research and suppo rt for developing a uk strategy...

Department for Environment, Food and Rural Affairs

rch and SuppoDeveloping a UK Strategy for

ing Contaminate ediments Task 3 - Existing Legislation, Guidance, Protocols and Regulatory Barriers Date: March 2010 Project Ref: R/3709 Report No: R.1584

Resea rt for

Manag d S

Department for Environment, Food and Rural Affairs

Research and Support for Developing a UK Strategy for Managing Contaminated Sediments Task 3 - Existing Legislation, Guidance, Protocols and Regulatory Barriers Date: March 2010 Project Ref: R/3709 Report No: R.1584 © ABP Marine Environmental Research Ltd

Version Details of Change Authorised By Date

1 Draft S C Hull 04.11.09

2 Draft S C Hull 31.03.10

3 Final S C Hull 14.07.10

Document Authorisation Signature Date

Task Manager: S C Hull

14.07.10

Quality Manager: M J Smedley

14.07.10

Project Director: C E Brown

14.07.10

ABP Marine Environmental Research Ltd Suite B, Waterside House Town Quay Tel: +44(0)23 8071 1840 SOUTHAMPTON Fax: +44(0)23 8071 1841 Hampshire Web: www.abpmer.co.uk SO14 2AQ Email: [email protected]

Research and Support for Developing a UK Strategy for Managing Contaminated Sediments

Task 3 - Existing Legislation, Guidance, Protocols and Regulatory Barriers

R/3709 (i) R.1584

Summary

d to reflect how impending changes are likely to affect legislative and policy requirements; it is recognised and acknowledged that there is some uncertainty about how legislation might be applied and interpreted in the future. As part of the study, the existing framework for the management of CMS has been investigated and described. This has required us to evaluate the processes that are applied both at sea and on land and to seek to identify the linkages between them. While the considerations relating to the management of contaminated dredged material at sea and on land are complex, relatively few significant legislative barriers have been identified. The main issues identified relate to uncertainties regarding the interpretation of EC Directives in relation to the evaluation framework for sea disposal and uncertainties relating to the criteria and policies to be applied for re-use, recycling and recovery of CMS material on land. Of key importance to this study is whether clarification of controlled waste under the waste management regime on land can be disposed of at sea and how the chain of custody might be completed. The study recommends that interpretations of the provisions under OSPAR and the London Conventions on the classification of marine sediments is sought where it is intended to return dredge material to the sea following treatment on land The study further suggests that a Best Practicable Environmental Option (BPEO) process or some other form of holistic assessment framework is developed in situations where significant issues arise in relation to sea disposal or treatment of CMS. Such an assessment could then provide an agreed basis on which different regulators and stakeholders might pursue a legally compliant disposal solution for CMS in line with the BPEO.

The study has undertaken a literature review of Contaminated Marine Sediment (CMS) guidance and protocols, relevant legislation, informal discussions with regulatory bodies, their advisors and engagement with port and harbour authorities. The study team have sought to capture the position as it stands towards the end of 2009 an



R/3709 (ii) R.1584

cknowledgements

assistance of Geoff Bowles, Head of Marine his kind assistance in identify case studies and

e Harris agement

n the Thames Estuary.

A

The project team would like to thank the kindevelopment, from the Marine and Fisheries Agency for D

supplying information on licence decisions. The study team would also like to thank Katherinfrom the Port of London Authority for her assistance in providing information on dredge manoperations o



R/3709 (iii) R.1584

nd Support for Developing a UK Strategy for nag

sk 3 egislation, Guidance, Protocols and Regulatory Barriers

s Page

Acknow

. Introduction.................................................................................................................................1 Contaminated Sediment and Dredge Material............................................................................1 Background to Project ................................................................................................................1

1.3 Scope of Project .........................................................................................................................2

.................3

3.1.1 Technical Assessment ...............................................................................................10 3.1.2 Decision-Making Framework......................................................................................12

.2 Process for Management of Contaminated Marine Dredge Material on Land..........................14

.3 Bringing the Sea and Land Processes Together ......................................................................20

4. Regulatory Barriers...................................................................................................................22 4.1 Possible Barriers Relating to the Management of Contaminated Marine Dredge Material

at Sea .......................................................................................................................................22 4.2 Possible Barriers Relating to the Management of Contaminated Marine Dredge Material

on Land ....................................................................................................................................24 4.3 Possible Barriers Relating to the Movement of Contaminated Marine Dredge Material

between the Sea and Land.......................................................................................................25

5. Addressing Possible Regulatory Barriers .................................................................................26 5.1 Interpretation of EC Directives..................................................................................................27 5.2 Interpretation of End of Waste Criteria .....................................................................................27 5.3 Disposal of Controlled Waste at Sea........................................................................................27 5.4 Interpretation of London and OSPAR Conventions ..................................................................28 5.5 Delivering Sensible Environmental Outcomes..........................................................................28

6. References ...............................................................................................................................28

Research aMa ing Contaminated Sediments

a - Existing LT Content

........ i Summary ..........................................................................................................................................

ledgements.................................................................................................................................. ii

11.1 1.2

1.3.1 Project Objectives ........................................................................................................2 1.3.2 Project Tasks ..............................................................................................

1.4 Aims and Objectives of Task 3 ...................................................................................................3 1.4.1 Approach to the Study..................................................................................................4 1.4.2 Structure of Report .......................................................................................................5

2. Overview of Relevant Legislation ...............................................................................................5

3. Existing Processes for the Management of Contaminated Marine Dredge Material at Sea and on Land................................................................................................................................7 3.1 Process for Management of Contaminated Marine Dredge Material at Sea ..............................7

33



R/3709 (iv) R.1584

2. Tables 1.

6. Land Based Decision-Making Framework ................................................................................19

7.

Appendices 1. elevant International, European and National Legislation R

Case Studies

Summary of the six commissioned work packages within the project.........................................3

2. Main legislative provisions relevant to the management of contaminated marine dredge material...........................................................................................................................5

Figures 1. UK Licence Pathway ..................................................................................................................9

2. The sediment Triad-approach, positioning hazard, risk and impact assessment and positioning the bridging tools Toxicity Identification Evaluation and Model Ecosystems...........11

3. Indicative Decision-Making Framework (based on OSPAR/London Convention).....................13

4. Process for considering whether waste is hazardous (reproduced from EA, 2005)..................15

5. Waste Hierarchy .......................................................................................................................17

Land and Sea Decision-Making Framework .............................................................................21



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1.

1.1

It is Govnd als s the global and UK economy

nts in many inshore areas around the UK coast are relatively ntaminated, due to dominantly historic pollution within the industrialised e seabed sediments in many of these areas are contaminated with a

s (e.g. often

rsiste

omic reasons - these sediments3 ed to edging, and ring

anage dging and disposal of contaminated seabed sediments in port

osal sites nd biological screening criteria) or when contaminant levels are too high

osed in a land fill. To date, there has been limited investigation into the

1.2

ottish

a of t

Introduction Contaminated Sediment and Dredge Material

ernment policy to promote the use of the sea for the transport of goods around the UK o to encourage a modal shift from road to water1. Aa

continue to grow there is an increasing demand for port capacity and the UK’s success in the global market place depends, in part, upon the ability of ports to adapt and operate efficiently as gateways to international trade2. There is, therefore, a fundamental need to ensure ports continue to operate and their activities are sustainable and not detrimental to the environment.

Whilst the majority of sedimeclean or only mildly costuaries of the UK, the

variety of chemical substances. These include heavy metals, organo-metal complexeBT), and various organic congeners e.g. PCBs. The contaminants in sediment areT

pe nt (i.e. they do not readily break down) and this can create a significant sediment quality issue, where there are potential risks to both aquatic life and to human health i.e. pollution. Significant issues arise when - for largely econne be dredged. The disturbance to the contamination which arises during drdu subsequent management of the dredged material, may result in unacceptable contaminant loss, dispersal and pollution within the biosphere. The key issue is to develop a

ment approach to dremregions in which the economic objectives are achieved but in which there is minimal risk to the environment.

Contaminated dredged material is usually either disposed of at sea (in open sea dispsubject to chemical aransported and dispttreatment; disposal or beneficial use of contaminated dredged sediment in the UK, and other than the Oslo Paris Convention (OSPAR) and London Protocol Guidelines there is no formal sediment management framework that details the procedures for the treatment, disposal or beneficial use of contaminated marine sediment.

Background to Project In May 2006, as part of a Defra initiative, a Contaminated Marine Sediment Steering Group was set up, comprising representatives from Cefas, Natural England, the Welsh assembly, the Sc Executive, The Crown Estate, representatives from industry including port authorities (ABP, BPA, PoLA), conservation agencies and green NGO’s (e.g. CCW, JNCC, MCS). The

his group was to discim uss and formulate a programme of research work to underpin

rtment for Transport has estimated that about 95% of goods either consumed or produced in the UK are orted or exported by sea (http://www.dft.gov.uk/pgr/shippingports/) nt for Transport, 2007. Ports Pol

1 The Depaeither imp

2 Departme icy Review. http://www.dft.gov.uk/pgr/shippingports/ports/portspolicyreview/portspolicyreviewinterimreport.

3 These sediments are referred throughout this report in abbreviated form as CMS (‘contaminated marine sediments’).



R/3709 2 R.1584

sedimen

ch on contaminated areas where dredging was likely to occur r be necessary in the future.

3

That the sediment is contaminated (although the severity of contamination is not known);

That minor revisions to existing legislative statues can be entertained; and hus potentially out to 200 miles (and inland as far as tidal

limit These terms are important because they dictate atr f thi is project i or provide a framework for evaluating, permitting and controlling the d

1.3.1 Project Obj T of d Ov original project specification and these are as follows: T arc gy for managing contaminated marine sediments that need to be dredged which will: Aid a l

optio able Environmental Option (BPEO) assessment process, taking into consideration the principles of sustainable development (including the polluter pays principle and the precautionary principle) on a case by case basis.

tent, implications and impacts of dredged CMS on the

provide a comprehensive guidance document (‘strategy’) for managing contaminated marine ts in the UK. The specific Terms of Reference (TOR) for this group was:

‘to assist and facilitate the development of the UK strategy for handling and managing contaminated material to be dredged from UK marine waters, and to support and advise on the practical implementation of the strategy’.

Extensive consideration of the principal issues gave rise to a research framework comprising 6 work packages (Tasks) that commenced on 1 April, 2007. Whilst it was initially decided to address all seabed areas which were known to be contaminated, the Steering Group subsequently focussed the researo

1. Scope of Project This project was conceived within several highly specific terms-of-reference. These are:

That a decision to dredge has already been made;

That all UK waters and ts) be considered.

what point within a s research will be invoked. For example, th

decision hierarchy the s not intended to underpinredging of CMS.

esults o

ectives

he aims the project were set out under ‘Background an erview’ in the

he rese h will underpin development of a UK strate

in the transparent and objective assessment of ns through the Best Practic

ll dredged material disposa

Take into account the scale, exmarine environment.

Act as a focus for existing work, draw together best practice and ensure work is not duplicated elsewhere, e.g. The London and Oslo Paris (OSPAR) Conventions, World Association of Waterborne Transport Infrastructure (PIANC), Central Dredging Association (CEDA), etc.



R/3709 3 R.1584

s the common sense approach to prevail will be highlighted.

sal sites receiving contaminated, but acceptable, material and suggest guidance for their use, identify remedial measures for

acceptable for sea disposal and establish guidelines for preventing further contamination.

he research was delivered through a series of six commissioned work packages, or Tasks.

arded to Partrac Ltd (Glasgow). Table 1 summarises the six sks.

Table 1.

Task

Produce a simultaneous and inclusive consultation process to replace the current methodology of approaching one regulator at a time in order to make disposal solution decisions.

Identify where regulations are preventing the BPEO from being used and reflect the associated risks to the marine environment these represent. Examples where flexibility in regulations allow

Define the nationwide scale of the problem and disposal solutions at sea as well as beneficial use, identify current sea dispo

material deemed

1.3.2 Project Tasks

TThese were let through a competitive tendering process. The project co-ordination was also let via the same process and was awta

Summary of the six commissioned work packages within the project.

Title Consultant Task 1

ments in UK Waters Characterising the Issue and Delivering a National Database of Contaminated Marine Sedi

ABPmer/Cefas

T Exploring Liability and the Polluter Pays Principle ABPmer/York University Law School/IEEP

ask 2

Task 3 Identifying Existing Relevant Legislative and Regulatory Barriers, and Guidelines and Protocols, with Respect to CMS

ABPmer/York University Law School/Cefas

Task 4 Establishing best practice for the prevention of pollution arising from CMS

ABPmer/Cefas

Task 5 Establishing Best Practice for Current Disposal and Treatment Options for CMS

Entec UK Ltd.

Task 6 Identify relevant marine sediment research and development relevant to the management of CMS

National Oceanography Centre, Southampton

1.4 Aims and Objectives of Task 3 Task 3 is concerned with the identification of relevant legislative controls, guidance and protocols relating to the management of contaminated marine dredge material, and the identification of any unnecessary regulatory barriers that current approaches create. Specific objectives for this task are to:



R/3709 4 R.1584

terpret relevant directives and legislation and identify overlaps and cross-linkages. Ascertain the implications of current and potential future legislation on the

aterial and hence the broad options available for disposal/re-use.

1.4.1 pproach to the Study

iterature review of relevant legislation, guidance and rotocols, informal discussions with regulatory bodies, their advisors, port and harbour uthorities, internal meetings, discussions within the study team and wider project team.

wide range of ongoing changes to relevant

Implementation of recent changes to environmental permitting (particularly in England and Wales) and rapid development of associated policies.

W il a it stands towards the end of 2009 and to reflect how impending changes are likely to affect legislative and policy requirements, we would r how legislation might be applied and interpreted in the future. The development of an overall Strategy for Managing Contaminated Marine S re changes and seek to address the associated un e A p ribe the existing framework for the management of contaminated marine dredge material. This has required us to evaluate the processes

on land and to seek to identify the linkages between them. .

B ehinder the effective management of contam decision-making. We have then commented on how ry barriers might

Two case studies are presented which have been used to illustrate some of the issues and

Outline and in

strategy and consider possible future options for moving forward. Clarify the legal issues surrounding the classification/categorisation of dredged

material as waste or reclamation m

Work with industry to identify examples of barriers to the common sense approach and the implementation of the spirit of legislation.

A The study has been progressed through a lpa

he study has sought to take account of a Tlegislation, in particular to reflect: The provisions of new EC Directives (Water Framework Directive (2000/60/EC);

Priority Substances Directive (2008/105/EC) and the revised Waste Framework Directive (2008/98/EC).

Changes in marine licensing that are likely to be introduced following enactment and implementation of the Marine & Coastal Access Bill (and the equivalent devolved administration provisions).

h e we have sought to capture the position s

ecognise that there is some uncertainty about

ediments should take account of these futuc rtainties.

s art of the study we have sought to desc

plied both at sea and that are apThis framework has then been used as a foundation or developing an overall synthesis report

entify unnecessary regulatory barriers that inated marine dredge material and inhibit sensible

f

as d on this framework we have sought to id

some of these regulatobe addressed.

complexities associated with managing contaminated marine dredge material, particularly when it is brought to land.



