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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