4: Recommended approach for the management of contaminated land

4.1 THE STRUCTURED APPROACH

Figure 1 shows the basic steps in a structured approach that will help in putting the key principles into practice. The approach is not intended to be prescriptive: there is a wide range of potential contaminated land situations and the application of the structured approach will need to be tailored to each case. The approach is primarily aimed at long-term management of contaminated land. In some cases the approach will need to be an iterative one, but in others it will be almost once-through.

General guidance on the steps of identifying the preferred option, deciding on the option to be implemented, implementation and validation are given in Sections 5-8. Further details for nuclear-licensed sites are in Appendix A and for defence sites in Appendix B. Section 4.3 below provides guidance on establishing objectives for the management of contaminated land.

As shown in Figure 1, key principles 1, 2 and 5 apply throughout the process of identifying, implementing and validating the best option (or strategy) for managing contaminated land. The extent to which stakeholders other than the site owner/operator and regulators are involved at various stages in the process will vary from site to site and should be commensurate with the technical and societal significance of the contaminated land problem (see Section 3.2.1). Principle 3 applies primarily at the stage when site owners/operators are identifying their preferred option or strategy (see Section 5), prior to actually deciding on the option to be implemented (see Section 6).

4.2 RELATIONSHIP OF THE STRUCTURED APPROACH TO THE REGULATORY REGIMES

This guidance supplements (but is independent from) current regulatory regimes. These regimes influence some of the steps in the structured approach (Figure 1). They affect how the steps are applied in practice; for example regulatory approvals are required for certain actions. Regulatory regimes also constrain the way that the approach is applied. In particular, they can constrain the choice of management options because some regulations set legal standards that must be met during the management of contaminated land.

Different regimes apply to nuclear-licensed sites and non-licensed defence sites, as described by Hill [2002]. There are also differences in the regulatory regimes for radioactive and non-radioactive contamination; these are noted throughout the guidance. It should be noted that some aspects of the regulatory regimes for contaminated land (particularly radioactive contamination) are currently under development.

The main regulatory regimes that apply to contaminated land on nuclear and defence sites are those under the Health and Safety at Work etc Act [1974] (HSWA) and associated regulations such as the Ionising Radiation Regulations (IRRs); the Nuclear Installations Act [1965] (NIA); and Part IIA of the Environmental Protection Act [1990] (EPA). The Radioactive Substances Act [1993] (RSA) is relevant but only applies to disposals of waste. MoD is not subject to RSA but has in place administrative arrangements to achieve a similar standard of control. The Water Resources Act [1991] is important if groundwater could become contaminated.

The HSWA and NIA are applied by the HSE. RSA is administered by the Environment Agency (in England and Wales), the Scottish Environment Protection Agency (SEPA) and the Department of the Environment in Northern Ireland (referred to collectively as the environment agencies). Local authorities are the regulators for Part IIA, but the environment agencies have a key role, particularly at ‘special sites’ (see Hill, 2002, for further details). Site owners and operators should establish dialogue with these regulators at the earliest opportunity and maintain it throughout the process of identifying, implementing and validating the land management option or strategy.

Some guidance has been issued that is relevant to the application of these regimes to contaminated land on nuclear and defence sites. For example, HSE [HSE 2001b] has published guidance to inspectors about radioactively contaminated land on nuclear-licensed sites. The Environment Agency et al. [2002b] has issued guidance on the management of radioactively contaminated land on non-licensed sites. Much guidance is available on the management of non-radioactive contaminants [Barry et al. 1996; DETR, 2000a; DETR, 2000b; Environment Agency 2000a].

Other legal and regulatory requirements will also be relevant, depending on the situation. In particular, if an option generates radioactive waste, the Radioactive Substances Act applies. If a nuclear reactor site is to be decommissioned, then it will be necessary to meet the requirements of legislation on environmental impact assessment [EIAD 1999]. Other new developments may fall within the requirements of general environmental impact assessment regulations [EIA, 1999].

It should be noted that the Part IIA regime for non-radioactively contaminated land [EPA 1990] applies only to sites in their current use (including any use for which planning permission has been granted) and only to sites that are contaminated in the sense defined in Part IIA. These are a sub-set of the sites addressed by this guidance. There are differences between what is recommended here as good practice and the minimum likely to be required by the environment agencies in implementing Part IIA. It is anticipated that following this good practice guidance will, in general, entail doing more than the minimum required under Part IIA.

4.3 ESTABLISHING OBJECTIVES

Setting out the objectives for the management of contaminated land is important because it helps to focus the identification of the preferred option and subsequent decision-making. The factors to be considered in establishing objectives include: government policy, corporate/organisational policy (both general and for the particular site) and the views of stakeholders such as regulators, local authorities and local people.

It is recommended that environment, health and safety objectives are established separately from those of a commercial or administrative nature. In keeping with the case-by-case approach (see Section 2.1.2), it is recommended that, in general, environment, health and safety objectives should be broad and qualitative rather than specific and numerical. Very specific objectives are unlikely to be acceptable to all stakeholders (see Section 3.1.2) and setting them constrains choices of options for comparison and is not consistent with a BPEO approach (see Section 3.3.1). Examples of objectives are given in Box 2.

Box 2. Examples of Objectives for the Management of Contaminated Land

It should be recognised that objectives may need to be redefined as the process of identification and selection of the land management option progresses (see Figure 1). This is particularly the case if objectives have been imposed on the site owner/operator by people external to the process. Situations can be envisaged in which there are no options that will exactly meet an imposed objective, or in which the option that would be preferred on a wide range of attributes and by a wide range of stakeholders is not one that will meet an imposed objective. For example, it is possible to envisage a situation in which the relevant Minister has decided that a defence site should be cleaned up and sold within the shortest possible period of time, but the process of identifying the best option indicates that there would be considerable merit in delay. In such a case it is for MoD (and perhaps other stakeholders) to make representations to the Minister to ascertain whether the objective can be amended.

4.4 FUNDING

Appropriate funding arrangements are needed in order to deal with contaminated land. To achieve this, estimates of the cost of the management of contaminated land should be incorporated into overall liability estimates, and sufficient provisions be made. Fogleman [2000] discusses the general funding issues in legal terms and Finnamore et al. [2000] give guidance on managing financial risks.

The approach and sources of funding is different for nuclear and defence sites. Funding activities for nuclear-licensed sites are addressed in Appendix A. For defence sites, it is necessary to decide whether the liability will be dealt with before the land is sold, or passed on with an appropriate adjustment in the value of the land (see Appendix B).

Figure 1 Basic Steps in the Structured Approach

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Note: See Sections 5-8 for details of identification of preferred option, deciding on the option/strategy to be implemented, implementation and validation. (Figure to be edited to include cross references in boxes.)

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