The Scottish Executive Rural Affairs Department - Environment Protection Act 1990: Part IIA Contaminated Land: page 11


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Environment Protection Act 1990: Part IIA Contaminated Land

Chapter A - Statutory Guidance on the Definition of Contaminated Land

PART 1 — Scope of the Chapter

A.1 The statutory guidance in this Chapter is issued under section 78A(2), (5) and (6) of Part IIA of the Environmental Protection Act 1990 and provides guidance on applying the definition of contaminated land.

A.2 "Contaminated land" is defined at section 78A(2) 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; ..."

A.3 Section 78A(5) further provides that:

"the questions -

"(a) what harm is to be regarded as "significant"

"(b) whether the possibility of significant harm being caused is "significant"

"(c) whether pollution of controlled waters is being, or is likely to be caused,

"shall be determined in accordance with guidance issued .... by the Scottish Ministers".

A.4 In determining these questions the local authority is therefore required to act in accordance with the guidance contained in this Chapter.

A.5 As well as defining contaminated land, section 78A(2) further provides that:

" ..... in determining whether any land appears to be such land, a local authority shall .... act in accordance with guidance issued by the Scottish Ministers.... with respect to the manner in which that determination is to be made"

A.6 Guidance on the manner in which that determination is to be made is set out in Part 3 of the statutory guidance in Chapter B.

PART 2 — Definitions of Terms and General Material

A.7 Unless otherwise stated, any word, term or phrase given a specific meaning in Part IIA of the Environmental Protection Act 1990 has the same meaning for the purposes of the guidance in this Chapter.

A.8 Any reference to "Part IIA" means "Part IIA of the Environmental Protection Act 1990". Any reference to a "section" in primary legislation means a section of the Environmental Protection Act 1990, unless it is specifically stated otherwise.

Risk Assessment

A.9 The definition of contaminated land is based upon the principles of risk assessment. For the purposes of this guidance, "risk" is defined as the combination of:

(a) the probability, or frequency, of occurrence of a defined hazard (for example, exposure to a property of a substance with the potential to cause harm); and

(b) the magnitude (including the seriousness) of the consequences.

A.10 The guidance below follows established approaches to risk assessment, including the concept of contaminant-pathway-receptor. (In the technical literature, this is sometimes referred to as source-pathway-target.)

A.11 There are two steps in applying the definition of contaminated land.

STEP ONE

A.12 The first step is for the local authority to satisfy itself that a "contaminant", a "pathway" (or pathways), and a "receptor" have been identified with respect to that land. These three concepts are defined for the purposes of this Chapter in paragraphs A.13 to A.15 below.

A.13 A contaminant is a substance which is in, on or under the land and which has the potential to cause harm or to cause pollution of controlled waters.

A.14 A receptor is either:

(a) a living organism, a group of living organisms, an ecological system or a piece of property which

(i) is in a category listed in Table A (see below) as a type of receptor, and

(ii) is being, or could be, harmed, by a contaminant; or

(b) controlled waters which are being, or could be, polluted by a contaminant.

A.15 A pathway is one or more routes or means by, or through, which a receptor:

(a) is being exposed to, or affected by, a contaminant, or

(b) could be so exposed or affected.

A.16 It is possible for a pathway to be identified for this purpose on the basis of a reasonable assessment of the general scientific knowledge about the nature of a particular contaminant and of the circumstances of the land in question. Direct observation of the pathway is not necessary.

A.17 The identification of each of these three elements is linked to the identification of the others. A pathway can only be identified if it is capable of exposing an identified receptor to an identified contaminant. That particular contaminant should likewise be capable of harming or, in the case of controlled waters, be capable of polluting that particular receptor.

A.18 In this Chapter, a "pollutant linkage" means the relationship between a contaminant, a pathway and a receptor, and a "pollutant" means the contaminant in a pollutant linkage. Unless all three elements of a pollutant linkage are identified in respect of a piece of land, that land should not be identified as contaminated land. There may be more than one pollutant linkage on any given piece of land.

A.19 For the purposes of determining whether a pollutant linkage exists (and for describing any such linkage), the local authority may treat two or more substances as being a single substance, in any case where:

(a) the substances are compounds of the same element, or have similar molecular structures; and

(b) it is the presence of that element, or the particular type of molecular structures, that determines the effect that the substances may have on the receptor which forms part of the pollutant linkage.

