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Environment Protection Act 1990: Part IIA Contaminated Land

Annex 1 - A Statement of Scottish Executive Policy

Sustainable Development

1 , In his foreword to A better quality of life: A strategy for sustainable development for the UK the Prime Minister, the Rt. Hon Tony Blair MP, said:

"The last hundred years have seen a massive increase in the wealth of this country and the well-being of its people. But focusing solely on economic growth risks ignoring the impact — both good and bad — on people and on the environment. Had we taken account of these links in our decision making, we might have reduced or avoided costs such as contaminated land or social exclusion."

Preventing New Contamination

2 Contaminated land is an archetypal example of our failure in the past to move towards sustainable development. We must learn from that failure. The first priority for the Scottish Executive’s policy on land contamination is therefore to prevent the creation of new contamination. We have, or are creating, a range of regimes aimed at achieving this. Of these, the most significant are:

(a) Integrated Pollution Control (IPC) — Part I of the Environmental Protection Act 1990 ("the 1990 Act") places a requirement on operators of prescribed industrial processes to operate within the terms of permits issued by SEPA to control harmful environmental discharges;

(b) Pollution Prevention and Control (PPC) — A new regime will shortly be introduced to replace IPC, and to implement the European Union’s Integrated Pollution Prevention and Control directive; that includes the specific requirement that permits for industrial plants and installations must include conditions to prevent the pollution of soil as well as the requirement for site restoration on closure; and

(c ) Waste Management Licensing — Part II of the 1990 Act places controls over the handling, treatment and disposal of wastes; in the past, much land contamination has been the result of unregulated, or badly-managed, waste disposal activities.

3 Whilst the prevention of new contamination is of critical importance, the focus of this circular is on dealing with land which has been contaminated in the past.

Our Inherited Legacy of Contaminated Land

4 As well as acting to prevent new contamination, we have also to deal with a substantial legacy of land which is already contaminated, for example by past industrial, mining and waste disposal activities. It is not known, in detail, how much land is contaminated. This can be found out only through wide-ranging and detailed site investigation and risk assessment. The answer will be critically dependent on the definition used to establish what land is to be regarded as "contaminated".

5 Various estimates have been made of the extent of the problem. In its report Contaminated Land, published in 1993, the Parliamentary Office of Science and Technology referred to expert estimates of between 50,000 and 100,000 potentially contaminated sites across the UK, with estimates of the extent of land ranging between 100,000 and 200,000 hectares. The report did comment, however, on international experience, which suggests that only a small proportion of potentially contaminated sites posed an immediate threat to human health and the environment. More recently, the Environment Agency has estimated that that there may be some 300,000 hectares of land in the UK affected to some extent by industrial or natural contamination.

6 Land which is contaminated hinders the pursuit of sustainable development by:

(a) impeding social progress, depriving local people of a clean and healthy environment;

(b) threatening wider damage to the environment and to wildlife;

(c) inhibiting the prudent use of our land and soil resources, particularly by obstructing the recycling of previously-developed land and increasing development pressures on greenfield areas; and

(d) placing a high burden on individual companies, home and other landowners, and the economy as a whole, in terms of the cost of remediation.

7 In this context, the Scottish Executive’s objectives with respect to contaminated land are:

(a) to identify and remove unacceptable risks to human health and the environment;

(b) to seek to bring damaged land back into beneficial use; and

(c) to seek to ensure that the cost burdens faced by individuals, companies and society as a whole are proportionate, manageable and economically sustainable.

8 These three objectives underlie the "suitable for use" approach to the remediation of contaminated land, which the Scottish Executive considers is the most appropriate approach to achieving sustainable development in this field.

The "Suitable for Use" Approach

9 The "suitable for use" approach focuses on the risks associated with land contamination. The approach recognises that the risks presented by any given level of contamination will vary greatly according to the use of the land and a wide range of other factors, such as the underlying geology of the site. Risks therefore need to be assessed on a site-by-site basis.

