Environmental Protection Act 1990 - Part IIA Contaminated Land: statutory guidance edition 2

3 - Identification of Contaminated Land

Inspection of a Local Authority's Area

3.1 Each LOCAL AUTHORITY has a duty to cause its area to be inspected from time to time for the purpose of identifying CONTAMINATED LAND ( section 78B(1)). In doing so, it has to act in accordance with statutory guidance issued by THE SCOTTISH MINISTERS. This statutory guidance is set out at Chapter B of Annex 3 to this circular.

STRATEGY FOR INSPECTION

3.2 The LOCAL AUTHORITY needs to take a strategic approach to the inspection of its area ( paragraph B.9). All local authorities have set out this approach in a written strategy document, which they are required to keep under periodic review. ( paragraph B.12).

3.3 Taking a strategic approach enables the LOCAL AUTHORITY to identify, in a rational, ordered and efficient manner, the land which merits detailed individual inspection, identifying the most pressing and serious problems first and concentrating resources on the areas where CONTAMINATED LAND is most likely to be found.

3.4 The strategy is also to contain procedures for liaison with other regulatory bodies, which may have information about land contamination problems, and for responding to information and complaints from members of the public, businesses and voluntary organisations ( paragraphs B.16 and B.17). The Scottish Vacant and Derelict Land Survey ( SVDLS) is an example of a data source which may provide information on land which may be contaminated.

INSPECTING LAND

3.5 The LOCAL AUTHORITY may identify a particular area of land where it is possible that a POLLUTANT LINKAGE exists. The authority could do so as a result of:

(a) its own gathering of information as part of its strategy;

(b) receiving information from another regulatory body, such as SEPA; or

(c) receiving information or a complaint from a member of the public, a business or a voluntary organisation.

3.6 Where this is the case, the LOCAL AUTHORITY needs to consider whether to carry out a detailed inspection to determine whether or not the land actually appears to be CONTAMINATED LAND. Normally, the LOCAL AUTHORITY will be interested only in land which is in its area. But if it considers SIGNIFICANT HARM or POLLUTION OF THE WATER ENVIRONMENT might be caused within its area as a result of contamination on land outside its area, it may also inspect that other land ( section 78X(2)).

3.7 The LOCAL AUTHORITY may already have detailed information concerning the condition of the land. This may have been provided, for example, by SEPA or by a person such as the owner of the land. Alternatively, such a person may offer to provide such information within a reasonable and specified time. It may therefore be helpful for the authority to consult the owner of the land and other persons, in order to find out whether information already exists, or could be made available to the authority.

3.8 Where information is already available, or will become available, the LOCAL AUTHORITY needs to consider whether the information provides, or would provide, on the balance of probabilities, a sufficient basis on which it can determine whether or not the land appears to be CONTAMINATED LAND. If the information meets this test, the authority does not need to carry out any further investigation of the land ( paragraph B.23) and will proceed to make a determination on that basis (see paragraph 3.34 below).

3.9 Where the LOCAL AUTHORITY does not have sufficient information, it needs to consider whether to make an inspection of the land including as a first step, the collation and assessment of documentary information or information from other bodies. For this purpose it needs to consider whether:

(a) there is a reasonable possibility that one or more POLLUTANT LINKAGES exists on the land ( paragraph B.22(a)); and

(b) if the land were eventually determined to be CONTAMINATED LAND, whether it would fall to be designated a SPECIAL SITE (see paragraphs 3.13 to 3.17 below).

3.10 If the answer to the first of these questions is "yes", and the second is "no", the LOCAL AUTHORITY needs to authorise an inspection of the land. It has specific powers under section 108 of the Environment Act 1995 to authorise suitable persons to carry out any such investigation. This can involve entering premises, taking samples or carrying out related activities for the purpose of enabling the authority to determine whether any land is CONTAMINATED LAND. In some circumstances, the authorised person can also ask other persons questions, which they are obliged to answer, and make copies of written or electronic records.