R/3709 5 R.1584

1.4.2 Structure of Report

ge material, with more detailed descriptions of the

processes and procedures that are applied to the consideration of th at sea and on land and presents an overall

ulator nts

nat ,

nctly different. Table 2 summarises the main relevant p . Appendix 1 provides more detailed descriptions of the

able 2. Main legislative provisions releva ement of contaminated marine dredge material

Section 2 of the report summarises the principal legislative controls relevant to the management of contaminated marine dredprovisions of the legislation in Appendix 1. Section 3 describes the contaminated marine dredge material boframework that integrates these regimes.

tSec ion 4 seeks to identify unnecessary regon how such barriers might be addressed.

y barriers and Section 5 provides comme

2. Overview of Relevant Legislation A wide range of legislation is relevant tmaterial at international, European, andthe legislative frameworks for management of ma

o the management of contaminated marine dredgeional (devolved administration) level. Furthermore

terial at sea and on land are distirovisions that apply at sea and on land requirements of specific legislation.

nt to the managT

Sea Land

International: United Nations Convention on the Law of the Sea

(UNCLOS) London Convention and 1996 Protocol (including

the Specific Guidelines for Assessment of Dredged Material)

International:

The Convention for the Protection of the Marine Environment of the Northeast Atlantic (OSPAR Convention).

International Convention for the Prevention of Pollution From Ships 1973 as modified by the Protocol of 1978 (MARPOL 73/78)

European: Water Framework Directive (2000/60/EC) Priority Substances Directive (2008/105/EC) Revised Waste Framework Directive (2008/98/EC) Habitats Directive (92/43/EC) Birds Directive (79/429/EEC)

Bathing Water Directive (76/160/EEC) and Revised Bathing Water Directive (2006/7/EC)

Shellfish Waters Directive (2006/113/EC)

European:4 Waste Framework Directive (2006/12/EC) and

Hazardous Waste Directive (91/689/EEC) as amended by Directive (94/31/EC). Shortly to be replaced by Revised Waste Framework Directive (2008/98/EC)

Landfill Directive (99/31/EC) Integrated Pollution Prevention and Control

Directive (2008/1/EC)

4 While waste management on land is also required to have regard to the requirements of EC environmental

Directives, the more controlled nature of waste management on land generally means that the environmental issues are reduced.



R/3709 6 R.1584

Sea Land Dangerous Substances Directive (76/464/EEC) Marine Strategy Framework Directive

(2008/56/EC) Environmental Impact Assessment Directive

(97/11/EEC) Strategic Environmental Assessment (SEA)

Directive (2001/42/EC) Integrated Pollution Prevention and Control

Directive (IPPC) (2008/1/EC) Environmental Liability Directive (2004/35/EC)

Environmental Liability Directive (2004/35/EC)

National: Food & Environm

National:5 ent Protection Act 1985 and

Coast Protection Act 1949 (shortly to be replaced Environmental Protection Act 1990 (England,

Scotland, Wales)

Waste Management Licensing Regulations

by new marine licensing arrangements under the Marine & Coastal Access Bill (and equivalent devolved administration provisions)

Marine Works (EIA) Regs 2007 Local powers under Harbour Empowerment

Orders (many and varied rights and duties, normally applied through Harbour Works Licences).

Waste and Contaminated Land (Northern Ireland) Order 1997 and Pollution Control and Local Government (Northern Ireland) Order 1978

Environmental Permitting (England & Wales) Regulations 2007

Waste Management Licensing Regulations 1994 and Pollution Prevention and Control (Scotland) Regulations 2000 (Scotland)

(Northern Ireland) 2003, Environment (Northern Ireland) Order 2002, Pollution Prevention and Control Regulations (Northern Ireland) 2003 (Northern Ireland)

At an international level, the London Convention and Protocol and the OSPAR Convention are particularly important in setting basic requirements for the management of dredged material isposal at sea. The OSPAR Convention published guidelines for the management of dredge aterial which provides the context within which evaluation is carried out within the UK. In

e

to ea or taken to land for treatment, recovery or disposal.

2 of the Food & Environment Protection Act 1985 (FEPA). The FEPA licenc ovides the basic environmental control for sea disposal of dredged material. While

within a new marine licensing system under the Marine & devolved administration provisions) the new marine licence

ertaken to determine FEPA licence plications. Where relevant, the licensing procedures take account of the provisions of

various EC Environmental Directives as well as obligations under international conventions.

dmcontrast, waste management on land is primarily defined by EC Directives, in particular thWaste Framework Directive and revised Waste Framework Directive. The regulatory requirements that apply to the management of contaminated marine dredge material at national level significantly depend on whether the material is to be disposed of s Where dredged material is identified for disposed at sea, it is subject to the overall requirements of Part

e prFEPA is soon to be subsumed Coastal Access Bill (and equivalent will not significantly change the existing process that is undap

5 There are also a wide range of Regulations supporting national waste management systems, for example in

relation to the Duty of Care, definitions of waste, the carrying of waste etc. These are detailed in Appendix 1.



R/3709 7 R.1584

anagement systems. While these vary slightly between evolved administrations, they are all principally governed by the Waste Framework Directive

emented in UK law through the Environmental

r the licensing of waste management activities and the

controllecontrolle

longside the specific provisions for the licensing and management of waste, overall waste policy is strongly focused on reducing the amounts of waste generated and disposed of to landfill through application of the waste hierarchy. For certain types of waste, specific recovery targets exist to encourage waste minimisation, re-use, recycling and recovery (for example packaging waste, waste electrical and electronic equipment). However, there are currently no such targets for dredge material, other than improvements in sediment quality via source control. Historically, the waste management system has provided for exemptions to be granted for the disposal of certain types of waste, where this provided some economic or environmental benefit and did not pose environmental or human health risks. However, these exemptions have been increasingly restricted in law. While there are still some limited exemptions from waste management licensing for certain activities involving dredged material, these are clearly circumscribed by the exemption regulations (and increasingly so) and would not permit exemption for contaminated material.

3. Existing Processes for the Management of Contaminated Marine Dredge Material at Sea and on Land

3.1 Process for Management of Contaminated Marine Dredge Material at Sea The London Convention definition of pollution (subsequently adopted by UNCLOS III) is used as a basis for Section 8 of FEPA and can be considered against the background of protecting four main elements:

the marine environment; living resources in the sea; human health by pollution entering the food chain; legitimate uses of sea.

The licensing process includes a system of consultation with the relevant authorities to assess an application to dispose of dredged waste at sea with respect to the above main elements. The system of consultation is based on a staged regulatory process; this ensures that all four

Where dredged material is to be brought to land for treatment, recovery or disposal, it is subject to the requirements of national waste md(2006/12/EC) and, in due course, the revised Waste Framework Directive (2008/98/EC). The basic framework for waste management is implProtection Act 1990 (England, Scotland and Wales) and the Waste and contaminated Land (Northern Ireland) Order 1997 in Northern Ireland. The primary legislation is supported by a wide range of supporting regulations fooperation of the waste management framework, for example, relating to the definition of

d waste and hazardous waste, the ‘Duty of Care’ requirement and the transport of d waste.

A



R/3709 8 R.1584

aspects of pollution are included in the process of licence evaluation. The stages are shown below and embodied within Figure 1. Co-ordination undertaken by the licensing authority which is ultimately responsible for

sheries and

e impacts on the

the licensing decision. Scientific and technical analysis as required by the conventions and is undertaken by scientific advisors (for example, the Centre for EnviAquaculture S nce (Cefas)).

sought from bodies with a detailed know

mm t from all other bodies with a relevant interest.

ronment, Ficie

Advicemarine environment (below the high water markbodies or sea fisheries. Co en

ledge of the poss of spring tides), e.g. conservation

ibl

U Licence Pathwa


Task 3 isting Legislation, Guidance, Protocols and Regulatory Barriers

R/3709 9 R.1584

F K y

Re-application/ Review

Appeal Procedure (If invoked by the

applicant)

- Ex

igure 1.

Applinde

cant ator of ged rial

(Origidremat )

StartApplicat

ion

Government Department MFA (Eng

Welsh Assembly GovMarine Scotlan

Dept. of the EnvironConsultation and Ev

lae

d (mal

nd) rnment (Wales) Scotland) ent (N.Ireland) uation Phase

Sampling Requirements and Scientific Studies (as required)

CEFAS (England & Wales)

SEPA (Scotland) Dept

Scientific evaluation of the implications on fish and marine

environment generally. Particular regard for areas of

scientific and conservational

importance.

MFA Sea Fisheries

spectorate

ocal district spectors of Fisheries. (Advice on fisheries interests. Including cerns of local fisherman)

In

Lin

con

Conservation Bodies

Natural England, Country side

Council for Wales (nature

conservation, possible impacts

especially in areas subject to the Conservation (Habitats &.c) Regulations;

archaeological interests)

DfT (Port Division) a ( apnd MoD Hydrogr hic Office) (Liaison with respect to navigational aspects where relevant)

LOCAL AUTHORITIES (including port and harbo orur auth ities)

Seabe e, utd Owner i.e. Crown Estat Port A hority, Council (Designated , c ti

sitof new deposit sites a

new det seaposit

on over designation of

GOs

onsultaes)

Environmental Agency (Water quality)

Other Stakeholders incl Nve a valid interest)

uding artm aent to h(Considered by Go evernment D p

GDe

c

OV EPARTcis tion advom ion of co

ERNMENT Dion, co-ordinament, resolut

MENT ice and nflict

Feedback and monitoring

Licence Granted End - Input to

public register

LicenDecisio

ce n

Research and Support for Developing a UK Strategy forManaging Contaminated Sediments


R/3709 10 R.1584

3.1.1

within the London Convention’s ‘Specific uidelines for Assessment of Dredged Material’ both require an evaluation of disposal

nd fish waste from industrial fish processing operations.

in the form of lower and upper action values. These values have often been developed on

management is habitats round

Ecotoxicological assays, investigating the effects on biota, have been developed to provide extra context to making informed decisions. However they are only used in a few countries and are not standardised (Bergmann & Maass, 2007). Ecotoxicological assays are used as a complementary instrument; it is not possible to analyse the huge number of

Technical Assessment The OSPAR guidelines for the management of dredged material and the dredged material assessment framework (DMAF) detailed Goptions to be made before making a decision on whether the dredged material will be allowed to be disposed of in the sea. Both Conventions are written in a positive manner (the so-called reverse list) and specifically defines those materials that may be disposed of at sea, subject to detailed assessment to ensure the Best Practical Environmental Option. The categories of waste and other matters for the OSPAR Convention include: dredged material; inert materials of natural origin which is solid or chemically unprocessed geological

material the chemical constituents of which are unlikely to be released into the marine environment; a

nes are invoked in British Law by Section 8 (2) of the Food and Environment rotection Act 1985. Section 13 of the licence application form requires a review of the lternatives considered by the applicant, including a relative cost assessment prior to the

he technical assessment of the suitability of dredged material for disposal is undertaken y Cefas using a weight of evidence approach. The asse ent takes account of formation on the physical and chemical properties of the disposal material, background

t levels, his nd the characteristics of the proposed disposal site. uitability of the material for disposal has regard to UK action levels and other international tandards, but action levels are not applied in a rigid manner. For decision-making in ediment management, a relative quality scale with defined sediment quality criteria (SQC) used. This quality indicator, called action values, guide values or limit values, function s a yardstick to show decision-makers how the sediment should, or should not be

ergmann & Maass,

a number of countries in Europe SQCs for contaminant concentrations are in use, often

These guideliPaapplication being made. Tb ssmincontaminan toric land use aSssisamanaged (B 2007). In

through respective scientific considerations and national objectives. Simplified applicatiof these action values as the only basis for ‘pass-fail’ decisions in dredged material

generally considered to be too rigid an approach to apply to varied marine the UK. a



R/3709 11 R.1584

Detects:

Triad component:

Bridging tools:

Toxicity Identification Evaluation (TIE)

Model Ecosystems (ME)

impact Assesses: hazard risk

chemical analysis

(bio)assays field inventory

contaminant a.o. toxic effects

ecosystem impacts

TIE ME

hazardous chemicals potentially present in sediments and it is scientifically impossible to erive quality criteria where chemicals exert effects in combination. Therefore, the

ires a tailor-made solution. Chemical analysis n be used to determine concentrations of selected hazardous chemicals and then it can

y by giving a unique answer that cannot be iven by any of the individual methods by themselves. But each method also has its own

dutilisation of these essays in the assessment process has been subject to varying degrees of success due to the complexity involved. For the assessment of contaminated sediment, there is not one ‘best’ method available. Each specific management question requcabe checked if the concentrations exceed pre-defined standards or guideline values. Using bioassays can test the toxic effects of sediment on organisms. Through a field inventory the long-term impact on sediment biota can be investigated. These assessment methods (chemical, bioassay, field) are complementargunique drawbacks and uncertainties. A simultaneous or tiered application of these three, complementary assessment methods (Figure 2) is commonly referred to as the Triad-approach (Chapman 1996).

Figure 2. The sediment Triad-approach, positioning hazard, risk and impact assessment and positioning the bridging tools Toxicity Identification Evaluation and Model Ecosystems.



R/3709 12 R.1584

3.1.2 Decision-Making Framework OSPAR Guidelines For The Management of Dredged Material 2009 adopted at the 2009 meeting of the OSPAR Biodiversity and Ecosystems Committee provides a scientific and technical framework in the form of guidelines primarily for assessing dredged material proposed for disposal at sea. While economic iderations are acknowledged, they are not dealt with in detail in these guidelines. The Dredge essment Framework (DMAF) came out of the London Convention 1972 and is contained within the guidance document ‘Specific Guidelines for the Assessment of Dredged Material’. This f ewor e a widely accepted framework al. Figure 3 presents a simplified decision-making framework (based on OSPAR and the London Convention frameworks). It is important to note that while initial characterisation of material can inform whether material is likely to be suitable for disposal, confirmation of this initial evaluation can only be forthcoming once the specific characteristics of the receiving environm ents of other environmental protection legislation have been taken into account together with consideration of any available alternative disposal options. Within the vested within the Secretary of State for Environment, F ugh the MFA until the 1 April h point the MMO will take responsibility. Within Wales the decision maker the N n Scotland it is the Marine Scotland and within Northern I Scientific advice is offered gland a provides the evaluation components of the process, with other consultees providing technical advice on thei as of e Currently, there is no absolu finition of contaminated sediment. However, from a regulatory view point, it might usefully be considered as a sediment which, following evaluation risk to the environment and on the basis of the proposed dis eet the requirements of other environmental rotection leg a result of contamination issues).

contaminated sediment is therefore a sediment for which initial evaluation indicates that unl he

proposed disposal may not meet all environmental requirements (as a result of contamination issues). In such circumstances, disposal would not be permitted unless some modification to the disposal method, location and/or contaminant concentrations or loadings is made.

cons

Material Ass

ram k has becom for assessing Dredged Materi

ent and the particular requirem

UK, the decision maker isural ood and R Affairs and executed thro 2010, at whic

is vested within

by Cefas (Enational Assembly for Wales, withi

reland the Department of the Environment. A (Scotland) which nd Wales) and SEP

r specific arexpertise (see flow diagram Figure 1).

te de

, is deemed to pose a significant posal method/location does not mislation (asp

Adisposal is ikely to be acceptable or where further evaluation indicates that t



R/3709 13 R.1584

Figure 3. Indicative Decision-Making Framework (based on OSPAR/London Convention)

(1) Dredge Material Characterisation

(4) Is the material likely to be acceptable for sea disposal?