10 The "suitable for use" approach then consists of three elements:

(a) ensuring that land is suitable for its current use — in other words, assessed on the basis of the current use and circumstances of the land, identifying any land where contamination is causing unacceptable risks to human health and the environment, and returning such land to a condition where such risks no longer arise ("remediating" the land); the new contaminated land regime provides general machinery to achieve this;

(b) ensuring that land is made suitable for any new use, as planning permission is given for that new use — in other words, on the basis of the proposed future use and circumstances, assessing the potential risks from contamination, before official permission is given for the development and, where necessary to avoid unacceptable risks to human health and the environment, remediating the land before the new use commences; this is the role of the town and country planning and building control regimes; and

(c) limiting requirements for remediation to the work necessary to prevent unacceptable risks to human health or the environment in relation to the current use or future use of the land for which planning permission is being sought - in other words, recognising that the risks from contaminated land can be satisfactorily assessed only in the context of specific uses of the land (whether current or proposed), and that any attempt to speculate as to the future uses of the land is likely to result either in premature work (thereby risking distorting social, economic and environmental priorities) or in unnecessary work (thereby wasting resources).

11 Within this framework, it is important to recognise both that the use (as defined in the Town and Country Planning (Use Classes) (Scotland) Order 1997) of any particular area of land may cover several different activities and that some potential risks arising from contamination (particularly in relation to water and the wider environment), may arise independently of the use of the land. In practical terms, the current use of any land should be taken to be any use which:

(a) is currently being made of the land, or is likely to be made of it; and

(b) is consistent with any existing planning permission or is otherwise lawful under town and country planning legislation.

(This approach is explained in more detail in paragraph A.27 of Annex 3 to this Circular).

12 Regulatory action may be needed to make sure that necessary remediation is carried out. However, limiting remediation costs to what is needed to avoid unacceptable risks will mean that more previously-developed land will be able to be recycled than would otherwise be the case, increasing the ability to make beneficial use of the land. This helps to increase the social, economic and environmental benefits from regeneration projects and to reduce unnecessary development pressures on greenfield sites.

13 The "suitable for use" approach provides the best means of reconciling our various environmental, social and economic needs in relation to contaminated land. Taken together with tough action to prevent new contamination, and wider initiatives to promote the reclamation of previously-developed land, it will also help to bring about progressive improvements in the condition of the land which we pass on to future generations.

14 Within the "suitable for use" approach, it is always open to the person responsible for a site to do more than can be enforced through regulatory action. For example, a site owner may plan to introduce at a future date some new use for the land which would require more stringent remediation, and may conclude that, in these circumstances, it is more economic to anticipate those remediation requirements. However, this is a judgement, which only the person responsible for the site is in a position to make.

15 The one exception to the "suitable for use" approach to regulatory action applies where contamination has resulted from a specific breach of an environmental licence or permit. In such circumstances, the Government considers that it is generally appropriate that the polluter is required, under the relevant regulatory regime, to remove the contamination completely. To do otherwise would be to undermine the regulatory regimes aimed at preventing new contamination.

Action to Deal with Contamination

Voluntary Remediation Action

16 The Scottish Executive aims to maintain the quality of the land resource in Scotland and to progressively regenerate land where it has been degraded in the past. Redeveloping areas where previous development has reached the end of its useful life not only contributes to the social and economic regeneration of local communities but also enables this progressive environmental improvement.

17 The Scottish Executive are determined to limit development on greenfield sites when other choices are available. Planning policy guidance emphasises that full and effective use should be made of previously developed sites within existing built up areas, and that priority should, wherever possible, be given to reusing derelict and vacant land.

18 It is, of course, necessary to ensure that when previously developed land is redeveloped any potential risks associated with contamination are properly identified and remediated. The planning and building control systems, described at paragraphs 45 to 50 below, provide the means of achieving this.