3.11 If there is to be an inspection of the land, the LOCAL AUTHORITY needs to consider whether it needs to authorise an intrusive investigation (for example, exploratory excavations) into the land. Under the statutory guidance, the authority should authorise an intrusive investigation only where it considers that it is likely (rather than only "reasonably possible") that a CONTAMINANT and `PATHWAY is actually present and that, given the current use of the land (as defined at paragraph A.26) a RECEPTOR is present or is likely to be present ( paragraph B.22(b)).

3.12 If the answer to both of the questions posed in paragraph 3.9 is yes, the local authority shall seek the advice of SEPA in accordance with section 78C(3) of the Environmental Protection Act 1990. This is only required when inspecting land which, if determined to be contaminated, would be a SPECIAL SITE.

POTENTIAL SPECIAL SITES

3.13 Part IIA creates a particular category of CONTAMINATED LAND called "SPECIAL SITES". For any SPECIAL SITE, SEPA, rather than the LOCAL AUTHORITY, is the ENFORCING AUTHORITY for the purposes of the Part IIA regime.

3.14 The descriptions of the types of land which are required to be designated as SPECIAL SITES are set out in the Regulations ( regulations 2 & 3; see also Annex 4 to this Circular). The procedure for the designation of a SPECIAL SITE is described at paragraphs 18.1 to 18.34 below, along with other procedural issues relating to SPECIAL SITES.

3.15 The actual designation of a SPECIAL SITE cannot take place until the land in question has been formally identified as CONTAMINATED LAND by the LOCAL AUTHORITY. Whilst the determination of whether land is contaminated is the responsibility of the local authority, the LOCAL AUTHORITY should seek advice from SEPA.

3.16 To answer the second of the questions in paragraph 3.9 above, the LOCAL AUTHORITY needs to consider, for any land where the answer to the first question is "yes", whether either:

(a) the land or site is of a type such that it would inevitably be designated a SPECIAL SITE were it identified as CONTAMINATED LAND (for example, because the land has been used at some time for the manufacture or processing of explosives ( regulation 2(1)(c)(ii))); or

(b) the particular POLLUTANT LINKAGE which is being investigated is of a kind which would require the land to be designated a SPECIAL SITE were it found to be a SIGNIFICANT POLLUTANT LINKAGE (for example, where POLLUTION OF THE WATER ENVIRONMENT might stop water for human consumption being regarded as wholesome ( regulation 3(a))).

3.17 Where either of these circumstances applies, section 78C(3) of the Environment Act 1995 states that the LOCAL AUTHORITY should always seek the advice of SEPA before making a decision under section 78C(1)(a). The statutory guidance states that the advice of SEPA should ideally be sought before carrying out a detailed investigation of the land.

INSPECTION USING STATUTORY POWERS OF ENTRY

3.18 If the premises to be inspected are used for residential purposes, or if the inspection will necessitate taking heavy equipment onto the premises, the authorised person needs to give the occupier of the premises at least seven days notice of his proposed entry onto the premises. The authorised person can then enter the premises if he obtains either the consent of the occupier or, if this is not forthcoming, a warrant issued by a sheriff ( section 108(6) and Schedule 18, Environment Act 1995).

3.19 In other cases, consultation with the occupier prior to entry onto the premises may identified and then incorporated into the inspection. In some instances, specific consents or regulatory permissions may be needed for access to, or work on, the site.

3.20 In an EMERGENCY, these powers of entry can be exercised forthwith if this is necessary ( section 108(6)). For these purposes, a case is an EMERGENCY if it appears to the authorised person-

"(a) that there is an immediate risk of serious pollution of the environment or serious harm to human health, or

"(b) that circumstances exist which are likely to endanger life or health "and that immediate entry to any premises is necessary to verify the existence of that risk or those circumstances or to ascertain the cause of that risk or those circumstances or to effect a remedy" ( section 108(15), Environment Act 1995).