(5) Can the material/project

be made acceptable for sea disposal?

No

(2) Evaluation of disposal options - is there a beneficial use?

(3) Beneficial use

Yes

Yes

(6) Selection of sea disposal site

(7) Suitability Evaluation: • Assessment of potential

effects • Habitats Directive • Water Framework Directive • MSFD • Revised Waste Framework

Directive etc

No

(8) Issue licence with relevant conditions

Yes

Yes

Is there a land-based solution to the management of the material? See Figure 6

No



R/3709 14 R.1584

3.2 Process for Management of Contaminated Marine Dredge Material on Land

e tieti

inogrde eE

usraasul

gigti ic.n

fyr

WherWhile

c ine dredged t will be classified as waste. h re are some limited exemptions from waste management licensing for certain s involving dredged material, these are clearly circumscribed by the exemption o s (and increasingly so) and would not permit exemption for contaminated material.

ules and regulations ap te (EWC) categorises diff categories (‘inert’, ‘non-

o s’, ‘hazardous’). The properties of hazardous waste are laid down in Annex III to the F amework Directive and have been slightly modified in A

w rk Directive. There is also additional guidance on national criteria for classifying waste n ronment Agency, 2005)

e the composition of many waste streams is variable, the Catalogue often includes 2 te entries for the sa provides for such waste to s specific of that a batch

n spoil substances is identified as a ‘mirror entry’ waste in the u (M17 05 05). The guidance indicates the waste includes such a broad range of a hazardous was at dous property i Annex III of the revised Waste Framework Directive a stituents of the waste are unknown, it should be treated as hazardous unless aste holders have a duty to determine if a ‘mirror entry’ waste is hazardous. The

en nce for England and Wales on the requirements for s nvironment Agency, 200 adly

te by th d he other devolved admini

ontaminated mar material is brought to land ie still

activitregula

n

Certa

alr

ueply to the classification of waste. The European Waserent types of waste into basicCat

hazaWas

ut

Fram(e.g.

ro

nnex III of the revised Waste

vi Becasepabe clpartic

me waste (known as ‘mirror entries’). This‘non-hazardous’ depending on theified as ‘hazardous’ or properties

r of waste.

containing dangerous Dred g catalopoten

elly

tes th it should be considered against all the hazar

(Codes H1 to H14). If the codeschemtested

n l conW

mEnviroclassi

o

t Agency has prepared guidate, see Figure 4 (Ei wang 5). This guidance is bro

strations. supp

d e regulatory bo ies in t



R/3709 15 R.1584

Figure 4. Process for considering whether waste is hazardous (reproduced from EA, 2005)

No

Step 6 - Does the waste hazardous propertie

possess any of the s H1 to H14?

No

No

Yes

Step 3 – How is the waste coded and classified on the EWC 2002?

Step 1 - Is the Waste a Directive Waste?

Step2 - Does the domestic legislation contain specific provisions that relate to

the waste in question?

This should be determined prior to proceeding to step 3

Step 4 - Is the composition of the waste known or can be determined?

Step 5a - Does the waste contain dangerous substances? Step 5b - Is there any reason to

indicate the waste may be hazardous (e.g. test results)?

N O N - H A Z A R

DO U S

H A ZARDOUS

No

NoYes

Yes

Neither Absolute nor Mirror Mirror Entry

Absolute

Entry

Yes

Yes



R/3709 16 R.1584

All controlled waste (whether hazardous or not) is subject to strict regulation and control with various regu ies and the transporting o a azardous waste. The

ent Protection Agency and cipally responsible for applying these

regulations, a certain types of facilities in

In Engla d mobile plant is carried out

ations 2007. In Scotland and

regulated) although they

The custody carefully managed with a requirement for

d to or between waste facilities. Th ed waste to register with the

(Registration of Carriers and Seizure disposed of to landfill, the

ite in equirements of

the Landfill ( ance on waste

Alongsi to human health and the

the waste hierarchy as shown in Figure 5 (Defra, 2009

lations go g of waste management facilitte. Specific ents apply in relation to h

environment agencies (Environment Agency, Scottish EnvironmNorthern Ireland Environment Agency) are prin

lthough local authorities are responsible for regulatingEngland and Wales.

nd and Wales, lic aste management facilities anunder the Environmental Permitting (England & Wales) RegulNorthern Ireland, separate regimes exist for waste management licensing and pollutionprevention and control licensing (under which mobile plant iseffectively provide for the same level of control.

chain for controlled waste is consignment notes to accompany waste wh ing transferre

ere are also ents for carriers of controllrelevant environment agency (for example, the Controlled Waste

ehicles) Regumaterial must meet the relevant acceptance criteria for the particular type of landfill saccordance with relevant Regulations (for example, the Waste Acceptance R

England and Wales) Regulations 2002). There is also various guidacceptance procedures and requirements (e.g. Environment Agency 2005b; 2006).

d the robust regu framework for managing risksenvironment, waste policy is strongly governed by

b). In accordance with the revised Waste Framework Directive this comprises:

revention; reparing for re-use; ecycling;

Other recovery (including energy recovery); isposal.

verning the licensinadditional requiremf w s

ensing of w

ere it is be requirem

lations 1991). Where material is to beof V

e latory

PPR

D



R/3709 17 R.1584

Defra, 2009b

Figure 5. Waste Hierarchy

Resource management

Recovery

Disposal

R E S I D U E S

Waste Hierarchy

Prevent

Recycle

Other Recovery

e.g. energy

recovery

Preparing for Re-use

Other disposal except landfill

Landfill



R/3709 18 R.1584

The hierarchy places a strong emph ste. Where waste cannot be a eeks t se, e, with disposal to landfill site as the l nal wast rategie deliver key actions to deliver over ives and targets for waste n particular the principles of the waste hierarchy. The revised Waste Framework Directiv the definition of waste and hazardous waste and a relating to recycling and recovery of waste to determine the point at recovered from the waste stream: The substance or object is commonly used for specific purposes. A market or demand exists for such a substance or object. The substance or object fulfils the technical requirements for the specific purposes and

meets the existing legislation and standards applicable to products. The use of the substance or ob to overall adverse

human health impacts. Guidance on how these criteria has also been prepared at European level. (JRC & IPTS, 2008). To support recovery of waste from the waste stream, the Environment Agency has been taking forward the development of a number of ‘waste protocol’ projects to seek to develop guidance on when waste mi ve been re the waste stream. As part of this programm rtaken in rmaterial of marine origin. While the study has recognised that there is potential for sucmaterial to be recovered, the project identified a number of issues that make it difficult to develop generic guidance at this stage. In particular, the main use of dredged material on land tends to be as fill. Most dredged material does not m riteria suc d therefore does not meet the end of waste criterion for a product. Furthermore for waste to be considered to have been fully recovered, it must all adverse environmental or human health impacts. The nature and concentrations of contaminants associated with dredged material is variable. Such sediments may also be leachable and there may be risks of up-percolation of contaminants. For these reasons it may be difficult for dredged material to meet the criterion. While the project has yet to finalis it is unlikely that any generic guidance will be prepared and that w ght to land, issues of recovery will be dealt with on a case by case basis (Suzanne Laidlaw, EA, pers.comm).

asis on preventing wa recycle or recover wast

s seek to identify andmanagement and, i

voided, the hierarchy sast resort. Natioall object

o re-ue st

e (not yet transposed into UK law) amends establishes specific criteri

which waste can be considered to have been fully

ject will not lead environmental or

ght be considered to hae, a study has been unde

fully covered fromelation to dredged

h

eet standard engineering c

not lead to over

for h material an

e its report, here material is brou



R/3709 19 R.1584

Figure 6. Land Based Decision-Making Framework

(1) Is there a land-based solution to the management of the material?

No

(2) Abandon proposal

Yes

(4) Is it appropriate to prepare the material for re-use?

(5) Is it appropriate to recycle/recover the material?

(7) Does the material meet waste acceptance criteria for landfill?

No

No

No

(9) Can the material be made to comply with waste acceptance criteria for landfill?

No


Yes

(6) Recycle/recover

(8) Dispose in appropriate landfill

Yes

(10) Dispose in appropriate landfill

Yes

(3) Classify as waste under reused Waste Framework Directive and apply waste hierarchy



R/3709 20 R.1584

3.3 Bringing the Sea and Land Processes Together

The sea and land frameworks interact at two key points. Where dredged material is considered unsuitable for sea disposal because of cont ination issues and is brought to land, it becomes subject to the waste management system. Such material may remain on land, in which case it remains subject to waste management controls unless it is recovered frAlternatively, following treatment, the material may be s itable for sea disposal and/or beneficial use at sea, in which case it would be subject to ols under / the new marine licence. An overall framework that seeks to bring together the sea and land frameworks for the management of contaminated dredged material disposal is presented in Figure 7.

am

u contr

om the waste stream.

FEPA

nd and Sea Decision-Making


Task 3 - Existing Legislation, Guidance, Protocols and Re atory Barriers

R/3709 21 R.1584

Fig La Fra

gul

ure 7. mework

(1) Dredge Material Characterisation

( toa s4) Is the material likely cceptable for sea dispo

be al?

(5) Can the project be madeacceptable for sea disposal (e.g. change disposal location, amount etc

)?

No

( al - e?2) Evaluation of dispos is there a beneficial us

options

(3) Beneficial use

Yes

(1) Is there a solution to themanagement

la of

nd-based

the material?

No

Yes

( osal si6) Selection of sea disp te

( :

f poten

tive

work

e

7) Suitability Evaluation

• Assessment oeffects

• Habitats Direc

• Water FrameDirective

• MSFD

• Revised Wast

tial

No

( relevac8) Issue licence withonditions

nt

Yes

No

(2) Abandon pr

Y

oposal

es (3) reusDirehier

Classied Wctive archy

fy as waste Frand ap

aste under amework ply waste

(4) the(tre

Is it a mateatme

ppropririal for rnt prior

ate to prepare e-use? to sea disposal)

(5) rec

Is it aycle/

pproprirecover t

ate to he material?

(7) walan

Doesste acdfill?

the maceptan

terial meet ce criteria for

No

No

No

(9) to cacc

Can tomplyeptan

he mate with wce crite

rial be made aste ria for landfill?

No


Yes (6) Recycle/recover

(8) Dispolandfill

sYes

e in appropriate

appropriate (10) Displandfill

ose in

A

Yes

L ND SEA

Yes



R/3709 22 R.1584

4.

roposed placement of material on marshes at Maldon on the Blackwater Estuary;

4.1

Regulatory Barriers Regulatory barriers and issues associated with the management of contaminated marine dredge material have been identified based on the Project Team’s experience, discussions with regulators and their advisors and with port & harbour authorities. While these discussions have highlighted a number of uncertainties associated with both the sea and land regimes and their interaction, relatively few specific legal barriers have been identified. Two case studies are presented in Appendix 2 which illustrate the issues that can arise and the solutions that are currently employed. While the case studies do not identify specific regulatory barriers, they are helpful in illustrating the issues which commonly arise. The two case studies relate to: P The Port of London Authority’s management of marine dredged sediment brought to

land from the Thames Estuary. Possible Barriers Relating to the Management of Contaminated Marine Dredge Material at Sea The assessment of suitability for sea disposal is based on a weight of evidence approach that takes account of the concentrations of selected contaminants, overall contaminant loading and various physical factors relating to the dredged material, the disposal site and the wider receiving environment. By definition, the application of this weight of evidence approach means that where contaminant concentrations are elevated, there can be some uncertainty in the acceptability of the proposal until the evaluation has been completed. Port and harbour authorities and their advisors have a wealth of knowledge of contaminated sediment issues affecting individual ports such that possible issues can be identified and addressed at the design stages of any dredging campaign to minimise the risks of promoting an unacceptable proposal. Furthermore, it is often the case that where issues arise following initial evaluation, it is possible to modify the proposal, for example by not dredging an area of high contamination so that an amended proposal is acceptable for sea disposal. While this approach inevitably introduces a level of uncertainty into the outcome of an evaluation, it is widely supported by the industry. Through this process, sea disposal solutions are identified for the great majority of proposals and only a very small minority reach a point where land disposal has to be considered. As part of the evaluation process, the regulators and their advisors are also required to ensure that any licence issued complies with the requirements of the various EC Directives relevant to saline waters. The interpretation of the requirements of these Directives is not always straightforward and such issues are often only clarified through the European Courts.



R/3709 23 R.1584

tanding of quirements can often change, requiring revisions to existing policies. A good example of this

Directive and e revised Waste Framework Directive. Implementation of these Directives in the UK

entified as non-compliant, this may lead to increases in the amount of material that is brought

e indicates that where dredge material is

dredged material against the Annex III criteria,

ment, as the process of leaching is primarily a terrestrial

While UK policies supporting implementation of the Directives are developed based on the current understanding of the requirements of these Directives, the undersreis the change in legal opinion concerning the status of dredging and disposal activities in relation to the Habitats Directive. Historically such activities were considered to be ongoing operations but now they are regarded as being ‘a plan or project’ under the terms of the Habitats Directive. This has led to the development of a Maintenance Dredging Protocol between the ports industry, regulators and advisors as a more streamlined and effective means of evaluating compliance of maintenance dredging and disposal issues under the Habitats Directive. In recent years, further Directives relevant to saline waters have been adopted and are being implemented, including the Water Framework Directive, the Priority Substancesthintroduces further specific requirements with which dredging and disposal activities must comply. In relation to the Water Framework Directive and Priority Substances Directive, there is currently a joint industry/EA funded study that is seeking to develop a framework to assess navigation dredging and disposal activities. There is a wide body of European guidance on requirements, including some guidance in relation to chemical monitoring requirements (for example, European Commission, 2008). The draft Directions on Classification and Standards (Defra & WAG, 2008) also set some of the boundaries within which compliance needs to be assessed. However, further policy guidance is likely to be required from Defra and devolved administrations concerning detailed application of standards. If the approach applied results in dredging and disposal proposals beingidto land.

rticle 2(3) of the revised Waste Framework DirectivA‘proven’ to be non-hazardous (in accordance with the criteria in Annex III of the Directive) and is relocated within surface waters, it is exempt from the requirements of the Directive. There is currently no guidance on how regulators and advisors might apply this provision and so determine whether the material is or is not subject to the requirements of the Directive. While it

ould be possible to require prior evaluation ofwsuch assessments may be expensive and, in relation to some of the criteria, may not be relevant to the consideration of environmental risks associated with sea disposal. In particular the requirement of Annex III to consider the ecotoxicity of leaching is not a meaningful criterion

apply in the marine environtophenomenon, however contaminants can leach (desorption) from sediments in suspension. Policy guidance might assist in clarifying how the requirements of Article 2(3) might be discharged. The application of the Annex III test also raises further issues about the compatibility between the existing assessment procedures applied within the sea disposal evaluation process and the requirements of Annex III. There is a concern that a strict application of the Annex III criteria could result in significant quantities of dredged material

eing categorised as hazardous in the context of the revised Waste Framework Directive b



