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

6 - Identifying Appropriate Remediation Requirements

Introduction

6.1 Where any land has been identified as being CONTAMINATED LAND, the ENFORCING AUTHORITY has a duty to require appropriate REMEDIATION. The statutory guidance in Chapter C of Annex 3 to this circular sets out the standard to which any land or waters should be remediated.

6.2 For the purposes of Part IIA, the term REMEDIATION has a wider meaning than it has under its common usage ( section 78A(7)). It includes ASSESSMENT ACTION, REMEDIAL TREATMENT ACTION and MONITORING ACTION ( paragraphs C.7 and C.8). Part 7 of the statutory guidance at Chapter C of Annex 3 identifies circumstances in which action falling within each of these three categories may be appropriate.

6.3 In relation to any particular piece of CONTAMINATED LAND, it may be necessary to carry out more than one thing by way of REMEDIATION. To describe the various things which may need to be done, the statutory guidance uses the following terms:

(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 all the REMEDIATION ACTIONS, within a REMEDIATION SCHEME, which are referable to a particular SIGNIFICANT POLLUTANT LINKAGE; and

(c) a "REMEDIATION SCHEME" is the complete 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 WATER ENVIRONMENT.

PHASED REMEDIATION

6.4 The overall process of REMEDIATION may well be phased, with different REMEDIATION ACTIONS being required at different times. For example, ASSESSMENT ACTION may be needed in order to establish what REMEDIAL TREATMENT ACTION would be effective. Once the results of that ASSESSMENT ACTION are known, the REMEDIAL TREATMENT ACTION itself might then be carried out, with MONITORING ACTIONS being needed to ensure that it has been effective. In another case, there might be a need for different REMEDIAL TREATMENT ACTIONS to be carried out in sequence.

6.5 Wherever the complete REMEDIATION SCHEME cannot be specified in a single REMEDIATION NOTICE or REMEDIATION STATEMENT, and needs to be phased, the process of consulting and determining what particular REMEDIATION ACTIONS are required needs to be repeated for each such notice or statement.

AGREED REMEDIATION

6.6 It is the Scottish Executive's intention that, wherever practicable, REMEDIATION should proceed by agreement rather than by formal action by the ENFORCING AUTHORITY. In this context, the authority and the person who will carry out the REMEDIATION may identify by mutual agreement the particular REMEDIATION ACTIONS which would achieve REMEDIATION to the necessary standard (see paragraphs 6.33 to 6.35 below). The REMEDIATION may be carried out without a REMEDIATION NOTICE being served, but with the agreed REMEDIATION ACTIONS being described in a published REMEDIATION STATEMENT (see paragraphs 8.1 to 8.28 below).

6.7 However, where appropriate REMEDIATION is not being carried out, or where agreement cannot be reached on the REMEDIATION ACTIONS required, the authority has a duty to serve a REMEDIATION NOTICE. Any such notice must specify particular REMEDIATION ACTIONS to be carried out and the times within which they must be carried out ( section 78E(1)).

Site-Specific Guidance from SEPA

6.8 SEPA has the power to provide site-specific guidance to the LOCAL AUTHORITY where that LOCAL AUTHORITY is the ENFORCING AUTHORITY for any CONTAMINATED LAND ( section 78V(1)). It may choose to do so, in particular, where either:

(a) it has particular technical expertise available, for example derived from its other pollution control functions; or

(b) the manner in which the REMEDIATION might be carried out could affect its responsibilities for protecting the water environment; or (c) it wishes to provide notice of licences in force at the site.

6.9 In any case where such guidance is given, the LOCAL AUTHORITY has to have regard to it when deciding what REMEDIATION is required ( section 78V(1)).

Consultation

REMEDIATION REQUIREMENTS

6.10 Before the ENFORCING AUTHORITY serves any REMEDIATION NOTICE it will, in general, need to make reasonable endeavours to consult the following persons with an interest in the CONTAMINATED LAND, or in the REMEDIATION ( section 78H(1)):

(a) the person on whom the notice is to be served ( i.e. the APPROPRIATE PERSON);

(b) the OWNER of the land to which the notice would relate; and

(c) any other person who appears to the authority to be in occupation of the whole, or any part of, the land.

6.11 This means that any recipient of a REMEDIATION NOTICE is consulted before the notice is served, at a minimum about the details of what he is being required to do, and the time within which he must do it. However, consultation is not a requirement in cases of urgency (see paragraph 5.4 above).

6.12 In addition to the consultation directly required by section 78H(1), the ENFORCING AUTHORITY is likely to find a wider process of discussion and consultation useful. This could cover, for example:

(a) whether the land should, in fact, be identified as CONTAMINATED LAND; this question might be re-visited, for example, in cases where the land OWNER, or the APPROPRIATE PERSON, had additional sampling information;

(b) what would need to be achieved by the REMEDIATION, in terms of the reduction of the possibility of SIGNIFICANT HARM being caused, or of the likelihood of SIGNIFICANT POLLUTION OF THE WATER ENVIRONMENT, and in terms of the remedying of any effects of that harm or pollution; and

(c) what particular REMEDIATION ACTIONS would achieve that REMEDIATION.

