Inspection strategy for potentially contaminated sites
BACKGROUND
A previous request to the council revealed;
“With regard to the determination of the land under Part IIA of the Environmental Protection Act 1990, this provision requires Local Authorities to inspect their land for any contamination causing unacceptable risks to human health and the wider environment in respect of its current use. The Council published its inspection strategy in 2001 setting out the principles underlying its approach to inspection in accordance with the requirements of the 1990 Act and statutory guidance contained in Circular 01/2006.
The Council has taken a risk based approach to inspection, aiming to identify and deal with the worst areas of land in the first instance. As part of the prioritisation process, the Gower Tip has been assessed in accordance with the approach contained in the Prioritisation and Categorisation Procedure for Sites that may be contaminated. The Gower Tip has been assigned an inspection priority category of 3, i.e. contaminants may be present but are unlikely to have an unacceptable impact on key targets.”
We were supplied with this inspection strategy in another Freedom of information request to the council.
There were a number of questions arising from this document, for which we wanted clarification.
WHAT DID WE ASK AND WHAT DID THEY KNOW?
We asked the council for the following information and they responded with the following comments shown in red beneath.
(i) I am seeking further explanation of the gradation of “inspection priority category” which I cannot find any reference to in the inspection strategy document. Could I therefore ask for the Council’s full numbered gradation category scheme in respect of identification of priority and an explanation of each numbered category?
“In accordance with the requirements of the Environmental Protection Act 1990 – Part IIA Sandwell Metropolitan Borough Council has a duty to inspect land within its jurisdiction for potentially contaminated sites.
The methodology utilised applies identical criteria to each site to ensure that they are prioritised for further assessment in an objective manner on a numerical basis. Each site awarded a score out of 100. The methodology considers all aspects of the Source-Pathway-Receptor scenario. Although this initial screening is applied as a first-pass guide to prioritisation, this is not necessarily indicative of the eventual risk rating of any site. The process is purely a means of ranking sites in a pragmatic order for further assessment.
| Priority Category 1: (Score 85-100) | Site likely not to be suitable for present use and environmental setting.Contaminants probably or are certainly present and are, or are very likely to pose a significant risk to receptors.Site may require urgent remediation action in the short term. |
| Priority Category 2: (Score 70-84) | Site may not to be suitable for present use and environmental setting.Contaminants are probably or certainly present and are likely to pose a significant risk to targets.Assessment action needed in the short term. |
| Priority Category 3: (Score 35-69) | Site considered suitable for present use and environmental setting.Contaminants may be present but unlikely to pose a significant risk to receptors whilst the site remains in present use or otherwise remains undisturbed.Assessment action required only in the medium to long term unless additional information is made available to the authority. |
| Priority Category 4: (Score 8-34) | Site considered suitable for present use and environmental setting. Contaminants unlikely to be present and pose any risk to receptors. No assessment action needed while site remains in present use or undisturbed unless additional information is made available to the authority. Further additional assessment only required in the long term. |
(ii) From the executive summary of the Sandwell Contaminated Land
inspection strategy.
“Contaminated Land is recognised as a Corporate issue, relating to many areas of the Council’s work. There already exists the “Trans-Thematic Working Party on Contaminated Land” which is comprised of officers from a number of Council themes who have an interest in land contamination matters. This will be the mechanism by which the Contaminated Land Inspection Strategy will be implemented, ensuring a corporate approach is maintained, and monitor progress towards inspection.”
Could I ask if the “Trans-Thematic Working Party on Contaminated Land” still exists or when it ceased to exist and if minutes of its meetings are publicly availbale? On how many occassions does it meet per month/annum?
“It is understood that the Trans-Thematic Working Party on Contaminated Land met on a quarterly basis for a period up until around 2004. The working party is no longer in existence and minutes of meetings prior to 2004 are no longer held.”
(iii)In section 4.1 Review timetable the document states for action;
“Inspection of the first geographical area, and assessment of sites in accordance with priority ratings End of June 2003”
“Inspection of the rest of the area and assessment of sites in accordance with priority ratings End of June 2005.”
Can you confrim that this timetable was met and that all sites have now been assigned an “inspection priority category” in the Metroploitan Borough of Sandwell?
“The inspection strategy stated within the review timetable has been undertaken and all sites identified to date have been assigned an “inspection priority category”. Although initial indicative deadlines were set, the inspection and assessment process is on-going and subject to continuous revision as site investigation and assessment works progress and new development works are undertaken“
(iv)From section 5.1 Management Responsibilities in the strategy;
“The Environmental Health and Trading Standards Service is responsible for developing and maintaining the management information system required for the implementation of the strategy.
