Managing the Risks from Contaminated Land

Transcription

1 Risks from Contaminated Land Synopsis This Guidance Note gives recommendations for managing the risks from contaminated land owned or used by the Railway Group Submitted by Patricia Dingwall Standards Project Manager Authorised by Brian Alston Acting Controller, Railway Group Standards This document is the property of Railtrack PLC. It shall not be reproduced in whole or in part without the written permission of the Controller, Railway Group Standards, Railtrack PLC. Published by Safety & Standards Directorate Railtrack PLC Railtrack House, DP01 Euston Square London NW1 2EE Copyright 1999 Railtrack PLC

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3 Page 1 of 26 Contents Section Description Page Part A Issue Record 2 Application 2 Health and Safety Responsibilities 2 Supply 2 Part B 1 Introduction 3 2 Aim 3 3 Purpose 3 4 Scope 3 5 Definitions 4 6 Background 5 7 Legislation 7 8 Recommended Process 8 9 Personnel and Competencies Communication and Records 15 Appendices A Bibliography 17 B Legislative Provisions 20 C Data Collection 26 RAILTRACK 1

4 Page 2 of 26 Issue Record Part A This Guidance Note will be updated when necessary by distribution of a complete replacement. Amended or additional parts of revised pages will be marked by a vertical black line in the adjacent margin. Issue Date Comments 1 October 1999 Will supersede Railway Group Standard GC/RT5155 Contaminated Land - Managing the Risk from October Application This Guidance Note sets out the suggested approach which may be appropriate for Railway Group Members to follow concerning the lease, purchase, sale or development of land which may be contaminated. It is not intended as an authoritative statement of the law, nor of best practice, since site conditions are variable. It is not a substitute for the need to take professional advice from lawyers, environmental consultants, surveyors, or others, in relation to specific sites or problems. Health and Safety and other legal Responsibilities In issuing this Guidance Note, Railtrack PLC makes no warranties, express or implied, that compliance with it or all or any Railway Group Standards is sufficient on its own to ensure safe systems of work or operation or compliance with any other law. Each user is reminded of its own responsibilities to ensure health and safety at work and its individual duties under health and safety and other legislation. Supply Controlled and uncontrolled copies of this Guidance Note may be obtained from the Industry Safety Liaison Dept, Safety and Standards Directorate, Railtrack PLC, Railtrack House, DP01, Euston Square, London, NW1 2EE. 2 RAILTRACK

5 Page 3 of 26 1 Introduction 2 Aim Part B This Guidance Note has been produced by Railtrack Safety and Standards Directorate to assist Railway Group Members understand the legislative, technical and procedural framework within which the risks associated with Contaminated Land may be identified and managed. The aim of this Guidance Note is to draw attention to the risks from Contaminated Land so that members of the Railway Group: appreciate the potential nature and extent of the risks which they carry for Contaminated Land which they own or use, or intend to own or use; take appropriate action to manage those risks and meet their legal obligation to protect the environment from pollution and contamination; give due regard to the health and safety of site operatives and personnel in the development of railway land and property. 3 Purpose The purpose of this Guidance Note is to set out how the stated aim may be met by:- highlighting some of the risks and liabilities posed by Contaminated Land in the railway environment; summarising aspects of current Legislation; detailing the recommended process for identifying land which may be contaminated including:- 6 the techniques which may be used to investigate Contaminated Land; 6 the measures which may be employed to mitigate the risks and liabilities for Contaminated Land; giving general guidance on competencies of personnel. 4 Scope 4.1 This Guidance Note applies to:- all land which is owned used or intended to be owned or used by Members of the Railway Group for activities associated with train operations on Railtrack Controlled Infrastructure; all persons within the Railway Group responsible for developing, maintaining, leasing, purchasing or disposing of land. 4.2 The following subjects are covered:- the origins of contamination; the legislative background; the recommended process that should be followed; personnel and competencies; communications; record keeping. In addition, Appendix A lists relevant references and gives a bibliography. RAILTRACK 3

6 Page 4 of 26 5 Definitions Contaminated Land Section 78A(2) of the Environmental Protection Act 1990, states that: Contaminated land is any land which appears to the local authority in whose area it is situated to be in such a condition, by reason of the substances in, on or under the land, that; a. significant Harm is being caused or there is a significant possibility of such Harm being caused; or b. pollution of controlled waters is being, or is likely to be caused. It should be noted that there are several other definitions which may be used but that given above is the accepted definition Note: The words contamination and contaminated are used freely in the text to refer to land which may not have been confirmed as Contaminated Land but which could potentially be contaminated. Guidance on Section 57 of The Environment Act is currently being prepared by the Department of the Environment, Transport and the Regions. Environment Agency Any reference to the Environment Agency should be taken to include the Scottish Environmental Protection Agency. Ground Investigation A planned and managed sequence of activities carried out to determine the nature and distribution of contaminants on and below the surface of land that may be contaminated. These activities include identification of the principal hazards, design of sampling and analysis programmes, collection and analysis of samples and reporting of results for further assessment. These investigations are designed to suit the particular site circumstances and will normally include Intrusive Surveys (see below). Harm Harm to the health of living organisms or other interferences with the ecological systems of which they form a part and, in the case of man, includes Harm to his property. Guidance issued by DETR deals with the meaning of significant. Hazard A situation with the potential to cause Harm. Intrusive Survey Any survey technique that disturbs the existing situation on the site and as a consequence carries a risk in itself of exacerbating pollution. For example, the drilling of a borehole might rupture a buried container or cause asbestos dust to be released into the air. Migration The movement of contaminants through the ground or ground water. Polychlorinated biphenyls (PCBs) PCBs are liquids/resins that have good heat transfer properties and have been used mainly as hydraulic fluids in the flywheels of diesel multiple units. They have also been used in some transformers and capacitors. Their chemical stability and relative solubility in oils make them highly persistent in the environment and results in their accumulation in soils, plants and animals. Pathway The means by which a Hazard comes into contact with a Target. 4 RAILTRACK

