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

18 - Procedures Relating to Special Sites

Introduction

18.1 Regulations 2 and 3 of the Contaminated Land (Scotland) Regulations 2000, together with Schedule 1 to those Regulations, prescribe various descriptions of CONTAMINATED LAND which are required to be designated as SPECIAL SITES. An explanation of these descriptions is set out in Annex 4 to this circular.

18.2 The actual designation of any individual site is made by the LOCAL AUTHORITY or, in any case where there is a dispute between the LOCAL AUTHORITY and SEPA, by THE SCOTTISH MINISTERS, on the basis that the land meets one or more of these descriptions.

18.3 The effect of any such designation is that SEPA takes over from the LOCAL AUTHORITY as the ENFORCING AUTHORITY for that site. In carrying out its role as an ENFORCING AUTHORITY, SEPA is subject to the same requirements under the primary and secondary legislation and statutory guidance as would be a LOCAL AUTHORITY.

18.4 From the point of view of the OWNER or occupier of the land, or an APPROPRIATE PERSON, the main procedural difference resulting from a designation will be that any appeal against a REMEDIATION NOTICE will be to THE SCOTTISH MINISTERS and not to the sheriff court.

The Identification of Special Sites

IDENTIFICATION BY THE LOCAL AUTHORITY

18.5 Whenever the LOCAL AUTHORITY has identified any CONTAMINATED LAND, it will need to consider whether that land meets one or more of the descriptions prescribed in the Regulations, and should therefore be designated as a SPECIAL SITE ( section 78C(1)). It will also need to keep this question under review as further information becomes available.

18.6 If the LOCAL AUTHORITY considers, at any time, that some particular CONTAMINATED LAND might be required to be designated as a SPECIAL SITE, it needs to request the advice of SEPA ( section 78C(3)). If the LOCAL AUTHORITY does not consider that the land might be required to be designated, it does not need to consult SEPA

18.7 The LOCAL AUTHORITY then needs to decide, having regard to any such advice received, whether or not the land is required to be designated ( section 78C(3)). If it decides that it is, the authority must give notice in writing to:

(a) SEPA;

(b) the OWNER of the land;

(c) any person who appears to be the occupier of all or part of the land; and

(d) each person who appears to be an APPROPRIATE PERSON ( sections 78C(1)(b & 78C(2)).

18.8 SEPA then needs to consider whether it agrees with the LOCAL AUTHORITY'S decision that the land should be designated.

18.9 If it does not agree, it must notify the LOCAL AUTHORITY within twenty-one days of the LOCAL AUTHORITY'S notification, giving a statement of its reasons for disagreeing ( section 78D(1)(b)). It also needs to copy the notification and statement to THE SCOTTISH MINISTERS ( section 78D(2)). The LOCAL AUTHORITY must then refer its decision to THE SCOTTISH MINISTERS ( section 78D(1)).

18.10 If SEPA agrees with the LOCAL AUTHORITY'S decision, or if it fails to notify its disagreement within the twenty-one days allowed, the CONTAMINATED LAND in question will be designated as a SPECIAL SITE (see paragraphs 18.20 to 18.22 below).

IDENTIFICATION BY SEPA

18.11 SEPA also needs to consider whether any CONTAMINATED LAND should be designated as a SPECIAL SITE. If at any time it considers that any such land should be designated, it needs to notify in writing the LOCAL AUTHORITY in whose area that land is situated ( section 78C(4)).

18.12 SEPA may take this view on the basis of information received from the LOCAL AUTHORITY or information it obtains itself, for example under its other pollution control functions. However, the basis on which it reaches such a decision must be whether or not it considers that the land meets one or more of the descriptions prescribed in the Regulations. SEPA is not entitled to apply any different tests to those which the LOCAL AUTHORITY would apply.

18.13 The LOCAL AUTHORITY must then decide whether or not it agrees with SEPA that the CONTAMINATED LAND should be designated a SPECIAL SITE. Once it has reached a decision it must notify in writing the persons identified in paragraph 18.7 above of its decision ( section 78C(5)).

