Is There a Need for an International Agreement on Site Contamination - Essay Example

Is there a need for an international agreement on site contamination? What might such an agreement address? Introduction of law There has been a situation of risk that has been poised by the contamination of soils and groundwater. There was deteriorating air and water levels that has made the countries to wake up and take notice. The early legislation in the area of contamination happened in the year 1970s.The specific legislation in the area of site contamination happened in the US superfund law which was adopted in the year 1980.The law was largely inspired by the love canal site and also addressed the historic sites that were not put to use. In the United States ,contamination on sites that are subject to federal licensing have been also dealt separately under the Federal Act that can be put under RCRA.The federal laws have been found to be complimented subsequently contamination laws that has been state based.( Contamination Law).The most recent case has been shown below1 The history has been different in Western Europe. The site contamination has been introduced in the year 1980s like the Denmark and Netherland passing in the year 1983, Switzerland in the year 1987, Austria in the year 1989. ( UNEP/ADEME).The contamination has been prevalent in Denmark in the 70s onwards(OECD).The problem of contamination to land and groundwater has been happening through improper disposal of waste (F. Arendt).There has been great concern in Europe for ground water contamination(Charles R. Rhyner) There have been many countries that have passed the legislations after the year 1990s.The United Kingdom has passed the legislation in the year 1995 and Germany had passed the contamination law in the year 1999.( UNEP/ADEME) The situation has been different for the countries of Canada and Australia. Both these countries has a federal constitutional system by which the state and provinces in the country has adopted the site contamination legislation for the last 15 years. The federal governments have been failed in the duty when compared with the countries like USA and Germany. But countries like Canada and Australia has been able to develop a consistency level in bringing the jurisdiction matters as the principles of liability and scientific and technical aspects.( UNEP/ADEME) There has been a concern on the contaminated site issue that has spread to other parts of the world. The situation has not been different in Asian countries with specific legislation that has been passed in the countries of Japan, South Korea, Taiwan, Singapore and Hong Kong. The countries like China and Malaysia has been following the path.( Contamination Law) There has been a following of the path in the developing countries and there has been still a long way to go about the international law to be developed in the case of site contamination.( Contamination Law) The most famous contamination has happened in Chernobyl, Russia where a large number of delimitated areas have been said as contaminated(Geir Hønneland).That has been the main cause of Thyroid cancer in the area(Neale Kelly, Johann-Klaus Hohenberg). One of the most important case The need for Site Contamination Law There has been countries like the United States of America that has adopted the site contamination or legislation in answer to the occurrence of LoveCanal.There have been instances of like that in Netherlands and like the Fischer site in the Austria. There has been increase in the problem of awareness that were settled in the legislation. There has been much contamination that has been left behind by the development in the western areas.( Contamination Law) The European Environment Agency has been reported in Europe in the year August 2007 that soil contamination that required clean up was approximately at 250000 sites and there has been prediction that the number will be increase by 50% in the year 2025.The report from Canada says that there are more than 30000 sites that are contaminated .The United State government in the year 2007 has said that there are more than or approximately 425000 “brownfields” sites. What is meant by “brownfields” is that redevelopment will be impossible or made complicated by the presence of contamination. There was assessment of more than 80000 potential sites that are contaminated in the country of Australia. The spread of contamination sites would have increased the need for specific legislation. But there are still numerous countries that have been able to rely on power to control the pollution act under the general environmental legislation.( Contamination Law) The problem of site contamination has to be understood by developing countries and suitable legislation has to be passed. There has to be addressing on the issue of historic site contamination and there should be the need to impose liability on the parties who are responsible.( Contamination Law) The problem with general environmental protection is that it does not provide the necessary laws or the necessary strength to address the problem of site contamination. The specific legislation can address more issues like the relevant scientific or technical framework that can be applied in relation to the identification, assessment and the remediation of contaminated sites. The systems that were developed in the 80s provide the clean up for the multifunctional use and that has been the practices of trying to completely eliminate the contamination of the affected sites. This has been proved costly and there has been time consuming and there have been amendments to the legislation. There has been felling of encouraging the so called “brownfield” in all parts of the world and there has been offering of relief from the future liability and it has been offered voluntary remediation of sites that are part of development project. There has been cleaning up of activity in the form of Brownfield Revitalization act that has been passed in the year 2002.There has been passing of laws in the area of the Canada and other areas. That means the need for the addressing of site contamination issues has become urgent and it can be made possible by stand alone act or it can be done through insertion of stringent measures in the environment law. This was done in the case of United Kingdom Environmental Protection Act in the year 1990 and that was amended in the year 1995.