7 Page 5 of 26 Preliminary Site Review The sequence of activities, principally the collection and examination of information from records and site reconnaissance, the results of which determine whether a site is likely to be contaminated and may require further Ground Investigation. Railway Group The Railway Group comprises Railtrack and the duty holders of Railway Safety Cases accepted by Railtrack. Risk Management The process whereby decisions are made to accept a known or assessed risk and / or the implementation of actions to reduce the consequences or probabilities of occurrence. Site Screening A preliminary site categorisation based upon a number of key parameters related to the sites contamination risk potential. Strict Liability A legal concept where proof of events can mean guilt is automatic. Suitable for Use The condition of land that poses no unacceptable risks to health or the environment, taking into account the use of the land and its environmental setting. For example, a higher level of contamination may be acceptable on land used for car parking than on land to be used for allotments and growing food. However, car parking construction may have a significant impact upon the groundwater and so all aspects need to be considered. Target (Receptor) An entity (eg. Human, animal, water, vegetation, building services, etc.) which is vulnerable to the adverse effects of a hazard. Window Sampler A low disturbance technique for taking small diameter depth samples from the ground where space is very restricted, such as car parks in use and railway marshalling yards. These terms are identified by the use of capital letters in this Guidance Note. 6 Background 6.1 In order for a significant risk to be caused from Contaminated Land, there must be a Hazard (contamination source), a Target (Receptor) and a Pathway between the Hazard and the Target. 6.2 Contaminated Land may arise from:- past land uses; present land uses; proposed future land uses; migration to or from adjacent land. Traditionally many activities that took place on railway land were potentially contaminating and while much stricter controls now exist, the possible contamination of land through accidental spillage etc. remains a significant risk. The immediate consequences of such spillage (such as the risk of water pollution) are outside the scope of this Guidance Note. RAILTRACK 5

8 Page 6 of 26 Land which is to be purchased or leased may be contaminated by non-railway activities. CIRIA Report 132 (see Appendix A) contains Site Profiles for 24 different industries. The profile for Railway Land, C23, is given below showing the main Hazards which may be encountered. This is reproduced with the kind permission of CIRIA. Overview Potential hazards arise from the material used in the construction and maintenance of rolling stock. The hazards are greatest in depots, sidings and engineering works, rather than main trackwork. The transportation of dangerous goods could give rise to unexpected hazards at particular locations. Waste Types Hazards are most likely to arise from spillages, storage, accidents and a variety of processes, such as painting, maintenance, engineering shops. Toxic inorganic Construction may have utilised waste ash and clinker from local industrial sources. This material will be contaminated with a range of toxic metals. Metal contamination may have arisen from engineering work. Lead paint may have been used to prevent corrosion of iron and steel. Toxic organic Creosote (a coal tar derivative) used as a preservative on railway sleepers. Diesel and oil spillages may have occurred, particularly in locomotive depots. Chlorinated and other hydrocarbon solvents may have been used for cleaning purposes. Pesticides used to control vegetation and storage areas may have become contaminated due to spillages. Spills of oils and other organic liquids during loading and unloading. Bombing during World War II led to the dispersal of oils and other organic liquids in a number of cases. Asbestos Asbestos widely used for insulation in locomotives and carriages. Carriage breaking is a specific source. Waste from tunnels may contain asbestos. Combustible Former coal storage yards may contain sufficient coal dust to provide a combustion hazard. Ground contaminated by diesel spillage or solvents may be combustible. In addition, PCBs may be present as a result of the stabling, maintenance and operation of Diesel Multiple Units. 6 RAILTRACK

