PRINCIPLES FOR EVALUATING THE HUMAN HEALTH RISKS FROM PETROLEUM HYDROCARBONS IN SOILS: A CONSULTATION PAPER

RESPONSE FROM

UNITED KINGDOM ENVIRONMENTAL LAW ASSOCIATION

CONTAMINATED LAND WORKING PARTY

1. The United Kingdom Environmental Law Association (UKELA) is an Association open to all persons who are interested in the formulation and application of environmental laws. It seeks to promote effective implementation of environmental policy through law.

2. UKELA and its Contaminated Land Working Party is comprised mainly of lawyers and is not qualified to comment on the non-legal technical aspects of the Consultation Paper.

3.The Working Party welcomes the Government's decision to consult on the principles of assessing health risks from petroleum hydrocarbons in contaminated land.

4. The Consultation Paper in Section 2 headed “Context and Background” 2.11 – 2.16 does review the “Legal Framework” and it is these paragraphs that we wish to comment upon.

5. Paragraphs 2.11 – 2.16 rightly mention the Town and Country Planning Act 1990 and Part IIA of the Environmental Protection Act 1990 (Part IIA) but state that these are the “two predominant pieces of legislation” which directly impact on contaminated land (para 2.11).

6. As a significant number of instances of land contamination (whether by hydrocarbons or otherwise), which have given and will give cause for the relevant authorities to be concerned, involve actual or potential pollution of water, whether aquifer, groundwater or surface water in channels of various kinds as well as static water, it seems to us that mention needs to be made of the relevant provisions of the Water Resources Act 1991 and in particular section 161 (and s. 161 A-D). We are of the view that these provisions should not be ignored in the context of this consultation.

7. It seems to us that the technical questions posed in the Consultation Paper in relation to the evaluation of potential risks from petroleum hydrocarbons in soils are of equal relevance in assessments to be made in relation to the relevant provisions of the Water Resources Act 1991 as they are to those made for purposes connected with Part II A and the Town and Country Planning Act 1990 (and in the case of the latter Act, of more relevance).

8. It has certainly been the experience of at least one of the members of the Working Party that the Environment Agency is in certain circumstances preferring to use the provisions of the Water Resources Act 1991 to achieve remediation by requiring the carrying out of works or itself carrying them out at the expense of the person who may be liable (in the words of s. 161 “who caused or knowingly permitted” the contaminating matter to be present.

9.As it is intended that the result of the consultation is a framework setting out the approach to be used in the health risk assessment of petroleum hydrocarbons in soils with the eventual development of Soil Guideline Values, the status of such guidance should be clarified. In the context of Part II A it is unclear from the Consultation Paper whether the guidelines are intended to form a benchmark to be used by local authorities and the Environment Agency in assessing whether land is contaminated under Part IIA and other regimes or whether the guidelines are to be used simply as an indicator to be taken into account in any assessment. The report would also benefit from a clear statement as to the context in which the guidelines should be used and by whom.

Dated 30 September 2003

Contact:

Matthew Townsend

Convenor of UKELA Contaminated Land Working Party

Allen & Overy

One New Change

London

EC4M 9QQ

Tel: 020 7330 3174

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