( Contamination Law) Contamination The activities that are happening in the area of industry, agriculture and other commercial areas has resulted in a situation of chemicals being discharged to the environment and that getting accumulated in the soil sediments and the ground water or the surface water. There is every chance that the chemicals can remain in the environment for long time. Some of the chemicals may be having adverse impact on the environment. That can bring down the productive use of land and water.( Contamination Law) The contamination can be due to the past uses. Contamination can rise from activities that have taken place in the adjacent site or the result of not handling the chemical in the manner prescribed or the weak disposal practices that has been followed. There are chances of accidental spillage or leakage of materials that has to be thought of. The polluted ground water can be thought of as an example of polluting or contaminating the land indirectly. The dust from industrial emission can also be thought of. It has been found out that residential development has been found to more contaminate than commercial and industrial development(Moore).It has been also found out that adequate protection in the form of human health and environment has to be taken care of (Christopher Reynolds). There should be information about the known contaminated activities of the site and the site should be checked for the potential contaminated activities and the decision on the alternative use of the land should be checked. Before using the land the contamination in the environment should be checked for acceptable levels and whether the land and immediate environment had to be remediated to be made useful.( ANZECC Guidelines re Assessment of On-site Containment of Contaminated Soil) The contaminated sites assessments are usually done by contaminated site consultants. They are also entrusted with the job of remediation of contaminated sites. The job is considered as technically difficult keeping in mind that the chemicals have complex behaviour in the environment and the effects that have on the ecosystem and human health. There has been found to be difficult to get dependable information in making reliable decision. The decision that has been provided by qualified and experienced people can help developers and planning authorities to take the correct decision. The main issues will be the quality of the data that has been used for assessing the contamination and the issues that has been encountered in the contamination of investigation. The suitability of the land and remediation activities should be considered. The failure to do so can result in the inappropriate use of the land and that can also increase the health risk. There will be bad effects on the biosphere or biophysical environment. There can be impact on the safety on the structures that can be new and that has been for log time. The delay in the development will turn out to be costly affair. There will be also a fall in the land value and that can cause the nearby land value to crash also. The responsible for contamination There has to be clear guideline on who should the blame be placed .The normal procedure is that there will be a person who has caused the contamination .There will be a person whose action would have resulted in that a substance would have been converted and caused the contamination. There will be a person who is either an owner or occupier of the land and would have known that contamination of the land would have occurred and had not taken any steps to prevent it. There would have been a person whose activities would have generated or used some substances that would have caused the contamination. There would be some persons by which certain actions would have meant that the land would have become more contaminated A regulation should be there in such a way that the land should be considered for regulation the moment it is felt that contamination is there to warrant regulation rather than determining whether the contamination can be harmful or not. A preliminary investigation can be done to know the situation. The landowner can be forced to do the primary investigation. The investigation and remediation of the land can be done together. There can be penalty charges for giving false information about the contaminated land. The assistance other than the financial assistance should be dealt first. The site contamination assessment should be included of the following factors. The soil investigation levels The decision making process of whether a site has been contaminated or not will depend on the investigation of soil. The concentration of contamination should be assessed first. Soil investigation level can be considered as a level above which if the concentration level rises, then further investigation should be done. The account of all environmental impact is not taken under the Soil Investigation Level. The soil investigation level will also include a health based investigation levels and the phytotoxicity that has been based on investigation level.