9 Page 7 of While Contaminated Land may not directly affect rail operations, there are a number of ways in which it could disrupt operations locally causing commercial loss and affecting health and safety or the wider environment. In addition to commercial losses, legislation exerts an increasingly higher level of control and legal liabilities, including fines or imprisonment for offences upon conviction as well as the cost of any necessary clean-up work. 6.4 Examples of the risks posed by Contaminated Land are:- physical damage to infrastructure; the build-up of gasses leading to asphyxiation or explosion; Harm to persons through contact with noxious or toxic materials; reduction in land values or the reduction in renewal or redevelopment options; prosecution for damage to the wider environment; claims for compensation arising from damage to neighbours property; and damage to the perception of the industry by the public and stigmatisation as being dirty or polluting. 6.5 Consideration should be given to assessing land for contamination when:- land is known or suspected to be contaminated; purchase, redevelopment, reclamation or reconstruction works are proposed; or, when disposal or leasing is being proposed. The recommended process that should be followed is given in section It may also be appropriate to undertake a Site Screening of all land holdings in order to decide on whether more detailed assessment is required and where. 7 Legislation 7.1 General The legislative provisions covering Contaminated Land and its remediation are substantial and a brief, selective summary is provided in Appendix B. 7.2 The principles behind the approach of the Government for dealing with the issue are, however, relatively simple. They are:- the polluter pays; if the original polluter cannot be traced or made responsible then the current landowner becomes responsible; action must be taken to abate pollution from Contaminated Land; action may be taken to abate pollution on the land in accordance with the principle of Suitable for Use. 7.3 The Railway Group enjoys no special provisions in relation to Contaminated Land and may attract Strict Liability for any environmental damage. Within the Railway Group contractual arrangements between the parties may apportion the liability for costs incurred in clean-up but will not necessarily discharge legal liabilities for offences such as causing or knowingly permitting pollution of water. RAILTRACK 7

10 Page 8 of Construction (Design and Management) (CDM) Regulations The CDM Regulations 1994 apply to any scheme involving construction or development, including larger site investigations (more than 4 people or 30 days on site). This requires the Planning Supervisor to ensure that a Health and Safety Plan is prepared. The risk from Contaminated Land should be detailed in the Pre-tender Health and Safety Plan. 7.5 It should be noted that certain high risk contaminants may be dealt with by specific legislation eg. Asbestos. Such legislation or regulations should be referred to in assessing risks, responsibilities and courses of action. 7.6 Environmental Legislation Local authorities and the Environment Agency can be expected toadopt a reasonable approach towards enforcement.. They may therefore be less likely to take action against (indeed, they can be expected to co-operate with) a landowner or occupier who:- takes action to identify any problems; consults on and agrees a plan of action including a programme of appropriate physical site works; promptly implements that plan of action. 8 Recommended Process 8.1 General The process of dealing with land which may be contaminated should be one of Risk Management. The following activity stages are involved:- site screening; qualitative assessment; quantitative assessment; special assessment (eg. refined quantitative assessment); remediation plan formulation; site remediation works to control (reduce or eliminate) the risks identified; record site status. The process may be terminated at the end of or during any activity stage if it is established that the land does not pose an unacceptable level of risk. On the other hand, urgent remedial works or monitoring may be needed during any of the activity stages if it is established that the land poses an unacceptable level of risk The decision process is illustrated on the flowchart on page 10 of this Guidance Note and is described below. Strategic Decision Points are identified on the flowchart, where the opportunity exists to re-assess any transaction, proposal or plans based upon the findings at that particular stage of the site Risk Management process. It is important to note that the owner of land that has been identified as Contaminated Land may be faced with an aborted transaction, but may still have to proceed with remediation in order to manage satisfactorily the risks which the site poses. In all cases the anticipated benefits may be set against the identified risks. 8.2 Site Screening The potential for a site to be contaminated may be assessed by undertaking an initial site screening to identify into which of three broad Risk Categories (High Risk - RC 1; Medium Risk - RC 2; Low Risk - RC3) the site belongs: 8 RAILTRACK

11 Page 9 of 26 RC 1 : RC 2 : RC 3 : the land is known, or is likely, to be contaminated: a further screening and/or a qualitative risk assessment should be undertaken and further investigations will probably follow. Remediation is likely to be needed, regardless of any development proposals. the land may be contaminated although there are no specific incidents or reports. No development should be undertaken without further information being obtained. the land is unlikely to be contaminated and no special measures are required Examples of the type of site which may fall into these categories are given below: Risk Category Current Use Historic Use Location RC 1 Depot Any Any Engineering Works Any Any Sidings Any Any RC 2 Station Station / Unknown Industrial Car park Car park / Unknown Industrial RC 3 Station Station / Unknown Non Industrial Car park Car park / Unknown Non Industrial Professional judgement is required in the screening process as in all matters relating to contamination, and a safety first approach should be used. The screening process may be used as a first step in deciding the next action to be taken, if any Further screening may also be used to prioritise a large number of potentially contaminated sites. A range of key factors may be used and each of the key factors for a particular site is assigned a risk score of 1-5 (5 is high, 1 is low). A total risk score for the site is derived. Key factors may include:- proximity to sensitive environment; past land use; existing land use; proposed land use; nature of possible contamination; extent of possible contamination; potential for disturbance; risk to groundwater source; development potential; potential Pathways; potential Targets. 8.3 Qualitative Assessment The purpose of the qualitative assessment is to identify potential Hazards / Pathways / Targets so that a preliminary Risk Model (Conceptual Site Model) can be constructed. There are generally four parts to this assessment. RAILTRACK 9