6.13 This wider process of discussion may also help:

(a) to identify opportunities for agreed REMEDIATION which can be carried out without the service of a REMEDIATION NOTICE; and

(b) where a REMEDIATION NOTICE is served, to resolve as many disagreements as possible before the service of the notice, thus limiting the scope of any appea l against the notice under section 78L.

GRANTING OF RIGHTS

6.14 The ENFORCING AUTHORITY also needs to consult on the rights which may need to be granted to the recipient of any REMEDIATION NOTICE to entitle him to carry out the REMEDIATION. For example, where the APPROPRIATE PERSON does not own the CONTAMINATED LAND, he may need the consent of the OWNER of the land to enter it. Under section 78G(2), any person whose consent is required has to grant, or join in granting, the necessary rights. He is then entitled to compensation ( section 78G & regulation 6; see paragraphs 21 to 38 of Annex 4).

6.15 Except in cases of urgency (see paragraph 5.4 above), the ENFORCING AUTHORITY needs to consult:

(a) the owner or occupier of any of the RELEVANT LAND OR WATERS; and

(b) any other person who might have to grant, or join in granting, any rights to the recipient of a REMEDIATION NOTICE ( section 78G(3)).

LIABILITIES

6.16 If there are two or more APPROPRIATE PERSONS, the ENFORCING AUTHORITY should make reasonable endeavours to consult each of those persons on any EXCLUSION from, or APPORTIONMENT of, liability ( paragraph D.36). This allows anyone who might be affected to provide the information on which an EXCLUSION or APPORTIONMENT can be based. In addition to information provided by the APPROPRIATE PERSONS, the authority needs to seek its own information, where this is reasonable ( paragraph D.36).

6.17 The ENFORCING AUTHORITY may also find it useful to discuss wider questions relating to liabilities with those whom it has identified as being APPROPRIATE PERSONS. For example, they may be able to identify other persons who ought to be identified as APPROPRIATE PERSONS, either in addition or instead.

Identifying an Appropriate Remediation Scheme

6.18 The ENFORCING AUTHORITY will specify the standard of REMEDIATION, which may include the REMEDIAL TREATMENT ACTION or actions which, taken together, will ensure that the RELEVANT LAND OR WATER ENVIRONMENT is remediated to the necessary standard ( Chapter C, Part 3). In many cases, the particular REMEDIATION ACTIONS to be carried out will be identified by mutual agreement between the authority and the persons who will carry them out.

6.19 Where the authority is identifying the actions itself, it is specifically required to ensure that they are "reasonable", having regard to the cost which is likely to be involved and the seriousness of the HARM or of the POLLUTION OF THE WATER ENVIRONMENT in question ( section 78E(4)). The authority needs to assess, in particular, the costs involved as against the benefits arising from the REMEDIATION ( paragraph C.30; but see also paragraph 6.34 below).

6.20 It may be necessary for ASSESSMENT ACTIONS to be carried out before the appropriate REMEDIAL TREATMENT ACTION or actions can be identified ( paragraph C.65). Where this is the case, the first step will be to identify the appropriate ASSESSMENT ACTION or actions. Once that ASSESSMENT ACTION has been carried out, it will be necessary to complete the identification of the remaining stages of the REMEDIATION SCHEME, identifying appropriate REMEDIAL TREATMENT ACTIONS in the light of the information obtained. This may require a sequence of REMEDIATION STATEMENTS or REMEDIATION NOTICES.

6.21 Throughout the process of identifying the appropriate REMEDIATION SCHEME, the ENFORCING AUTHORITY needs to keep under review whether there is a need for urgent REMEDIATION to be carried out (see section 5 of this Annex).

A SINGLE SIGNIFICANT POLLUTANT LINKAGE

6.22 Local authorities are required to identify all pollutant linkages, to avoid land remaining as contaminated after only one linkage has been addressed. Where only a single SIGNIFICANT POLLUTANT LINKAGE has been identified on the CONTAMINATED LAND, the ENFORCING AUTHORITY, in conjunction with those it is consulting, needs to consider what is needed, with respect to that linkage, to:

(a) prevent, or reduce the likelihood of, the occurrence of any SIGNIFICANT HARM or SIGNIFICANT POLLUTION OF THE WATER ENVIRONMENT; and

(b) remedy, or mitigate, the effect of any such harm or pollution of the water environment which has been, or might be, caused.

6.23 The ENFORCING AUTHORITY then needs to identify the REMEDIATION PACKAGE which would represent the BEST PRACTICABLE TECHNIQUES of REMEDIATION for that SIGNIFICANT POLLUTANT LINKAGE. Such techniques will include appropriate measures to provide quality assurance and to verify what has been done.