( Chan, N., Jefferies, R.L., and Simons, R.A) Under normal procedures, Soil Investigation Level will not be applied to a land that has been applied or proposed for agricultural purpose. The Soil Investigation Level will not take into account the environmental concern that can affect the wild life . The important part of soil investigation level is the use of phytotoxicity. The phytotoxicity can be termed as the toxicity to the plants and this type of data can be considered against individual data points rather than going across the average data that has been found on the site. There can be limitations as the toxic level is dependent on the soil and understanding the nature of the soil has to be understood. For example if the soil is sandy loam or having the PH range of 6-8 then other tests has to be undertaken to determine the levels. The drawbacks of each tests has to be noted.( National Environment Protection) Petroleum Hydrocarbons There has to be assessment for the volatile petroleum hydrocarbons. There has to be checking for the TPH fractions for the soil and that can be in the range of C16-C35 and greater than 35.There should be a method of differentiating aromatic and aliphatic compounds and it at any case is not possible, then the guideline of C10-C40 has to be applied. The aesthetic considerations cannot be used as surrogates for the investigation level. This can said of 10 mg/l for oil and grease that has been based on the aesthetic issues. The problem with this type of assessment is that it cannot be translated into carbon fraction ranges of the TPH like the C10-C36.( Edwards, J.W) The contamination migration. The potential for the contamination to migrate from the original site should be addressed. The evidence of the occurrence of off -site migration has to be taken care of and the impact of likely receptors has to be addressed. This has to be done to protect the human health and the environment.( National Environment Protection) It has to be taken care of that air, quality, odour, aesthetics, and the suitability of a site for use. The site owner should be addressed of the off-site migration risk if any. The groundwater assessment There has to be every measure to identify the potential for ground water assessment and that include the using of scientific method. There has to be clear guideline why the groundwater assessment can be taken. The nature of the contamination law The law has been found to be undergoing many changes in many countries. There has been a finding of first generation of site contamination laws and the second generation contamination laws. There were several characteristics in the first generation law. The potentially responsible parties have included the original polluters, the current owners and occupiers of the contaminated sites and the transporters of the contaminators. There was a specific liability scheme that had operated retrospectively to address the historic pollution. They had provided a law that stipulates the creation of public fund that can be made useful for the cleaning up of contaminated sites if the responsible parties were in a position of not helping to do so. There has been allegation that the first generation legislation had failed to address the severity of the issue of the site contamination problem of western countries and there was need of adopting the additional measures and that has been done for the purpose of promoting the market driven approach for the cleaning up of the contaminated sites. That can be put under or classified under the second generation laws. There have been multiple options available for cleaning up of the contaminated sites and it was well done when taken away from the single approach. The problem with the first generation site contamination law was that power was provided to the relevant environmental authority that had the ability to order or take action against the parties that were responsible and take strong action that was based on assessment and the remediation of the sites that were being suspected of being contaminated. This type of approach was known as the command and control approach and that can be given as an example of taking action in response to a pollution spill that has been threatening the environment and that has occurred. It has been found that this method has been difficult to implement practically and the technical challenges behind the issue has made it more complex. It has been found in United States, Canada and Australia that assessment and the remediation orders have been used only for high risk sites like the risks that are identified on the National Priority list under the superfund law. There has been more common approach that has been used like the threat of imposed liability through orders and that can go a long way in achieving the negotiated agreement with the parties that were responsible through the assessment and remediation of the sites that were contaminated. The regulators has been found to be favouring the negotiated approach as it has the chance for avoiding the possibility of appeal and the other forms of litigation that has been by responsible parties. There has been found to be in greater reliance on regulation via orders in Europe and the practice of negotiating outcomes has been appeared to be wide spread. There has been found t be development of voluntary remediation that has been put under the brownfields redevelopment. The approach has been found to be wide spread in the United States from the mid 1990s and it has been pursued vigorously in Canada and United Kingdom. The path of remediation that has been