19 There are very few cases where land cannot be restored to some beneficial use. However, the actual or potential existence of contamination on a site can inhibit the willingness or ability of a developer to do so. The Scottish Executive is acting in three specific ways to overcome the potential obstacles to the redevelopment of land affected by contamination:

(a)by providing public subsidy — funding is made available through Scottish Enterprise and the local enterprise network to support site redevelopment costs for projects aimed at particular social and economic regeneration objectives;

(b) by promoting research and development — the programmes of the science research councils, the Scottish Executive, SEPA, the Environment Agency, SNIFFER, the DETR and the DTI aim to increase scientific understanding and the availability and take-up of improved methods of risk assessment and remediation; and

(c) by providing an appropriate policy and legal framework — the "suitable for use" approach ensures that remediation requirements are reasonable and tailored to the needs of individual sites; a significant objective underlying the new contaminated land regime is to improve the clarity and certainty of potential regulatory action on contamination, thereby assisting developers to make informed investment appraisals.

Regulatory Action

20 The regeneration process is already dealing with much of our inherited legacy of contaminated land. However, there will be circumstances where contamination is causing unacceptable risks on land, which is either not suitable or not scheduled for redevelopment. For example, there may be contamination on sites now regarded as greenbelt or rural land, or contamination may be affecting the health of occupants of existing buildings on the land or prejudicing wildlife on the site or in its surroundings. We therefore need systems in place both to identify problem sites of this kind and, more significantly, to ensure that the problems are dealt with and the contamination remediated.

21 A range of specific clean-up powers exists to deal with cases where contamination is the result of offences against, or breaches of, pollution prevention regimes. The main examples of these are described in paragraphs 51 to 58 below.

22 Part IIA of the Environmental Protection Act 1990 creates a new framework for the identification and remediation of contaminated land in circumstances where there has not been any identifiable breach of a pollution prevention regime.

23 Although Part IIA itself is new, it largely replaces existing regulatory powers and duties. Local authorities have long-standing duties to identify particular environmental problems, including those resulting from land contamination, and to require their abatement. The origins of these powers are found in the mid-19^th century legislation, which created the concept of the statutory nuisance. They were codified in the Public Health (Scotland) Act 1897 and have most recently been set out in Part III of the Environmental Protection Act 1990, which modernised the statutory nuisance regime.

24 In addition, SEPA has powers under the Control of Pollution Act 1974 to take action to prevent or remedy the pollution of controlled waters, including circumstances where the pollution arises from contamination in the land.

The New Contaminated Land Regime

Objectives for the New Regime

25 The main objective underlying the introduction of the Part IIA Contaminated Land regime is to provide an improved system for the identification and remediation of land where contamination is causing unacceptable risks to human health or the wider environment, assessed in the context of the current use and circumstances of the land.

26 As stated in paragraph 23 above, the new regime broadly reflects the approaches already in place under the statutory nuisance regime and the Control of Pollution Act 1974. The Scottish Executive’s primary objectives for introducing the new regime are:

(a) to improve the focus and transparency of the controls, ensuring authorities take a strategic approach to problems of land contamination;

(b) to enable all problems resulting from contamination to be handled as part of the same process; previously separate regulatory action was needed to protect human health and to protect the water environment;

(c) to increase the consistency of approach taken by different authorities; and

(d) to provide a more tailored regulatory mechanism, including liability rules, better able to reflect the complexity and range of circumstances found on individual sites.

27 In addition to providing a more secure basis for direct regulatory action, the Scottish Executive considers that the improved clarity and consistency of the new regime, in comparison with its predecessors, is also likely to encourage voluntary remediation. This forms an important secondary objective for implementation of the Part IIA regime.

28 Companies who may be responsible for contamination, for example on land they currently own or on former production sites, will be able to assess the likely requirements of regulators acting under Part IIA. They will then be able to plan their own investment programmes to carry out remediation in advance of actual regulatory intervention.

29 Similarly, the Part IIA regime will assist in the recycling of previously developed land. The new regime cannot be used directly to require the redevelopment of land, only its remediation. However, the Scottish Executive considers that implementation of the regime will assist developers by reducing uncertainties about so-called "residual liabilities", in particular the perceived risk of further regulatory intervention. In particular it will:

(a) reinforce the "suitable for use" approach, enabling developers to design and implement appropriate and cost-effective remediation schemes as part of their redevelopment projects;

(b) clarify the circumstances in which future regulatory intervention might be necessary (for example, if the initial remediation scheme proved not to be effective in the long term); and

(c) set out the framework for statutory liabilities to pay for any further remediation, should that be necessary.