A computerised database system will be required to capture relevant information in an accessible form.”
and 5.2 Information Requirements and 5.2.1 site referencing system details how this was to be achieved;
“A computerised database should provide and summarise information with regard to the parameters are described below.”
Could you provide a full location list of sites that have so far been categorised according to the numbered “inspection priority category” ,stating the number assigned for each site, and whether these sites have been inspected under the council’s inspection
strategy? Could I request this in excel spreadsheet form if possible?
“At the current time it is inappropriate to publish the database as it remains “work in progress” with the database subject to continuous revision as further information regarding sites within the borough is obtained. The information you have requested is covered by the Environmental Information Regulations 2004 (EIR). Regulation 12(4)(d) of the EIR contains an exemption relating to “Material in the course of completion, unfinished documents and incomplete data”. Due to the likelihood of the status of identified sites changing as further information is obtained, it is not considered in the public interest to publish this information at the current time. The public interest also favours withholding the information as the Council is not declining to publish the information indefinitely, but does not intend to respond until all information regarding sites within the Borough is obtained.”
REVIEW REQUEST
We were not satisfied with the response from the council to question 4. The reasoning for the council’s refusal to publish the inspection strategy was unsound in our opinion for the following reasons which we set out in a request for an independent review.
In a nutshell, the council did not want to publicly demonstrate what work their officers had carried out at taxpayer expense, which can never be in the public interest. Nor can it be in the public interest to indefinately refuse to publish the material which it considers “incomplete”, on the basis that it itself has not in 10 years been able (or willing) to compile it.
COUNCIL RESPONSE
The council responded with a reply which can only be described as bloody minded arrogance. It questioned our asking questions of several authorities via the What do they know website, (none of their business), and our complaints concerning the rattlechain lagoon to the authority. It is worth baring in mind that Sandwell council and its “environmental protection manager” (who replied in the first instance to this request) were former regulators of this site. Their contaminated land officer was employed by Walsall Hazardous waste unit- the failed regulator overseeing responsibilty for the site for Sandwell following the disbanding of useless West Midlands County Council.
The response from the council considered that all of the questions that we had asked as part of the request had been “manifestly unreasonable”. WE OBVIOUSLY DID NOT AGREE AND SO FOR THE FIRST TIME, SUBMITTED OUR REFUSED REQUEST TO THE INFORMATION COMMISSIONERS OFFICE.
ICO RULING
A lengthy process unravelled where we submitted our complaint against the council for refusal of information. During the life of this process, Sandwell for some reason decided to release the information, or stated that it would, only to waste the time of the ICO office to then backtrack and wait for its ruling on the case.
The email text below from the ICO to us confirms this.
“Reference: FER0461667
Dear Mr Carroll
I write further to our recent telephone conversation of 8 April 2013 regarding your complaint about Sandwell Metropolitan Borough Council (the council).
When we spoke I explained that the council had informed me that it was now willing to release the information to you and I was waiting for it to confirm when it would do so. I have received a response from the council which states that it is not now willing to disclose the information to you. It has stated that it is now waiting for our formal decision notice in this case to record the Commissioner’s decision.
I understand that you may be disappointed that the council has now changed its position. Therefore, I will now begin to prepare a formal decision notice which will outline the Commissioner’s final decision regarding the council’s response to your request for information. We will write to you again when it is ready to be served.
Thank you for your patience in this matter.
Yours sincerely
(name redacted)
Senior Case Officer – Complaints Resolution.”
The ICO released its ruling which can be read HERE.
“Decision (including any steps ordered)
1. The complainant has requested information regarding Sandwell Metropolitan Borough Council’s (the council) inspection of contaminated sites in the borough. The council refused the request relying on the exceptions at 12(4)(b), 12(4)(d) and 12(5)(e) as it considered that the request was manifestly unreasonable, the information was in the course of completion and its disclosure would adversely affect the confidentiality of commercial information.
2. The Commissioner’s decision is that the council has incorrectly relied on the exceptions cited and he therefore requires the council to take the following steps to ensure compliance with the legislation.
Disclose the requested information.
3. The public authority must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.
After being “manifestly unresonable” in refusing the information, Sandwell council finally released the information after the 35 day deadline relating to question 4 of our request. We wonder how they had used the time in the life of this request to increase the volume of sites inspected?
A list of sites inspected can be read HERE.
SOME CONCLUSIONS WILL BE CONSIDERED SHORTLY
