< Previous | Contents | Next >

Environment Protection Act 1990: Part IIA Contaminated Land

Chapter C - Statutory Guidance on the Remediation of Contaminated Land

PART 1 - Scope of the Chapter

C.1 The statutory guidance in this Chapter is issued under section 78E(5) of Part IIA of the Environmental Protection Act 1990, and provides guidance on the remediation which may be required for any contaminated land.

C.2 Section 78E provides:

"(4) The only things by way of remediation which the enforcing authority may do, or require to be done, under or by virtue of [Part IIA of the Environmental Protection Act 1990] are things which it considers reasonable, having regard to-

"(a) the cost which is likely to be involved; and

"(b) the seriousness of the harm, or pollution of controlled waters, in question.

"(5) In determining for any purpose of this Part-

"(a) what is to be done (whether by an appropriate person, the enforcing authority, or any other person) by way of remediation in any particular case,

"(b) the standard to which any land is, or waters are, to be remediated pursuant to [a remediation] notice, or

"(c) what is, or is not, to be regarded as reasonable for the purposes of subsection (4) above,

"the enforcing authority shall have regard to any guidance issued for the purpose by the Scottish Ministers".

C.3 The enforcing authority is therefore required to have regard to this guidance when it is:

(a) determining what remediation action it should specify in a remediation notice as being required to be carried out (section 78E(1));

(b) satisfying itself that appropriate remediation is being, or will be, carried out without the service of a notice (section 78H(5)(b)); or

(c) deciding what remediation action it should carry out itself (section 78N).

C.4 The guidance in this Chapter does not attempt to set out detailed technical procedures or working methods. For information on these matters, the enforcing authority may wish to consult relevant technical documents prepared under the contaminated land research programmes of DETR, the Environment Agency, SEPA and SNIFFER and by other professional and technical organisations.

PART 2 - Definitions of Terms

C.5 Unless otherwise stated, any word, term or phrase given a specific meaning in Part IIA of the Environmental Protection Act 1990, or in the statutory guidance in Chapters A or B, has the same meaning for the purposes of the guidance in this Chapter.

C.6 "Remediation" is defined in section 78A(7) as meaning:

"(a) the doing of anything for the purpose of assessing the condition of-

"(i) the contaminated land in question;

"(ii) any controlled waters affected by that land; or

"(iii) any land adjoining or adjacent to that land;

"(b) the doing of any works, the carrying out of any operations or the taking of any steps in relation to any such land or waters for the purpose-

"(i) of preventing or minimising, or remedying or mitigating the effects of, any significant harm, or any pollution of controlled waters, by reason of which the contaminated land is such land; or

"(ii) of restoring the land or waters to their former state; or

"(c) the making of subsequent inspections from time to time for the purpose of keeping under review the condition of the land or waters."

C.7 The definition of remediation given in section 78A extends more widely than the common usage of the term, which more normally relates only to the actions defined as "remedial treatment actions" below.

C.8 For the purposes of the guidance in this Chapter, the following definitions apply:

(a) a "remediation action" is any individual thing which is being, or is to be, done by way of remediation;

(b) a "remediation package" is the full set or sequence of remediation actions, within a remediation scheme, which are referable to a particular significant pollutant linkage;

(c) a "remediation scheme" is the full set or sequence of remediation actions (referable to one or more significant pollutant linkages) to be carried out with respect to the relevant land or waters;

(d) "relevant land or waters" means the contaminated land in question, any controlled waters affected by that land and any land adjoining or adjacent to the contaminated land on which remediation might be required as a consequence of the contaminated land being such land;

(e) an "assessment action" means a remediation action falling within the definition of remediation in section 78A(7)(a) (see paragraph C.6 above);

(f) a "remedial treatment action" means a remediation action falling within the definition in section 78A(7)(b) (see paragraph C.6 above); and

(g) a "monitoring action" means a remediation action falling within the definition in section 78A(7)(c) (see paragraph C.6 above).

C.9 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 — Securing Remediation

C.10 When the enforcing authority is serving a remediation notice, it will need to specify in that notice any remediation action which is needed in order to achieve remediation of the relevant land or waters to the standard described in Part 4 of this Chapter and which is reasonable for the purposes of section 78E(4) (see Part 5 of this Chapter). Part 6 of this Chapter provides further guidance relevant to the determining the necessary standard of remediation. Part 7 provides guidance on the circumstances in which different types of remediation action may, or may not, be required.

C.11 The enforcing authority should be satisfied that appropriate remediation is being, or will be, carried out without the service of a remediation notice if that remediation would remediate the relevant land or waters to an equivalent, or better, standard than would be achieved by the remediation action or actions that the authority could, at that time, otherwise specify in a remediation notice.