R/3709 24 R.1584

he transposition process.

ental Permitting (England and Wales)

4.2 n Land

limited rovisions for waste management exemptions.

e material under the aste management regime on land relates to criteria for determining at what point such

material might have been prepared for re-use, recycled or recovered. In relation to recovery, these issues are primarily a function of the nature of marine dredge material rather than the

criteria, with possible requirements for material to be brought to land for treatment, recovery or disposal. Such a possibility is unlikely to represent a good environmental outcome. Furthermore, should such material be determined to be hazardous, the requirements of the revised Waste Framework Directive would then applied. In particular, this would require consideration of the waste hierarchy as part of the dredge material assessment procedures as well as the requirement for safe disposal in accordance with Article 13 (without endangering human health or harming the environment). The ban on mixing hazardous waste introduced by Article 18 would also be a relevant consideration. However, while application of the revised

aste Framework Directive requirements might increase the factors to be considered in an Wevaluation for sea disposal, it would not necessarily preclude sea disposal. Nevertheless, the possible application of the revised Waste Framework Directive’s requirements to evaluation for

a disposal will require very careful consideration in tse It is worth noting here that while the revised Waste Framework Directive may apply to the consideration of the management of dredge material at sea, other waste legislation, notably the Landfill Directive (which extends to the mean low water mark and thereby overlaps with FEPA) and Environmental Protection Act 1990 specifically apply to ‘land’. While there has been some discussion about whether the definition of land should extend into the intertidal zone, management of material beyond mean low water mark would not fall within any current efinition of land. Regulation 4 of the Environmd

Regulations 2007 (and Regulation 16 of the Waste Management Licensing Regulations 1994 in Scotland) avoids dual control in the intertidal zone - where an activity is licensable under FEPA no environmental permit/waste management licence is required. Thus, while contaminated marine dredge material may be classified as waste (for the purposes of the revised Waste Framework Directive) from the point at which the material was dredged at sea, it would not be subject to national waste management provisions until such time as it was transferred to land. Possible Barriers Relating to the Management of Contaminated Marine Dredge Material o There is a clear framework for the management and control of waste on land which is necessary to protect the environment and human health. Contaminated marine dredge material brought to land is effectively precluded from this route due to the very p The consideration of options for the management of such material on land should have regard to the waste hierarchy and the permitting requirements for waste storage, transfer, treatment, recovery and disposal activities. One of the main uncertainties concerning contaminated marine dredgw

provisions of the regulatory regime (see discussion in section 3.2 above). For re-use and recycling, there are currently no clear policies in place at UK or devolved administration level.



R/3709 25 R.1584

4.3

lled ste un

waste mthere a

In contrast, where material that is brought to

ontami material at sea

al

treatment to address contaminate neficial use, clarification is required

n whether such material might be said to have been prepared for re-use or recycled6.

e way, then it would remain classified as controlled waste. hould such material be returned to sea, it is unclear how the custody chain for the waste

also un of the material as ‘controlled waste’ under the waste

Possible Barriers Relating to the Movement of Contaminated Marine Dredge Material between the Sea and Land

hen contaminated marine dredge material is brought to land, it will be classified as controWwa der the waste management regime on land. It is likely to require testing to categorise the waste (if this has not already been done). It will also need to be received into a licensed

anagement facility which at a minimum is capable of safely storing the waste. While re practical issues associated with discharging such material to land, no particular

regulatory barriers have been identified relating to landward transfer.

land is subsequently taken back to sea, a number of possible regulatory barriers have been identified.

Where contaminated marine dredge material is brought to land for treatment to address nant issues with a possible view to subsequently disposing of such c

(assuming it meets the relevant criteria) clarification is required on whether such material might be said to have been prepared for re-use or recycled. For a variety of wastes generated on land, this is subject to clear guidance and there is a well defined use for the material that has been prepared or recycled. However, in the context of contaminated marine dredged material, the meaning of such terms is less clear. Sediment management is an increasingly important concept in the management of marine sediments. In particular, there is increasing recognition of the ecological and flood and coast protection benefits which careful sediment management can achieve. However, for practicand economic reasons this will usually be done with clean sediment directly after dredging. Where contaminated dredge material is proposed for beneficial use in the sea following suitable treatment on land, it might be argued that the treatment process had prepared the material for re-use or recycled the material and thus the material might be recovered from the waste stream (providing that there was sufficient assurance that the material was to be used for he stated purpose). t Where contaminated dredge material is brought to land forprior to being returned to sea for disposal as opposed to beo This raises a further possible issue in that if the material is not deemed to have been recovered from the waste stream in somSmight be completed (i.e. how might a consignment note be completed for such waste?). It is

clear whether a classificationmanagement regime on land might, in some way, preclude sea disposal.

6 hould

F r exammaintenaR.1086 (A

It s be noted that many disposals in the marine environment contain a significant element of beneficial use. o ple, disposal of dredge material within the Humber Estuary is recognised as contributing to the

nce of features within the Natura 2000 site (see Humber Maintenance Dredging Baseline Document, BPmer, 2004)).



R/3709 26 R.1584

this context it is also noted that there is a perception that once contaminated marine dredge

ight be considered unacceptable for sea disposal:

regarded as industrial waste that is banned from sea disposal rather than dredged material. A number of OSPAR parties are very sensitive

Any treated material may be regarded as land-based waste and might thus preclude

While it cess of transferring marine dredged material to land,

sposal. Indeed, it

solely olicence contracting parties to

If land-b

arine dredge material might only be able to take place at sea (e.g. on board a vessel) on the ce waters, it was not controlled waste subject

e noted that this is unlikely to be a sensible

hile the considerations relating to the management of contaminated dredged material at sea ant legislative barriers have been identified. The

ain issues identified relate to:

ontaminated marine dredge material on land. Clarification of whether controlled waste under the waste management regime on land

Inmaterial has been treated on land, it may no longer be of sufficiently marine origin under the London and OSPAR Conventions, to be licensed for sea disposal. There are a number of reasons why treated dredged material m Any treated material might be

to this type of issue and may regard it as not consistent with the Convention; Any treatment could change the characteristics of the material such that it might no

longer be considered dredged material irrespective of its contaminant and sediment properties;

the disposal at sea of such material; Any chemical or stabilisation treatments could leave at least traces of the chemicals involved and might render the material unacceptable for sea disposal.

must be recognised that the prostoring it and treating it may affect not just contaminant properties but also its general sediment properties, if these factors are taken into account in evaluating the environmental risks, there is not necessarily a technical or scientific reason precluding subsequent sea dimight be seen as perverse that sediment which had been refused a licence for sea disposal

n the grounds of a concentration of a particular contaminant, should still be refused a once that contaminant had been removed. However, a number of

OSPAR are likely to have political concerns about allowing sea disposal following treatment.

ased treatment proved impractical for legal reasons, the treatment of contaminatedmbasis that until such time as the material left surfao the waste management regime. It should btenvironmental or cost effective outcome.

5. Addressing Possible Regulatory Barriers Wand on land are complex, relatively few significm Uncertainties relating to the interpretation of EC Directives in relation to the evaluation

framework for sea disposal. Uncertainties relating to the criteria and policies to be applied for re-use, recycling and

recovery of c

can be disposed of at sea and how the chain of custody might be completed. Interpretation of the provisions of the OSPAR and London Conventions on the

classification of marine sediments that have been treated to reduce contaminant concentrations.



R/3709 27 R.1584

ses that might be applied in seeking to ensure sensible nvironmental outcomes are achieved.

5.1 terpretation of EC Directives

requirements of EC irectives based on its current understanding of those requirements. Some further policy

chemical testing and assessment procedures applied to the dredge material assessment framework for sea disposal and for the

5.2

aste policy needs to be developed to consider whether it is possible (and if so at what point

5.3

contaminated marine dredge material which has been treated on land with a view to its sal at sea is considered not to have been recovered from the waste stream ified as controlled waste, further consideration needs to be given to the legal cesses and procedures by which such material might subsequently be

it is not possible to declassify the material as controlled waste under the current regulatory

istratively by ensuring that the relevant consignment note identifies that the material has been taken for sea disposal (with suitable safeguards to ensure

The opportunities for addressing these possible barriers are discussed below. Consideration is also given to other procese In Interpretation of EC Directives is ultimately a matter for the European Courts. Nevertheless, it is helpful that the UK develops and implements policies to apply the Ddevelopment is likely to be of value in the following areas: Interpretation and application of the Priority Substances Directive in relation to the

implications of dredging and disposal activities for the achievement of Good Chemical Status; some further clarification may arise from the current work to develop a framework for navigation dredging, although further Defra policy guidance is considered likely to be needed.

Determining the requirements and process for ‘proving’ that dredged sediments are non-hazardous in relation to the criteria in Annex III of the revised Waste Framework Directive as part of the evaluation requirements for dredge material.

Evaluation of the equivalence of the

purposes of Annex III of the revised Waste Framework Directive. Consideration of the need to modify the current process for assessing the suitability of

dredge material for sea disposal to apply the requirements of the revised Waste Framework Directive in circumstances where the material is classified as hazardous.

Interpretation of End of Waste Criteria Wand under what circumstances) to prepare marine dredge-material for re-use or to recycle such material. If it is possible, guidance could usefully be prepared on those specific requirements and circumstances to assist project promoters, commercial CMS treatment companies and regulators. Disposal of Controlled Waste at Sea Ifsubsequent dispoand remains class

echanisms, promdisposed of at sea. Ifregime (because it doesn’t meet the criteria for re-use, recycling or recovery), it may be possible to deal with the matter admin



R/3709 28 R.1584

at the stated disposal takes place). A further possibility might be to create a special category

5.4

may be helpful to seek clarification at relevant meetings of parties to the Convention

land.

5.5

t (the sea) to others (the land and air). Indeed, given the

taking material to land use of energy, increases in CO2

One possible means of addressing this might be to develop a process for considering Best Practicable Environmental Option (BPEO) or some other form of holistic assessment framework which can take into account economic and social considerations in situations where significant issues arise in relation to sea disposal or treatment of CMS. Thus, where sea disposal issues were identified for contaminated marine dredge material, the BPEO could be undertaken to identify the most sensible solution from an environmental, social and economic perspective. Such an assessment could then provide an agreed basis on which different regulators and stakeholders might pursue a legally compliant solution in line with the BPEO. This approach could be instituted on a voluntary basis. The number of cases requiring BPEO would be expected to be very small given the current number of dredging and disposal projects that identifies significant contamination issues. However, it should be recognised that in establishing this option there might also be a risk that regulators might simply use it as a way of delaying having to make possibly contentious decisions.

6. References ABPmer, 2004. ‘Humber Maintenance Dredging Baseline Document’, ABP Marine Environmental Research Ltd (ABPmer) Bergmann.H & Maass.V 2007. ‘Sediment Risk Management and Communication’. Heise.S (Editor) 2007 Published by Elsevier

thof recovery for such material (i.e. recovery for sea disposal), although this might require clearance at European level. Interpretation of London and OSPAR Conventions Itconcerning procedures and processes that might be followed in circumstances where it is intended to return dredge material to the sea following treatment on Delivering Sensible Environmental Outcomes Given the distinct nature of the land and sea regimes for the management of contaminated dredge material, there is a risk that specific requirements of one regime may unnecessarily distort the decision-making process and simply transfer a contaminated sediment problem from one environmental compartmenphysical characteristics of marine sediments and the large volumes that are often involved, taking contaminated marine dredge material to land will potentially create greater environmental problems than it solves. While the environmental risks of can be managed, this may entail significant increases in the and increases in emissions of pollutants to air.



R/3709 29 R.1584

Defra & WAG 2008. Consultation on Directions to the Environment Agency on Classification of Water Bodies. October 2008. Defra, 2009. Consultation on a Strategy for Hazardous Waste Management in England, July 2009. Environment Agency 2005. Technical Guidance WM2 Hazardous Waste: Interpretation of the definition and classification of hazardous waste (2nd edition v2.2). Environment Agency, 2005b. Guidance on Sampling and Testing of Wastes to meet Landfill Waste Acceptance Procedures Version 1 April 2005. Environment Agency, 2006. Guidance for waste destined for disposal in landfills. Interpretation of the Waste Acceptance Requirements of the Landfill (England and Wales) Regulations 2002 (as amended) Version 2 June 2006. European Commission, 2008. Guidance on Surface Water Chemical Monitoring under the Water Framework Directive. Version 10 (final version) 15 October 2008. JRC and IPTS, 2008. End of Waste Criteria, Final Report. http://susproc.jrc.ec.europa.eu/documents/Endofwastecriteriafinal.pdf

Appendices

Appendix 1 Relevant International, European and National Legislation



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bind states, not individual or domestic agencies, and ire some transposition into domestic law for them to be operative. The following

nvention on the Law Of the Sea (UNCLOS) was published in 1982 and was ratified

ontrol such dumping” and “states shall adopt laws and regulations to prevent,

h is fully referred to as the ‘Convention on the

ollution. It prohibits the dumping of certain hazardous materials, requires a prior special permit

e question of how to regulate the use of the sea as a depository for waste materials. One of the most

Appendix 1. Relevant International, European and National Legislation 1. International Conventions The basic framework within which dredge material management is carried out in the UK is established by International Conventions. These Conventions for the most part requprovides an overview of relevant International Conventions relating to dredge material management: UNCLOS III (1982) United Nations Coand came into force in November 1994, the UK is a signatory to the Convention and is therefore bound to implement the Convention’s clauses. Given that the UK is a signatory to the convention, the provisions of UNCLOS III provide an overriding commitment to prevent pollution; amongst many issues addressed by the Convention, Part XII ‘Protection and Preservation of the Marine Environment’ contains provisions with regard to protection and preservation of the marine environment with specific reference to pollution from ‘dumping’ which article 210 deals with in detail. Specifically; “Dumping within the territorial sea and the exclusive economic zone or onto the continental shelf shall not be carried out without the express prior approval of the coastal State, which has the right to permit, regulate and creduce and control pollution of the marine environment by dumping” (UN, 2009). And in relation to monitoring Article 204 (Monitoring of the risks or effects of pollution) requires that; “states shall … observe, measure, evaluate and analyse, by recognized scientific methods, the risks or effects of pollution of the marine environment. In particular, States shall keep under surveillance the effects of any activities which they permit or in which they engage in order to determine whether these activities are likely to pollute the marine environment” (UN, 2009). However, it should be noted that no specific report mechanism is in place for National reporting of matters relating to UNCLOS requirements. London Convention and 1996 Protocol The ‘London Convention’ came into force on 30 August 1975 as a result of an inter-Governmental conference on the dumping of waste at sea, whicPrevention of Marine Pollution by Dumping of Wastes and Other Matter’, 1972. The International Maritime Organisation (IMO) providing secretariat duties related to this Convention. The Convention has a global character, and contributes to the international control and prevention of marine pfor the dumping of a number of other identified materials and a prior general permit for other wastes or matter. Among other requirements, Contracting Parties undertake to designate an authority to deal with permits, keep records, and monitor the condition of the sea. The ‘1996 Protocol’ was approved in November 1996 and came into force on March 2006. The Protocol was intended to replace the 1972 Convention, and represents a major change of approach to th



