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

4 - Identifying and Notifying Those Who May Need to Take Action

Notification of the Identification of Contaminated Land

IDENTIFICATION OF INTERESTED PERSONS

4.1 For any piece of land identified as being CONTAMINATED LAND, the LOCAL AUTHORITY needs to establish:

(a) who is the OWNER of the land ( defined in section 78A(9));

(b) who appears to be in occupation of all or part of the land; and

(c) who appears to be an APPROPRIATE PERSON to bear responsibility for any REMEDIATION ACTION which might be necessary ( defined in section 78F; see paragraphs 9.3 to 9.20 below).

4.2 At this early stage, the LOCAL AUTHORITY may not be able to establish with certainty who falls into each of these categories, particularly the last of them. As it obtains further information, the authority needs to reconsider these questions. It needs to act, however, on the basis of the best information available to it at any particular time.

THE NOTIFICATION

4.3 The LOCAL AUTHORITY needs to notify, in writing, the persons set out in paragraph 4.1 above, as well as SEPA, of the fact that the land has been identified as being CONTAMINATED LAND ( section 78B(3)). The notice given to any of these persons will inform them of the capacity - for example, OWNER or APPROPRIATE PERSON - in which they have been sent it.

4.4 The LOCAL AUTHORITY may, at any subsequent time, identify some other person who appears to be an APPROPRIATE PERSON, either as well as or instead of those previously identified. Where this happens, the relevant authority needs to notify that person that he appears to be an APPROPRIATE PERSON with respect to land which has been identified as CONTAMINATED LAND ( section 78B(4)). process of consultation on what REMEDIATION might be appropriate. The LOCAL AUTHORITY may therefore wish to consider whether to provide any additional information to the recipients of the notification, in order to facilitate this consultation. The following categories of information may be useful for these purposes:

(a) a copy of the written record of the determination made by the authority that the land appears to be CONTAMINATED LAND ( paragraph B.52);

(b) information on the availability of site investigation reports, with copies of the full reports being available on request;

(c) an indication of the reason why particular persons appear to the authority to be APPROPRIATE PERSONS; and

(d) the names and addresses of other persons notified at the same time or previously, indicating the capacity in which they were notified (eg as OWNER or as APPROPRIATE PERSON).

4.6 The authority will also need to inform each APPROPRIATE PERSON about the tests for EXCLUSION from, and APPORTIONMENT of, liabilities set out in the statutory guidance in Chapter D ( paragraph D.33). This will enable those persons to know what information they might wish to provide the authority, in order to make a case for their EXCLUSION from liability, or for a particular APPORTIONMENT of liability.

4.7 The notification to SEPA enables the Agency to decide whether:

(a) it considers that the land should be designated a SPECIAL SITE, on the basis that it falls within one or more of the relevant descriptions ( regulations 2 and 3; see also paragraphs 7 to 15 of Annex 4);

(b) it wishes to issue site-specific guidance to the LOCAL AUTHORITY, ( section 78V; see paragraphs 6.8 to 6.9 below); or

(c) it requires further information from the LOCAL AUTHORITY about the land, in order for SEPA to prepare its national report ( section 78U).

4.8 If SEPA requires any further information from the LOCAL AUTHORITY, it should request this in writing. The LOCAL AUTHORITY should provide such information as it has, or can "reasonably be expected to obtain" ( sections 78U(3) & 78V(3)).

Identifying Possible Special Sites

4.9 Having identified any CONTAMINATED LAND, the LOCAL AUTHORITY needs to consider whether the land also meets any of the descriptions which would require it to be designated as a SPECIAL SITE. These descriptions are prescribed in the Contaminated Land (Scotland) Regulations 2000 ( regulations 2 & 3; see also paragraphs 7 to 15 of Annex 4). If the LOCAL AUTHORITY concludes that it should designate any land, it will need to notify SEPA.

4.10 The authority needs to reconsider this question whenever it obtains further relevant information about the land, for example after the carrying out of any ASSESSMENT ACTION under the terms of a REMEDIATION NOTICE.

4.11 A description of the procedures for the designation of a SPECIAL SITE, and the implications of any such designation, are set out in paragraphs 18.1 to 18.34 below.

Role of the Enforcing Authority

4.12 After the LOCAL AUTHORITY has identified any SIGNIFICANT POLLUTANT LINKAGE, thus determined that the land is CONTAMINATED LAND and then carried out the necessary notifications, it is for the ENFORCING AUTHORITY (that is, SEPA for any SPECIAL SITE and the LOCAL AUTHORITY for any other site) to take further action.