While remediation can mean clean-up, it can also mean prior investigation and/or subsequent monitoring. The degree of remediation required is to take account of cost and seriousness of harm (based on the statutory guidance).
Consultation
Also, there is to be three month period for consultation between the regulators and the person served with the notice, before notice is served. Having been served a notice, the appropriate person has 21 days to appeal (regulations are to detail the appeal procedures).
The three month period of consultation allows appropriate persons to take action 'voluntarily' before a notice is issued.
Voluntary action
As a result of consultation, the appropriate person, or persons, may agree voluntarily that remediation is carried out – either by the authority at the appropriate person's expense, or by the appropriate persons themselves (or by contractors employed by them).
If such agreement is reached, a remediation notice may not be served. However, the appropriate person must prepare and publish a remediation statement recording what work is to be done, who by and when by. This is placed on the public register.
Urgent situations
Where there is imminent danger of serious harm or serious water pollution, then remedial action can be taken by the enforcing body (with recovery of its costs).
Also, the consultation with the persons responsible for remediation that must normally take place before a remediation notice is issued (requiring them to undertake remediation), is not required.
Offences and fines
Failure to comply with a remediation notice is an offence. There is a maximum fine of £20,000, plus a £2,000 daily fine which applies for each day the notice is not complied with.
Pathways – significance under the Regulations
Government guidance requires local authorities (or the EA in the case of special sites) to apply a risk assessment approach in determining whether land appears to be contaminated land. Essentially there is to be a ‘pollutant linkage’ – that is, the identification of the three (connected) elements of contaminant, pathway and receptor (as explained above).
Without the identification of these three elements of the ‘pollutant linkage’, land should not be identified as contaminated land. If a ‘pollutant linkage’ exists, it must then be assessed as to whether it is ‘a significant pollutant linkage’ based on receptor/harm criteria set out in the statutory guidance.
Actions for site owners
Any company contemplating buying or selling a site will need to ensure that sufficient survey work has been done to establish the risks of contamination. Generally, financial institutions will insist that such ‘due diligence’ surveys are carried out.
If a company is established on a site, it would be advisable to find out its liabilities under the Regulations. The possibility remains for any site that investigations by the authorities will turn up some problem. It would be advantageous for any organisation to have advanced knowledge of any potential problems.