R/3709 App1.2 R.1584

nvention

d by the OSPAR Commission, made p of representatives of the Governments of 15 Contracting Parties and the European Commission.

ithin the framework of the 1992 OSPAR Convention, article 3.2 of Annex II lists material permitted for ials are dumped without authorisation or regulation by their

ompetent authorities. In addition, Article 4 (1)(b) of Annex II requires Contracting Parties to ensure

AR Commission drew up a uidance document entitled ‘Guidelines for the Management of Dredged Material (2004)’. These

rticular address the disposal of dredged material by disposal in the maritime area and e relocation of sediments, due to hydrodynamic and sidecast dredging as well as its subsequent

ution" means the introduction by man, directly or ults, or is likely to result, in hazards

huma es and marine ecosystems, damage to amenities or interference h oth SPAR, 1992)

ext of their guidelines as: ‘dredged materials’ are organic matter etc. removed from areas that

or other excavation equipment (OSPAR,

hnical framework for assessing dredged , a suite of five

main threats that it has identified within its competence; the ubstances Strategy,

stances Strategy (OSPAR Commission, 2009).

important innovations is the introduction (in Article 3) of the ‘precautionary approach’. This requires that; “appropriate preventative measures are taken when there is reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation between inputs and their effects”. The article also states that “the polluter should, in principle, bear the cost of pollution” and it emphasizes that Contracting Parties should ensure that the Protocol should not simply result in pollution being transferred from one part of the environment to another (IMOa, 2009). OSPAR CoThe OSPAR Convention is the current legal instrument guiding international cooperation on the protection of the marine environment of the North-East Atlantic; the United Kingdom is a signatory to the convention. Work under the Convention is an ongoing process and is manageuThe Convention was formed from the Oslo Convention 1972 against dumping, which was broadened to cover land-based sources and the offshore industry by the Paris Convention of 1974, combining the two conventions into the 1992 OSPAR Convention. The convention specifically addresses the disposal of dredged material by dumping in the maritime area. Contracting Parties are also encouraged to exercise control over dredging operations in order to minimise the quantity of the material to be dredged and the impact of the dredging activities as well as to apply Best Environmental Practices (BEPs) (OSPAR, 2007) Wdisposal at sea and that no such matercthat such authorisation or regulation is in accordance with the relevant applicable criteria, guidelines and procedures adopted by the Commission. The 2004 Meeting of the OSPgguidelines in pathdeposition. OSPAR Definition of Pollution: "Pollindirectly, of substances or energy into the maritime area which resto n health, harm to living resourcwit er legitimate uses of the sea (O OSPAR define dredged material within the contdeemed to be sediments or rocks with associated water,are normally or regularly covered by water, using dredging2009). The OSPAR guidelines are primarily a scientific and tecmaterial proposed for disposal at sea. OSPAR have also developed, and is implementingthematic strategies to address the Biodiversity and Ecosystem Strategy, the Eutrophication Strategy, the Hazardous Sthe Offshore Industry Strategy and the Radioactive Sub



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development (state of the art) of processes, of facilities or of methods of peration which indicate the practical suitability of a particular measure for limiting discharges,

is defined as “the application of the most appropriate combination of

bination of 1973 onvention and the 1978 Protocol. It entered into force on 2 October 1983. 136 countries, representing

rine environment and is cluded for completeness, but does not, in itself, directly control any aspects of dredge sediment

Dangerous Substances Directive (76/464/EEC)

The OSPAR Convention requires Contracting Parties to apply Best Available Techniques (BAT) and Best Environmental Practice (BEP) including, where appropriate, clean technology, in their efforts to prevent and eliminate marine pollution. As defined in Appendix 1 of the OSPAR Convention BAT “means the latest stage of oemissions and waste”. BEP environmental control measures and strategies” (OSPAR Commission, 2009). MARPOL The International Convention for the Prevention of Pollution from Ships was adopted in 1973, and further modified by the 1978 protocol (MARPOL 73/78). The original MARPOL Convention was signed on 17 February 1973, but did not come into force. The current Convention is a comC98% of the world's shipping tonnage, are party to the Convention. The convention provides measures for ships and national administrations to prevent pollution by oil (Annex I), noxious liquid substances in bulk (Annex II), harmful substances in packaged form (Annex III), sewage (Annex IV), garbage (Annex V) and the Prevention of Air Pollution from Ships (Annex VI). The convention entered into force in October 1983, with annex VI revised in May 2003 (IMOb, 2009). This convention is of relevance to the reduction of pollutants within the maindisposal but does cover ‘dumping’ at sea. 2. European Legislation EU legislation includes a number of Directives relating to environmental aspects of water, sediment or soil, many of which are relevant to dredging and contaminated sediments. These include: Water Framework Directive (2000/60/EC) Priority Substances Directive (2008/105/EC) Habitats Directive (92/43/EC) Birds Directive (79/429/EEC) Bathing Water Directive (76/160/EEC) and Revised Bathing Water Directive (2006/7/EC) Shellfish Waters Directive (2006/113/EC) Marine Strategy Framework Directive (2008/56/EC) Environmental Impact Assessment Directive (97/11/EEC) Strategic Environmental Assessment (SEA) Directive (2001/42/EC) Revised Waste Framework Directive (2008/98/EC) Hazardous Waste Directive (91/689/EEC) as amended by Directive (94/31/EC) Landfill Directive (99/31/EC) Integrated Pollution Prevention and Control Directive (IPPC) (2008/1/EC) Environmental Liability Directive (2004/35/EC)



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he follow text provides a broad description of the Directives listed above, and provides background

tes. The Directive establishes a new pproach to the protection, improvement and sustainable use of Europe's rivers, lakes, estuaries,

monly termed the Water Framework egulations). Under the Regulations, the EA is the competent authority for implementation of the

, the Scottish Government has introduced controls over activities likely to have an dverse impact on the water environment, this is embodied within the ‘Water Environment (Controlled

ns 2005’, referred to as ‘CAR’, which came fully into force on 01 April

Northern Ireland, the Directive is transposed in via the ‘Water Environment (Water Framework

ir task of co-ordination by the North-outh Working Group on Water Quality (Department of the Environment (NI) 2005).

ical substances. These types of objectives are taken forward in the Directive’s provisions for Protected Areas and Priority Substances respectively. However, the Directive

l objectives, designed to protect and where necessary, restore

Tcontext to the links with contaminated dredged sediment. In addition to these principal Directives there are various supporting Regulations and Directions. These are referenced in relation to the principal Directives where relevant. Water Framework Directive The EC Water Framework Directive (WFD), which came into force on 22 December 2000, is implemented in the national water regulations of the Member Staacoastal waters and groundwater. The Directive applies to all surface waters out to 1 nautical mile (nm) seaward of the baseline for territorial waters and to ground waters. For management purposes, surface and ground waters are divided into a number of discrete units termed ‘water bodies’. The WFD is implemented in England and Wales through the ‘Water Environment (Water Framework Directive) (England and Wales) Regulations 2003’ (comRDirective in England and Wales. Within the England and Wales, programmes of measures are currently being developed through a process of river basin management planning and will be set out in a number of regionally based River Basin Management Plans (RBMPs). The draft plans were published 22 December 2008 and are due to be adopted by December 2009. The WFD was transposed into Scottish law in 2003 by the ‘Water Environment and Water Services (Scotland) Act 2003’, the Act sets out the role of Scottish Ministers and the Scottish Environment Protection Agency (SEPA) in relation to achieving the overall aims of the WFD. In order to deliver its WFD obligationsaActivities) (Scotland) Regulatio2006. CAR enables SEPA to control activities which may have an impact on the water environment; and is one of the key tools enabling the Scottish Government to achieve objectives identified within the WFD (The Scottish Government, 2009 a). InDirective) Regulations (Northern Ireland) 2003’. Arrangements for the implementation of the WFD in Northern Ireland and Ireland are coordinated at Ministerial level between the Minister with responsibility for the Environment (Northern Ireland) and the Minister for the Environment, Heritage and Local Government (Southern Ireland). The Ministers are assisted in theS The WFD introduces two key changes to the way the water environment must be managed across the European Community (UK TAG, 2009). The first relates to the types of environmental objectives that must be delivered. Previous European water legislation set objectives to protect particular uses of the water environment from the effects of pollution and to protect the water environment itself from especially dangerous chem

also introduces new broader ecologicathe structure and function of aquatic ecosystems themselves and thereby safeguarding the sustainable use of water resources (UK TAG, 2009).



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ctives and proportionate and cost-effective combinations of measures to achieve the bjectives can be designed and implemented. (UK TAG, 2009).

riority Substance Directive daughter directive of the Water Framework

ssociated contaminants. Preamble 17 to the Directive notes that ‘Provided that the requirements of Article 4 of Directive 2000/60/EC including conditions for exemptions are met,

tivities, including dredging and shipping, leading to discharges, emissions and losses of priority s stan

HabitatThe Hanatural interest. To achieve this, a

The second key change is the introduction of a river basin management planning system. This is the key mechanism for ensuring integrated management of groundwater, rivers, canals, lakes, reservoirs, estuaries and other brackish waters, coastal waters and the water needs of terrestrial ecosystems that depend on groundwater, such as wetlands. The planning system provides the decision-making framework within which costs and benefits can be properly taken into account when setting environmental objeo Whilst the WFD is not aimed directly at the management of CMS, sediments are explicitly cited in the Directive in a number of articles. In particular, Article 16(1): “pollution of water by individual pollutants or groups of pollutants presenting a significant risk ….. for priority hazardous substances, as defined in Article 2(30), at the cessation or phasing-out of discharges, emissions and losses”. Also, in Article 16(7): “the Commission shall submit proposals for quality standards applicable to the concentrations of the priority substances in surface water, sediments or biota”. Through Article 16(7), the WFD proposes environmental quality standards (EQS) for priority hazardous substances. The EQS are applicable to water sediment and biota, and are used to determine the chemical status of the surface waters. These will then be used to determine whether surfaces waters will reach good chemical status targets by 2015. Annex V (Surface Water & Ground Water): 1.2.6: Procedure for the setting of chemical quality standards by Member States; “…Standards may be set for water, sediments or biota”. Also, within Annex V, the general definition of ecological quality for the purposes of classification the values for the quality elements of ecological status for surface water category. Sediment quality is specifically cited with respect to Phytoplankton, Macrophytes and phytobenthos. PThe Priority Substances Directive (2008/105/EC) is a Directive and was adopted in December 2008. It establishes environmental quality standards (EQS) for 33 priority substances (and certain other pollutants) in water and standards for three substances in biota. Compliance with the EQS for the priority substances is required to achieve good chemical status. ‘Certain Other Pollutants’ include eight pollutants, which fall under the scope of Directive 86/280/EEC(1) and which are included in List I of the Annex to Directive 76/464/EEC, but are not in the priority substances list. Environmental quality standards for these substances are included in the EC proposal to maintain the regulation of the substances at Community level. The Directive also includes an obligation to cease discharge emissions and losses of priority hazardous substances and reduce releases of priority substances. Navigation activities, inevitably result in the relocation of sediments and a

acub ces can take place’.

s Directive & Birds Directive bitats Directive (92/43/EC) and the Birds Directive (79/429/EEC) aim to conserve species and habitats of wild flora and fauna that are of European Community



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eries of measures and site designations are required in order to maintain these interest features at, or

itats, &c.) egulations 1994 within England and Wales; The Nature Conservation (Scotland) Act 2004 in

1995 transposing

ith respect to sediment and sediment contamination issues, one of the key considerations will be ct on a designated site

tage 1 - Screening for AA (Likely Significant Effect)

cts having a e minimis’ effect (under HRGN3) or having ‘trivial or inconsequential effect’ (OH99/04). For European

srestore them to, ‘favourable conservation status’. These measures include the assessment of factors which may influence the long-term distribution and abundance of species populations, and the distribution, structure and function of protected habitats. Special Areas of Conservation (SACs) and Special Protection Areas (SPAs) are designated under the Habitats and Birds Directives, respectively, as sites of European importance, and collectively make up the Natura 2000 network of protected areas (Casper, 2008). The Habitats and Birds directives are implemented through The Conservation (Natural HabRScotland; The Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) the Directives in Northern Ireland and The Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007. The Habitats Regulations apply the Habitats Directive and the Birds Directive in relation to plans or projects on land1 or within UK territorial waters while the Offshore Habitats Regulations apply similar provisions to waters out to the 200nm limit. Wensuring that, where a plan or project has the potential to cause an adverse effe(e.g. dredging or disposal project), the provisions of Article 6 of the Habitats Directive, as enforced by the Habitats Regulations cited above, are applied. As part of this process an ‘Appropriate Assessment’ (AA) of the impacts needs to be undertaken. The process of considering the need for, and then producing, an AA can be readily divided into clear stages and this process should be informed by the significant amount of planning guidance (both national and international), case examples and planning judgements that have been produced over the last 14 years (since 1994 when the Habitats Regulations came into force). The steps and the issues that are pertinent in each case are set out below and some of the key guidance and legislation is also quoted where relevant. SThe screening process and thinking that triggers the need for an AA is different from the screening process that is adopted for an Environmental Impact Assessment (EIA). Under Regulation 48(1) of the Habitats Regulations (and equivalent provisions in the Offshore Regulations), a judgment is needed about whether the plan or project is ‘likely to have a significant effect’ either directly or indirectly on an internationally designated site. In the UK, the ‘Likely Significant Effect’ (LSE) judgement is treated as method for including all projects apart from those that have no, or very slight, effects and are not directly connected with the conservation management of a site. Under both Natural England’s (NE) and CCW’s guidance (Habitats Regulations Guidance Note No. 3 (HRGN3) 1999 and CCW Operational Handbook (OH99/04) 1999) this is called a ‘coarse filter’ process and only excludes proje‘dMarine Sites this judgement is made in the context of the sites Conservation Objective (discussed further in the next section).

1 Defra has recently (June 2009) issued a consultation document of proposed revisions to the Habitats Regulations

"http://www.defra.gov.uk/corporate/consult/conservation-habitats/index.htm. This states that "If circumstances require, the proposed changes would allow the Secretary of State, after consultation with the appropriate natconservation body (e.g. Natural England or the Countryside Council for Wales) to restrict any person from carry

ure ing

out an operation on land or water, within or outside a European site, which appears to the Secretary of State to be capable of destroying or damaging the interest features of a European site.