12 Page 10 of 26 RISK MANAGEMENT PROCESS SITE SCREENING SDP QUALITATIVE RISK ASSESSMENT DESK STUDY WALK OVER SURVEY (SITE RECONNAISSANCE) SDP PRELIMINARY GROUND INVESTIGATION QUALITATIVE EVALUATION SDP QUANTITATIVE ASSESSMENT DETAILED GROUND INVESTIGATION SDP QUANTIFIED RISK ASSESSMENT QUANTIFIED EVALUATION SDP SPECIAL ASSESSMENT SDP REMEDIATION PLAN/ IMPLEMENTATION RECORD SITE STATUS KEY BOLD HORIZONTAL LINE INDICATES A "STRATEGIC DECISION POINT" ( SDP) IF THERE IS AN UNACCEPTABLE RISK CONTINUE TO NEXT STAGE OR MODIFY THE SCHEME AND RE-ASSESS. IF RISK IS ACCEPTABLE/ LAND IS NOT CONTAMINATED "DO NOTHING" OPTION MAY BE FOLLOWED. 10 RAILTRACK

13 Page 11 of Part 1 Desk Study The purpose of the desk study is to identify and collate all known records of the site and its immediate surroundings. This may include contacting other parties such as the local authority, utility companies or Environment Agency and archive research to identify:- site history and previous uses; previous investigations or reports; as built drawings; past or current mining activity; information on geology and hydrogeology, including the presence of groundwater and surface water; any aerial photography carried out. This stage should provide:- confirmation as to whether contamination is known to exist or; an indication as to whether contaminating activities have taken place on the site; details of any decontamination works undertaken; guidance on the potential hazards to be faced when carrying out the site reconnaissance Part 2 Site reconnaissance (Walk over survey) The purpose of the site reconnaissance is to:- confirm (or otherwise) the information gained from the desk study; identify pollution, polluting activities and their locations or surface evidence of pollution; and gather other relevant information about the site and its surroundings. Appendix C gives a list of information that should be considered for gathering. The outcome of this preliminary assessment of the risks should be sufficient understanding to construct a preliminary risk model and to enable a decision to be taken on whether it is necessary to proceed with further parts of the qualitative assessment. The site reconnaissance should be carried out without causing any ground disturbance. As this is a potentially hazardous activity on a contaminated site, it should only be undertaken by appropriately trained and equipped personnel Part 3 Preliminary Ground Investigation The purpose of the preliminary ground investigation is to gather further information on the ground to confirm or otherwise the presence of Hazards (contamination sources) that have previously been identified as likely to be present. Information on the ground conditions is obtained by using intrusive survey techniques such as trial pitting, gas spiking and the drilling of boreholes to obtain soil, gas and water samples. Taking samples at discrete depths using Window Samplers is now widely used. The investigations should aim to confirm what is suspected to be in the ground rather than be a random probe. For example, where migration of contaminants across boundaries is thought to be likely or possible, trial pits may be sunk around the perimeter of the site. RAILTRACK 11

14 Page 12 of Part 4 Qualitative Evaluation The investigations recommended in the preceding parts of this assessment should allow a clearer picture of the nature and extent of any contamination and the risks which exist to be established. This will enable the decision to be made on whether to:- take no further action; proceed with the sale, purchase, lease or development of the land, or proceed to a quantitative assessment as a prelude to possible remediation or monitoring; change the scheme and reassess. 8.4 Quantitative Assessment The purpose of the quantitative assessment is to quantify the risks from the Contaminated Land. There are generally two main parts to this assessment Part 1 Detailed Ground Investigation This involves techniques similar to those used in the preliminary ground investigation. Trial pits and bore holes may be sunk, sometimes at very close centres[10,15,25m centres], at hot spots of high contamination or elsewhere to determine more accurately the extent of any contamination. A detailed sampling, testing and analysis protocol for soil and water samples should be established. Fixed gas monitoring stations may be installed in selected bore holes. The outcome of the detailed ground investigation should be a thorough understanding of the site contamination to allow a quantitative Risk assessment to be carried out. The information obtained should provide sufficient detail to enable an outline remediation scheme to be designed and costed for budgeting purposes. In the event of a known incident occurring that contaminates land, the requirements of this phase may be reduced, though the risk will need to be assessed Part 2 Quantitative Risk Assessment This quantitative risk assessment is undertaken so that the safety risks to staff, contractors, the public, as well as the railway infrastructure and the wider environment, can be determined quantitatively. The risks to be considered will include those associated with the do nothing option and with likely remediation options. It may be appropriate to consider commercial risks in the same process In general, the assessment should seek to quantify the risk arising using the Hazard - Pathway - Target [pollutant linkage] or other appropriate technique. It should define the magnitude of the effect on the Target in respect of health, ecological, safety, commercial or any other appropriate terms. It should also estimate the probability of an event of that magnitude occurring in a given time period. The product of these issues will determine the magnitude of the risk. The risk assessment should also identify the competencies required in the later phases of the process In determining the magnitude of the risk, cognisance should be taken of relevant guidance issued by the Department of Environment. Additionally, advice should be sought from the local authority or the Environment Agency, or both as to acceptable levels of contamination, discharge consents, on-site prevention works, etc. Any contractual requirements shall also be met. 12 RAILTRACK

