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Unlicensed remediation could be liability timebomb

CONTRACTORS ARE regularly cleaning up brownfield sites without official permission from the Environment Agency, the Delivering Remediation Solutions conference in Birmingham heard.

Delegates at the conference, held at the end of May, were told that the EA often takes so long to process applications for clean-up licences that it is allowing work to go ahead 'on the nod'.

Contractors often start work without licences if the EA fails to process applications before the start date on site.

One of the conference speakers, EA head of land quality Mark Kibblewhite, admitted it frequently took the agency more than four months to give contractors the go-ahead for remediation work.

Mike Summersgill, general manager with VHE Technology, said there was a 'tacit understanding' that work could get under way. He said the EA commonly visited sites to gauge risks and often allowed work to continue while the application was processed. On a recent 11-month soil washing contract at Woolwich in south-east London (GE March 2000), the firm did not receive its licence until a month before completion.

But environmental insurers fear that the EA is taking huge legal risks by allowing unlicensed work to go ahead. If an accident occurs, the EA would be forced to shoulder responsibility for failing in its role as regulator. It was likely it would be liable alongside the contractor, warned legal director at environmental insurer Certa, Stephen Sykes.

The scenario could become a legal nightmare, he said. For example, if contaminated material was released into local water courses, the system could rebound badly on the agency and ultimately the Government.

Sykes said the situation was of particular concern since the Government set targets for 60% of new housing to be built on brownfield sites. He warned that public confidence in remediated sites could be undermined if pollution was caused during clean-up work on sites where unlicensed remediation had gone ahead.

The EA is meant to turn around within four months applications to operate mobile plant for operations such as soil washing, bioremediation or soil vapour extraction. Contractors can only get a remediation licence if they have tailored clean-up methods to site conditions.

The licensing system is complicated by the fact that it is geared towards waste disposal firms rather than contractors operating mobile plant.

The problem stems from the Waste Management Licensing Regulations (1994), said Professor Stephan Jeffries of the School of Engineering in the Environment at the University of Surrey. These brought into force an EU definition of waste which classes most process-based land remediation procedures as waste management operations requiring licensing.

Two licence types are used for remediation: site-specific licences, which effectively classify an area as landfill and will therefore undermine public confidence in the clean-up operation; and mobile plant licences, designed for disposal of controlled waste, for example incineration of toxic substances such as polychlorinated biphenyls.

Unfortunately the legal framework for both types of licence was drawn up for waste management, he said. There was no consideration that either might have to be used for contaminated land remediation.

Contractors are worried they will lose business if they wait for licences. Clients want to push ahead with construction and will opt to remove contaminated material to an off-site tip if on-site remediation is delayed.

'It is a mess, ' said Jeffries.

'Current practice is being forcefitted to inappropriate legislation.

Until the legislation is tailored to the problem there will be no benefit - least of all to the environment as the process is too arbitrary to properly regulate clean-up.'

Kibblewhite said the Environment Agency was pushing Government to rationalise licensing systems to produce a single remediation regime. But any change is likely to be three years off.

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