Section 1.0 – Introduction to Environmental Forensics
According to the Environmental Protection Act 1990 section one, the environment is defined as:
“....all, or any, of the following media, namely, the air, water and land; and the medium of air includes the air within buildings and the air within other natural or man-made structures above or below ground”.
The Collins Gem English Dictionary defines forensic as “anything used in or connected with a court of law” (pg 232, 2004). Environmental forensics can therefore be described as examining environmental information to determine whether environmental laws have been breached and using the gathered data as evidence to prove or disprove liability of those who may have contravened particular laws. Environmental investigation involves field studies, biological and chemical analysis, data collection and statistical interpretation.
The technical journal Environmental forensics for the International Society for Environmental Forensics was established in 2000 in order to publish scientific and critical analyses of environmental forensics. Their work on environmental investigation includes atmospheric and analytical chemistry, environmental law, geochemistry, toxicology, hydrogeology, health risk assessment, environmental fate assessment and transport and computer modelling. (Wenning et al 2000)
The analysis of this evidence must determine the source, extent and timing of contamination, and potentiall responsible parties which must then be presented in a court of law. In order for a successful forensic investigation, evidence needs to be reliable, defensible and meet the objectives of the investigators study. Data must be relevant and follow quality assurance techniques and practices (Murphy 2007).
The increasing number of statutory instruments and laws are spurring on investigations in order to determine liability, using the ‘polluter pays’ principle. This is to pay for the clean-up cost and remediation of environmental damage (Hester & Harrison, 2008). However, it is not just about prosecuting the polluter but also determining preventive measures and highlighting specific needs as many crimes can be reckless rather than intentional, for example, leakage of a pesticide may result in tighter regulations on the storage of pesticides.
Investigating the environment is not only used to determine liability but also to gain knowledge on historical emissions and environmental processes. Investigating the history of contaminated land is a growing trend due to the amount of Brownfield sites. Developers need to develop on uncontaminated land and the only way this can be done is to establish who the polluter was in order to not have to pay for the remediation and clean-up costs themselves. However it is not always that simple to identify the polluter illustrated in the case of Bawtry Gas Works in Yorkshire where contaminated land entered controlled waters beneath a housing estate that was built on an old gas production site. The tar pits and underground storage units were never removed by the housing developers or previous gas companies which led to contamination of groundwaters from the tar pits. The Environment Agency could not identify the Class A polluter (caused or knowingly permitted the pollutant to be in, on or under the land, this is confirmed after a battery of test have been carried out) due to privatisation of gas companies and the company that built the houses had gone out of business years before the pollution incident was identified. The Class B (owners and/or occupiers of the land) appropriate persons to pay for the remediation process would have been the residents living on the housing estate of which each property would’ve had to pay £62,253. The Environment Agency decided was unfair which lead to the clean up expenses being paid for by the public as it was an urgent matter requiring immediate attention. (www.environmentlaw.org.uk)
1.1 The Environment and Pollution
Pollution has been defined as “ the introduction by man into the environment of substances or energy liable to cause hazards to human health, harm to living resources and ecological damage, or interference with legitimate uses of the environment” (Holdgate 1979, cited in Hardman et al 1993, pg 3)
The investigation of a pollution incident involves identifying the source, pathway, contaminant, and effects of the contaminant on the environment. It is the effects of the contaminant that determine if environmental laws have been breached to cause environmental damage and therefore determine liability. The effect of the contaminant depends on its level within the environment, the organism and whether or not that organism has been harmed.
1.2 Measuring Change in the Environment.
Environmental damage can include species population reduction, measured by the population density at the same site before and after a supposed pollutant. If this is not possible another unaffected area can be used as a comparison site to act as a control to collect samples, statistically analyse and identify if a change in population has taken place whilst taking into consideration other factors such as climate change (Hardman et al 1993).
The source of contaminant can occur in the environment at low concentrations otherwise known as non-point or diffuse sources which are the effects of bioaccumulation and many different point sources. For example the pollution of the Baltic Sea has made it particularly sensitive to disturbance especially with regard to Polychlorinated Biphenyls. An estimated half a billion tons of PCB was discharged into the environment during the twentieth century (Clark 2001)They are now banned but their effects will be felt for many years as they take so long to break down. Point sources come from a single well defined place such as an oil spill from a tanker.
In order to analyse and understand the hazardous effects of particular pollutants it is important to establish its toxicity. Black Lists and Grey Lists formed by the EEC are used to register chemicals according to their toxicity, persistence and tendencies for bioaccumulation. The London Convention 1972 has these set out in Annex I and Annex II. (Hardman et al 1993)
Levels of contamination are measured through chemical analysis but in order to determine if the level of contamination causes pollution it is usual to study its biological effects to identify and measure responses. Test organisms can be used in toxicity tests in order to establish median lethal time (LT50 or LTm.) and median lethal concentration (LC50), to establish how long it takes for fifty percent of a sample to die when exposed to a toxin (Clark 2001). Sublethal effects are also taken into consideration, such as the damaging effect of crude oil on the herring gulls’ (Larus argenatus) intestine, liver and functioning of nasal salt glands (Clark 2001, pg 23).