15 Page 13 of Part 3 Quantitative Evaluation The investigations recommended in the preceding parts of this assessment should allow a quantitative assessment of the nature and extent of any contamination and the risks which exist. This will enable the decision to be made on whether to:- take no further action; proceed with the sale, purchase, lease or development of the land; proceed with a further special assessment; proceed with remediation works or monitoring; change the scheme and reassess. 8.5 Special Assessment A special assessment should be aimed at closing out any further assessment work and will vary according to the particular site conditions. Such an assessment will only generally be required when either of the following situations arise:- significant risks have been established from the previous assessments; the results obtained from the previous assessments are particularly sensitive to the degree of conservatism used. This assessment should therefore focus on particular aspects and may include the following:- further specific ground investigations; the use of specific data from Regulatory Bodies; the development of a more refined / complex risk model. The results of this assessment should allow firm decisions to be made regarding remediation works or monitoring. 8.6 Remediation Plan When an assessment identifies that land is Contaminated Land, and remediation is to be undertaken, a remediation plan and scheme design should be prepared, the objective of the remediation plan should be to:- reduce the risk (in the case of safety in accordance with the as low as reasonably practical [ALARP] principle); and either: abate any pollution arising or likely to arise from the site; or render the site Suitable For Use without incurring unnecessary expenditure or the taking or omitting of any action which will increase costs or financial risk to the Railway Group The remediation plan should detail the strategy to be followed, for example:- removal of contaminants from site and disposal at a licensed facility; encapsulation or fixation on site; treatment on site to destroy contaminants by chemical, biological or physical means; the prevention of contaminants from entering the site; railway safety; scheme design. RAILTRACK 13

16 Page 14 of The remediation plan should cover detailed activities such as:- co-ordination of activities on site including tenants, contractors and public; general method of operations; health and safety matters; contingency plans; programme of works; specialist services required; competency or training of staff In addition the remediation plan should:- provide for monitoring, both on and off site, as appropriate; ensure that the works do not release contaminants into the wider environment; detail mechanisms for taking corrective action in the event of any nonconformance being detected; consider whether site monitoring needs to continue after completion of the physical site works in order to demonstrate the effectiveness of the action taken or the need for further treatment. 8.7 Site Remediation Work Physical site work should be carried out in accordance with the remediation plan Any significant deviation from the remediation plan should be assessed for risk before being implemented. A change to the remediation plan may arise from:- better identification of the hazard; new techniques or processes being available; deficiencies in the previous remediation plan. Competent staff and contractors should be employed and procedures put in place to restrict site access to approved personnel during the course of the works. Special measures may be required to protect staff and the public during the course of the works All waste arising shall be handled, transported and disposed of safely and in accordance with current legislation. The owner of land which contains or generates waste has a Duty of Care to ensure that this is done. 9 Personnel and Competencies 9.1 Dealing with contamination and Contaminated Land is a legally and technically demanding function that requires a number of competencies covering for example:- project and contract management; survey; qualitative assessment; quantitative assessment; planning; contracting specialisations. These functions need not be separate; individuals, consultants or contractors may reasonably cover more than one of them. 14 RAILTRACK

17 Page 15 of Individuals should possess:- appropriate qualifications; experience commensurate with the size and technical complexity of the remediation project; expertise in the assessment of contamination. 9.3 Companies, whether consulting, contracting or both should, inter alia:- be approved for use by the relevant procurement system; hold all necessary licences and permits relating to the work proposed; employ competent staff and have management systems that ensure internal communications, training, assessment, etc; have a track record of successful work in the relevant field; not have been convicted of any offence relating to the type of work undertaken; hold appropriate insurance or professional indemnity or both. 9.4 The risk assessment and remediation plan should identify any additional competencies appropriate to the Contaminated Land in question. 9.5 All staff entering onto land known or suspected to be contaminated should be:- briefed on likely hazards; provided with the appropriate personal protective equipment; subject to health monitoring on high risk sites; in addition to the normal safety requirements for working on or near the railway. 10 Communications and Records 10.1 Communications about known or suspected land contamination, remediation plans, and physical works should be maintained both with staff in the responsible company and externally with, as appropriate:- contractors; landlord / tenants; local authority; Environment Agency; neighbours; the public; in order to reduce safety, commercial and environmental risks The purpose of any communication is likely to cover:- data collection in the survey and risk assessment phases; consultation in the remediation plan formulation phase; notification in the physical site work phase; advice to staff. The medium or media used should be such as to ensure that the target audience is reached and the desired response is facilitated. RAILTRACK 15