multiple and overlapping has emerged in more jurisdictions .That has followed alongside with the command and control approach. It has been found to be a common activity in changing the use of land and construction of building to trigger an investigation of sites that can be termed as primary and that will also cover the history of land use that has resulted in the contamination of site. The approach can lead to reporting the site to the environmental authorities on pretext of contamination and that can lead to imposition of consequential obligations that can lead to cleanup or that can lead to involvement of making sure that the planning authorities take part in the cleaning up which can be prior to the development activity and that has been applied in the United Kingdom. The planning authorities in Australia may have been engaged in similar role. There has been use of specific funds for the sole purpose of remediation and this has been usually established by the site contamination legislation that can be used to address the sites that are orphan and by this term what is meant is that the responsible parties may be unwilling to take the responsibility of assessment and remediation. The best example of this approach has the Federal Super Fund Scheme and this scheme has not been complimented in many American states. It has been found out that Canada (Health Canada )and Australia have not followed this method and that no public funds were established for clean ups.It has been found that in Europe there is willingness to have ago for public funds and that has been more prevalent than in North America or in Australia. It has been found out in the 2007 EEA report that 35% of the total expenditure that was surveyed in the 16 countries was derived from the public budget. It has been found out that many governments has been cautious in applying the public fund to get the clean ups and have instead looked at exploring ways of stimulating the private market driven remediation activity. The cleanup has been found to be voluntary without having any supervision from the government. The approach has been made possible by the obligations that have been placed on the companies to give a report on environmental liabilities which come under auditing. The remediation of 90% of the property in Ontario(Health Canada )region of Canada has been done this way. The type of voluntary remediation activity that can be undertaken without having any formal supervision is largely dependent on the nature and effect of the requirements of notification and where the sites that are identified as potential contaminated. There has been provision in the jurisdiction that state site contamination legislation that requires the notification from the part of owners or consultants to the concerned environmental authority of suspected contamination. This has been the case in United Kingdom and Ontario. The consumer protection legislation may state that the disclosure of known contamination that has been done by vendors and where sale and purchase of transaction has been involved. . If the provisions are in the relevant legislation, it has been likely that the remediation activity will not be undertaken without any form of supervision and this happens on the behalf of government. It has also been found that the regulation that has been considered as formal through the command and control system of the administrative orders only make up for a small proportion of clean up activity This has been happening in the country of Australia.( Remediation of Land) There has been negotiated approach that have the supervised clean up and complimented by the government clean ups and there has been instance of inspired activity that has not been inspired by any government activity Brownfield The voluntary clean up in Brownfield has been encouraged. The concept has been developed from the land of United States. The concept started in the 90s and has been put under debate in all countries. The concept can be divided into two main parts that says that the unused land areas can be contributing to urban blight and that can be said as like vacated site or the steel or the textile mills that was more in United States of America. The gas works and the collieries of the United Kingdom can be also put under this example. The contamination can be also by prior use. This can be extended to the regular intervention to avoid the risk to human health and ecosystem.( Contamination Law”,).There has been a description that states that there is no Brownfield in Finland(Donald Lee Wise). It was in the year 90s that the first generation of site contamination law were failing to address the sites that were later classified as brownfield. The increase in the contamination sites had prompted the government to come forward with superfund and that has been done to assist the remediation sites and this was in response to the land developers who were showing no interest. There has been high cost of remediation that was causing the developing of sites. The United States tried to promote the concept of smart growth by trying to generate the economy of the inner city areas that were blighted and they had found the sites were frozen because of the presence of contamination. The problem of contamination was to be addressed and that had paved the way of second generation of site contamination law. That had paved the way for allocation of substantial funds and that has been forwarded by grants and loans and there has been project to redevelop the Brownfield sites and in all those places where the redevelopment of Brownfield has taken place voluntarily. The developers were given a degree of immunity from the future liability under the site