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Environment Protection Act 1990: Part IIA Contaminated Land

Chapter B - Statutory Guidance on the Identification of Contaminated Land

PART 1 — Scope of the Chapter

B.1 The statutory guidance in this Chapter is issued under sections 78A(2) and 78B(2) of Part IIA of the Environmental Protection Act 1990, and provides guidance on the inspection of its area by a local authority and the manner in which an authority is to determine whether any land appears to it to be contaminated land.

B.2 Section 78B(1) provides that:

"Every local authority shall cause its area to be inspected from time to time for the purpose-

"(a) of identifying contaminated land; and

"(b) of enabling the authority to decide whether any such land is land which is required to be designated as a special site."

B.3 Section 78B(2) further provides that:

"In performing [these] functions .... a local authority shall act in accordance with any guidance issued for the purpose by the Scottish Ministers."

B.4 Section 78A(2) also provides that:

" ‘Contaminated land’ is 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;

"and, 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."

B.5 The local authority is therefore required to act in accordance with the statutory guidance contained in this Chapter.

B.6 The questions of what harm is to be regarded as significant, whether the possibility of significant harm being caused is significant, and whether pollution of controlled waters is being or is likely to be caused are to be determined in accordance with guidance contained in Chapter A.

PART 2 - Definitions of Terms

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

B.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.

PART 3 - The Local Authority’s Inspection Duty

B.9 Strategic Approach to Inspection

In carrying out its inspection duty under section 78B(1), the local authority should take a strategic approach to the identification of land which merits detailed individual inspection. This approach should:

(a) be rational, ordered and efficient;

(b) be proportionate to the seriousness of any actual or potential risk;

(c) seek to ensure that the most pressing and serious problems are located first;

(d) ensure that resources are prioritised on investigating areas where the authority is most likely to identify contaminated land; and

(e) ensure that the local authority efficiently identifies requirements for the detailed inspection of particular areas of land.

B.10 In developing this strategic approach the local authority should reflect local circumstances. In particular it should consider:

(a) any available evidence that significant harm or pollution of controlled waters is actually being caused;

(b) the extent to which any receptor (which is either of a type listed in Table A in Chapter A or is controlled waters) is likely to be found in any of the different parts of the authority’s area;

(c) the extent to which any of those receptors is likely to be exposed to a contaminant (as defined in Chapter A), for example as a result of the use of the land or of the geological and hydrogeological features of the area;

(d) the extent to which information on land contamination is already available;

(e) the history, scale and nature of industrial or other activities which may have contaminated the land in different parts of its area;

(f) the nature and timing of past redevelopment in different parts of its area;

(g) the extent to which remedial action has already been taken by the authority or others to deal with land-contamination problems or is likely to be taken as part of an impending redevelopment; and

(h) the extent to which other regulatory authorities are likely to be considering the possibility of harm being caused to particular receptors or the likelihood of any pollution of controlled waters being caused in particular parts of the local authority’s area.

B.11 In developing its strategic approach, the local authority should consult SEPA and other appropriate public authorities, such as statutory enterprise bodies, Scottish Natural Heritage, Historic Scotland and the Scottish Executive.

B.12 The local authority should set out its approach as a written strategy, which it should formally adopt and publish. This strategy should be published within 15 months of the issue of this guidance. As soon as its strategy is published, the local authority should send a copy to SEPA.

B.13 The local authority should keep its strategy under periodic review.

B.14 The local authority should not await the publication of its strategy before commencing more detailed work investigating particular areas of land, where this appears necessary.

Contents of the Strategy

B.15 Strategies are likely to vary both between local authorities and between different parts of an authority’s area, reflecting the different problems associated with land contamination in different areas. The local authority should include in its strategy:

(a) a description of the particular characteristics of its area and how that influences its approach;

(b) the authority’s particular aims, objectives and priorities;

(c) appropriate timescales for the inspection of different parts of its area; and

(d)arrangements and procedures for:

(i) considering land for which it may itself have responsibilities by virtue of its current or former ownership or occupation,

(ii) obtaining and evaluating information on actual harm, or pollution of controlled waters,

(iii) identifying receptors, and assessing the possibility or likelihood that they are being, or could be, exposed to or affected by a contaminant,

(iv)obtaining and evaluating existing information on the possible presence of contaminants and their effects,

(v) liaison with, and responding to information from, other statutory bodies, including, in particular, SEPA, Scottish Natural Heritage and the Scottish Executive. (see paragraphs B.16 and B.17 below),

(vi) liaison with, and responding to information from, the owners or occupiers of land, and other relevant interested parties,

(vii) responding to information or complaints from members of the public, businesses and voluntary organisations,

(viii) planning and reviewing a programme for inspecting particular areas of land,

(ix) carrying out the detailed inspection of particular areas of land,

(x) reviewing and updating assumptions and information previously used to assess the need for detailed inspection of different areas, and managing new information, and

(xi) managing information obtained and held in the course of carrying out its inspection duties.

