Land Contamination: have the goalposts changed as we move from CLR 11 to LCRM?

This article is written by the Insurance Working Group to provide more visibility of LCRM but also to highlight certain concerns it has that are currently being reviewed by the Environment Agency

To members of UK and Ireland Spill Association and the accredited members of International Spill Accreditation Scheme (ISAS) these are familiar pieces of guidance to be followed when dealing with the remediation of contaminated land!

The prompt for this article is the best practice guidance has changed!

So without boring you too much with stodgy terminology, let alone muddy boots, the key point is this change is relevant to all involved in environmental incidents which can pollute land and water, which therefore includes loss adjusters and the new guidance has made some significant changes to best practice.

In October 2020, the Environment Agency (EA) published a new set of guidance documents on the management of land contamination. Land Contamination Risk Management (LCRM) replaces the long-standing guidance known as the Model Procedures for the Management of Land Contamination (CLR11) which has now been formally withdrawn.

Although the purpose and principles of the framework remain the same, the new guidance has simplified terminology to try and make it clearer, more concise and current. It is aimed at anyone that may need to manage or deal with land contamination, including landowners, developers, planners and regulators. The EA hope that the guidance is a more intuitive approach to the management of land contamination and includes up-to-date terminology to advise users on “how to assess if there is an unacceptable risk, decide which options are the most suitable to manage the risk, plan and implement remediation if needed and verify the work completed”.

While LCRM is relevant to all those involved in or responsible for managing land contamination, the EA has stressed that the person responsible for applying LCRM is appropriately competent in the tasks they are doing for each stage.

As with CLR 11, LCRM sets up a phased approach for dealing with land contamination as follows:

STAGE 1: RISK ASSESSMENT

You will use a tiered approach to risk assessment. The 3 tiers are:

Preliminary risk assessment.

Generic quantitative risk assessment.

Detailed quantitative risk assessment.

STAGE 2: OPTIONS APPRAISAL

There are 3 steps to follow.

Identify feasible remediation options.

Do a detailed evaluation of options.

Select the final remediation option.

STAGE 3:

REMEDIATION AND VERIFICATION

There are 4 steps to follow.

Develop a remediation strategy.

Remediate.

Produce a verification report.

Undertake long term monitoring and maintenance, if required

Many of the members of UK and Ireland Spill Association deal with land contamination following a pollution incident that has occurred. This is covered in LCRM under new pollution.

LCRM states that new pollution could result from a pollution incident or from a breach in a permit condition. When dealing with new pollution, LCRM is different to the previous CLR11 in that it states that the site must be returned to its ‘original state’ and not assessed or remediated based on environmental risk.

This is a fundamental change in the approach to dealing with the pollution and has caused some variability in both enforcement (between regulators), and application. The guidance also provides links to pollution prevention guidelines for businesses published on GOV.UK and to section J of the Environment Agency’s approach to groundwater protection which states that:

“The Environment Agency requires those who cause new land or water contamination (for example, contamination from an accident or incident) to manage it promptly and effectively. They should identify and secure the source and remediate the contamination and any effects it has caused, to ensure groundwater quality is protected and where necessary restored.”

With the guidance now almost 12 months old our Insurance Working Group has met to discuss how LCRM is being applied and how workable the guidance is:

A number of concerns exist:

There is a lack of understanding as to the catalyst for LCRM being introduced as it has created confusion rather than clarity in an environment where CLR 11 was working and was widely understood so why change?

LCRM requires a return to the ‘original‘ condition. More direction and wide dissemination of it is necessary as regulators and authorities are interpreting this differently. Does ‘original’ mean pre-development, or prior to the incident? There can be a lot of work and cost between one and the other.

If the client is an insurance company they set the remediation standard by what they assess as being necessary to pay, often based on the limitations of the policy. In these circumstances the remediation will be what can be afforded with the priorities risk assessed by the contractor in line

with the limitations of the insurance policy rather than returning to original condition. We need a level playing field to ensure best practice is applied if it is going to gain support.

Remediation of a site often uncovers underlying contamination that preexists the incident. It would normally be removed in a risk assessed manner under CLR 11. How is this managed under LCRM?

In the spirit of the guidance being a dynamic document the Insurance Working Group met with the Environment Agency on 20 September to discuss this with them. The feedback is being reviewed along with seeing how the guidance document is being used across the regions, and more information on next steps will follow in due course.

A benefit to using Accredited Members is the Code of Conduct that assures considerable protection for any client and assurance about how work will be planned, executed and reported in a completion report.

Provide the client with a Contract for the scope of spill works undertaken – the contract may comprise an outline quotation with a schedule of rates for further charges.

Ensure all work is risk assessed and is conducted in accordance with current health, safety and environmental legislation and staff wear appropriate respiratory and personal protective equipment.

Ensure all reasonable methods to mitigate environmental damage are undertaken.

Make every effort to minimise waste generated and disposal complies

with duty of care under current waste regulations and is recorded on company waste register.

Provide the client with regular progress reports.

Report all spills as per the Spill Reporting Schedule (monthly and annually).

Ensure all employees attending spill carry identity cards bearing the company name and logo of the International Spill Accreditation Scheme.

Promptly invoice clients with clear breakdown of work done and charges made.

Reply to customer, regulator, authority or agencies in an efficient

and timely manner.

Conduct only works for which they are accredited, qualified and experienced.Liaise courteously with all stakeholders and co-operate with any investigation conducted

by with Regulators of the International Spill Accreditation Scheme.Conduct themselves in a suitably professional manner.

The LCRM guidance will ONLY be online and will be periodically updated so that the information is current policy. This means it is no longer a static PDF that is difficult to update but it is a live suite of documents that can be managed and updated easily.

The EA have stated that:

This is not just our guidance, we want the industry to embrace it, help us to improve it and keep it up to date. It had a big act to follow.

Further detailed information on the LCRM is available at: https://www.gov. uk/government/publications/landcontamination-risk-management-lcrm

A fill list of accredited contractors is avvailable from: www.isas-accreditation.org

We are quite happy to run a webinar on this topic to provide further information on this important topic.