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

8 - Remediation Taking Place without the Service of a Remediation Notice

8.1 Having identified the appropriate REMEDIATION SCHEME for the RELEVANT LAND OR WATERS, the ENFORCING AUTHORITY needs to consider whether that REMEDIATION is being or will be, carried out without any REMEDIATION NOTICE being served.

8.2 This might be the case, in particular, where:

(a) the APPROPRIATE PERSON, or some other person, already plans, or undertakes during the consultation process, to carry out particular REMEDIATION ACTIONS (see paragraphs 8.3 to 8.8 below); or

(b) REMEDIATION with an equivalent effect is taking, or will take, place as a result of enforcement action under other powers (see paragraphs 8.9 to 8.17 below).

AGREED REMEDIATION

8.3 The ENFORCING AUTHORITY may be informed, before or during the course of consultation on REMEDIATION requirements, that the APPROPRIATE PERSON or some other person already intends, or now intends, to carry out particular REMEDIATION ACTIONS on a voluntary basis.

8.4 This may apply, in particular, where:

(a) the OWNER of the land has a programme for carrying out REMEDIATION on a number of different areas of land for which he is responsible which aims to tackle those cases in order of environmental priority;

(b) the land is already subject to development proposals;

(c) the APPROPRIATE PERSON brings forward proposals to develop the land in order to fund necessary REMEDIATION; or

(d) the APPROPRIATE PERSON wishes to avoid being served with a REMEDIATION NOTICE.

8.5 Where a development of CONTAMINATED LAND is proposed, an ENFORCING AUTHORITY which is the planning authority will need to consider what steps it needs to take under town and country planning legislation to ensure that appropriate REMEDIATION ACTIONS are included in the development proposals and that these will ensure that contamination is properly dealt with in terms of its proposed use. (Where the enforcing authority is not the planning authority, the two authorities will need to consult.)

8.6 In all cases, the ENFORCING AUTHORITY needs to consider the standard of REMEDIATION which would be achieved by the proposed REMEDIATION ACTIONS. If it is satisfied that they would achieve an appropriate standard of REMEDIATION:

(a) it is precluded from serving any REMEDIATION NOTICE ( section 78H(5)(b)); and

(b) the person who is carrying out, or will carry out, the REMEDIATION is require to prepare and publish a REMEDIATION STATEMENT ( sections 78H(7) & 78H(8)(a); see paragraphs 8.18 to 8.22 below).

8.7 Even if the ENFORCING AUTHORITY is not satisfied that an appropriate standard of REMEDIATION would be achieved by the REMEDIATION ACTIONS originally proposed, it may be able to persuade the person who made the proposals to bring forward a revised and satisfactory REMEDIATION SCHEME.

8.8 If this is not possible, the ENFORCING AUTHORITY'S duty to serve a REMEDIATION NOTICE may apply ( section 78E(1); see paragraphs 12.1 to 12.9 below).

ENFORCEMENT ACTION UNDER OTHER POWERS

8.9 Enforcement action under other regulatory powers may already be underway, or could be taken, which would bring about the REMEDIATION of the RELEVANT LAND OR WATERS.

8.10 REMEDIATION under Part IIA cannot overlap with enforcement action under section 27 (Integrated Pollution Control and Local Air Pollution Control) or section 59 (waste management licensing); see paragraphs 7.2 to 7.11 above. However, there may be potential overlaps with the applicability of other regimes.

8.11 The ENFORCING AUTHORITY needs to consider whether enforcement could be taken under any other powers, and liaise with the relevant regulatory bodies to find out if it is already in progress or is planned.

8.12 If such enforcement action is in progress, or is planned, the ENFORCING AUTHORITY needs to consider the standard of REMEDIATION which would be achieved as a result of that enforcement action.

8.13 If the ENFORCING AUTHORITY is satisfied that the enforcement action would result in the achievement of an appropriate standard of REMEDIATION:

(a) it is precluded from serving any REMEDIATION NOTICE ( section 78H(5)(b)); and

(b) the person who is carrying out, or will carry out, the action is required to prepare and publish a REMEDIATION STATEMENT ( sections 78H(7) & 78H(8)(a); see paragraphs 8.18 to 8.22 below).

8.14 If the authority considers that enforcement action could be taken under other powers, but it is not in progress, the authority should liaise with the relevant regulatory body, seeking to ensure that the most appropriate regulatory powers are used.

8.15 The ENFORCING AUTHORITY is required to enter details of the use of these other regulatory powers onto its REGISTER ( Schedule 3, paragraphs 14 & 15, Contaminated Land (Scotland) Regulations 2000; see Annex 4, paragraphs 82 and 83).