Phased Remediation

C.12 The overall process of remediation on any land or waters may require a phased approach, with different remediation actions being carried out in sequence. For example, the local authority may have obtained sufficient information about the relevant land or waters to enable it to identify the land as falling within the definition of contaminated land, but that information may not be sufficient information for the enforcing authority to be able to specify any particular remedial treatment action as being appropriate. Further assessment actions may be needed in any case of this kind as part of the remediation scheme. In other cases, successive phases of remedial treatment actions may be needed.

C.13 The phasing of remediation is likely to follow a progression from assessment actions, through remedial treatment actions and onto monitoring actions. However, this will not always be the case, and the phasing may omit some stages or revisit others. For example, in some circumstances it may be possible for a remedial treatment action to be carried out without any previous assessment action (because sufficient information is already available). But, conversely, in some instances additional assessment action may be found to be necessary only in the light of information derived during the course of a first phase of a required assessment action or the carrying out of required remedial treatment actions.

C.14 Where it is necessary for the remediation scheme as a whole to be phased, a single remediation notice may not be able to include all of the remediation actions which could eventually be needed. In these circumstances, the enforcing authority should specify in the notice the remediation action or actions which, on the basis of the information available at that time, it considers to be appropriate, taking into account in particular the guidance in Part 7 of this Chapter. In due course, the authority may need to serve further remediation notices which include remediation actions for further phases of the scheme.

C.15 However, before serving any further remediation notice, the enforcing authority must be satisfied that the contaminated land which was originally identified still appears to it to meet the definition in section 78A(2). If, for example, the information obtained as a result of an assessment action reveals that there is not, in fact, a significant possibility of significant harm being caused, nor is there a likelihood of any pollution of controlled waters being caused, then no further assessment, remedial treatment or monitoring action can be required under section 78E(1).

PART 4 - The Standard to which Land or Waters should be Remediated

C.16 The statutory guidance in this Part is issued under section 78E(5)(b) and provides guidance on the standard to which land or waters should be remediated.

The Standard of Remediation

C.17 The Scottish Executive’s intention is that any remediation required under this regime should result in land being "suitable for use". The aim of any remediation should be to ensure that the circumstances of the land are such that, in its current use (as defined in paragraph A.26 of Chapter A) it is no longer contaminated land (as defined in section 78A(2)), and that the effects of any significant harm or pollution of controlled waters which has occurred are remedied. However, it is always open to the appropriate person to carry out remediation on a broader basis than this, if he considers it in his interests to do so, for example if he wishes to prepare the land for redevelopment.

C.18 The standard to which the relevant land or waters as a whole should be remediated should be established by considering separately each significant pollutant linkage identified on the land in question. For each such linkage, the standard of remediation should be that which would be achieved by the use of a remediation package which forms the best practicable techniques of remediation for:

(a) ensuring that the linkage is no longer a significant pollutant linkage, by doing any one or more of the following:

(i) removing or treating the pollutant;

(ii) breaking or removing the pathway; or

(iii) protecting or removing the receptor; and

(b) remedying the effect of any significant harm or pollution of controlled waters which is resulting, or has already resulted from, the significant pollutant linkage.

C.19 In deciding what represents the best practicable technique for any particular remediation, the enforcing authority should look for the method of achieving the desired results which, in the light of the nature and volume of the significant pollutant concerned and the timescale within which remediation is required:

(a) is reasonable, taking account of the guidance in Part 5; and

(b) represents the best combination of the following qualities:

(i) practicability, both in general and in the particular circumstances of the relevant land or waters;

(ii) effectiveness in achieving the aims set out in paragraph C.18 above; and

(iii) durability in maintaining that effectiveness over the timescale within which the significant harm or pollution of controlled waters may occur.

C.20 Further guidance on how the factors set out in sub-paragraph b) above should be considered is set out in Part 6. The determination of what, in any particular case, represents the best practicable technique of remediation may require a balance to be struck between these factors.

C.21 When considering what would be the best practicable techniques for remediation in any particular case, the enforcing authority should work on the basis of authoritative scientific and technical advice. The authority should consider what comparable techniques have recently been carried out successfully on other land, and also any technological advances and changes in scientific knowledge and understanding.

C.22 Where there is established good practice for the remediation of a particular type of significant pollutant linkage, the authority should assume that this represents the best practicable technique for remediation for a linkage of that type, provided that:

(a) it is satisfied that the use of that means of remediation is appropriate, given the circumstances of the relevant land or waters; and

(b) the remediation actions involved would be reasonable having regard to the cost which is likely to be involved and the seriousness of the harm or pollution of controlled waters in question.