STEP TWO

A.20 The second step in applying the definition of contaminated land is for the local authority to satisfy itself that both:

(a) such a pollutant linkage exists in respect of a piece of land; and

(b) that the pollutant linkage:

(i) is resulting in significant harm being caused to the receptor in the pollutant linkage,

(ii) presents a significant possibility of significant harm being caused to that receptor,

(iii) is resulting in the pollution of the controlled waters which constitute the receptor, or

(iv) is likely to result in such pollution.

A.21 In this Chapter, a "significant pollutant linkage" means a pollutant linkage which forms the basis for a determination that a piece of land is contaminated land. A "significant pollutant" is a pollutant in a "significant pollutant linkage".

A.22 The guidance in Part 3 below relates to questions about significant harm and the significant possibility of such harm being caused. The guidance in Part 4 below relates to the pollution of controlled waters.

PART 3 — Significant Harm and the Significant Possibility of Significant Harm

A.23 Section 78A(4) defines "harm" as meaning "harm to the health of living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes harm to his property". Section 78A(5) provides that what harm is to be regarded as "significant" and whether the possibility of significant harm being caused is significant shall be determined in accordance with this guidance.

What Harm is to be Regarded as "Significant?"

A.24 The local authority should regard as significant only harm which is both:

(a) to a receptor of a type listed in Table A, and

(b) within the description of harm specified for that type of receptor in that Table.

Table A — Categories of Significant Harm

	Type of Receptor	Description of harm to that type of receptor that is to be regarded as significant harm
1	Human beings	Death, disease, serious injury, genetic mutation, birth defects or the impairment of reproductive functions. For these purposes, disease is to be taken to mean an unhealthy condition of the body or a part of it and can include, for example, cancer, liver dysfunction or extensive skin ailments. Mental dysfunction is included only insofar as it is attributable to the effects of a pollutant on the body of the person concerned. In this Chapter, this description of significant harm is referred to as a "human health effect".
2	Any ecological system, or living organism forming part of such a system, within a location which is: an area notified as an area of special scientific interest (commonly called a site of special scientific interest — SSSI) under section 28 of the Wildlife and Countryside Act 1981; any land declared a national nature reserve under section 35 of that Act; any area designated as a marine nature reserve under section 36 of that Act; an Area of Special Protection for Birds, established under section 3 of that Act; any European Site within the meaning of regulation 10 of the Conservation (Natural Habitats etc) Regulations 1994 (ie Special Areas of Conservation and Special Protection Areas); any candidate Special Areas of Conservation (see Scottish Office Circular 6/1995) or potential Special Protection Areas given equivalent protection; any habitat or site afforded policy protection (ie candidate Special Areas of Conservation, potential Special Protection Areas and listed Ramsar sites); any nature reserve established under section 21 of the National Parks and Access to the Countryside Act 1949; or any candidate National Park to be designated under the proposed National Parks Act	For any protected location: harm which results in an irreversible adverse change, or in some other substantial adverse change, in the functioning of the ecological system within any substantial part of that location; or harm which affects any species of special interest within that location and which endangers the long-term maintenance of the population of that species at that location. In addition, in the case of a protected location which is a European Site (or a candidate Special Area of Conservation or a potential Special Protection Area), harm which is incompatible with the favourable conservation status of natural habitats at that location or species typically found there. In determining what constitutes such harm, the local authority should have regard to the advice of Scottish Natural Heritage and to the requirements of the Conservation (Natural Habitats etc) Regulations 1994. In this Chapter, this description of significant harm is referred to as an "ecological system effect".
3	Property in the form of: crops, including timber; produce grown domestically, or on allotments, for consumption; livestock; other owned or domesticated animals; wild animals which are the subject of shooting or fishing rights.	For crops, a substantial diminution in yield or other substantial loss in their value resulting from death, disease or other physical damage. For domestic pets, death, serious disease or serious physical damage. For other property in this category, a substantial loss in its value resulting from death, disease or other serious physical damage. The local authority should regard a substantial loss in value as occurring only when a substantial proportion of the animals or crops are dead or otherwise no longer fit for their intended purpose. Food should be regarded as being no longer fit for purpose when it fails to comply with the provisions of the Food Safety Act 1990. Where a diminution in yield or loss in value is caused by a pollutant linkage, a 20% diminution or loss should be regarded as a benchmark for what constitutes a substantial diminution or loss. In this Chapter, this description of significant harm is referred to as an "animal or crop effect".
4	Property in the form of buildings. For this purpose, "building" means "any structure or erection, and any part of a building including any part below ground level, but does not include plant or machinery comprised in a building".	Structural failure, substantial damage or substantial interference with any right of occupation. For this purpose, the local authority should regard substantial damage or substantial interference as occurring when any part of the building ceases to be capable of being used for the purpose for which it is or was intended. Additionally, in the case of a scheduled Ancient Monument, substantial damage should be regarded as occurring when the damage significantly impairs the historic, architectural, traditional, artistic or archaeological interest by reason of which the monument was scheduled. In this Chapter, this description of significant harm is referred to as a "building effect".