8.16 The authority's duty to serve a REMEDIATION NOTICE ( section 78E(1); see paragraphs 12.1 to 12.9 below) may apply where either:

(a) enforcement action is not being taken under other powers, and none is intended; or

(b) the enforcement action under those other powers would not achieve an appropriate standard of REMEDIATION for all of the SIGNIFICANT POLLUTANT LINKAGES identified.

8.17 There is a potential for overlap between Part IIA and regulations 28 and 29 of the Water Environment (Controlled Activities) (Scotland) Regulations 2005 (the 2005 Regulations). Where an incidence of actual, or potential, water pollution falls within the remit of both regimes, ENFORCING AUTHORITIES should not serve a remediation notice under Part IIA where the land in question is contaminated as a result of an activity to which the 2005 regulations apply and enforcement action may be taken in relation to that activity.

REMEDIATION STATEMENTS

8.18 In any case where no REMEDIATION NOTICE may be served because appropriate AGREED REMEDIATION is taking place, or will take place without any such notice being served, the person responsible for the remediation is required to prepare and publish a REMEDIATION STATEMENT ( sections 78H(7) & 78H(8)(a)).

8.19 Section 78H(7) requires the following information to be recorded in a REMEDIATION STATEMENT:

"(a) the things which are being, have been, or are expected to be, done by way of REMEDIATION in the particular case;

"(b) the name and address of the person who is doing, has done, or is expected to do, each of those things; and

"(c) the periods within which each of those things is being, or is expected to be done".

8.20 The ENFORCING AUTHORITY is required to enter details of the REMEDIATION STATEMENT onto its REGISTER ( section 78R(1)(c); see paragraphs 17.1 to 17.19 below and Annex 4, paragraph 79).

8.21 If the person who is required to prepare and publish the REMEDIATION STATEMENT fails to do so, the ENFORCING AUTHORITY has powers to do so itself. This applies after a reasonable time has elapsed since the date on which the authority could have served a REMEDIATION NOTICE, but for the fact that appropriate REMEDIATION was taking place, or was like to place, without the service of a notice ( section 78H(9)).

8.22 In any case of this kind, the ENFORCING AUTHORITY needs to consider whether it should prepare and publish a REMEDIATION STATEMENT itself for inclusion on its REGISTER. If it does so, it is entitled to recover any reasonable costs it incurs from the person who should have prepared and published the statement ( section 78H(9)).

REVIEWING CIRCUMSTANCES

8.23 The ENFORCING AUTHORITY needs to keep under review the REMEDIATION which is actually carried out on the RELEVANT LAND OR WATERS, as well as the question of whether any additional REMEDIATION is necessary. If, at any time, it ceases to be satisfied that appropriate REMEDIATION has been, is being, or will be, carried out it may need to serve a REMEDIATION NOTICE.

8.24 The authority may cease to be satisfied if, in particular:

(a) there has been, or is likely to be, a failure to carry out the REMEDIATION ACTIONS described in the REMEDIATION STATEMENT, or a failure to do so within the times specified; or

(b) further REMEDIATION ACTIONS now appear necessary in order to achieve the appropriate standard of REMEDIATION for the RELEVANT LAND OR WATERS.

8.25 If any of the REMEDIATION ACTIONS described in the REMEDIATION STATEMENT are not being carried out, the ENFORCING AUTHORITY needs to consider whether:

(a) the REMEDIATION ACTIONS in question still appear to be necessary in order to achieve an appropriate standard of REMEDIATION; and

(b) they are still "reasonable" for the purposes of section 78E(4).

8.26 If both of these apply, and the ENFORCING AUTHORITY is not precluded from serving a REMEDIATION NOTICE for any other reason, the authority will be under a duty to serve a REMEDIATION NOTICE, specifying the REMEDIATION ACTIONS in question. It may do this without any additional consultation, if the person on whom the notice would be served has already been consulted about those actions ( section 78H(10)).

8.27 Even if the REMEDIATION ACTIONS described in the REMEDIATION STATEMENT are being carried out as planned, the ENFORCING AUTHORITY may consider that additional REMEDIATION is necessary. This may apply, in particular, where:

(a) the REMEDIATION was intended to be phased, and further REMEDIATION ACTIONS can now be identified as being necessary; or

(b) further SIGNIFICANT POLLUTANT LINKAGES are identified, or linkages which have already been identified are discovered to be more serious than previously thought.

8.28 Where it identifies further REMEDIATION as necessary, the ENFORCING AUTHORITY needs to consider how to ensure that the necessary REMEDIATION ACTIONS are carried out. This involves repeating the procedures set out above relating to consultation, and considering whether the additional REMEDIATION will be carried out without a REMEDIATION NOTICE being served. The authority cannot, for example, serve a REMEDIATION NOTICE specifying any additional REMEDIATION ACTIONS unless the person receiving the notice has been consulted on its contents (except in cases of urgency; see paragraphs 5.1 to 5.4 above).