18 Page 16 of Records should be maintained of any matter relating to contamination and Contaminated Land for land or sites either owned, leased or otherwise used by any member of the Railway Group Matters to be recorded should include:- communications and the actions arising therefrom; known contaminating activities either past or present; incidents known to, or likely to lead to, contamination; the results of any site screening or risk assessment undertaken even when the land is found not to be Contaminated Land; any action taken to abate contamination, for example, change in procedures or physical site works; the results of any monitoring As land contamination is a long-term issue, facilities should be available for the keeping of records for an indefinite period unless some shorter period is defined by legal advice. 16 RAILTRACK

19 Page 17 of 26 Appendix A Bibliography There are a large number of publications related to contaminated land. The following short list gives some of the most useful publications dealing with the background and the methodologies for identifying and assessing the risk from contaminated land. An extensive list is contained in the reference marked * Applied Environmental Research Centre Ltd. CLR Report No. 2 Vol. 1 and 2 (1994) Guidance on preliminary site inspection of contaminated land [Published by Department of the Environment: Contaminated land Research Report HMSO]. British Standards Institution (1988) Draft for Development - Code of Practice for the identification of potentially contaminated land and its investigation DD175 CLR6 - Prioritisation and Categorisation Procedure for sites which may be contaminated, DoE *Department of the Environment (1996) Part 11A of the Environmental Protection Act 1990, Contaminated Land, Draft Statutory Guidance (Working Draft, 24 June 1996). [HMSO] ISBN Contains extensive bibliography in Appendix B. Department of the Environment (1987) [Interdepartmental Committee on the Redevelopment of Contaminated land] Guidance on the assessment and redevelopment of contaminated land. ICRCL Guidance Note 59/83 (2 nd Edition). Department of the Environment (1995) Environment Act 1995 HMSO. ISBN Department of the Environment (1995) Contaminated Land Industry Profiles: Engineering Works; Railway Engineering Works. HMSO. HSE: HS(G)66: Protection of workers and the general public during the development of contaminated land. London 1991 HMSO ISBN X. RAILTRACK 17

20 Page 18 of 26 CIRIA Report R132 - A guide to safe working on Contaminated Sites provides 24 site profiles for different industrial users. These are listed below: CIRIA Profiles Site profile 1 - Iron and steel industry Site profile 2 - Metal processing industries Site profile 3 - Mining and extractive industries Site profile 4 - Non ferrous metal smelting and refining Site profile 5 - Power stations (gas/oil/coal) Site profile 6 - Shipbuilding sites Site profile 7 - Animal process works Site profile 8 - Asbestos works Site profile 9 - Gasworks Site profile 10 - Paper manufacture Site profile 11 - Printing industry Site profile 12 - Textile industry Site profile 13 - Wood treatment works Site profile 14 - Chemical plants Site profile 15 - Garages/petrol stations Site profile 16 - Oil refineries/storage sites Site profile 17 - Biocide production plants Site profile 18 - Incineration facilities Site profile 19 - Landfill sites Site profile 20 - Sewage works and farms Site profile 21 - Docklands sites Site profile 22 - MoD land (munitions factories) Site profile 23 - Railway land Site profile 24 - Scrapyards 18 RAILTRACK

21 Page 19 of 26 Comprehensive guidance on remediation of Contaminated Land is provided in CIRIA Special Publications ,1995 Remedial Treatment for Contaminated Land. The contents of the 12 volumes is given below:- Volume and title Outline content I INTRODUCTION AND GUIDE Aims, scope, contents list and brief summaries II DECOMMISSIONING, DECONTAMINATION AND DEMOLITION Issues to be addressed and guidance on procedures III SITE INVESTIGATION AND ASSESSMENT Issues to be addressed and guidance on procedures IV CLASSIFICATION AND SELECTION OF REMEDIAL METHODS Classification and selection of appropriate methods and strategies V EXCAVATION AND DISPOSAL Description and evaluation of methods and guidance on procedures VI CONTAINMENT AND HYDRAULIC MEASURES Description and evaluation of methods and guidance on procedures VII EX-SITU REMEDIAL METHODS FOR SOILS, SLUDGES AND SEDIMENTS VIII EX-SITU REMEDIAL METHODS FOR CONTAMINATED GROUNDWATER AND OTHER LIQUIDS Description and evaluation of methods and guidance on procedures Description and evaluation of methods and guidance on procedures IX IN-SITU METHODS OF REMEDIATION Description and evaluation of methods and guidance on procedures X SPECIAL SITUATIONS Information and guidance relating to situations outside the redevelopment context XI PLANNING AND MANAGEMENT Issues to be addressed and guidance on procedures XII POLICY AND LEGISLATION Information on policy, administration and legal frameworks in UK and overseas RAILTRACK 19