C.23 In some instances, the best practicable techniques of remediation with respect to any significant pollutant linkage may not fully achieve the aim in subparagraph C.18(a), that is to say that if the remediation were to be carried out the pollutant linkage in question would remain a significant pollutant linkage. Where this applies, the standard of remediation with respect to that significant pollutant linkage should be that which, by the use of the best practicable techniques:

(a) comes as close as practicable to achieving the aim in subparagraph C.18(a);

(b) achieves the aim in subparagraph C.18(b); and

(c) puts arrangements in place to remedy the effect of any significant harm or pollution of controlled waters which may be caused in the future as a consequence of the continued existence of the pollutant linkage.

C.24 In addition, the best practicable techniques for remediation with respect to a significant pollutant linkage may, in some circumstances, not fully remedy the effect of past or future significant harm or pollution of controlled waters. Where this is the case the standard of remediation should be that which, by the use of the best practicable techniques, mitigates as far as practicable the significant harm or pollution of controlled waters which has been caused as a consequence of the existence of that linkage, or may be caused in the future as a consequence of its continued existence.

C.25 For any remediation action, package or scheme to represent the best practicable techniques, it should be implemented in accordance with best practice, including any precautions necessary to prevent damage to the environment and any other appropriate quality assurance procedures.

Multiple Pollutant Linkages

C.26 Where more than one significant pollutant linkage has been identified on the land, it may be possible to achieve the necessary overall standard of remediation for the relevant land or waters as a whole by considering what remediation actions would form part of the appropriate remediation package for each linkage (i.e., representing the best practicable techniques of remediation for that linkage) if it were the only such linkage, and then carrying out all of these remediation actions.

C.27 However, the enforcing authority should also consider whether there is an alternative remediation scheme which would, by dealing with the linkages together, be cheaper or otherwise more practicable to implement. If such a scheme can be identified which achieves an equivalent standard of remediation with respect to all of the significant pollutant linkages to which it is referable, the authority should prefer that alternative scheme.

AGREED Remediation

C.28 In some cases, the person carrying out remediation may wish to adopt an alternative remediation scheme to that which could be required in a remediation notice. This might occur, in particular, if the person concerned wished also to prepare the land for redevelopment. The enforcing authority should consider such a remediation scheme as appropriate remediation provided the scheme would achieve at least the same standard of remediation with respect to each of the significant pollutant linkages identified on the land as would be achieved by the remediation scheme which the authority would otherwise specify in a remediation notice. In such circumstances the responsible person is required to prepare and publish a remediation statement detailing the remediation actions which are being, have been, or are expected to be done (section 78H(7)).

PART 5 - The Reasonableness of Remediation

C.29 The statutory guidance in this Part is issued under section 78E(5)(c) and provides guidance on the determination by the enforcing authority of what remediation is, or is not, to be regarded as reasonable having regard to the cost which is likely to be involved and the seriousness of the harm or of the pollution of controlled waters to which it relates.

C.30 The enforcing authority should regard a remediation action as being reasonable for the purpose of section 78E(4) if an assessment of the costs likely to be involved and of the resulting benefits shows that those benefits justify incurring those costs. Such an assessment should include the preparation of an estimate of the costs likely to be involved and of a statement of the benefits likely to result. This latter statement need not necessarily attempt to ascribe a financial value to these benefits.

C.31 For these purposes, the enforcing authority should regard the benefits resulting from a remediation action as being the contribution that the action makes, either on its own or in conjunction with other remediation actions, to:

(a) reducing the seriousness of any harm or pollution of controlled waters which might otherwise be caused; or

(b) mitigating the seriousness of any effects of any significant harm or pollution of controlled waters.

C.32 In assessing the reasonableness of any remediation, the enforcing authority should make due allowance for the fact that the timing of expenditure and the realisation of benefits is relevant to the balance of costs and benefits. In particular, the assessment should recognise that:

(a) expenditure which is delayed to a future date will have a lesser impact on the person defraying it than would an equivalent cash sum to be spent immediately;

(b) there may be a gain from achieving benefits earlier but this may also involve extra expenditure; the authority should consider whether the gain justifies the extra costs. This applies, in particular, where natural processes, managed or otherwise, would over time bring about remediation; and

(c) there may be evidence that the same benefits will be achievable in the foreseeable future at a significantly lower cost, for example, through the development of new techniques or as part of a wider scheme of development or redevelopment.

