Legislative framework

Part IIA of the Environmental Protection Act 1990 (EPA) (‘Part IIA’), which came into force in July 2000, provides the legislative framework for the identification and remediation of contaminated land.

The legislation introduced a statutory definition of contaminated land and is aimed at addressing land which has been historically contaminated and which poses unacceptable risks to human health or the wider environment in the context of the current land use.

Introduction

The primary legislation contains the structure and main provisions of the regime. It consists of sections 78A to 78YC of the EPA, which were inserted by section 57 of the Environment Act 1995.

In addition to the requirements contained in the primary legislation, operation of the regime is subject to regulations and statutory guidance.

  • The Contaminated Land (Scotland) Regulations 2000 (SSI 2000 No.178) and their amendments [external 3] made under Part IIA deal with the descriptions of land which are required to be designated as special sites; the contents of, and arrangements for serving, remediation notices; compensation to third parties for granting rights of entry etc. to land; grounds of appeal against a remediation notices, and procedures relating to any such appeal; and particulars to be included in the public registers.
  • The Contaminated Land (Scotland) Regulations 2005 (SSI 2005/658) amended Part IIA to provide a definition of water pollution for the purposes of Part IIA.
  • The Statutory Guidance: Edition 2, prepared by the Scottish Government, provides the detailed framework for the definition, identification and remediation of contaminated land, as well as exclusion from, and apportionment of, liability for remediation and the recovery of costs of remediation and relief from hardship.

Definitions

For the purposes of Part IIA, contaminated land is identified 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:

  • significant harm is being caused or there is a significant possibility of such harm being caused

or

  • significant pollution of the water environment is being caused or there is a significant possibility of such pollution being caused…’

Harm is defined as ‘harm to the health of living organisms or other interference with the ecological systems of which they form a part, and in the case of man includes harm to his property’.

Substance is defined as ‘any natural or artificial substance whether in solid or liquid form or in the form of gas or vapour’.

The standard definition of land applies, which includes land under water.

The term pollution of the water environment is as defined in section 78A (9) of the EPA in terms of direct or indirect introduction into the water environment of substances which may give rise to harm to human health or the quality of ecosystems; result in damage to material property; or impair or interfere with amenities and other legitimate uses of the water environment. 

Further information on the measures of significant pollution is provided in the document Water Pollution arising from land containing chemical contaminants

The term water environment has the same meaning as in Section 3 of the Water Environment and Water Services (Scotland) Act 2003 (WEWS) and includes all:

  • surface water (inland water [other than groundwater], transitional water and coastal water);
  • groundwater (water which is below the surface of the ground in the saturation zone and in direct contact with the ground or subsoil);
  • wetlands (an area of ground the ecological, chemical and hydrological characteristics of which are attributable to frequent inundation or saturation by water and which is directly dependent, with regard to its water needs, on a body of groundwater or a body of surface water).

Because of the specific wording of the definition, there will still be land that is affected by chemical contamination but which does not meet the statutory definition. Such land is therefore not deemed to be contaminated land for the purposes of Part IIA.

The definition relies on the concept of a pollutant linkage – that is, the presence of a source of contamination which has the potential to impact on a receptor by means of a pathway.

SOURCE (e.g. substances in soil or present as a discrete phase )

 

PATHWAY (e.g. air, soil, foodchain, groundwater, surface water)

 

RECEPTOR (e.g. humans, ecosystems, property, water environment)

The Statutory Guidance: Edition 2 limits what can be considered as a receptor under Part IIA to certain designated ecosystems, human health, property and the  water environment.

Chapter Aof the Statutory Guidance: Edition 2 should be referred to on what represents significant harm or a significant possibility of significant harm and on significant pollution of the water environment or the significant possibility of such pollution.

Key features of Part IIA

  • It adopts a ‘suitable for use’ approach, which requires that the risks associated with land contamination are assessed on a site-by-site basis – there are no universal standards defining what is, and is not contaminated land. If universal standards were adopted, they would need to be so conservative – so as to protect all receptors in all circumstances – that they would become impracticable.
  • It only applies to land with chemical contamination where the contaminants pose an unacceptable risk to human health or the wider environment – that is, where significant pollutant linkages are present.
  • It only considers risks associated with current use of the site: any risks associated with future development and use will continue to be dealt with under the planning system.
  • Concepts underpinning  ‘suitable for use’ for the current land use do not apply to regulatory regimes concerned with preventing future deterioration in land quality.
  • The primary regulatory role rests with Scottish local authorities.
  • It has been extended to apply to radioactive contamination of land, on which specific statutory guidance has been provided.
  • It seeks to promote voluntary remediation, but includes a legal requirement whereby remediation can be enforced.