3.21 Compensation may be payable by the LOCAL AUTHORITY for any disturbance caused by an INSPECTION USING STATUTORY POWERS OF ENTRY ( paragraph 6 of Schedule 18 of the Environment Act 1995)

OBJECTIVES FOR THE INSPECTION OF LAND

3.22 The primary objective in inspecting land is to enable the LOCAL AUTHORITY to obtain the information needed to decide whether or not the land appears to be CONTAMINATED LAND.

3.23 It is not always necessary for the LOCAL AUTHORITY to produce a complete characterisation of the nature and extent of CONTAMINANTS, PATHWAYS and RECEPTORS on the land, or of other matters relating to the condition of the land. However the authority should seek to identify, in accordance with the statutory guidance set out at Chapters A and B all SIGNIFICANT POLLUTANT LINKAGES, basing its decision on a balance of probabilities. Once any land has been identified as CONTAMINATED LAND, fuller investigation and characterisation of identified SIGNIFICANT POLLUTANT LINKAGES can, if necessary, form part of an ASSESSMENT ACTION required under a REMEDIATION NOTICE or described in a REMEDIATION STATEMENT ( paragraphs C.65 & C.66). The identification of any further SIGNIFICANT POLLUTANT LINKAGES will remain the responsibility of the LOCAL AUTHORITY.

3.24 In some cases, the information obtained from an inspection may lead the LOCAL AUTHORITY to the conclusion that, whilst the land does not appear to be CONTAMINATED LAND on the basis of that information assessed on the balance of probabilities, it is still possible that the land is CONTAMINATED LAND. In cases of this kind, the LOCAL AUTHORITY will need to consider whether to carry out further inspections or pursue other lines of enquiry to enable it either to discount the possibility that the land is CONTAMINATED LAND, or to conclude that the land does appear to be CONTAMINATED LAND. In the absence of any such further inspection or enquiry, the local authority will need to proceed to make its determination on the basis that it cannot be satisfied, on the balance of probabilities, that the land falls within the statutory definition of CONTAMINATED LAND.

3.25 In other cases, an inspection may yield insufficient information to enable the LOCAL AUTHORITY to determine, in the manner described at paragraphs 3.27 to 3.36 below, whether or not the land appears to be CONTAMINATED LAND. In such cases, the LOCAL AUTHORITY will need to consider whether carrying out further inspections (for example, taking more samples) or pursing other lines of enquiry (for example, carrying out or commissioning more detailed scientific analysis of a substance or its properties) would be likely to provide the necessary information. If it is not possible to obtain the necessary information, the LOCAL AUTHORITY will need to proceed to make its determination on the basis that it cannot be satisfied, on the balance of probabilities, that the land falls within the statutory definition of CONTAMINATED LAND.

3.26 A secondary objective in inspecting land is to enable the LOCAL AUTHORITY to identify any CONTAMINATED LAND which is required to be designated as a SPECIAL SITE.

Determining whether Land is Contaminated Land

3.27 Any determination by the LOCAL AUTHORITY that particular land appears to be CONTAMINATED LAND is made on one or more of the following bases, namely that:

(a) SIGNIFICANT HARM is being caused;

(b) there is a SIGNIFICANT POSSIBILITY of such harm being caused;

(c) SIGNIFICANT POLLUTION OF THE WATER ENVIRONMENT is being caused; or

(d) there is a SIGNIFICANT POSSIBILITY of such pollution being caused ( paragraph B.38).

CONSISTENCY WITH OTHER REGULATORY BODIES

3.28 If the LOCAL AUTHORITY is considering whether the land might be CONTAMINATED LAND by virtue of an ECOLOGICAL SYSTEM EFFECT ( Chapter A, Table A), the authority needs to consult Scottish Natural Heritage ( paragraph B.42).

3.29 Similarly, if the LOCAL AUTHORITY is considering whether land might be CONTAMINATED LAND by virtue of POLLUTION OF THE WATER ENVIRONMENT, the authority needs to consult SEPA ( paragraph B.43).

3.30 In either case, this is to ensure that the LOCAL AUTHORITY adopts an approach which is consistent with that adopted by the other regulatory bodies, and benefits from the experience and expertise available within that other body.