6.24 The assessment of what represents such BEST PRACTICABLE TECHNIQUES is made in terms of:

(a) the extent to which the REMEDIATION PACKAGE would achieve the objectives identified in paragraph 6.22 above ( Part 4 of Chapter C);

(b) whether the package, and the individual REMEDIATION ACTIONS concerned would be reasonable, having regard to their cost and to the seriousness of the HARM or of the SIGNIFICANT POLLUTION OF THE WATER ENVIRONMENT to which they relate ( Part 5 of Chapter C); and (c) whether the package represents the best combination of practicability, effectiveness and durability ( Part 6 of Chapter C).

6.25 Any such REMEDIATION PACKAGE needs to include measures to achieve quality assurance and verification. Such measures should form part of the remedial treatment action and be distinct from any subsequent MONITORING ACTIONS (paragraphs C.67 and C.68).

MORE THAN ONE SIGNIFICANT POLLUTANT LINKAGE

6.26 If more than one SIGNIFICANT POLLUTANT LINKAGE has been identified, the REMEDIATION will have to deal with the SIGNIFICANT HARM or the SIGNIFICANT POLLUTION OF THE WATER ENVIRONMENT resulting from, or threatened by, each of those linkages. However, it may be neither practicable nor efficient simply to consider the REMEDIATION needed with respect to each linkage separately. There may, for example, be cost savings which can be achieved by carrying out particular REMEDIATION ACTIONS which deal with more than one SIGNIFICANT POLLUTANT LINKAGE. In other cases, if the separate REMEDIATION PACKAGES for each of the SIGNIFICANT POLLUTANT LINKAGES were carried out independently, the individual REMEDIATION ACTIONS might conflict or overlap.

6.27 The ENFORCING AUTHORITY therefore needs to try to identify a REMEDIATION SCHEME which deals with the RELEVANT LAND OR WATER ENVIRONMENT as a whole, avoids conflict or overlap between the REMEDIATION needed for the various SIGNIFICANT POLLUTANT LINKAGES, and does not involve unnecessary expense ( paragraph C.27). This may result in a REMEDIATION ACTION which replaces, or subsumes, what would otherwise be several separate REMEDIATION ACTIONS in different REMEDIATION PACKAGES.

6.28 The first step in this process is for the ENFORCING AUTHORITY to assess the standard of REMEDIATION to be achieved by the REMEDIATION SCHEME with respect to each SIGNIFICANT POLLUTANT LINKAGE.

6.29 In doing this, the ENFORCING AUTHORITY needs to identify, for each SIGNIFICANT POLLUTANT LINKAGE, the extent to which the relevant SIGNIFICANT HARM or SIGNIFICANT POLLUTION OF THE WATER ENVIRONMENT should be reduced, and its effects mitigated. The standard for this reduction or mitigation is set by reference to what would be achieved by the BEST PRACTICABLE TECHNIQUES of REMEDIATION for that linkage, if it were the only linkage required to be remediated ( paragraphs C.18 and C.26). In making this assessment, however, the authority works on the basis of REMEDIATION which could actually be carried out, given the wider circumstances of the land or waters, including the presence of other POLLUTANTS. In other words, in considering what might be achieved in relation to any particular SIGNIFICANT POLLUTANT LINKAGE, the ENFORCING AUTHORITY cannot ignore practical limitations on what might be done that are imposed by other problems on the same site.

Assessing Remediation Schemes Proposed by Others

6.30 In general, the ENFORCING AUTHORITY needs to adopt a similar approach when it is assessing a REMEDIATION SCHEME proposed by the APPROPRIATE PERSON, the land OWNER or any other person to that which it adopts when itself identifying an appropriate REMEDIATION SCHEME ( paragraph C.3(b)). In deciding whether it is satisfied that such a scheme would be appropriate and sufficient, it needs to consider whether that scheme would achieve a standard of REMEDIATION equivalent to that which would be achieved by the use of the BEST PRACTICABLE TECHNIQUES of REMEDIATION for each SIGNIFICANT POLLUTANT LINKAGE ( paragraph C.28)

6.31 However, the ENFORCING AUTHORITY does not always need to consider whether the proposed scheme would, of itself, be "reasonable" in the sense required by section 78E(4) (ie. having regard to the cost likely to be involved and the seriousness of the particular harm or water pollution). This is because the person proposing the scheme may wish to carry out REMEDIATION on a wider basis than could be required under the terms of a REMEDIATION NOTICE. For example, the proposed scheme may include works to deal with matters which do not form SIGNIFICANT POLLUTANT LINKAGES, or may involve a more expensive approach to REMEDIATION, or may relate to a proposed future use rather than current use.

6.32 Where an acceptable REMEDIATION SCHEME is proposed by others, and that scheme is likely to proceed without the service of a REMEDIATION NOTICE, no such notice needs to be served. In such cases, the procedure set out in section 8 of this Annex will apply. The person who is carrying out, or will carry out, the REMEDIATION SCHEME is required to prepare and publish a REMEDIATION STATEMENT ( sections 78H(7) and 78H(8)(a); see paragraphs 8.18 to 8.22 below).