18.14 If the LOCAL AUTHORITY agrees with SEPA, the land is designated a SPECIAL SITE (see paragraphs 18.20 to 18.22 below).

18.15 If the LOCAL AUTHORITY disagrees with SEPA, the Agency has an opportunity to reaffirm its view that the land should be designated. If it wishes to do this, it must notify the LOCAL AUTHORITY, in writing, within twenty-one days of receiving from the LOCAL AUTHORITY notification of its decision. The Agency must provide a statement of the reasons why it considers the land should be designated ( section 78D(1)(b)) and send this information to THE SCOTTISH MINISTERS ( section 78D(2)). The LOCAL AUTHORITY must then refer its decision to THE SCOTTISH MINISTERS ( section 78D(1)).

REFERRAL OF DECISIONS TO THE SCOTTISH MINISTERS

18.16 If the LOCAL AUTHORITY receives any notification from SEPA that the Agency disagrees with a decision it has made concerning the designation or non-designation of any CONTAMINATED LAND as a SPECIAL SITE, the LOCAL AUTHORITY must refer that decision to THE SCOTTISH MINISTERS.

18.17 In doing so, the LOCAL AUTHORITY must send THE SCOTTISH MINISTERS a statement setting out the reasons why it reached its decision ( section 78D(1)). It must also notify in writing the persons identified in paragraph 18.7 above of the fact that it has referred its decision to THE SCOTTISH MINISTERS ( section 78D(3))

18.18 THE SCOTTISH MINISTERS then decide whether they considers that all, or part, of the CONTAMINATED LAND in question meets one or more of the descriptions prescribed in the Regulations as being required to be designated a SPECIAL SITE. If they decide that some land should be designated, then it is so designated ( section 78D(4)(a)).

18.19 THE SCOTTISH MINISTERS are under a duty to notify in writing the LOCAL AUTHORITY and the persons identified in paragraph 18.7 above of their decision ( section 78D(4)(b)).

THE ACTUAL DESIGNATION AS A SPECIAL SITE

18.20 In any case where the LOCAL AUTHORITY'S decision that land should be designated a SPECIAL SITE has not been referred to THE SCOTTISH MINISTERS, the notification it gives of that decision takes effect as the designation on the following basis:

(a) if SEPA notifies the LOCAL AUTHORITY that it agrees with its decision, the designation takes effect on the day after that notification; or

(b) if no such notification is given, the designation takes effect on the day after a period of twenty-one days has elapsed since the LOCAL AUTHORITY notified SEPA of its original decision ( section 78C(6)).

18.21 Where a designation takes effect in this way, the LOCAL AUTHORITY must notify in writing the same categories of person as it notified of its original decision ( section 78C(6)). It must also enter the relevant particulars on its REGISTER ( section 78R(1)(e); see paragraphs 17.1 to 17.19 above).

18.22 In any case where a decision has been referred to THE SCOTTISH MINISTERS, and they decide that some CONTAMINATED LAND should be designated a SPECIAL SITE, the notice they give of this decision to the LOCAL AUTHORITY and the persons identified in paragraph 18.7 above serves as the actual designation. The designation takes effect on the day after they give the notification ( sections 78D(5) & (6)). The LOCAL AUTHORITY and SEPA must enter the relevant particulars of THE SCOTTISH MINISTERS' notification onto their respective REGISTERS (see paragraphs 17.1 to 17.19 above).

Remediation of Special Sites

18.23 In general, the procedures relating to the REMEDIATION of a SPECIAL SITE are the same as for any other CONTAMINATED LAND, with the exception that SEPA is the ENFORCING AUTHORITY, rather than the LOCAL AUTHORITY. In particular, SEPA is required to have regard to the statutory guidance on remediation ( Chapter C) and the recovery of costs ( Chapter E), and to act in accordance with the statutory guidance on EXCLUSIONS from, and APPORTIONMENT of, liability ( Chapter D).

18.24 In some cases the designation of a SPECIAL SITE may be made after a REMEDIATION NOTICE has been served or after the LOCAL AUTHORITY has started carrying out REMEDIATION itself.