3.31 If the land is covered by a waste management site licence, the LOCAL AUTHORITY, in consultation with SEPA, needs to consider, taking into account any information provided by SEPA in its role as the waste regulation authority, whether all of the SIGNIFICANT HARM or SIGNIFICANT POLLUTION OF THE WATER ENVIRONMENT by reason of which the land might be CONTAMINATED LAND is the result of either:

(a) a breach of the conditions of the site licence; or

(b) activities authorised by, and carried on in accordance with the conditions of, the licence.

3.32 If all of the SIGNIFICANT HARM or SIGNIFICANT POLLUTION OF THE WATER ENVIRONMENT falls into either of these categories, the land cannot be identified as CONTAMINATED LAND for the purposes of Part IIA ( section 78YB(2)). Any regulatory action on the land is the responsibility of SEPA, acting as the waste regulation authority in the context of the waste management licensing regime in Part II of the Environmental Protection Act 1990.

3.33 Under other provisions in section 78YB, the land may be identified as CONTAMINATED LAND, but remediation may be enforced under other regimes rather than under Part IIA (see paragraphs 7.2 to 7.11 below).

MAKING THE DETERMINATION

3.34 The LOCAL AUTHORITY needs to carry out an appropriate, scientific and technical assessment of the circumstances of the land, using all of the relevant and available evidence. The authority then determines whether any of the land appears to it to meet the definition of CONTAMINATED LAND set out in section 78A(2). Where the authority has received information or advice given by other regulatory bodies referred to in paragraphs 3.28 to 3.33 above, it must have regard to that information or advice ( paragraphs B.42 and B.43). Chapter B provides statutory guidance on the manner in which the LOCAL AUTHORITY makes this determination ( Chapter B, Part 4). This includes guidance on the physical extent of the land which should be covered by any single determination ( paragraphs B.32 to B.36).

3.35 There may be cases where the presence of one or more contaminants is discovered on land which is undergoing, or is about to undergo, development. Where this occurs, the LOCAL AUTHORITY will need to consider what action is appropriate under both Part IIA and town and country planning legislation (see Annex 1, paragraphs 45 to 50).

3.36 The LOCAL AUTHORITY needs to prepare a written record of any determination that land is CONTAMINATED LAND, providing a summary of the basis on which the land has been identified as such land ( paragraph B.52). This will include information on the specific SIGNIFICANT POLLUTANT LINKAGE, or linkages, found.

Information Arising from the Inspection of Land

3.37 As the LOCAL AUTHORITY inspects its area, it will generate a substantial body of information about the condition of different sites in its area.

3.38 Where land has been identified as being CONTAMINATED LAND, and consequent action taken, the LOCAL AUTHORITY has to include specified details about the condition of the land, and the REMEDIATION ACTIONS carried out on it, in its REGISTER ( section 78R; see section 17 of this Annex and Annex 4, paragraphs 70 to 89). Having this information on the REGISTER makes it readily available to the public and to those with an interest in the land.

3.39 But the LOCAL AUTHORITY may also be asked, for example as part of a "local search" for a property purchase, to provide information about other areas of land which have not been identified as CONTAMINATED LAND. This might include, for example, information on whether the authority had inspected the land and, if so, details of any site investigation reports prepared.

3.40 The Environmental Information Regulations 1992 ( SI 1992/3240 as amended) may apply to any information about land contamination. This means that, depending on the circumstances and the particular information requested, the authority may be obliged to provide the information when requested to do so. However, this is subject to the requirements in the 1992 Regulations relating to commercial confidentiality, national defence and public security.

3.41 Even where land has not been identified as CONTAMINATED LAND, information collected under Part IIA may also be useful for the wider purpose of the LOCAL AUTHORITY and other regulatory bodies, including:

(a) planning and building control functions;

(b) completion by Planning Authorities of the annual SVDLS returns; and

(c) other relevant statutory pollution control regimes (for example, powers to require the removal of illegally-deposited controlled wastes).