Information from Other Statutory Bodies

B.16 Other regulatory authorities may be able to provide information relevant to the identification of land as contaminated land, as a result of their various complementary functions. The local authority should seek to make specific arrangements with such other bodies to avoid unnecessary duplication in investigation.

B.17 For example, SEPA has general responsibilities for the protection of the water environment. It monitors the quality of controlled waters and in doing so may discover land which would appropriately be identified as contaminated land by reason of pollution of controlled waters which is being, or is likely to be, caused.

Inspecting Particular Areas of Land

B.18 Applying the strategy will result in the identification of particular areas of land where it is possible that a pollutant linkage exists. Subject to the guidance in paragraphs B.22 to B.25 and B.27 to B.30 below, the local authority should carry out a detailed inspection of any such area to obtain sufficient information for the authority:

(a) to determine, in accordance with the guidance on the manner of determination in Part 4 below, whether that land appears to be contaminated land; and

(b) to decide whether any such land falls within the definition of a special site prescribed in regulations 2 and 3 of the Contaminated Land (Scotland) Regulations 2000, and is therefore required to be designated as a special site.

B.19 To be sufficient for the first of these purposes the information should include, in particular, evidence of the actual presence of one or more contaminants and receptors.

B.20 Detailed inspection may include any or all of the following:

(a) the collation and assessment of documentary information, or other information from other bodies;

(b) a visit to the particular area for the purposes of visual inspection and, in some cases, limited sampling (for example of surface deposits); or

(c) intrusive investigation of the land (for example by exploratory excavations).

B.21 Section 108 of the Environment Act 1995 gives the local authority the power to authorise a person to exercise specific powers of entry. For the purposes of this Chapter, any detailed inspection of land carried out through use of this power by the local authority is referred to as an "inspection using statutory powers of entry".

B.22 Before the local authority carries out an inspection using statutory powers of entry, it should be satisfied, on the basis of any information already obtained:

(a) in all cases, that there is a reasonable possibility that a pollutant linkage (as defined in Chapter A) exists on the land; this implies that not only must the authority be satisfied that there is a reasonable possibility of the presence of a contaminant, a receptor and a pathway, but also that these would together create a pollutant linkage; and

(b) further, in cases involving an intrusive investigation,

(i) that it is likely that the contaminant is actually present, and

(ii) given the current use of the land as defined at paragraph A26, that the receptor is actually present or is likely to be present.

B.23 The local authority should not carry out any inspection using statutory powers of entry which takes the form of intrusive investigation if:

(a) it has already been provided with detailed information on the condition of the land, whether by SEPA or some other person such as the owner of the land, which provides an appropriate basis upon which the local authority can determine whether the land is contaminated land in accordance with the requirements of the guidance in this Chapter; or

(b) a person offers to provide such information within a reasonable and specified time, and then provides such information within that time.

B.24 The local authority should carry out any intrusive investigation in accordance with appropriate technical procedures for such investigations. It should also ensure that it takes all reasonable precautions to avoid harm, or water pollution or damage to natural resources or features of historical or archaeological interest which might be caused as a result of its investigation. Before carrying out any intrusive investigation on any area notified as an area of special scientific interest (SSSI), the local authority should consult Scottish Natural Heritage on any action which, if carried out by the owner or occupier, would require the consent of Scottish Natural Heritage under section 28 of the Wildlife and Countryside Act 1981.

B.25 If at any stage, the local authority considers, on the basis of information obtained from a detailed inspection, that there is no longer a reasonable possibility that a particular pollutant linkage exists on the land, the authority should not carry out any further detailed inspection for that pollutant linkage.

Land which may be a Special Site

B.26 If land has been determined to be contaminated land and it also falls within one or more of the "special sites" descriptions prescribed in regulations made under Part IIA it is required to be designated as a special site. SEPA then becomes the enforcing authority for that land. It is therefore helpful for SEPA to have an informal role at the inspection stage for any such land.

B.27 Before authorising or carrying out on any land an inspection using statutory powers of entry, the local authority should consider whether, if that land were found to be contaminated land, it would meet any of the descriptions of land prescribed in the Regulations as requiring to be designated a special site. This might occur, for example, where the prescribed description of land in the Regulations relates to its current or former use, such as land on which a process designated for central control under the Integrated Pollution Control regime has been carried out or land which is occupied by the Ministry of Defence.

B.28 If the local authority already has information that this would be the case, the authority should seek advice from SEPA preferably before proceeding with the inspection.