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of the early consultation rocesses is often on agreeing the scope, structure and detail of the assessment rather than a formal

l sense. As part of this screening/scoping process, information gaps

ideration of the effect on site integrity) nder Regulation 48(5) of the Habitats Regulations, a judgement must be made within the AA about

ith other plans or projects) will

The critical consideration for the AA process will be the way in which the decisions about no dverse effect on integrity’ is applied and the role of the Precautionary Principle and ‘certainty’ in this

s are to authorise activities ‘only if ey have made certain it will not adversely affect the integrity of that site. That is the case where no

remains as to the absence of such effects’. Thus it considers there to be a

be necessary for the Competent Authority satisfy itself of the following before it could be approved:

This means that formal consultation with the Statutory Nature Conservation Bodies (SNCBs) and other Member States on the LSE judgment will be essential and indeed is a statutory requirement under Regulation 48(3). Given the sensitivity of the LSE judgement, the focuspscreening process in its traditionaneed to be identified so that relevant data collation and, where required, field surveys can be commissioned. The extent to which judgements can be made with existing information and the scope of, and requirement for, further work are major objectives of the initial consultation process. Stage 2 - Alternative Options (manner in which the project is to be carried out) Regulation 48(6) of the Habitats Regulations states that there is a requirement to consider the ‘manner’ of the proposed projects. This includes aspects such as alternatives locations and different scales of development (e.g. depth and extent of dredging or disposal activities). It is also relevant, and useful, to explore options for mitigating some of the foreseeable potential impacts of the different options at this stage. Stage 3 - Impact Assessment (ConsUwhether the relevant plan or project (on its own or in combination wadversely affect the integrity of the European Site. While no formal definition of site integrity is provided within either EC or UK legislation it has been defined within UK planning guidance (PPS9 and HRGN1) as “The coherence of its ecological structure and function, across its whole area, that enables it to sustain the habitat, complex of habitat and/or the levels of populations of the species for which it was classified”.‘adecision. The Wadden Sea judgement (ECJ Case C-127/02) provides useful clarification on the requirement for certainty. In their decision, the ECJ ruled that Competent Authoritiethreasonable scientific doubtneed for reasoned science-based certainty as to the absence of an effect on integrity. Using such a science-based approach it is necessary to review the impacts of the relevant option(s) on the integrity of any affected designated sites. This assessment needs to be made in the context of the Conservation Objectives for these sites. Wherever, possible the assessment should seek to quantify the impacts to habitats and species such that the impacts can be clearly communicated. In circumstances where plans or proposals will give rise to an adverse effect on the integrity, then in line with Regulation 49 of the Habitats Regulations, it wouldto There are no alternative solutions (this is generally interpreted to mean there are no less

damaging solutions in relation to the affected sites); and The project must be carried out for imperative reasons of over-riding public interest (IROPI).



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addition, Regulation 53 requires that the Secretary of State “shall secure that any necessary

s described above, process of considering alternative approaches and alternative methods should

e available to an individual project promoter. However, in contrast this the study team is also aware of recent informal advice from the European Commission to the

mited consideration of alternatives may the scope of the

y s possible in the planning process.

tage 5 - Imperative Reasons of Overriding Public Interest (IROPI) case have been

007). The key issues in the consideration of security or contribution to strategic

reenhouse gas reductions could be a particular example f IROPI.

ependent of the roject and are distinct from mitigation measures. A further distinction is that compensation measures

March 2006 the revised Bathing Water Directive (2006/7/EC) came into force and will be the environment and public health, and

Incompensatory measures are taken to ensure that the overall coherence of Natura 2000 is protected”. The requirement for the consideration of alternatives, Imperative Reasons of Overriding Public Interest (IROPI) and compensatory measures are therefore briefly discussed below. Stage 4 - Alternative Solutions Aideally be taken early in the process with the aim of addressing, and even mitigating, impacts where they are foreseeable. In the light of a judgement that the integrity of a site is still affected, then a further review is warranted as described in the preceding section. This is pertinent for project-level and strategic-level initiatives and, in particular, the decision letter from the Dibden Bay Public Inquiry and DfT Project Appraisal Framework highlight the requirement to make a broad consideration of alternatives beyond the scope of thostoSevern Estuary Tidal Power study which suggests that a more libe acceptable. Certainly it is recommended that when taking forward any AA, alternatives consideration should be agreed as far as possible with relevant stakeholders and as earla SGeneric guidance on the issues that need to be considered for making an IROPI provided by the UK and the EC (Defra 2007 and EC 2IROPI can be environmental benefit, contribution to nationaleconomic development. Also contribution to go For a specific project to secure regulatory approval, an IROPI case would need to be submitted to the relevant Secretary of State and the case accepted. Where there is a risk of a plan or project affecting site integrity then it will be important to seek to establish the possible grounds for IROPI for a preferred development proposal as early as possible in the planning process. Stage 6 - Compensation Where a judgement has been made that the plan or project will affect the integrity of a site and the development qualifies under the IROPI criteria then compensatory measures are required under Regulation 53 of the Habitats Regulations. These measures are seen as being indpoccur outside the boundaries of the designated sites (and thus manifestly add habitats to the site) while mitigation measures are more typically those that occur within the sites boundaries. Assuming that integrity is deemed to be affected and that the issue of alternatives and IROPI are addressed, outline work on possible compensation packages may be required. Bathing Water Directive Inincorporated into UK law by 2010. The Directive aims to protect maintain amenity use of designated bathing waters (fresh and saline) by reducing the risk of pollution. It requires popular bathing waters to be ‘designated’ and monitored for water quality, particularly for human waste from sewage treatment works or agricultural waste.



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parameters are extremely rare so compliance in the UK each ear is normally determined by the extent of pollution by total and faecal coliform bacteria.

ngland complied with these microbiological standards, with 9 of the 414 monitored waters failing to

r inland and coastal bathing sites:

be met by 2015;

mandatory standard; Poor - normally non-compliant water.

October 1979, was repealed by the odified Shellfish Waters Directive (2006/113/EC), adopted on 12 December 2006. The aims of the

ires mandatory compliance with

mful consequences on the development of shellfish colonies.

solid coDirective ther contaminants. It is expected that the

occurs, waters (which the WFD classifies as protected areas) as the Shellfish Waters Directive does.

water related Directives to be adopted. It had the ambitious objective of regulating potential aquatic

The mandatory standards used by the European Commission to determine compliance for Bathing Waters within the Directive are the microbiological parameters - total and faecal coliforms, and three physico-chemical parameters - surface active substances, mineral oils and phenols. Cases of non-compliance with the physico-chemical y To comply with these standards, bathing waters must not exceed values of 10,000 total coliforms per 100ml and 2000 faecal coliforms per 100ml in 95% of samples. In 2007 97.8% of bathing waters in Emeet the minimum standards of the Directive. The revised Directive has updated the way in which water quality is measured, focusing on fewer microbiological indicators, and setting different standardsfo

Tighter microbiological standards - to Two microbiological parameters - Intestinal enterococci and Escherichia coli; Water quality classification based on 3 or 4 years monitoring data, using 95 or 90 percentiles;

Four new classification categories:

Excellent - approximately twice as stringent as the current guideline standard; Good - similar to the current guideline standard; Sufficient - tighter than the current

Shellfish Waters Directive The original Shellfish Waters Directive which was adopted on 30cDirective are to ensure a suitable environment for the growth of shell fisheries and to promote water of good quality to reduce the risk of food poisoning. The Directive requImperative standards for parameters including dissolved oxygen and suspended solids which is applicable to dredging operations. The Directive requires that dissolved oxygen, measured as the percentage of saturation, should exceed 70% (as a mean), and individual measurements may not be less than 60% unless there are no harThese standards are absolute and compliance with them is an obligation for the UK.

The Directive also requires that a discharge affecting shellfish waters must not cause the suspended ntent of the water to exceed by more than 30% the content of waters not so affected. The also has mandatory standards for metals and o

Shellfish Waters Directive will be repealed in 2013 by the EC Water Framework Directive. When this the Water Framework Directive must provide at least the same level of protection to shellfish

Dangerous Substances Directive (and Daughter Directives) The Dangerous Substance Directive (76/464/EEC) of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community was one of the first



R/3709 App1.10 R.1584

1979 e protection of groundwater was taken out of Directive (76/464/EEC) and regulated under the

ection of Groundwater Against Pollution Caused by Certain

e specific directives, also called ‘daughter’ directives:

s. Council Directive 84/156/EEC on limit values and quality objectives for mercury discharges by

s substances included in List I of the Annex to Directive 76/464/EEC.

ater Framework Directive is replaced by the Annex II of Directive (2008/105/EC). Also, environmental quality standards listed in Annex IX

t A of Annex I of the new Directive (Article 11

s those required to implement Directive 76/464/EEC (Article 22(6) of the Water Framework Directive).

(Article 4, 11 and Annex V point 1.3, WFD). For this purpose a programme of measures

pollution by thousands of chemicals already produced in Europe at that time. The Directive covered discharges to inland surface waters, territorial waters, inland coastal waters and ground water. In thseparate Council Directive on the ‘ProtDangerous Substances (80/68/EEC). Directive (76/464/EEC) introduced the concept of List I (the so-called black-list) and List II substances, which were listed in the Annex to the Directive, and which are discussed below. The purpose of the Directive is to eliminate pollution from List I substances and to reduce pollution from List II substances. Based on Article 6 of Council Directive 76/464/EEC, the Council set specific emission limit values and quality objectives for 17 substances of List I in fiv Council Directive 82/176/EEC on limit values and quality objectives for mercury discharges by

the chlor-alkali electrolysis industry Council Directive 83/513/EEC on limit values and quality objectives for cadmium discharge

sectors other than the chlor-alkali electrolysis industry. Council Directive 84/491/EEC on limit values and quality objectives for the discharges of

hexachlorocyclohexane. Council Directive 86/280/EEC as amended by 88/347/EEC and 90/415/EEC on limit values and

quality objectives for discharges of certain dangerou

Transitional provisions under the WFD: Article 16 and 22 of the Water Framework Directive (2000/60/EC) sets out the transitional provisions for the existing Directive on discharges of certain dangerous substances (76/464/EEC). These provisions include: Article 6 of the Directive (76/464/EEC) on the emission limits and quality standards for list I was

repealed with the entry into force of the WFD (2000/60/EC). Since 13 January 2009 on wards; Annex X of the W

of the WFD are repealed by those specified in Parof Directive 2008/105/EC).

The remaining parts of the directives listed in Annex IX of the WFD will be repealed from 22 December 2012 onward (according to Article 12(1) of Directive 2008/105/EC).

Environmental quality standards established under the first river basin management plan (RBMP) shall be at least as stringent a

Before 22 December 2012, the monitoring and reporting obligations will be carried out according to Article 5, 8 and 15 of the Water Framework Directive (Article 12(2) of the Directive 2008/105/EC).

Under the Water Framework Directive, Member States shall furthermore set quality standards (according to Annex V point 1.2.6) for river basin specific pollutants (listed in Annex VIII, point 1-9) and shall take action to meet those quality standards by 2015 as part of ecological status



R/3709 App1.11 R.1584

e in place by 2009, and become operational by 2012. This

Directive does ot propose what specific measures should be taken to achieve GES, except for a reference to the use

nd indicators to support it (by 012). The European Commission is currently working to develop criteria and methodological

onmental Impact Assessment of the effects of projects on the nvironment was introduced in 1985 and was amended in 1997. The Directive requires regulators to

uring their preparation and efore their adoption. The SEA Directive has been transposed into United Kingdom law by the

he SEA Directive requires examination of the impacts of decisions above or below the project level, cific types of contaminant fall

nts which are required to determine

importan xample) specific criteria may

(according to Article 11) shall bprocedure will then replace Directive 76/464/EEC after its full repeal in December 2013.

Marine Strategy Framework Directive The Marine Strategy Framework Directive, which came into force on 15 July 2008, sets the overall goal of achieving Good Environmental Status (GES) for Europe’s seas by 2020. The Directive aims to delivery a clean healthy, safe, productive and biologically diverse oceans and seas. Thenof Marine Protected Areas. Instead, development of appropriate programmes of measures will be left to Member States. Within the context of the UK, the Marine and Coastal Access Bill will include new powers and a range of specific measures to better protect and manage UK waters, and these will help achieve the aim of the Directive (Defra 2009). The Directive gives a high-level definition of Good Environmental Status (GES) and sets out eleven wide ranging descriptors to support this; with reference to CMS, the following descriptor is of direct relevance: ‘limiting contaminants to the marine environment to levels which do not cause pollution’. The Directive leaves Member States, in co-ordination with other neighbouring countries, to determine what GES means in more detail for their waters and to set clear targets a2standards which will underpin the descriptors of GES and set clear parameters which will need to be applied by Member States right across Europe (Defra 2009). Environmental Impact Assessment Directive The EIA Directive (EU legislation) on Enviredetermine the environmental and other consequences of proposed projects which includes issues relating to contaminated marine sediments. The EIA procedure ensures that environmental consequences of projects are identified and assessed before authorisation is given. The public can give its opinion and all results are taken into account in the authorisation procedure of the project, with the public informed of the decision afterwards (EC, 2009). Strategic Environmental Assessment (SEA) Directive The Strategic Environmental Assessment (SEA) Directive was developed to ensure that environmental consequences of certain plans and programs are identified and assessed dbEnvironmental Assessment of Plans and Programmes Regulations 2004, and in Scotland by the Environmental Assessment (Scotland) Act 2005. Thence policies which require site-specific and risk-based remedy for speunder this Directive in contrast to Environmental Impact Assessmethe environmental and other consequences of proposed projects. The SEA Directive therefore has

ce with respect to Contaminated Marine Sediments where (for ebe applied to the plan or programme in accordance with standards prescribed under other legislation.



R/3709 App1.12 R.1584

of e disposal of waste. The original

al definitions of waste. The original changes extended the

e o disposal to also cover

the new provisions were published in Directive 2006/12/EC. On 21 sion published a Thematic Strategy on the prevention and recycling of

completion of

e lays down the five-step hierarchy of waste management tions,

waste frthe direc

not necessarily preclude such material from sea disposal; rather it simply means that the

the substance or object will not lead to overall adverse environmental or human

Revised Waste Framework Directive The Waste Framework Directive was originally adopted in 1975 as Directive 75/442/EEC. The focus the Directive’s provisions at that stage was on ensuring the safDirective also enabled Member States to adopt their own nationDirective was amended in 1991 in as Directive 91/156/EEC. One of the major cop f the Waste Framework Directive’s objectives and controls from waste s

waste recovery. The amended version also introduced an EU-wide definition of waste. In view of this substantial amendment the European Commission decided to clarify the Waste Framework Directive by drawing up a ‘codification’ of its provisions. Directive 75/442/EC was repealed with effect from 17 May 2006 and December 2005 the Commiswaste and proposals for associated legislation comprising a revision of the WFD. The European Council reached political agreement on the proposed revisions in June 2007, with formal adoption when the Environment Council met on 20 October 2008. The Revised Waste Framework Directive (2008/98/EC) entered force on the 12 December 2008. From this point, Member States have two year to transpose the Directive into National law. Within the England and Wales, stage one of Defra’s consultation took taken place between April to June 2009) with stage two to follow; onthis consultation, adoption is expected to take place by the end of 2010. The revised Waste Framework Directivop with waste prevention as the preferred option, and then reuse, recycling, recovery (including energy recovery) and safe disposal. The Directive aims to simplify legislation by repealing the current

amework directive (2006/12/EC), the directive on hazardous waste (91/689/EEC) and part of tive on waste oils (75/439/EEC).