Outline of Part IIA and Associated Documents

30 The primary legislation in Part IIA contains the structure and main provisions of the new regime. It consists of sections 78A to 78YC. An explanation of how the regime will operate is set out in the Description of the New Regime, at Annex 2 to this Circular.

31 Within the structure of the Part IIA legislation, the statutory guidance set out in Annex 3 to this Circular provides the detailed framework for the following key elements of the new regime:

(a) the definition of contaminated land (Chapter A);

(b) the identification of contaminated land (Chapter B);

(c) the remediation of contaminated land (Chapter C);

(d)exclusion from, and apportionment of, liability for remediation (Chapter D); and

(e)the recovery of the costs of remediation and the relief from hardship (Chapter E).

32 Regulations made under Part IIA deal with:

(a) the descriptions of land which are required to be designated as "special sites";

(b) the contents of, and arrangements for serving, remediation notices;

(c) compensation to third parties for granting rights of entry etc. to land;

(d) grounds of appeal against a remediation notice, and procedures relating to any such appeal; and

(e) particulars to be contained in registers compiled by enforcing authorities, and the locations at which such registers must be available for public inspection.

33 Annex 4 to this Circular provides a detailed description of the Contaminated Land (Scotland) Regulations 2000.

Main Features of the New Regime

34 The primary regulatory role under Part IIA rests with Scottish local authorities.

35 This reflects their existing functions under the statutory nuisance regime, and will also complement their roles as planning authorities. In outline, the role of these authorities under Part IIA will be:

(a) to cause their areas to be inspected to identify contaminated land;

(b) to determine whether any particular site is contaminated land;

(c) to act as enforcing authority for all contaminated land which is not designated as a "special site" (SEPA will be the enforcing authority for special sites).

36 The enforcing authorities will have four main tasks:

(a) to establish who should bear responsibility for the remediation of the land (the "appropriate person" or persons);

(b) to decide, after consultation, what remediation is required in any individual case and to ensure that such remediation takes place, either through agreement with the appropriate person, or by serving a remediation notice on the appropriate person if agreement is not possible or, in certain circumstances, through carrying out the work themselves;

(c) where a remediation notice is served, or the authority itself carries out the work, to determine who should bear what proportion of the liability for meeting the costs of the work; and

(d) to record certain prescribed information about their regulatory actions on a public register.

37 Contaminated land is land which appears to the local authority 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 that pollution of controlled waters is being, or is likely to be, caused. This definition is to be applied in accordance with other definitions in Part IIA and the statutory guidance set out in this Circular. These definitions and the guidance are based on the assessment of risks to human health and the environment. The regime thus reflects the "suitable for use" approach.

38 Under the provisions concerning liabilities, responsibility for paying for remediation will, where feasible, follow the "polluter pays" principle. In the first instance, any persons who caused or knowingly permitted the contaminating substances to be in, on or under the land will be the appropriate person(s) to undertake the remediation and meet its costs. However, if it is not possible to find any such person, responsibility will pass to the current owner or occupier of the land. (This latter step does not apply where the problem caused by the contamination is solely one of water pollution: this reflects the potential liabilities for water pollution as they existed prior to the introduction of Part IIA.) Responsibility will also be subject to limitations, for example where hardship might be caused; these limitations are set out in Part IIA and in the statutory guidance in this Circular.

39 SEPA will have four principal roles with respect to contaminated land under Part IIA:

(a) it will provide advice on request in relation to the identification and designation of special sites;

(b) it may issue site-specific advice to local authorities on contaminated land;

(c) it will act as the "enforcing authority" for any land designated as a "special site" (the descriptions of land which are required to be designated in this way are prescribed in the Regulations); and

(d) it will publish periodic reports on contaminated land.

40 In addition, SEPA has an interest in the contaminated land research programme now run by the Environment Agency, and previously run by the then Department of the Environment. The Environment Agency will continue to carry out technical research and, in conjunction with DETR, publish scientific and technical advice. SNIFFER will also continue to carry out technical research and publish the findings of such research.

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