A.25 The local authority should not regard harm to receptors of any type other than those mentioned in Table A as being significant harm for the purposes of Part IIA. For example, harm to ecological systems outside the descriptions in the second entry in the table should be disregarded. Similarly, the authority should not regard any other description of harm to receptors of the types mentioned in Table A as being significant harm.

A.26 The authority should disregard any receptors which are not likely to be present, given the "current use" of the land or other land which might be affected.

A.27 For the purposes of this guidance, the "current use" means any use which is currently being made, or is likely to be made, of the land, and which is consistent with any existing planning permission (or is otherwise lawful under town and country planning legislation). This definition is subject to the following qualifications:

(a) the current use should be taken to include any temporary use, permitted under town and country planning legislation, to which the land is, or is likely to be, put from time to time; (b) the current use includes future uses or developments which do not require a new, or amended, grant of planning permission (but see also paragraph A.37 below);

(c) the current use should, nevertheless, be taken to include any likely informal recreational use of the land, whether authorised by the owners or occupiers or not, (for example, children playing on the land); however, in assessing the likelihood of any such informal use, the local authority should give due attention to measures taken to prevent or restrict access to the land; and

(d) in the case of agricultural land, however, the current agricultural use should not be taken to extend beyond the growing or rearing of the crops or animals which are habitually grown or reared on the land.

Whether the Possibility of Significant Harm Being Caused is Significant

A.28 As stated in paragraph ANNEX 3 -A.9 above, the guidance on determining whether a particular possibility is significant is based on the principles of risk assessment, and in particular on considerations of the magnitude or consequences of the different types of significant harm caused. The term "possibility of significant harm being caused" should be taken as referring to a measure of the probability, or frequency, of the occurrence of circumstances which would lead to significant harm being caused.

A.29 The local authority should take into account the following factors in deciding whether the possibility of significant harm being caused is significant:

(a) the nature and degree of harm;

(b) the susceptibility of the receptors to which the harm might be caused; and

A.30 In considering the timescale, the authority should take into account any evidence that the current use of the land (as defined in paragraphs A.26 and A.27 above) will cease in the foreseeable future.

A.31 The local authority should regard as a significant possibility any possibility of significant harm which meets the conditions set out in Table B for the description of significant harm under consideration.

TABLE B - SIGNIFICANT POSSIBILITY OF SIGNIFICANT HARM

	Descriptions Of Significant Harm (As Defined In Table A)	Conditions For There Being A Significant Possibility Of Significant Harm
1	Human health effects arising from the intake of a contaminant, or other direct bodily contact with a contaminant (exposure).	If the amount of the pollutant in the pollutant linkage in question: which a human receptor in that linkage might take in, or to which such a human might otherwise be exposed, as a result of the pathway in that linkage, would represent an unacceptable intake or exposure, assessed on the basis of relevant information on the toxicological properties of that pollutant. Such an assessment should take into account: the likely total intake of, or exposure to, the substance or substances which form the pollutant, from all sources including that from the pollutant linkage in question; the relative contribution of the pollutant linkage in question to the likely aggregate intake of, or exposure to, the relevant substance or substances; and the duration of intake or exposure resulting from the pollutant linkage in question. The question of whether an intake or exposure is unacceptable is independent of the number of people who might experience or be affected by that intake or exposure. Toxicological properties should be taken to include carcinogenic, mutagenic, teratogenic, pathogenic, endocrine-disrupting and other similar properties.
2	All other human health effects (particularly by way of explosion or fire).	If the probability, or frequency, of occurrence of significant harm of that description is unacceptable, assessed on the basis of relevant information concerning: that type of pollutant linkage, or that type of significant harm arising from other causes. Such an assessment should take into account the levels of risk which have been judged unacceptable in other similar contexts.
3	All ecological system effects.	If significant harm of that description is more likely than not to result from the pollutant linkage in question, taking into account relevant information for that type of pollutant linkage, particularly in relation to the ecotoxicological effects of the pollutant.
4	All animal and crop effects.	If significant harm of that description is more likely than not to result from the pollutant linkage in question, taking into account relevant information for that type of pollutant linkage, particularly in relation to the ecotoxicological effects of the pollutant.
5	All building effects	If significant harm of that description is more likely than not to result from the pollutant linkage in question during the expected economic life of the building (or, in the case of a scheduled Ancient Monument, the foreseeable future), taking into account relevant information for that type of pollutant linkage.