contamination liability. All these measures had resulted in creation of Brownfield industry .That had comprised the owners of the property, developers, lenders, insurers and government agencies that has been at the state, local and national level. The concept has been treated under land development scheme in which the cleanup has been treated as one component rather than the main goal. In country Canada ,the measure of brown field has been concentrating on the last aspect. That means the provision of immunity from the future liability for those who take the cleanup of the sites voluntarily. It has been found that there has been less inclination to provide the financial assistance to brown field projects. The concept has been widely accepted in the United Kingdom. The government has sponsored the closer partnership initiative. It has not been widely accepted in rest of Europe. It has been found out that the project has not been accepted in the rest of Europe. There have been insufficient programs for the rehabilitation of brownfield. The concept of brownfield has not been accepted in Australia. The contamination law in Australia in the year 2007 does not provide the immunity from the future liability for those who have been taking remediation on voluntary basis. There has been little evidence that financial support has been provided by state governments in Australia and they have been wished for redevelopment of contaminated sites. The possible reason for the absence of brownfield measures in Australia has been the absence of large scale urban blight that has been affected in the USA and United Kingdom, There has been evidence to indicate that the promotion of brownfield redevelopment in United States of America has been successful in reducing the no of the sites that were waiting for remediation and this has also contributed to the revitalization of many areas that were considered to be remote. There has to be caution in understanding the effectiveness of the program. There have been instances of poorly managed social brownfield projects that have made the social isolation more rampant in the United States of America. It has been also found out that lowering of the cleanup standards has been made to help the brownfield projects. There has been debate about the effectiveness of the provision of granting immunity from liability and there has been debate about the willingness of the property developers to be relying on the immunity provided and there has been a concern that the immunity that is provided from the future liability is less and that has led to the big companies to bring contaminated sites under their control using mothball and it has been proved that the immunity provided has not been absolute and it will be possible that a cleanup can be reopened and health and ecological risks will emerge after cleanup. The United States Government has said that it is unlikely to reopen a cleanup that has been done to the agreed standards and this has not brought down the concern of big corporations and also the legal advisors. The question of finality is not limited to projects that have been to brownfield but also to other projects .That can be done by government authority. The question of reopening throws up the debate on who should be the power is whether it should remain with the government or with the company.( ANZECC/NHMRC) The site contamination has provided the minimum guidance to the respect of remediation strategy that can be made and that can be used to eliminate the risk of human health and affected ecosystems and new scientific approach emerge and it should be made sure that the relevant legislation and accompanying policies should be made for these developments. The current legislation does appear to be poorly equipped to do so.( ANZECC/NHMRC) Conclusion Negotiation rather than regulation has been the more common approach. The development of brownfield in the United States of America and United Kingdom has to be taken care of .The science of clan up has to be given strength using legislation throughout all the countries in world. The conclusion of this essay is that there should be certain areas that can be unified together using International law like the concept of contamination site law and the science of clean up. The concept of brownfield will be dependent on the nature of the country like it is absent in Australia. International agreements are not enforceable in Australia and it can be implemented only if the federal parliament has enacted the domestic legislation that implements the agreement. The role of developing countries has to be taken care of as the problem has been emerging there without being appreciated. In this aspect a general view on the International agreement on the site contamination law has to be appreciated and the site contamination law has been circling in Europe, Australia and United States of America which has to be prevented. The decontamination method employed should be relevant to the level of contamination. There has to be a provision in the contract when sale of land is executed that gives power to the purchaser to terminate the contract if contamination has been identified(Michael). Reference “Contamination Law”,viewed on May 21,2009,retrieved from http://www.iccl.ch/download/meeting_stockholm/Session%20D%20Rob%20Fowler%20Paper.pdf. Chan, N., Jefferies, R.L., and Simons, R.A., “Government Regulation of Contaminated Land – A Tale of Three Cities” (1998) Vol 15,pp.321. Edwards, J.W., van Alphen, M., & Langley, A. 1994 Identification and Assessment of Contaminated Land. Improving Site History Appraisal. Contaminated Sites Monograph Series No.3. 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