It follows the ‘polluter pays’ principle, while ensuring that the cost burdens are proportionate and reasonable.

Remediation

The term remediation has a wide meaning under Part IIA, as it includes assessment of the condition of the relevant site, undertaking remedial work and monitoring the condition of the site.

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 make note of the Statutory Guidance: Edition 2 when deciding whether remediation is reasonable.

The process of securing remediation comprises a number of stages: prior to issuing an identification notice and remediation notice, the enforcing authority will enter a period of discussion and negotiation with all appropriate persons and other relevant stakeholders in order to seek voluntary remediation.

There are four possible outcomes to consultation:

  1. The appropriate person agrees to undertake remediation and issues a remediation statement, in consultation with the enforcing authority.
  2. Where no voluntary remediation strategy is agreed, the enforcing authority serves an identification notice and remediation notice on the Appropriate Person/s.
  3. The enforcing authority uses its powers to undertake remediation itself and issues a remediation statement on the Appropriate Person/s and can seek to recover its costs from the Appropriate Person/s.
  4. Where particular remediation actions have been precluded because they would not be reasonable, having regard to their likely cost and seriousness of the harm or pollution, the enforcing authority needs to prepare and publish a remediation declaration which records the reasons why the authority would have specified the remediation actions in a remediation notice; and the grounds on which it is satisfied that it is precluded from including them in any such notice - that is, why it considers that they are unreasonable. The details of the declaration are then placed on the enforcing authority’s public register (if circumstances change after a remediation declaration has been issued, a remediation notice can be subsequently served).

Chapter C and Chapter Dof the Statutory Guidance contain more information about the process of remediation.

How does Part IIA work?

Local authorities are required to inspect their areas to identify 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;
  • undertaking work 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, we become the enforcing authority and will be responsible for securing 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: Edition 2 requires local authorities to develop and publish a strategic approach to the identification of contaminated land which merits detailed individual inspection.

The strategy should indicate how the local authority will identify potentially contaminated areas and how these will be prioritised for assessment in more detail. The identification is made 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 a 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 SEPA regarding the determination of pollution of the water environment and with Scottish Natural Heritage (SNH) concerning harm to ecological systems. 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, 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;
  • anybody and everybody 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 to identify land as contaminated or a special site.

Chapter B of the Statutory Guidance: Edition 2 contains more information about the identification of contaminated land.

What does Part IIA mean for SEPA, local authorities and appropriate persons?

Local authorities

Local authorities act as lead regulators under Part IIA.

They have duties to:

  • inspect their areas to identify contaminated land and to designate special sites;
  • act as the enforcing authority, securing remediation, for land identified as contaminated;
  • maintain public registers for contaminated land;
  • powers to recover cost for remediation undertaken itself.

SEPA

Our responsibilities under Part IIA consist of duties to:

  • act as the enforcing authority, securing remediation, for land designated as a special site;
  • maintain a public register for special sites;
  • prepare a national report on the state of contaminated land at the request of theScottish Government;
  • to act as the enforcing authority for the investigation, identification, characterisation and regulation of remediation of radioactively contaminated land;
  • powers to provide site-specific advice to local authorities;
  • powers to recover cost for remediation undertaken itself.

Appropriate persons

An appropriate person is any person who is identified as being responsible for anything which has to be done to a contaminated site in order to remediate it.

In the first instance, any person who caused or knowingly permitted a substance to be in, on or under the land is responsible. Where such persons cannot be found, responsibility passes to the current owner or occupier of the land.

Where no appropriate persons can be found, the land becomes an orphan site in relation to which the enforcing authority has powers to carry out remediation.

Our Overview of Part IIA for appropriate persons contains more information about how the legislation may affect you.

Contact us

If you have any questions or require any further information on the legislative framework, please contact us.