Leaky Brussels petrol station threatens Scottish redevelopment
SOURCE: THE SCOTMAN, SEPTEMBER 2005
Not much moves in commercial life these days without the pervading influence of the EU law-making machine in Brussels. The latest “casualty” is the urban regeneration sector --- already beset by legal regulation. The circumstances of this latest EU incursion are somewhat odd, though.
Who would have imagined that a local spat over some leaky petrol tanks at a filling station in the business sector of Brussels (of all places!) would mushroom into something which potentially impacts every urban regeneration scheme across the whole of the EU, including our own backyard?
So, what’s the beef?
It is all to do with land, and what’s under land. As most people are aware, the industrialised world built up most of its wealth and current powerful geopolitical position not simply through military conquest, but by rampant, successful capitalism – trade. Among the greatest western success stories were the so-called “heavy” industries, such as mining, shipbuilding, steel and metals production, quarrying, petrochemicals, oil and gas, organic and inorganic chemicals. Most of these continue as major elements of the western industrialised economies, including that of the UK and Scotland, albeit that they are a touch scaled down from the halcyon days of the Industrial Revolution and the first half of the 20th century.
Of course, all of these industries were over many years steadily giving rise to endemic pollution – into the air, into rivers and other water, and hidden away from other environmental impacts – into the land itself. It is the legacy of this activity which property developers and investors have to be wary of.
In fact, so far, developers and investors have had a fairly relaxed “ride” when it comes to dealing now with historic contamination. Although there in no denying that there can be difficulties between planning authorities and developers in reaching an agreed position on clean up, on the whole brownfield land gets developed without too much fuss.
The problem is Europe. More specifically, EU law on waste.
Things began to get more awkward in July 2004, when the first of a series of phase-ins of the EU Landfill Directive began narrowing considerably the offsite landfill options for contaminated soils excavated from sites undergoing redevelopment. These “options” included both landfill availability and cost. July 2005 saw more EU landfill law reduce these options and increase these costs even more.
Back to the Brussels filling station.
It’s tanks leaked petrol and diesel into the soil. This was not a case about pollution risk, really. It was about whether the leak in itself was objectionable and illegal. The European Court said that it was. The reason? The leaked petrol and diesel were “waste”, but so too were the soils into which they had leaked. This means that all soils under the ground which are contaminated by industrial pollutants are waste. In EU law, you cannot “abandon” waste. It must be regulated. That means formal permits, and in Scotland that means SEPA. It also means time and expense – waste permitting timescales do not usually correlate with development programmes.
So what? Developers are accustomed to dealing with SEPA on land excavations.
The European Court was not finished.
It also ruled that the soils were waste -- and requiring a regulatory response -- even before they were excavated. Now, that changes the goalposts somewhat. It casts some doubt upon a popular remediation technique, known as “encapsulation” -- which really means in many cases just leaving the stuff there.
“Encapsulation” will not be illegal, as such, but as a result of the European Court ruling, more caution now has to be exercised in acquisiring, funding and developing former industrial land, and some degree of waste regulation from SEPA will be inevitable. These soils will be legally classified as hazardous waste, lessening disposal options and increasing the liability - and the costs.
AUTHOR: VINCENT BROWN