With specific reference to Contaminated Marine Sediments, Article 2 (Exclusions from the scope), Section 3 states that: “Without prejudice to obligations under other relevant Community legislation, sediments relocated inside surface waters for the purpose of managing waters and waterways or of preventing floods or mitigating the effects of floods and droughts or land reclamation shall be excluded from the scope of this Directive if it is proved that the sediments are non-hazardous”. It should be noted that if such material is determined to be hazardous according to Annex III criteria, his doestprovisions of the revised Directive apply to the extent that they are relevant. Article 6 of the revised Waste Framework Directive establishes certain conditions that have to be complied with in order to meet end of waste requirements. A certain waste may only cease to be a waste if: the substance or object is commonly used for specific purposes; a market or demand exists for such a substance or object; the substance or object fulfils the technical requirements for the specific purposes and meets

the existing legislation and standards applicable to products; and the use of

health impacts.



R/3709 App1.13 R.1584

e through noise or odours; and countryside or places of special interest.

icle 1 ng Member States to ‘take the cessa that hazardous waste is not mixed, either with other categories of

d with each other or with

rective

s dging spoils.

2 ‘Exclusion om the Scope’ Section 2(d) ‘waste resulting from prospecting, extraction, treatment and storage of

d by Directive 2006/21/EC of the European the management of waste from extractive

strie e to obligations under other relevant Community legislation, men for the purpose of managing waters and waterways or of

landfill. If dredged material is to be disposed on up-land area with no further use in view, the

Article 13 requires Member States to take the necessary measures to ensure that waste management is carried out without endangering human health, without harming the environment and, in particular:

(a) without risk to water, air, soil, plants or animals; ) without causing a nuisanc(b

(c) without adversely affecting the

the mixing of hazardous waste, requiriArt 8 introduces a ban on e ry measures to ensuren

hazardous waste or with other waste, substances or materials’. Mixing is interpreted as including the dilution of hazardous substances’. Hazardous Waste Directive The Hazardous Waste Directive (91/689/EEC) which has been further amended by Directive (94/31/EC) provides record keeping, monitoring and control obligations for hazardous substances from

radle to the grave’, from the waste producer to the final disposal or recovery. In addition, particular‘cattention is required when different categories of hazardous wastes are mixenon-hazardous wastes in order to prevent risks for the environment and human health. With specific reference to CMS and sediments, the Directive identifies these as components of the Di with the following provisions: Annex I.B. which defines wastes which contain constituents which are listed in Annex II of the

Directive (i.e. contaminated material contained within a medium such as a liquid, sludge or solid form) and having any of the properties listed in Annex III. Specifically, category 23 list‘soil, sand, clay including dre

The Directive has been transposed into UK law in the ‘The Hazardous Waste (England and Wales) Regulations 2005’ and within The Hazardous Waste Regulations (Northern Ireland) 2005. Within Scotland, The Special Waste Regulations 1996 transposed the requirements of the Hazardous Waste Directive. However, they did not fully transpose all of the Directive’s requirements nor did they take into account possible amendments to and expansions of the European Waste Catalogue and the list of hazardous wastes. The Special Waste Amendment (Scotland) Regulations 2004 addresses these issues. The EC Waste Directive (2008/98/EC) will repeal the Hazardous Waste Directive with effect from 12

ecember 2010. This directive has excluding clauses which affect CMS, these are: ArticleDfrmineral resources and the working of quarries covereParliament and of the Council of 15 March 2006 onindu s’. And Section 3 ‘without prejudicedi ts relocated inside surface waterss

preventing floods or mitigating the effects of floods and droughts or land reclamation shall be excluded from the scope of this Directive if it is proved that the sediments are non-hazardous’. Landfill Directive The European Landfill Directive (99/31/EC) regulates waste land-filling which includes CMS taken to



R/3709 App1.14 R.1584

ardous waste and inert waste) and applies to all ndfills, defined as waste disposal sites for the deposit of waste onto or into land. Landfills are divided

landfills pursuant to Article 16 and Annex II to Directive 1999/31/EC.

certain installations for the disposal or recovery of hazardous waste;

day or with a total capacity exceeding 25 000

The Dirthe Direhabitat o ified and damage to water

sources. Contamination is addressed as ‘contamination of land by substances, preparations,

. United Kingdom - National Legislation

ea. he Marine and Coastal Access Bill effectively integrates a number of existing UK and EU legislation

appropriate landfill category has to be determined. The Directive defines the different categories of waste (municipal waste, hazardous waste, non-hazlainto three classes:

landfills for hazardous waste; landfills for non-hazardous waste;

landfills for inert waste.

Council Decision (2003/33/EC) established criteria and procedures for the acceptance of waste at

Integrated Pollution Prevention and Control Directive The Integrated Pollution Prevention and Control Directive (2008/1/EC) aims to achieve prevention and control of pollution arising from the activities listed in Annex I of the Directive. This includes: certain installations for the disposal of non-hazardous waste with a capacity exceeding 50

tonnes per day; landfills receiving more than 10 tonnes per

tonnes, excluding landfills of inert waste. It lays down measures designed to prevent or, where that is not practicable, to reduce emissions in the air, water and land from the abovementioned activities, including measures concerning waste. Environmental Liability Directive

ective seeks to achieve the prevention and remedying of environmental damage. Specifically, ctive focuses on habitats and species protected by European Community law and to species or n a site of special scientific interest for which the site has been not

reorganisms or micro-organisms that results in a significant risk of adverse effects on human health’; furthermore, the Directive also covers damage that will become environmental damage. This is where damage has occurred which is not yet environmental damage, but is sufficiently likely to become environmental damage if no action is taken. The Directive specifically mentions incidents which result in serious contamination of sediments in the water body or on the surrounding land, and this contamination then acts as a longer-term source of pollution in relation to water damage. 3 3.1 Marine and Coastal Access Bill The UK Marine and Coastal Access Bill provides a framework for a new marine licensing regime. The overall objective of this regime is to regulate sustainable development in the marine environment in a way that minimises adverse impacts on the environment, human health and legitimate uses of the sT



R/3709 App1.15 R.1584

sation (MMO) - which will play a significant role in marine planning and licensing activities.

tivities undertaken in territorial waters around ngland, Wales and Northern Ireland and for all UK waters beyond 12 nautical miles as measured from

be responsible for marine management in Welsh waters; this includes licensing certain activities, fishing activities, marine planning,

arine nature and historic conservation, improved protection for seals and a range of enhanced powers of marine conservation and licensing enforcement. These will be

d arbour authorities can also have important roles in managing some aspects of water quality.

of discussion, the process has been separated into ree distinct parts: pre-application and application receipt; public consultation; analysis, resolution and

ws from consultees.

and Directives including EU Marine Strategy Framework Directive. In the UK, the Marine and Coastal Access Bill will include new powers, these include: Creating the Marine Management Organi

Initiating the development of a Marine Policy Statement - which will include the need to achieve GES in UK waters, and help steer the activities of public authorities.

Enabling the creation of marine plans - which could be used to set out in more detail how we want to achieve GES in particular areas.

Enabling the creation of Marine Conservation Zones - which should address Marine Protected Areas.

The licensing regime under the Bill will apply to acEthe baseline of the territorial sea. In the Devolved Administrations, there are variations in relation to specific areas: In Wales, the Welsh Assembly Government will

marine nature conservation and enforcement The Scottish Marine Bill, like the UK Bill, will be complementary with the Directive by providing

new powers for the introduction of a new statutory marine planning system, a simpler licensing system, improves m

managed by Marine Scotland - which was established on 1 April 2009. A Northern Ireland Marine Bill will dovetail with the UK Bill and will help deliver the Directive by

encompassing marine planning, further streamlining of marine licensing and marine conservation (with the consent of the Secretary of State). It will establish a new framework for Northern Ireland’s seas which is based on sustainable development

Defra has overall responsibility for water policy. The Environment Agency (EA) is the principal regulator of water quality in England and Wales under the Environment Act 1995, Water Resources Act 1991, Environmental Protection Act 1990, Pollution Prevention and Control Act 1999 (Statutory Instrument 1973/2000) and the Water Environment (Water Framework Directive) (England and Wales) Regulations 2003 (the Water Framework Regulations). In the marine environment, the MFA and statutory port anh 3.1.1 Proposed New Licensing Arrangements Annex 1 of the consultation document provides a high level diagrammatic view of a possible application process for a marine licence. For the purposes thdecision-making. Annex 2 of the consultation document provides a more detailed process map of the pre-application state and Annex 3 shows the public consultation and decision-making phase in more detail. The process is not final and these annexes are only there to prompt vie



R/3709 App1.16 R.1584

it will consolidate and modernise a number of existing

will need a marine cence. It is important to ensure that the consolidation of the requirements of the EIA Directive and

efra recognise that one of the biggest challenges facing the new system is the wide range of activities e.

In Engla a anywhere below the Mean High Water Spring Tide Mark are by the

Marine and Fisheries Agency (MFA) as an execnd Rural Affairs (Defra).

ts”) be executively devolved to Scottish Ministers for activities in the Scottish offshore area from 12nm-

ent is sponsible for controlling all deposits into the sea up to the high water spring mark (MHWS). The

rn Ireland’s territorial waters up to the 12 nautical le lim 2009).

he UK Government has introduced the UK Marine and Coastal Access Bill in the UK Parliament. This ministrations to work co-operatively with the UK Government

The major change to the licensing regime is that consenting regimes, including FEPA and CPA. The aim of the new marine licence and its associated application and decision-making process is to accommodate the needs of each of these regimes, combining them into a single process and licence. The Secondary Legislation also proposes to encompass regulatory requirements under the Environmental Impact Assessment (EIA) Directive, which would revoke the Marine Works (EIA) Regulations 2007. In addition, the consultation document suggests either transposing the requirements of the Habitats and Birds Directives into the main marine licensing process or amending the existing conservation regulations, as they apply to the marine area, to cover all activities thatliHabitats and Birds Directives into the main marine licensing process does indeed streamline and simplify the process involved in applying for consent. Dtaking place in the marine environment that would be covered by the new marine licensing regim 3.2 United Kingdom - Current National Legislation

nd and Wales, deposits in the semanaged under the Food & Environment Protection Act 1985 (FEPA) which is administered

utive agency of the Department for Environment, Food a In Scotland, ‘Marine Scotland’ administer all marine consents that are currently required for: buoyage, reclamation works, coast protection, general construction activities, sea disposal of dredged material and chemical treatment products, certain aspects of offshore renewables and some deposits associated with offshore oil and gas developments. At present (May 2009), Scottish Ministers do not have Executive Devolution for Coast Protection Act requirements beyond 12nm (nautical miles). However, the UK Bill (see Section 3.1) provides for the issuing of the new licences (“marine consento200nm. The UK Bill defines the Scottish Ministers as the appropriate licensing authority for certain matters in the Scottish offshore region and Marine Scotland administer these. In addition, Marine Scotland is the appropriate compliance monitoring body for this. (The Scottish Government, 2009 b). In Northern Ireland, the Department of Environment (Northern Ireland) is responsible under part II of FEPA (1985) as the licensing process for articles that are deposited in the sea. The DepartmreDepartment operates a system which regulates Northemi it. The Northern Ireland Agency ( Twill provide a framework for devolved adon marine management and additional responsibilities in the off-shore zone.



R/3709 App1.17 R.1584

ood and Environment Protection Act (1985)

s brought into force on 1 January 86 by ) Order 1985

from vehicles and vessels in tidal waters below the level of mean high water springs. For England and aters offshore of England, Wales and Northern Ireland, the licensing authority is the Marine &

Act (Isle of Man) 1993 The Food and Environment Protection Act 1985 (Isle of Man) (Revocation) Order 1994

human health, to prevent interference with legitimate uses of the ea and having regard to such other matters as the authority considers relevant’. This latter objective

eeding to “have regard to the practical availability of any alternative methods” of disposal or use of the g authority, inter alia, to

f the disposal process,

pact.

The Coast Protection Act (CPA) 1949

MerchanAffairs is

FThe principal legislative control relating to sea disposal in the UK is the licensing system under Part II of the Food and Environment Protection Act (FEPA) 1985. FEPA wa19 virtue of The Food and Environment Protection Act 1985 (Commencement No2(SI 1985/1698). The FEPA Act provides a licensing system for the deposit of substances and articles

wFisheries Agency. The devolved administrations have separate arrangements for FEPA licensing within their territorial waters (Marine Scotland, Welsh Assembly Government, Northern Ireland Environment Agency). In waters offshore of Scotland, Marine Scotland is the licensing authority. Similar powers apply to waters around the Channel Islands and the Isle of Man. Similar provisions to control deposits at sea are extended to other parts of the UK, the Channel Islands, the Isle of Man and oversees territories by virtue of: the Food and Environment Protection Act 1985 (Guernsey) (Amendment) Order 1997 the Food and Environment Protection Act 1985 (Jersey) (Amendment) Order 1997 The Dumping at Sea (Overseas Territories) Order 1975 The Environment Protection (Overseas Territories) (Amendment) Order 1999 The Water

Pollution

(MCEU Website (MCEU now part of MFA), 2009) In the UK the obligations of the OSPAR Convention and the London Convention 1972/1996 Protocol, for the disposal of waste at sea are implemented by the requirements of a licence under Part II, Section 5 of the Food and Environment Protection Act (FEPA), 1985. Section 8 of the Act takes into account the assessment of the possibility of pollution as defined by UNCLOS by stating: ‘In determining whether to issue a licence a licensing authority shall have regard to the need; to protect the marine environment living resources which it supports and sincludes the minimisation of nuisance, noise and odours that may result from the disposal of waste. Scope is also given to the licensing authority to require the applicant whenever possible to reduce the amount of waste to be disposed by effectively asking whether the dredged material can be used as a resource. This is accomplished by the licensing authority in consideration of an application for a licence nmaterial. The remaining parts of this section of the Act authorises the licensinimpose conditions on any licence granted to ensure its obligations. Such conditions may include: automatic monitoring o sediment sampling and testing,

monitoring of the environmental im

Under Section 34 of the Coast Protection Act 1949 (as amended principally by Section 36 of the t Shipping Act 1988) the consent of the Secretary of State for Environment, Food & Rural required for the following operations:



R/3709 App1.18 R.1584

ration or improvement of any works on, under or over any part of the

apply anywhere within the limit of territorial waters. However, the

nsport & Works Act. An amendment applied by virtue of the Energy Act 2004 disapplies ection 34 of the Coast Protection Act in respect of certain offshore energy generation activities

concernof a Seobstructdown in er. Section 36 of the Act

34 and period o

Activities Normally Exempt From CPA include certain operations already authorised under other islatio

50 metron the seabed) authorised by local Acts or other harbour provisions are also exempt. The MCEU will

The MaThese Rrequiremof regula e regulated under Part II of the Food and Environment Protection Act 1985

ocal Act or an order made under section 14 or 16 of the Harbours Act 1964.

