cannot be held liable for the costs of remediation.

5.41 Under the proposed Article 14, Member States must draw up a 'National Remediation Strategy' within seven years of transposition, which should be in place and made public within eight years of transposition . This Strategy should be based on the inventory of contaminated sites, and must include remediation targets, an implementation timetable, and details of how funding is to be allocated. The Strategy should also prioritise the order in which sites are remediated, with those posing a significant risk to human health to be dealt with first. The Strategy must be reviewed every five years.

5.42 Where containment or natural recovery are used as the methods of remediation, the level of risk posed must be monitored.

Issues raised

5.43 Land affected by contamination is very often dealt with under the land use planning regime, with the costs of any remedial works largely falling to the developer/land owner. The approach of the proposed Directive may impose significant costs on Member States (and thus the tax-payer), if it undermines the successful and largely voluntary approaches currently in place. It is possible that developers will be discouraged from incurring costs themselves if they know that Member States have to ensure remediation of the land, especially if a public timetable is in place. It is also unclear how the Directive might affect transfer of potential liability for remediation when land transactions take place.

5.44 The timetable for identification of contaminated sites could also mean public pressure to remediate in advance of development plans which might address the problem. A detailed "national remediation strategy" including timetables and details of public funds available, could thus have unpredictable effects on remediation activity by polluters, owners or developers.

5.45 Though the Directive specifies a range of methods to remediate land, it does not appear to provide for cases where the standard of remediation might not be fully attainable technically, or could entail disproportionate cost or environmental dis-benefits where it may be best to simply restrict access. In addition, this provision does not take into account that the Environmental Liability Directive and Integrated Pollution Prevention Control Directive and other measures require action to be taken in response to future contamination in many situations.

Initial Regulatory Impact Assessment - costs and benefits

5.46 Given the timetable required under Article 14 of the proposed Directive, the proposals may lead to remediation of some sites at a cost to the public sector where these would otherwise have been voluntarily remediated, as the timetable may deter developers from spending large amounts of money on remediation where this is due to be done by the Government. Also, Article 13(3), as drafted, suggests that either the polluter pays or otherwise payment should be made through mechanisms set up by Member States.

5.47 The proposed requirements for the remediation of contaminated sites do not clearly provide for balancing of costs and benefits, nor consideration of practicability, or possible adverse environmental impacts, to be taken into account. This may mean that unnecessary costs would be incurred, for example where the best practical means of remediation might be to restrict or remove the vulnerable receptor, thus reducing potential exposure.

5.48 There is an additional administrative burden on the Government in drawing up the 'National Remediation Strategy'. There is also potential for drawing up such a Strategy to become cumbersome and expensive as future contamination is also covered. This will mean constantly updating this strategy.

Questions

• Q.36 Do you agree that contaminated sites as defined should be remediated? Do you think these provisions could be amended to make them more proportionate? If so, how?
• Q.37 Should this provision be aligned with existing European Directives (as outlined in paragraph 5.2), so that where they apply, those Directives' arrangements concerning remedies will operate as now?
• Q.38 Do you agree with the costs and benefits identified in our preliminary analysis? How do you consider these costs could be reduced whilst achieving the same or similar benefits?
• Q.39 What are your views on requiring Member States to put in place appropriate mechanisms to fund remediation of orphan sites?
• Q.40 What are your views on requiring Member States to have a public 'National Remediation Strategy' in place? Do you think this will affect existing national approaches such as remediation by developers?