Data from toxicity tests can also determine relationships between a mixture of toxins such as whether they will lead to more or less mortality and whether or not organisms can build up defences to low concentrations of toxins which can contribute to the evolutionary process of the species. These molecular biomarkers, such as cadmium-binding proteins found in seals and molluscs can be measured to give an indication of exposure to toxins (Clark 2001)
Assemblages of species in a certain area can be used to examine the community response to impacts of pollution. Samples are taken from control sites and polluted sites, identified to family level and then using this data to statistically analyse the significance of environmental changes (Hardman et al 1993).
While biological monitoring is a valid technique to identify the effects of pollutants, it may not indicate the nature of the pollution. The nature of a pollutant may be identified through chemical monitoring such as analysing their natural levels and trace levels, how pollutants may be transported in the environment including their gradient, dispersal, interaction and the ability to accumulate and degrade in the environment.
Accumulation of organic compounds in water is determined by the bioconcentration factor which is the concentration of a compound in an organism divided by the concentration in surrounding water (Reeve 1994) The quality of water can be assessed chemically by measuring suspended solids, oxygen demand and dissolved oxygen. These will be measured to determine for example, how healthy a river is as a habitat for animals and plants.
Analytical chemistry involves the use of many specialised high tech machines. The analysis from these machines can aid with mathematical modelling to predict the effects of a certain chemical on the environment.
1.3 Environmental Law and Enforcement Agencies
The Environment Act 1995 is made up five parts in order to protect different parts of the environment and determine the roles and responsibilities of enforcing agencies. Part one determines the role of the Environment Agency and the Scottish Environment Protection Agency. Part two explains contaminated land and abandoned mines, and part three is centred on national parks. Air quality is under section four of the act while section five deals with the miscellaneous, general and supplemental provisions such as national waste strategy and mineral planning permissions. The entire Act is kept under review by the Secretary of State.
Enforcing authorities need to determine if there is environmental damage, who is responsible for it and also any necessary remediation measures. The EU Environmental Liability Directive (ELD) 2004 /35/EC determined the ‘polluter pays’ principle. This details financial, preventive or remedial measures to be carried out once the liable polluters are identified by the public authorities. It has been amended in 2006 (2006/21/EC) this broadened the scope of Strict Liability offences and in 2009 (2009/31/EC). Strict Liability now encompasses a community environment policy which could include civil liabilities regulated under the Control of Pollution Act 1974. The current efficiency and effectiveness of the Liability Directive must be reported via the Commission by April 2010 (Bell 2008).
The Environment Act 1995 bought the United Kingdom Environment Agency into being which affects all businesses in England, Scotland and Wales. The Environment Agency police the majority of environmental crime along with consulting agencies and the local authorities. These are responsible for educating and advising on environmental matters , containing the contaminant at the source, investigating the pathway and effects of the contaminant, prosecuting the operators and remediation of the affected environmental ecostructure. In order to determine if a crime has been committed against the environment there needs to be sound evidence to back up these claims. Through much scientific research and statistical modelling this can be explained in court.
Section 108 of the Environment Act 1995 sets out the powers of the Environment Agency and local authorities with the majority of charging schemes made under section 41
(Bell 2008). The powers to charge for other breaches in law eg controlling pesticides, come from regulations such as the Control of Pesticide Regulations 1986 under the Food Environment Protection Act 1985. Section 40 of the Natural Environment and Rural Communities Act 2006 enables authorities to implement their duty, while the Water Resources Act 1991 defines the Environment Agency’s role in water pollution, water resource management, flood defence, fisheries and navigation. It covers discharges to surface and ground waters, estuaries and coastal waters, and controls abstracting and impounding water. Section 161 of the Water Resources Act 1991 entitles the Environment Agency to carry out anti-pollution works and operations if any poisonous, noxious or polluting material or solid waste is caused or knowingly permitted to enter controlled waters unless consent has been granted from the Environment Agency or a license (Bell 2008).
Transboundary pollution;
Water – There are many international laws governing the oceans due to the transboundary nature of water pollution such as rivers crossing countries. The 1982 UN Convention on the Law of the Sea, the 1972 London Dumping Convention the 1978 MARPOL International Convention for the Prevention of Pollution from Ships, and the 1998 OSPAR Convention for the Protection of the Marine Environment of the North East Atlantic. EU legislation includes the Water Frameworks Directive and 1976 Bathing Water Directive. The Statutory Instruments incorporated into UK law from these Directives include the Water Resources Act 1991, Pollution Prevention and Control Act 1999. (Bell 2008)
The Drinking Water Inspectorate regulates and monitors drinking water quality. The Water Industry Act requires local authorities to inform the EU on the quality of water and if the water quality is not meeting water quality objectives.The 1998 European Drinking Water Directive set the requirements to be regulated by the Water Quality Regulations 2001.
River Quality Objectives set out the targets for water quality that is used for water supplies, recreation and conservation. The chemical quality of the water is what the objectives are based on and legislation includes include the Nitrates Directive and Urban Wastewater Treatment Directive.