C.33 The identity or financial standing of any person who may be required to pay for any remediation action are not relevant factors in the determination of whether the costs of that action are, or are not, reasonable for the purposes of section 78E(4). (These factors may however be relevant in deciding whether or not the enforcing authority can impose the cost of remediation on that person, either through the service of a remediation notice or through the recovery of costs incurred by the authority; see section 78P and the guidance in Chapter E.)

The Cost of Remediation

C.34 When considering the costs likely to be involved in carrying out any remediation action, the enforcing authority should take into account:

(a) all the initial costs (including tax payable) of carrying out the remediation action, including feasibility studies, design, specification and management, as well as works and operations, and making good afterwards;

(b) any on-going costs of managing and maintaining the remediation action; and

(c) any relevant disruption costs.

C.35 For these purposes, "relevant disruption costs" mean depreciation in the value of land or other interests, or other loss or damage, which is likely to result from the carrying out of the remediation action in question. The enforcing authority should assess these costs as their estimate of the amount of compensation which would be payable if the owner of the land or other interest had granted rights under section 78G(2) to permit the action to be carried out and had claimed compensation under section 78G(5) and regulation 6 of the Contaminated Land (Scotland) Regulations 2000 (whether or not such a claim could actually be made).

C.36 Each of the types of cost set out in paragraph C.34 above should be included even where they would not result in payments to others by the person carrying out the remediation. For example, a company may choose to use its own staff or equipment to carry out the remediation, or the person carrying out the remediation may already own the land in question and would therefore not be entitled to receive compensation under section 78G(5). The evaluation of the cost involved in remediation should not be affected by the identity of the person carrying it out, or internal resources available to that person.

C.37 The enforcing authority should furthermore regard it as a necessary condition of an action being reasonable that:

(a) where two or more significant pollutant linkages have been identified on the land in question, and the remediation action forms part of a wider remediation scheme which is dealing with two or more of those linkages, there is no alternative scheme which would achieve the same purposes for a lower overall cost; and

(b) subject to subparagraph a) above, where the remediation action forms part of a remediation package dealing with any particular significant pollutant linkage, there is no alternative package which would achieve the same standard of remediation at a lower overall cost.

C.38 In addition, for any remediation action to be reasonable there should be no alternative remediation action which would achieve the same purpose, as part of any wider remediation package or scheme, to the same standard for a lower cost (bearing in mind that the purpose of any remediation action may relate to more than one significant pollutant linkage).

The Seriousness of Harm or of Pollution of Controlled Waters

C.39 When evaluating the seriousness of any significant harm, for the purposes of assessing the reasonableness of any remediation, the enforcing authority should consider:

(a) whether the significant harm is already being caused;

(b) the degree of the possibility of the significant harm being caused;

(c) the nature of the significant harm with respect, in particular, to:

(i) the nature and importance of the receptor,

(ii) the extent and type of any effects on that receptor of the significant harm,

(iii) the number of receptors which might be affected, and

(iv) whether the effects would be irreversible; and

(d) the context in which the effects might occur, in particular:

(i) whether the receptor has already been damaged by other means and, if so, whether further effects resulting from the harm would materially affect its condition, and

(ii) the relative risk associated with the harm in the context of wider environmental risks.

C.40 Where the significant harm is an "ecological system effect" as defined in Chapter A, the enforcing authority should take into account any advice received from Scottish Natural Heritage.

C.41 In evaluating for this purpose the seriousness of any pollution of controlled waters, the enforcing authority should consider:

(a) whether the pollution of controlled waters is already being caused;

(b) the likelihood of the pollution of controlled waters being caused;

(c) the nature of the pollution of controlled waters involved with respect, in particular, to:

(i) the nature and importance of the controlled waters which might be affected,

(ii) the extent of the effects of the actual or likely pollution on those controlled waters, and

(iii) whether such effects would be irreversible; and

(d) the context in which the effects might occur, in particular:

(i) whether the waters have already been polluted by other means and, if so, whether further effects resulting from the water pollution would materially affect their condition, and

(ii) the relative risk associated with the water pollution in the context of wider environmental risks.

C42 Where the enforcing authority is the local authority, it should take into account any advice received from SEPA when it is considering the seriousness of any pollution of controlled waters.

C.43 In some instances, it may be possible to express the benefits of addressing the harm or pollution of controlled waters in direct financial terms. For example, removing a risk of explosion which renders a building unsafe for occupation could be considered to create a benefit equivalent to the cost of acquiring a replacement building. Various Government departments have produced technical advice, which the enforcing authority may find useful, on the consideration of non-market impacts of environmental matters (see paragraph C.4 above).

< Previous | Contents | Next >