B.29 If the local authority considers that there is a reasonable possibility that a particular pollutant linkage is present, and the presence of a linkage of that kind would require the designation of the land as a special site (were that linkage found to be a significant pollutant linkage), the authority should seek advice from SEPA. An example of this kind of pollutant linkage would be the pollution of waters in the circumstances described in regulation 3(b) of the Contaminated Land (Scotland) Regulations 2000.

B.30 In some limited circumstances SEPA may agree after discussion with the local authority, that it is appropriate for SEPA to carry out the inspection on behalf of the local authority. In such cases the local authority would remain responsible for any costs incurred by SEPA. Where SEPA is to carry out an inspection on behalf of the local authority, the authority should authorise such persons as necessary to exercise the powers of entry conferred by section 108 of the Environment Act 1995. Before the local authority gives such an authorisation, it should ensure that the conditions for the use of the statutory powers of entry set out in paragraphs B.22 to B.25 above are met.

PART 4 - Determining whether Land Appears to be Contaminated Land

B.31 The local authority has the sole responsibility for determining whether any land appears to be contaminated land. It cannot delegate this responsibility (except in accordance with section 56 of the Local Government (Scotland) Act 1973), although in discharging it the local authority can choose to rely on information or advice provided by another body such as SEPA or by a consultant appointed for that purpose. This applies even where the Agency has carried out the inspection of land on behalf of the local authority (see paragraph B.30 above).

Physical Extent of Land

B.32 A determination that land is contaminated land is necessarily made in respect of a specific area of land. In deciding what that area should be, the primary consideration is the extent of the land which is contaminated land. However, there may be situations in which the local authority may consider that separate designations of parts of a larger area of contaminated land may simplify the administration of the consequential actions. In such circumstances, the local authority should do so, taking into account:

(a) the location of significant pollutants in, on or under the land;

(b) the nature of the remediation which might be required; and

the likely identity of those who may be the appropriate persons to bear responsibility for the remediation (where this is reasonably clear at this stage).

B.33 If necessary, the local authority should initially review a wider area, the history of which suggests that contamination problems are likely. It can subsequently refine this down to the precise areas which meet the statutory tests for identification as contaminated land, and use these as the basis for its determination.

B.34 In practice, the land to be covered by a single determination is likely to be the smallest area which is covered by a single remediation action which cannot sensibly be broken down into smaller actions. Subject to this, the land is likely to be the smaller of:

(a) the plots which are separately recorded in the Land Register or are in separate ownership or occupation; and

(b) the area of land in which the presence of significant pollutants has been established.

B.35 The determination should identify the area of contaminated land clearly, including reference to a map or plan at an appropriate scale.

B.36 The local authority should also be prepared to review the decision on the physical extent of the land to be identified in the light of further information.

Making the Determination

B.37 In determining whether any land appears to the local authority to be contaminated land, the authority is required to act in accordance with the guidance on the definition of contaminated land set out in Chapter A. Guidance on the manner in which the local authority should determine whether land appears to it to be contaminated land, by reason of substances in, on or under the land, is set out in paragraphs B.39 to B.51 below.

B.38 There are four possible grounds for the determination, (corresponding to the parts of the definition of contaminated land in section 78A(2)) namely that:

(a) significant harm is being caused (see paragraph B.44 below);

(b) there is a significant possibility of significant harm being caused (see paragraphs B.45 to B.49 below);

(c) pollution of controlled waters is being caused (see paragraph B.50 below); or

pollution of controlled waters is likely to be caused (see paragraph B.51 below).

B.39 In making any determination, the local authority should take all relevant and available evidence into account and carry out an appropriate scientific and technical assessment of that evidence.

B.40 The local authority should identify all significant pollutant linkages (as defined in paragraph A.21 of Chapter A) as the basis for the determination. All three elements of any pollutant linkage (pollutant, pathway and receptor) should be identified. A linkage which forms a basis for the determination that land is contaminated land is then a "significant pollutant linkage"; and any pollutant which forms part of it is a "significant pollutant".

B.41 The local authority should consider whether:

(a) there is evidence that additive or synergistic effects between potential pollutants, whether between the same substance on different areas of land or between different substances, may result in a significant pollutant linkage;

(b) a combination of several different potential pathways linking one or more potential pollutants to a particular receptor, or to a particular class of receptors, may result in a significant pollutant linkage; and

(c) there is more than one significant pollutant linkage on any land; if there are, each should be considered separately, since different people may be responsible for the remediation.

Consistency with other statutory bodies

B.42 In making a determination which relates to an "ecological system effect" as defined in Table A of Chapter A, the local authority should adopt an approach consistent with that adopted by Scottish Natural Heritage. To this end, the local authority should consult that authority and have regard to its comments in making its determination.

B.43 In making a determination which relates to pollution of controlled waters the local authority should adopt an approach consistent with that adopted by SEPA in applying relevant statutory provisions. To this end, where the local authority is considering whether pollution of controlled waters is being or is likely to be caused, it should consult SEPA and have regard to its comments before determining whether pollution of controlled waters is being or is likely to be caused.

