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Environment Protection Act 1990: Part IIA Contaminated Land

CIRCULAR

Scottish Executive Circular 1/2000
Rural Affairs Department
Victoria Quay Edinburgh EH6 6QQ
12 July 2000

Environmental Protection Act 1990: Part IIA

CONTAMINATED LAND

1 I am directed by the Scottish Ministers to draw your attention to the entry into force of the new statutory regime for the identification and remediation of contaminated land with effect from 14 July 2000.

2 For this purpose, the Scottish Ministers have made the Environment Act 1995 (Commencement No. 17 and Saving Provision)(Scotland) Order 2000 (S.I. 2000/180), which brings into force Part IIA of the Environmental Protection Act 1990 (the "1990 Act"). Part IIA was inserted into the 1990 Act by section 57 of the Environment Act 1995. They have also made the Contaminated Land (Scotland) Regulations 2000 (SI 2000/178), which have been made under sections 78C, 78E, 78G, 78L and 78R.

Purpose of this circular

3 This circular has two functions: first it promulgates the statutory guidance which is an essential part of the new regime; secondly, it sets out the way in which the new regime is expected to work, by providing a summary of Scottish Executive policy in this field, a description of the new regime, a guide to the Regulations and a note on the saving provision in the Commencement Order.

4 The new regime as described in this circular does not apply to any radioactive contamination of land. Part IIA makes provision for the regime to be applied to such contamination with such modifications as the Scottish Ministers consider appropriate. Consultation started in February 1998 on how such an application might be made.

5 This circular applies only to Scotland. Responsibility for implementing Part IIA in England and Wales rests with the Department of the Environment, Transport and the Regions and the National Assembly for Wales, respectively.

Statutory Guidance

6 I am therefore further directed by the Scottish Ministers to say that they hereby issue the statutory guidance in Annex 3 to this circular. This guidance is issued under the following powers:

(a) The Definition of Contaminated Land — Chapter A of Annex 3 to this circular sets out guidance issued under section 78A(2) and (5);

(b) The Identification of Contaminated Land — Chapter B of Annex 3 to this circular sets out guidance issued under section 78B(2);

(c) The Remediation of Contaminated Land — Chapter C of Annex 3 to this circular sets out guidance issued under section 78E(5);

(d) Exclusion from, and Apportionment of, Liability for Remediation — Chapter D of Annex 3 to this circular sets out guidance issued under section 78F(6) and (7); and

(e) The Recovery of the Costs of Remediation — Chapter E of Annex 3 to this Circular sets out guidance issued under section 78P(2).

7 Section 78YA states that before the Scottish Ministers can issue any guidance under Part IIA, they must consult the Scottish Environment Protection Agency (SEPA) and such other persons as they consider it appropriate to consult. Drafts of all the guidance were published for consultation in September 1996, October 1998 and November 1999. The guidance contained in Annex 3 to this Circular has been prepared in the light of responses to those consultation exercises.

8 In addition, section 78YA requires the Scottish Ministers to lay a draft of any guidance they propose to issue under sections 78A(2) or (5), 78B(2) or 78F(6) or (7) before the Scottish Parliament for approval under the negative resolution procedure. The guidance now issued in Chapters A, B and D of Annex 3 to this Circular was laid in draft before the Parliament on 25 May 2000.

Financial and Manpower Implications

9 The Explanatory and Financial Memorandum to the Environment Bill stated that the creation of the Part IIA regime would have neither any financial nor any manpower implications, as it largely restated existing functions of local authorities and SEPA. However, in the light of responses received to the consultation on the draft statutory guidance, published in September 1996, the Government decided that the successful operation of the new regime would necessitate the provision of additional resources for local authorities and SEPA.

10 Accordingly, as part of the outcome of the Comprehensive Spending Review announced in July 1998, and after consulting the Convention of Scottish Local Authorities, the Government announced that an additional £10.7 million would be provided over the next three years to help local authorities develop inspection strategies, carry out site investigations and take forward enforcement action. Of the new funding, £5 million has been added to the figure for Capital Consents for local authorities in 2000-01 and 2001-02, with the remainder being added to the AEF programme.

11 The additional cost burdens placed on SEPA were taken into account in setting the level of grant-in-aid to be paid to the Agency.

Regulatory Impact Assessment

12 A Regulatory Impact Assessment (RIA) on the implementation of the Part IIA regime has been prepared. A draft of the earlier style of Compliance Cost Assessment was published for consultation in November 1996. A further draft was included with the draft Circular published for consultation in November 1999. Comments received in response to these consultations have been taken into account in the final RIA, which was published on 12 June 2000.

13 Copies of the RIA are available from the address shown in paragraph 15 below.

ENQUIRIES

14 Enquiries about particular sites and how they may be affected by the new regime should be directed, in the first instance, to the local authority in whose area they are situated.

15 Enquiries about this Circular should be addressed to:

Linda Watters
Environment Protection Unit
The Scottish Executive
1-J Victoria Quay
Edinburgh EH6 6QQ
Phone: (0131) 244 0397
Fax: (0131) 244 0245
Email: linda.watters@scotland.gov.uk

Bridget Campbell
Head of Environment Protection Unit

The Chief Executive
Scottish Local Authorities
Scottish Environment Protection Agency

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