22 Page 20 of 26 Legislative Provisions Appendix B Members of the Railway Group using this Guidance Note must not rely on the information contained in it as an authoritative statement of the legislative framework and must obtain their own advice. B1 Environmental Clean - Up Main Statutory References:- Environmental Protection Act 1990; Water Resources Act 1991; Town and Country Planning Act 1990; PPG23 Planning and Pollution Control ; EC Green Paper on Remedying Environmental Damage (March 1993); Environment Act Summary Contaminated Land is clearly an issue of growing concern and an area where UK law, both statutory and common law, is undergoing rapid development. The Environment Act 1995 heavily amends the Environmental Protection Act 1990 (Part IIA expected to come into force 1 st December 1999) and creates a new regime for the control of the environmental problems of contaminated land. It meets the objective set in the DoE paper Framework for Contaminated Land of establishing a modern, specific contaminated land power. For the first time in UK law, there is a specific definition of Contaminated Land, and dedicated procedures for its control. It is not unlawful to simply own a contaminated site if that contamination is not causing damage to the environment or to persons. For example, if a substance has been spilled on a site but is contained within it and there is no possibility of it migrating nor is there any possibility of any persons coming into contact with it, then current legislative powers do not authorise clean-up for its own sake or entitle a regulatory authority to prosecute. Civil Liability It should be borne in mind that liability in damages at common law may arise by virtue of the migration of pollutants (usually underground) onto adjoining or nearby premises. Environmental Protection Act 1990 Part IIA Every local authority is required to cause its area to be inspected from time to time in order to identify Contaminated Land, and decide if it should be designated as a special site (the Environment Agency is the enforcement authority for the latter). Liability for the contaminated land attaches to the appropriate person. This will be the person(s) who caused or knowingly permitted the contamination. If they cannot be found then the owner or occupier is the appropriate person. There are complex provisions concerning off-site migration. Clean up requirements are imposed by means of remediation notices and a failure to comply without reasonable excuse is a criminal offence. Causes or Knowingly Permits Section 85 of the Water Resources Act makes it an offence for any person to cause or knowingly permit any poisonous, noxious or polluting matter or any solid waste matter to enter controlled waters. In the case of historic contamination there is an argument that the owner of a property, aware of its contamination, would be knowingly permitting such entry. There is a body of case law on the meaning of cause and knowlingly permits available. 20 RAILTRACK

23 Page 21 of 26 Section 161 of the same Act empowers the EA to undertake appropriate works to prevent poisonous, noxious or polluting matter or any solid waste matter from entering controlled waters. If the material has already entered the water then the EA can take appropriate steps to remedy or mitigate any pollution so caused, and so far as is practicable, to restore the waters, including any flora or fauna dependent on them, to their state immediately before the discharge or entry. Section 161 empowers the EA to recover its reasonable costs for this work from any person who caused or knowingly permitted the matter in question to be present where it was likely to enter controlled waters or who caused the matter in question actually to be present. The provision does not require a conviction under section 85, but in practice the EA may be reluctant to resort to it in all but the most clear cut cases for the fear of rising expending sums and not being able to recover them. The position will be altered significantly when new section 161A comes into effect. New section 161A (into force 29 th April 1999) bestows upon the EA the power to serve works notices on persons who caused or knowingly permitted pollution of controlled waters or the circumstances where it is likely to arise. Works notices can require steps to investigate, remedy or prevent water pollution. Failure to comply with a works notice will be a criminal offence. At the time of writing, the regulations setting out the detailed procedures for works notices are not available, but it seems likely that the procedures for validly serving works notices will be less extensive than when serving a Contaminated Land remediation notice. Section 33 of the EPA makes it an offence to deposit, dispose of, treat or keep controlled waste on land or to knowingly cause or knowingly permit any of these activities without a licence. It is also an offence to treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or Harm to human health. New Regime Additional Information The primary regulatory role under the Contaminated Land regime will rest with borough and district councils. This reflects their existing responsibilities concerning statutory nuisance, and will complement their roles as planning authorities. In outline, the role of these authorities will be to:- cause their areas to be inspected in order to identify Contaminated Land; consult on what remediation might be required in any individual case; require remediation to take place, through the service of a formal Remediation Notice where necessary, and with powers to act in default; and record information about remediation carried out under the regime. The identification of any Contaminated Land will be based on a process of risk assessment. For any land to be identified, the authority will need to have found contaminating substances in the land and to have established that they are likely to cause Harm to particular Targets. The Act introducesa definition of Contaminated Land. It is land which appears to the local authority to be in such a condition, by reason of substances in, on or under it, that:- significant Harm is being caused; there is a significant possibility of significant Harm being caused; pollution of controlled waters is being caused; or pollution of controlled waters is likely to be caused. Under the liabilities provisions in the legislation, responsibility for paying for remediation will follow the polluter pays principle. Therefore, the person who has caused or knowingly permitted the contamination will be liable. However, if it is not possible to find any such person, responsibility will then pass to the current owner or occupier of the land (except where the problem is one of water pollution). The EA will have four principal roles with respect to Contaminated Land:- RAILTRACK 21

