How does Part IIA work?
Local authorities are required to inspect their areas to
identifiy land as contaminated, in line with their strategy for
inspection. Where land is identified as contaminated, local
authorities will need to secure remediation of it either by:
agreeing remediation with the Appropriate Person/s, who will issue
a remediation statement; serving a remediation notice on the
Appropriate Person/s; or undertaking the work itself and issuing a
remediation statement, recovering costs from Appropriate Persons
where possible. In some circumstances it may be unreasonable for
the land to be remediated, in which case the land will remain
contaminated and a remediation declaration will be issued by the
local authority. Public registers will record the notification of
identification of contaminated land and remedial activity at such
land.
Some contaminated land will be designated by a local authority
as a special site. For these sites, SEPA will be responsible for
securing remediation.
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Authority strategy |
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Identification of contaminated land |
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Remediation |
Local Authority Strategy
Under Part IIA, local authorities are required to cause their
areas to be inspected from time to time to identify contaminated
land. The statutory guidance required that local authorities
develop and publish a strategic approach to the identification of
contaminated land by October 2001 which merits detailed individual
inspection. The Scottish Government have also issued advice to
local authorities on inspection strategies. The strategy should
indicate how the local authority will identify potentially
contaminated areas and how these will be prioritised to be assessed
in more detail. The identification is to be done as a result of
information gathered by the local authority and information
received from other regulatory bodies, organisations or
individuals.
Identification of Contaminated Land
It is the responsibility of local authorities to determine
whether any particular site is contaminated land, based on the
outcome of their assessment and on the balance of probabilities
that one or more significant pollutant linkages are present. In
making their assessment, local authorities are required to consult
with the Scottish Environment Protection Agency (SEPA) regarding
the determination of pollution of the water
environment and with Scottish Natural Heritage (SNH)
concerning harm to ecological systems. In the process of
identification, appropriate persons may be contacted for
information by the local authority.
If a local authority does not have sufficient information to arrive
at a decision, then it may undertake a detailed investigation of
the land. Local authorities can undertake, or authorise others to
undertake, an inspection using statutory powers of entry.
Compensation may be payable by the local authority for any
disturbance caused.
Local authorities are required to give notice of land identified as
contaminated (or designated as a special site) to: SEPA; the owner
of the land; any person who appears to the local authority to be in
occupation of the whole or any part of the land; and each person
who appears to the authority to be an appropriate person. The
notifications of contaminated land are required to be placed on the
public register. There is no mechanism for Appropriate Persons to
appeal against a local authority's decision that land is
contaminated or a special site.
For more information:
Remediation
The process of securing remediation comprises a number of
stages. There is at least a three month consultation period
(bypassed in cases where urgent remediation is justified) following
identification of contaminated land, or designation as a special
site. During this period, the enforcing authority, site owner,
occupier and other appropriate persons should reach decisions on
the remediation mechanisms.
There are in general four possible outcomes of the
consultations:
- the appropriate person agrees to undertake remediation and
issues a remediation statement, in consultation with the enforcing
authority.
- the enforcing authority serves a remediation notice on the
appropriate person/s, where no indication is provided that
appropriate remediation will be undertaken.
- the enforcing authority uses its powers to undertake
remediation itself and issues a remediation statement.
- it is unreasonable require remediation and the enforcing
authority issues a remediation declaration (if circumstances change
after a remediation declaration has been issued, a remediation
notice can be subsequently served).
For more information:
What is remediation and what is likely to be required?
The term remediation has a wide meaning under Part IIA, as it
includes assessment of condition, undertaking remedial work and
monitoring the condition. These actions may well be phased and they
may also be used to further characterise identified pollutant
linkages, in order to inform the requirements for remedial work.
The aim of remedial works should be to remove the pollutant
linkage, either by reducing or removing the contamination source,
breaking the pathway or removing the receptor. The standard of
remediation should be such that significant harm or pollution
of the water environment is no longer being caused,
provided that it is also reasonable with regards to the cost
involved and the seriousness of the harm of pollution of the
water environment being caused. Enforcing authorities are
required to have regard to the Statutory Guidance when deciding
whether remediation is reasonable.