Determining that "significant harm is being caused"

B.44 The local authority should determine that land is contaminated land on the basis that significant harm is being caused where:

(a) it has carried out an appropriate scientific and technical assessment of all the relevant and available evidence; and

(b) on the basis of that assessment, it is satisfied on the balance of probabilities that significant harm is being caused.

Determining that "there is a significant possibility of significant harm being caused"

B.45 The local authority should determine that land is contaminated land on the basis that there is a significant possibility of significant harm being caused (as defined in Part 3 of Chapter A), where:

(a) it has carried out a scientific and technical assessment of the risks arising from the pollutant linkage, according to relevant, appropriate, authoritative and scientifically based guidance on such risk assessments;

(b) that assessment shows that there is a significant possibility of significant harm being caused; and

(c) there are no suitable and sufficient risk management arrangements in place to prevent such harm.

B.46 In following any such guidance on risk assessment, the local authority should be satisfied that it is relevant to the circumstances of the pollutant linkage and land in question, and that any appropriate allowances have been made for particular circumstances.

B.47 To simplify such assessment of risks, the local authority may use authoritative and scientifically based guideline values, or methods for deriving values, for concentrations of the substances in, on or under the land which are appropriate to the specific pollutant linkage being considered. If it does so, the local authority should be satisfied that:

(a) an adequate scientific and technical assessment of the information on the potential pollutant, using the appropriate, authoritative and scientifically based guideline values, shows that there is a significant possibility of significant harm; and

(b) there are no suitable and sufficient risk management arrangements in place to prevent such harm.

B.48 In using any guideline values (including methods for deriving values), the local authority should be satisfied that:

(a) the guideline values are relevant to the judgement of whether the effects of the pollutant linkage in question constitute a significant possibility of significant harm;

(b) the assumptions underlying the derivation of any numerical values in the guideline values (for example, assumptions regarding soil conditions, the behaviour of potential pollutants, the existence of pathways, the land-use patterns, and the availability of receptors) are relevant to the circumstances of the pollutant linkage in question;

(c) any other conditions relevant to the use of the guideline values have been observed (for example, the number of samples taken or the methods of preparation and analysis of those samples);

(d) appropriate adjustments have been made to allow for the differences between the circumstances of the land in question and any assumptions or other factors relating to the guideline values; and

(e) the guideline values are appropriate to the receptor and site under consideration.

B.49 The local authority should be prepared to reconsider any determination based on such use of guideline values if it is demonstrated to the authority’s satisfaction that under some other more appropriate method of assessing the risks the local authority would not have determined that the land appeared to be contaminated land.

Determining that "Pollution of controlled waters is being caused"

B.50 The local authority should determine that land is contaminated land on the basis that pollution of controlled waters is being caused where:

(a) it has carried out an appropriate scientific and technical assessment of all the relevant and available evidence, having regard to any advice provided by SEPA; and

(b) on the basis of that assessment, it is satisfied on the balance of probabilities that both of the following circumstances apply:

a potential pollutant is present in, on or under the land in question, which constitutes poisonous, noxious or polluting matter, or which is solid waste matter, and

that potential pollutant is entering controlled waters by the pathway identified in the pollutant linkage.

Determining that "Pollution of controlled waters is likely to be caused"

B.51 The local authority should determine that land is contaminated land on the basis that pollution of controlled waters is likely to be caused where:

(a) it has carried out an appropriate scientific and technical assessment of all the relevant and available evidence, having regard to any advice provided by SEPA; and

(b) on the basis of that assessment it is satisfied that, on the balance of probabilities, all of the following circumstances apply:

(i) a potential pollutant is present in, on or under the land in question, which constitutes poisonous, noxious or polluting matter, or which is solid waste matter,

(ii) the potential pollutant in question is in, or is likely to be in, such a condition that it is capable of entering controlled waters,

taking into account the geology and other circumstances of the land in question, there is a pathway (as defined in Chapter A) by which the potential pollutant can enter identified controlled waters,

the pollutant is more likely than not to enter these controlled waters and will constitute poisonous, noxious or polluting, or solid waste matter upon entry into controlled waters; and

there are no suitable and sufficient risk management arrangements relevant to the pollution linkage in place to prevent such pollution.

Record of the Determination that Land is Contaminated Land

B.52 The local authority should prepare a written record of any determination that particular land is contaminated land. The record should include (by means of a reference to other documents if necessary):

(a) a description of the particular significant pollutant linkage, identifying all three components of pollutant, pathway and receptor;

(b) a summary of the evidence upon which the determination is based;

(c) a summary of the relevant assessment of this evidence; and

(d) a summary of the way in which the authority considers that the requirements of the guidance in this Part and in Chapter A of the guidance have been satisfied.

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