18.25 If a REMEDIATION NOTICE has already been served, SEPA needs to decide whether or not to adopt the existing REMEDIATION NOTICE ( section 78Q(1)). For example, it may consider that:

(a) the REMEDIATION ACTIONS specified in the existing notice are still appropriate;

(b) those REMEDIATION ACTIONS should not be carried out; or

(c) additional, or alternative, REMEDIATION ACTIONS should be carried out.

18.26 If SEPA decides to adopt the REMEDIATION NOTICE, it must notify in writing the LOCAL AUTHORITY which originally served the notice, and the person or persons on whom the notice was served ( section 78Q(1)(a)). The notice then has effect as if it had been given by the Agency ( section 78Q(1)(b)). It is also good practice to send a copy of such a notification to anyone else to whom a copy of the original REMEDIATION NOTICE was sent ( regulation 5).

18.27 The adoption of a REMEDIATION NOTICE by SEPA means that the Agency has the power to enforce it, bringing a prosecution and carrying out the REMEDIATION itself if the notice is not complied with.

18.28 If SEPA does not adopt a REMEDIATION NOTICE, that notice ceases to have effect, and the person on whom it was served is no longer obliged to comply with its requirements. But SEPA then needs to decide whether it is required to serve a further REMEDIATION NOTICE. In doing so, it must consult in the same manner as would a LOCAL AUTHORITY for any CONTAMINATED LAND which is not a SPECIAL SITE. Except where urgency is involved, SEPA is prevented from serving any REMEDIATION NOTICE until three months have elapsed since the LOCAL AUTHORITY, or THE SCOTTISH MINISTERS, gave notification that the land was designated a SPECIAL SITE ( sections 78H(3)(b) & (c)).

18.29 In any case where SEPA does not adopt a REMEDIATION NOTICE, it is good practice for the Agency to notify the LOCAL AUTHORITY which originally served the notice, any person on whom the notice was served and anyone else to whom a copy of the notice was sent.

18.30 If the LOCAL AUTHORITY has begun to carry out any REMEDIATION itself before the land is designated a SPECIAL SITE, the LOCAL AUTHORITY needs to decide whether to continue carrying out that REMEDIATION ( section 78Q(2)(a)). Whatever it decides, it is entitled to recover the reasonable costs it incurs, or has already incurred, in carrying out the REMEDIATION, even though it is no longer the ENFORCING AUTHORITY ( section 78Q(2)(b)).

18.31 As an ENFORCING AUTHORITY, SEPA is under a duty to maintain a REGISTER ( section 78R(1)), with an entry for each SPECIAL SITE. Each time it enters any particulars onto its REGISTER, SEPA must send a copy of those particulars to the LOCAL AUTHORITY in whose area the land is situated ( section 78R(4); see paragraphs 17.4 to 17.6 above). The LOCAL AUTHORITY then must enter those particulars onto its own REGISTER ( section 78R(6)).

Termination of a Designation

18.32 SEPA can inspect the SPECIAL SITE from time to time, in order to keep its condition under review ( section 78Q(3)). In particular, SEPA needs to consider whether the land still meets one or more of the descriptions of land prescribed in the Regulations.

18.33 If it decides that the land no longer meets one or more of those descriptions, it must also decide whether it wishes to terminate that land's designation as a SPECIAL SITE. It is not obliged to terminate the designation as soon as the land ceases to meet any of the descriptions of land prescribed in the Regulations ( section 78Q(4)). It may choose, for example, to wait until REMEDIATION has been completed on the land.

18.34 If SEPA decides to terminate any designation, it must notify in writing THE SCOTTISH MINISTERS and the LOCAL AUTHORITY in whose area the land is situated. The termination takes effect from whatever date is specified by SEPA ( section 78Q(4)). Both SEPA and the LOCAL AUTHORITY then need to enter particulars of this notification onto their respective REGISTERS ( section 78R(1)(g)). It is also good practice to notify everyone else who was notified of the original designation of the land as a SPECIAL SITE (see paragraph 18.7 above).