A.32 In Table B, references to "relevant information" mean information which is:

(a) scientifically-based;

(b) authoritative;

(d) appropriate to the determination of whether any land is contaminated land for the purposes of Part IIA, in that the use of the information is consistent with providing a level of protection in line with the qualitative criteria set out in Tables A and B.

A.33 In making any assessment of what is an unacceptable probability or frequency, in relation to, the second entry in Table B, the local authority should give particular weight to cases where the pollutant linkage might cause significant harm which:

(a) would be irreversible or incapable of being treated;

(b) would affect a substantial number of people;

(d) would be likely to result from a short-term (that is, less than 24-hour) exposure to the pollutant.

A.34 In general, when considering significant harm to non-human receptors, the local authority should apply the tests set out in the relevant entries in Table B to determine whether there is a significant possibility of that harm being caused. However, the local authority may also determine that there is a significant possibility of significant harm with respect to a non-human receptor in any case where the conditions in the third, fourth and fifth entries in Table B are not met, but where:

(a) the significant harm would result from a single incident such as a fire or explosion; or

(b) the significant harm would be likely to result from a short-term (that is, less than 24-hour) exposure of the receptor to the pollutant.

A.35 In addition, when considering ecological system effects, the local authority may also determine that there is a significant possibility of significant harm being caused where:

(a) there is reasonable possibility of that harm being caused; and

(b) if that harm were to occur, it would result in such a degree of damage to features of special interest at the location in question that they would be beyond any practicable possibility of restoration.

A.36 The possibility of significant harm being caused as a result of any change of use of any land to one which is not a current use of that land (as defined in paragraph A.26 above) should not be regarded as a significant possibility for the purposes of this Chapter.

A.37 When considering the possibility of significant harm being caused in relation to any future use or development which falls within the description of a "current use" as a result of paragraph A.27(b) above, the local authority should assume that if the future use is introduced, or the development carried out, this will be done in accordance with any existing planning permission for that use or development. In particular, the local authority should assume:

(a) that any remediation which is the subject of a condition attached to that planning permission, or is the subject of any planning obligation, will be carried out in accordance with that permission or obligation; and

(b) where a planning permission has been given subject to conditions which require steps to be taken to prevent problems which might be caused by contamination, and those steps are to be approved by the local planning authority, that the local planning authority will ensure that those steps include adequate remediation.

PART 4 - The Pollution of Controlled

Waters

A.38 Section 78A(9) defines the pollution of controlled waters as:

"the entry into controlled waters of any poisonous, noxious or polluting matter or any solid waste matter".

However it should be noted that if pollution of controlled waters results in significant harm or a significant possibility of significant harm, the land should be identified as contaminated on this basis, rather than on pollution of controlled waters.

A.39 Before determining that pollution of controlled waters is being, or is likely to be, caused, the local authority should be satisfied that a substance is continuing to enter controlled waters or is likely to enter controlled waters. For this purpose, the local authority should regard something as being "likely" when they judge it more likely than not to occur.

A.40 Land should not be designated as contaminated land where:

(a) a substance is already present in controlled waters;

(b) entry into controlled waters of that substance from land has ceased; and

A.41 Substances should be regarded as having entered controlled waters where:

(a) they are dissolved or suspended in those waters; or

(b) if they are immiscible with water, the dissolution of substances from the material to those waters.

A.42 The term "continuing to enter" should be taken to mean any entry additional to any which has already occurred.

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