Contaminated Land

An increasing number of turbines are being erected closer to urban centres on brownfield land and on sites with a long industrial history.

Even in apparent rural locations, historic industry can have occurred or the site may have been used as a convenient dump for industrial waste. Contamination can be mobile, so even if the site itself was never industrial, contamination may have occurred by migration.

THE OWNER OR OCCUPIER OF A SITE MAY BE HELD LIABLE

Regulators in the UK are empowered to clean up contaminated land and pass the cost onto those responsible.

Turbines would not be considered a particularly contaminative use and so land contamination can easily be over-looked. Under the current philosophy with respect to contaminated land in the UK, the principle is “the polluter pays”. On that basis, the developer may consider that he will not be held liable for any contamination. However, this is a naïve view.

Many developers do not realise that under part 2a of the Contaminated Land Act (CLA), the “owner or occupier for the time-being” can be held responsible for contamination and for the clean-up costs. Accordingly, whether the developer owns the land on which the turbine sits or rents it, he could be held liable.

A PRUDENT DEVELOPER CONSIDERS THE RISKS

In practice, the regulators know that it is easier to use planning conditions to ensure compliance than use the CLA, so they will generally impose conditions on the consent to accomplish their requirements. However, even if they do not, the client holds duties of care and must comply with other legislation in terms of the development which may have significant cost implications. The prudent developer will ask questions such as:

• Is there existing contamination on the site or nearby which could migrate onto the site?
• Will the development create any new pathways by which contamination could move onto, off, or across the site?
• Will the development change the hydrogeological conditions such that contamination may result of a neighbouring property?
• Will the development change the hydrogeological conditions such that a nearby water supply might be affected?
• What are the health and safety implications to any workers handling the soil?
• Can the ground generate carbon dioxide or other hazardous gases which might be a risk to workers or to the works themselves?
• Where can any excavated material be disposed of? Is it hazardous waste? Does it need special  treatment? Can it legally be used for necessary landscaping?

POTENTIAL ISSUES IDENTIFIED AND ASSESSED REALISTICALLY

GCR has considerable experience in the assessment of contaminated land issues:

• Desk studies to assess the risk to the development with respect to various past uses to form a preliminary opinion, formulate a preliminary ‘conceptual site model’ and design any site investigation needed.
• The safe site investigation of contaminated land.
• Scheduling appropriate chemical testing. You need to know what you should reasonably be looking for and where on site you should be looking for it, before you test.
• Monitoring and sampling of ground gases and groundwater.
• The formulation and testing of a final ‘conceptual site model’.
• An assessment of the risks and implications of all the above to all potential ‘receptors’ before, during  and after development.
• The design, supervision, validation and certification of any necessary remedial works.
• Liaison with the Regulators.

With regard to development, it is imperative that potential issues are identified and assessed at an early stage in order that the implications are fully understood, costs minimised and full advantage taken of any opportunities to make significant savings.