the construction, alte

seashore lying below the level of mean high water springs; the deposit of any object or materials below the level of mean high water springs; the removal of any object or materials from the seashore below the level of mean low water

springs (e.g. dredging). Controls under Section 34 normallyContinental Shelf Act 1964 extends the controls in respect of the first and third bullets above to any part of the seabed in designated areas outside the territorial waters. Section 34 of the Act imposes restrictions on works which may be detrimental to the safety of navigation. However, the introduction of environmental regulations (see Conservation Regulations & Environmental Impact Assessment Regulations) extended Section 34 in some circumstances such that account must additionally be taken of potential environmental effects (MCEU, 2009). The Act does not apply to works in non-tidal inland waters and other exemptions are provided under Section 35 of the Act, including certain works that have been authorised under local Acts or by Order under the TraS(MCEU, 2009). It is the applicant’s own responsibility to satisfy himself that he has power to undertake the tidal works

ed and that any other necessary consents are obtained before work is commenced. The issue ction 34 consent does no more than indicate that, to the extent the works may represent an ion or danger to navigation, they may be undertaken in accordance with any conditions laid the Secretary of State's consent to minimise that obstruction or dang

sets out the powers of the Secretary of State or a harbour Authority to enforce the provisions of section to take any necessary remedial action. A consent under the CPA Part II is normally valid for a f three years (MCEU, 2009).

leg n; approved coast protection works, works in enclosed docks and mineral extraction more than es below the surface of the seabed. Certain works and dredging operations (including deposit

offer a view as to whether, in its opinion, Section 34 control applies in cases of doubt (MCEU, 2009).

rine Works (Environmental Impact Assessment) Regulations 2007 egulations transpose the Environmental Impact Assessment Directive into UK law providing a ent to carry out an EIA prior to granting consent. The regulations apply to the following types ted marine activities: activities which ar(“FEPA”), i.e. deposits in the sea;

works to ensure navigational safety which are regulated under section 34 of the Coast Protection Act 1949; and

harbour works (i.e. works involved in the construction of a harbour or in the making of modifications to an existing harbour) which require approval or consent pursuant to a l



R/3709 App1.19 R.1584

ther Relevant Legislation

he Environmental Protection Act 1990 defines within England, Scotland and Wales the overall g tides).

aragraphs 4 and 5 and Schedule 2A to the Act define the waste hierarchy. Section 44A of the Act

for preprespons

Land (NOrder 1 These b Environmental Protection (Duty of Care) Regulations 1991: Within England, Scotland and

e Regulations 1992 Define household, industrial and commercial waste for waste management licensing purposes in England, Scotland and Wales. Similar provisions

Hazardous Waste (England and Wales) Regulations 2005 Details requirements for controlling

te carriers by requiring them to complete and keep consignment notes. The Hazardous Waste Regulations (Northern Ireland) 2005 detail the regime for controlling and tracking the movement of hazardous waste in Northern Ireland.

Waste Catalogue list of

control regime in Northern Ireland.

OThere is also other legislation which is relevant to consideration of disposal issues but not relevant to CMS issues (e.g. Land Drainage Act and Water Resources Act) can be relevant to disposal within a ‘main river’ and in proximity to flood and coastal defences, but these are to address morphological/hydrodynamic issues rather than contamination issues. Waste Management Legislation Tlegislative framework for waste management on land (above the low water mark of sprinPrequires the Secretary of State to prepare a waste strategy for England and Wales. The responsibility

aring the Welsh Strategy has subsequently been devolved to Welsh Ministers. In Scotland the ibility has been given to the SEPA under the Environment Act 1995.

Broadly equivalent provisions in Northern Ireland are provided under the Waste and Contaminated orthern Ireland) Order 1997 and the Pollution Control and Local Government (Northern Ireland) 978.

asic waste management provisions are accompanied by a range of supporting regulations:

Wales, imposes a duty of care on any person who imports, produces, carries, keeps, treats or disposes of controlled waste to ensure there is no unauthorised or harmful depositing, treatment or disposal of the waste. Similar provisions apply in Northern Ireland under the Controlled Waste (Duty of Care) Regulations (Northern Ireland) 2002

Controlled Wast

apply in Northern Ireland under the Controlled Waste Regulations (Northern Ireland) 2002 Control of Pollution (Amendment) Act 1989 Requires carriers of controlled waste to register

with the Environment Agency or SEPA. Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991.

Introduces a registration system for carriers of controlled waste in England, Scotland, Wales and Northern Ireland.

and tracking the movement of hazardous waste and bans mixing different types of hazardous waste. In Scotland, the Special Waste Regulations 1996 provide a definition of 'special waste' in Scotland, to cover all hazardous waste, and regulates was

List of Wastes (England) Regulations 2005 Provides the Europeancodes used to classify wastes. The List of Wastes (Wales) Regulations 2005 apply equivalent provisions in Wales. The List of Waste Regulations (Northern Ireland) 2005 require the List of Wastes to be used when determining if a material or substance is waste or hazardous waste and for classifying and coding wastes for the waste



R/3709 App1.20 R.1584

Many of these supporting regulations have been subject to amendment.

he legislative basis for licensing of waste management activities varies between the devolved s

e integrated system for environmental permits (and exemptions) for industrial ctivities and waste operations, including landfill and waste incineration as well as the licensing of

onmental

chedule 3 to these Regulations includes provisions to exempt certain wastes from licensing:

ging spoil other than those containing dangerous substances’ on any land where that operation results in benefit to

0 m3 ha-

Regulation 25 provides for an exemption including for the deposit of waste arising from ters

ging or clearing takes place by the establishment or undertaking producing it, or any inland waters so as to result in benefit to agriculture or ecological improvement; the total

f 50 tonnes for each metre of the bank

amendments to the existing exemptions. Under ld be significantly reduced

egulation 9: 500 tonnes per site every 3 years; Regulation 25: 20 tonnes per metre of bank). esholds would be subject to standard

e Waste Management Licensing ions includes provisions to exempt certain

astes from licensing including for dredgings from inland waters. In addition, the Pollution Prevention

Northern Ireland broadly equivalent provisions are provided through the Waste Management

nd) 2003.

Tadministrations. In England and Wales the Environmental Permitting (England and Wales) Regulation2007 introduced a moramobile plant. Regulation 4 of the Regulations avoids dual control between FEPA and the envirpermitting regime - where an activity is licensable under FEPA, no environmental permit is required. S Regulation 9 provides for an exemption including for ‘Dred

agriculture or ecological improvement. The provision is subject to a maximum of 20,001.

dredging inland waters2, if the waste is deposited along the bank or towpath of the wawhere the dred

amount of waste on any day is restricted to a maximum oor towpath along which it is deposited.

In 2008, Defra, WAG and EA consulted on proposedthese proposals, the amount of material that could be exempted wou(RPlacement of amounts of material in excess of these thrEnvironmental Permits. In Scotland, waste management installations are licensed under thRegulations 1994 (as amended) Schedule 3 to these Regulatwand Control (Scotland) Regulations 2000 establish a system to control pollution from any installation or mobile plant carrying out specified activities (including waste management activities) through permits, inspections and control of emissions. InLicensing Regulations (Northern Ireland) 2003, the Environment (Northern Ireland) Order 2002 and the Pollution Prevention and Control Regulations (Northern Irela

‘inland waters’. Section 221 of the Water Resources Act defines inland waters as: 2 the whole or any part of (a) any river, stream or other watercourse (within the meaning of Chapter II of Part II of this Act), whether natural or artificial and whether tidal or not; (b) any lake or pond, whether natural or artificial, or any reservoir or dock, in so far as the lake, pond, reservoir or dock does not fall within paragraph (a) of this definition; and (c) so much of any channel, creek, bay, estuary or arm of the sea as does not fall within paragraph (a) or (b) of this definition.



R/3709 App1.21 R.1584

efra & WAG 2008. Consultation on Directions to the Environment Agency on Classification of Water

Defra, WAG and Environment Agency, 2008. Consultation on revised waste exemptions from environmental permitting. A consultation document issued jointly by the Department for Environment, Food and Rural Affairs, Welsh Assembly Government and the Environment Agency, July 2008. Defra, 2009 ‘Marine Strategy Framework Directive Newsletter’ July 2009 http://www.defra.gov.uk/marine/pdf/environment/msfd-news200907.pdf Department of the Environment (NI) 2005 ‘Water Framework Directive Summary Report of the characterisation and impact analyses required by Article 5 Northern Ireland’ March 2005 European Commission, (2009) Website: http://ec.europa.eu/environment/eia/eia-legalcontext.htm Accessed July 2009. IMO, 2009a ‘London Convention’ Accessed 17 February 2009. http://www.imo.org/Conventions/contents.asp?topic_id=258&doc_id=681 IMO, 2009b ‘MARPOL’ Accessed 17 February 2009. http://www.imo.org/Conventions/contents.asp?doc_id=678&topic_id=258 Marine Consents Environment Unit Website - Accessed 2009 http://www.mceu.gov.uk/ MFA, 2009 (Marine and Fisheries Agency Accessed 23 March 2009. http://www.mfa.gov.uk/environment/works/licensing-cpa.htm OSPAR, 2007. Convention For The Protection Of The Marine Environment Of The North-East Atlantic ‘OSPAR Convention’. Original text 1992, amended on 24 July 1998, updated 9 May 2002, 7 February 2005 and 18 May 2006, Amendments to Annexes II and III adopted at OSPAR 2007. OSPAR Commission OSPAR, 2009. OSPAR Guidelines for the Management of Dredged Material (Agreement number: 1998-20: Revised version: 2009-04), OSPAR Commission The Northern Ireland Agency (2009). Accessed on 02 September 2009 http://www.ni-environment.gov.uk/water-home/quality/marine/marine-license.htm The Scottish Government (2009a) ‘Water Framework Directive In Scotland (WFD)’ Accessed 26 August 2009 http://www.scotland.gov.uk/Topics/Environment/Water/WFD The Scottish Government (2009 b) Website ‘Marine Scotland and Licensing’ Accessed 29 May 2009 http://www.scotland.gov.uk/Publications/2009/03/31091025/10

4. References DBodies. October 2008.



R/3709 App1.22 R.1584

United Nations (UN) 2009. Website ‘UNCLOS III text’ access on 10 March 2009 http://www.un.org/Depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm UK TAG (2009) Accessed 15 April 2009. http://www.wfduk.org/about_wfd/

Appendix 2 Case Studies



R/3709 App2.1 R.1584

ase Study 1 - Maldon District Council; River Blackwater

Maldon odel Boating Lake. The proposed scheme sought to place the material beneficially on salt marsh

iment and alluvial deposits on the saltmarsh area south of the buoyed channel of the River Blackwater, east of Promenade Park. The proposed scheme

sediment at the deposit location.

d marine area. Cefas commend that the sediments from the Boating Lake were not used to replenish the proposed area of

ase Commentary

o to the salt marsh, under The Conservation atural Habitats, &c.) Regulations 1994, and therefore recommended the MFA that a licence should

on as part of the Marine Licensing process.

Appendix 2 Case Studies C Background Maldon District Council made an application (DC Reference: 7328) to the Marine Consents and Environment Unit (now part of MFA) in January 2005 for works to allow the reconstruction of Mbelow mean high water springs. The works include the following: a) The excavation of around 12,000m3 of sediment and alluvial deposits from the boating lake;

and b) Deposition of about 12,000m3 of sed

used coir log bunds to contain the

Oyster beds were recorded within 1 nautical mile from proposed deposit site; in addition to an SPA which supports important water birds. Cefas requested sediment samples for analysis; three samples were taken to be representative of sediment from the Boating Lake. The results of the chemical analysis showed that the material contained high levels of PAH's (Polycyclic Aromatic Hydrocarbons). Total Hydrocarbons were 1,261 mg/kg-1(ppm) (dry weight) these are were above recommended levels and were comparable to results from a highly polluteresaltmarsh. C In this case study the council dredged the material and placed it on an area of council owned property pending its placement at the requested site; the replenishment of the nearby salt marshes. On examination of the material, Cefas determined it was contaminated and contained a significant amount of unsuitable material (rubble, brick fragments etc) to g(Nnot be issued. The material on its exposure to air for a period of time may also have constituted a processed change and may therefore no longer be suitable for sea disposal under OSPAR. In addition, as the Maldon Model Boating Lake dredge area was above mean high water springs level, the dredge process was not subject to considerati



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ackground

he Port of London Authority was established by Parliament in 1908 to own and run the dock systems Teddington Lock in West

e Port of London Act 1968 (PoLA). he PLA is a Harbour Authority, a Competent Harbour Authority (i.e. a pilotage authority) and a

The PLA owns most of the riverbed between Teddington and Southend-on-Sea, and has statutory licensing responsibilities under PoLA for any works or dredging in the river or estuary within the PLA's jurisdiction. Before any dredging work is undertaken on the tidal Thames it is a statutory requirement that a licence for such works is granted under Section 73 of the Port of London Act 1968. The legal basis of the PLA’s powers (within its limits) is such that, once licensed by the PLA, such dredging operations are exempted from the need to obtain a separate consent under Section 34 of The Coast Protection Act 1949 (PLA Website, 2009). PLA Management of Dredged Material The PLA considers that an assessment of the effects of dredging on water quality at the dredge site and the sediment quality of the receiving environment is an integral part of the licensing process. Therefore, the provision of sediment samples is a requirement of all new dredging applications and samples must be provided once every two years for ongoing maintenance dredging operations. Material which is considered too contaminated for disposal at sea or deposit within a wetland in a beneficial manner can be deposited at landfill sites as a ‘waste’. The two landfill sites accessible by barge and therefore able to accept contaminated marine material are located at: Mucking Landfill in Thurrock, operated by Corey Environmental; and Pitsea Landfill site in the outer Thames in Essex, operated by Veolia Environmental Services. Dredged material which is not contaminated may be used beneficially within the estuary. As a consequence of the costs associated with transporting dredged materials over this distance, it is relatively unusual for uncontaminated sediment dredged from the Thames to be taken to sea disposal. In preference, arisings are typically taken to land-based site for disposal. Currently, the main land placement sites on the Thames Estuary are as follows: Rainham Marshes, where the site is owned by Defence Estates and leased by RSPB, licensed

to PLA and operated by Westminster Dredging. The site is managed under procedures agreed jointly by RSPB (Inner Thames Marshes SSSI) and PLA (Rainham Silt Lagoons). The dredged material deposited at Rainham is used beneficially to create and maintain the habitats within the SSSI.

Cliffe Pools, where the site is owned by RSPB and managed by Westminster Dredging. The site is a receptor for selected material arising from maintenance dredging operations in the Thames. The deposited materials are being used to manage and enhance the existing saline lagoon areas to reduce depths, provide beaches, and create island breeding and roost sites.

Case Study 2 - Port of London Authority Dredge Material Management B Ton the Thames and to control and regulate the river from the tidal limit by London to the sea (about 95 miles). It presently operates under thTNavigation (lighthouse) Authority under various other enactments (Parliament Website, 2009).



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To deposit material in Rainham Marches, an Environment Agency Waste Management Licence is held (Royal Haskoning, 2007). 41BReferences Port of London Authority Website ‘Dredging’ Accessed 30 September 2009. Hhttp://www.pla.co.uk/display_dynamic.cfm/id/254/site/environment H Royal Haskoning, 2007. Port of London Authority: Baseline Document for Maintenance Dredging. June 2007 - 9R6602

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