24 Page 22 of 26 to provide site-specific guidance on remediation requirements; to act as the regulator for a defined category of special sites ; to compile a national report on Contaminated Land; and to sponsor technical research and to act as a centre of expertise. Guidance and Regulations The primary legislation sets out the principles which will govern the new regime. The overt process of risk assessment required, however, means that it is simply not possible to prescribe the precise details of the regulatory requirements which might be appropriate in every possible circumstance, as they can be determined only in the light of detailed professional, technical judgements. The role of the statutory guidance is to ensure that the necessary flexibility can be maintained in the primary legislation to deliver the suitable for use approach, but at the same time to set out a detailed framework within which professional judgement can be applied in a consistent and predictable manner. Specific statutory guidance will be provided for:- identification of Contaminated Land; remediation requirements; which one of two or more persons responsible for any remediation may be treated as not being appropriate; apportionment of costs; and limits on cost recovery. Secondary legislation, in the form of Regulations, will also be issued covering detailed matters such as the definition of special sites, grounds for appeal against remediation notices and compensation for providing access to land. Application to Railway Group Railway Group members will be the owners of a very considerable amount of land which was contaminated prior to vesting, the precise condition of which is not known. If it does become apparent that the contamination is not being contained within railway property and is, or is likely to, cause significant Harm or water pollution then Railway Group members may be at risk of liability for cleanup or damage by virtue of its ownership. The British Railways Board has, as a general rule, not provided Railway Group members with an indemnity in relation to any losses suffered as a result of historic contamination. If Railway Group members themselves cause contamination which leads to pollution of the environment or Harm to human health then there will clearly be legal steps which can be brought directly against Railway Group members to render them liable for such damage. Where, by virtue of the actions of a Train Operator, Station Operator or Maintenance Depot Operator or other users of the Infrastructure, contamination is caused to either Railtrack is or a third party's land, it will be necessary to consider the terms of the Access Agreement and Conditions or relevant leases to help identify what remedies are available to companies to redress the situation. The concern will be not only potential direct liability of Railway Group members, but also the fact that the condition and value of railway land will have been adversely affected by such an incident. Enforcement Under the previous law, regulatory bodies did not have the power to order a clean up but only to do the work themselves and recover their costs afterwards. However, now local authority, the EA or SEPA will have powers to require cleanup action to be taken through service of remediation or works notices. The regulatory body is expected to warn a potentially liable party of their intent and in practice that party may well choose to do the clean-up works themselves and avoid service of an enforcement notice. Comments Liability for Contaminated Land is an area which Railway Group members will need to keep under careful review. Even though the legal liability system is not 22 RAILTRACK

25 Page 23 of 26 yet mature, it seems reasonable to anticipate a form of Strict Civil Liability for any damage caused to the environment. In situations where action must be taken to protect the environment or human health from risk, an existing owner or occupier may be required to pay the costs of such clean-up or restoration irrespective of whether they caused the problem is a definite possibility. There is a legislative overlap between those situations where a remediation notice can be served and where a works notice under the WRA can be served. The EA is expected to produce guidance on when they will seek to use which type of notice. B2 Redevelopment of Land Environmental Clean Up Main Statutory References:- Town and Country Planning Act 1990; PPG23 "Planning and Pollution Control"; ICRCL Guidance Notes on the Redevelopment of Contaminated Land, especially 59/83; RICS Valuation Manual, especially Guidance Note 2, Construction (Design and Management) Regulations Summary Although it is not unlawful to own a contaminated site, the potential for it causing Harm may be significantly increased if the use of the land is changed to a more sensitive use or if the site is disturbed during redevelopment. Contamination, or the potential for it, will be a material consideration for the granting of any planning permission for redevelopment. A local authority will need to be provided with information about the contamination and, where they are not satisfied that the development can proceed safely, to impose conditions on the planning permission relating to contamination or seek to obtain a planning obligation in relation to the contamination. This will most frequently take the form of a requirement for a detailed site investigation and implementation of whatever steps appear necessary as a result of it. If the proposed development is one to which the Environmental Assessment Regulations apply then the impact of that contamination will need to be addressed in the Environmental Statement prepared in support of the application. Redevelopment of Contaminated Land also raises health and safety issues in relation to workers safety when the site is being redeveloped and the application of the Construction (Design and Management) Regulations 1994 will need to be considered. The Contaminated Land provisions contained in the Environmental Protection Act 1995 are separate from the land use planning process. Duty/Prohibition Under the CDM Regulations any information which is in the possession of a landowner must be provided to a prospective developer. It is generally up to the developer to provide information to the planners about contamination. In some cases, the local authority will give an indication prior to submission of an application that it considers there may be contamination problems at a site which they expect to be dealt with in the documentation supporting the application. The extent of the information required may well depend upon the sensitivity of the end use proposed (especially in residential situations), the knowledge that a site is or could be contaminated, the views of the EA in relation to potential for contamination of water courses, and knowledge of surrounding land uses. There are no statutory requirements specifying levels of clean-up in the UK. Regard should be had to "trigger" and "action" levels contained in the ICRCL Guidance Notes as well as the professional judgement of an environmental consultant experienced in contaminated land clean-up. In practice, recourse may be had, when appropriate, to clean up levels from other jurisdictions such as the United States, Canada and The Netherlands. RAILTRACK 23