Air Pollution – The World Health Organisation defines air pollution as
“substances put into the air by the activity of mankind into concentration sufficient to cause harmful effects to health, property, crop yield or to interfere with the enjoyment of property.”
Local Authorities are required to monitor air pollution against the national targets set out by the World Health Organisation. These include smoke control powers under the Clean Air Act 1993, preparing action plans for areas that have been designated as Air Quality Management Areas and implementing Part 1 of the Environmental Protection Act 1990 in to the Environmental permitting Regulations 2007 (Bell 2008).
In the case of Anthony and Ors V Coal Authority at the Brynlliw Colliery coal tip in Swansea, the Environment Act 1995, Pollution Prevention and Control Act 1999, Pollution Prevention and Control Regulations 2000, Air Quality Standards Regulations 2007 would all have been referred to in order to determine that certain laws were breached (www.environmentlaw.org.uk).
When it comes to monitoring and regulating emissions and air quality the Green House Gas Emissions Trading Scheme Regulations 2005 are implemented under Directive 2003/87/EEC. Activities that involve emissions of carbon dioxide are listed in Schedule 1 of the Regulations. (www.iclg.co.uk)
Land Pollution – Part 2A of the Environmental Protection Act 1990, Contaminated Land and is defined as:
“ Any land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land that –
a) significant harm is being caused or there is a significant possibility of such harm being caused: or
b) pollution of controlled waters is being, or is likely to be caused.”
The local authority are responsible for identifying contaminated land and have a responsibility to give notice of the fact to the Environment Agency who decide whether it is designated as a special site. This will therefore require the enforcement agency to issue a remediation notice (served under part 2A of the Environmental Protection Act 1990, Works notice under section 46 (1A) of the Control of Pollution Act 1974) and identifying the person responsible for the remediation process. Controlled waters is defined under the Water Resources Act 1991. Therefore if pollution crosses from contaminated land into relevant territorial waters, coastal waters, inland waters or groundwaters, liability must be established. Groundwater Regulations 1998 and Control of Pollution Act 1974 also deal with pollution of groundwater (Bell 2008).
Investigating land for contamination is required when applying for an IPCC Permit and on applications for the surrender of a of a Waste Management License or IPCC Permit.
Waste – Waste is defined as
“ any substance or object in the categories set out in Annex 1 of the Waste Framework Directive, which the holder discards or intends to discard” (pg 645 Bell 2008).
The Waste Framework Directive(75/442/EEC) is implemented through Schedules 9 and 20 of the Environmental Permitting Regulations 2007 and Schedule 2A of the Environmental Protection Act 1990 (Bell 2008)
Producers of waste have a duty of care under section 34 of the Environmental Protection Act 1990 through a number of Regulations including the Producer Responsibility Regulations 2005 (packaging waste) and End of Life Vehicles Regulations 2005. The Hazardous waste Directive (91/689/EEC) is implemented by the Waste Management Licensing Regulations 1994 (Bell 2008).
Section 4 – References
Bell.S., McGillivray. D., 2008. Environmental Law (2nd ed). Oxford: Oxford University Press
Clark, R.B., 2001. Marine pollution. 5th ed. Oxford: Oxford University Press.
Collins Gem English Dictionary (12th edition). 2004. Glasgow: Harper Collins Publishers Limited.
Giller. P.S., Malmqvist. B., 2003. The Biology of Streams and Rivers. Oxford: Oxford University Press.
Global Legal Group. Environmental Law 2006 [online]. Available at: http://www.iclg.co.uk/khadmin/Publications/pdf/752.pdf [01.03.10]
Hardman, D.J., McEldowney, S. & Waite, S. 1993. Pollution: Ecology and Biotreatment. Essex: Addison Wesley Longman Limited.
Hester, R. E. & Harrison, R. M., ed., 2008. Environmental Forensics. Cambridge: Royal Society of Chemistry.
Jeffries, M.,Mills, D., 1996. Freshwater Ecology, Principles and Applications. London: Belhaven Press
Law and Your Environment: Case Study – Bawtry Gasworks [online] Available at: http://www.environmentlaw.org.uk/rte.asp?id=228 [04.03.10]
Maitland, P. S., 1977. A coded checklist of animals occurring in freshwater in the British Isles. Edinburgh: Institute of Terrestrial Ecology.
Mason, C. F., 2002. Biology of freshwater pollution.4th ed. Harlow: Prentice Hall
Moss, B., 1998. Ecology of Freshwaters. Oxford: Blackwell Science Ltd.
Murphy, B.L. & Morrison, R.D. 2007. Introduction to Environmental Forensics. 2nd ed. London: Elsevier Academic Press.
Olsen, L,H., Suneson, J., Pederson, B.V., 2001. Small Freshwater Creatures. Oxford: Oxford University Press.
Ordnance Survey Map [online] Available at: http://getamap.ordnancesurvey.co.uk/getamap/frames.htm [12.0310]
Reeve, R.N., 1994. Environmental Analysis. West Sussex: John Wiley and Sons Ltd.
Wenning, J. R. & Simmons, K., 2000. Editorial: March 2000. Environmental Forensics. 1, 1-1.
