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

1

Human beings

Death, disease, serious injury, genetic mutation, birth defects or the impairment of reproductive functions.

For these purposes, disease is to be taken to mean an unhealthy condition of the body or a part of it and can include, for example, cancer, liver dysfunction or extensive skin ailments. Mental dysfunction is included only insofar as it is attributable to the effects of a pollutant on the body of the person concerned.

In this Chapter, this description of significant harm is referred to as a "human health effect".

2

Any ecological system, or living organism forming part of such a system, within a location which is:

• an area notified as an area of special scientific interest (commonly called a Site of Special Scientific Interest - SSSI) under section 28 of the Wildlife and Countryside Act 1981;
• any land declared a national nature reserve under section 35 of that Act;
• any area designated as a marine nature reserve under section 36 of that Act;
• an Area of Special Protection for Birds, established under section 3 of that Act;
• any European Site within the meaning of regulation 10 of the Conservation (Natural Habitats etc) Regulations 1994 (ie Special Areas of Conservation and Special Protection Areas);
• any candidate Special Areas of Conservation (see Scottish Office Circular 6/1995) or potential Special Protection Areas given equivalent protection;
• any habitat or site afforded policy protection (ie candidate Special Areas of Conservation, potential Special Protection Areas and listed Ramsar sites);
• any nature reserve established under section 21 of the National Parks and Access to the Countryside Act 1949; or
• any National Park designated under the National Parks (Scotland) Act 2000.

For any protected location:

• harm which results in an irreversible adverse change, or in some other substantial adverse change, in the functioning of the ecological system within any substantial part of that location; or
• harm which affects any species of special interest within that location and which endangers the long-term maintenance of the population of that species at that location.

In addition, in the case of a protected location which is a European Site (or a candidate Special Area of Conservation or a potential Special Protection Area), harm which is incompatible with the favourable conservation status of natural habitats at that location or species typically found there.

In determining what constitutes such harm, the local authority should have regard to the advice of Scottish Natural Heritage and to the requirements of the Conservation (Natural Habitats etc) Regulations 1994.

In this Chapter, this description of significant harm is referred to as an "ecological system effect".

3

Property in the form of:

• crops, including timber;
• produce grown domestically, or on allotments, for consumption;
• livestock;
• other owned or domesticated animals;
• wild animals which are the subject of shooting or fishing rights.

For crops, a substantial diminution in yield or other substantial loss in their value resulting from death, disease or other physical damage. For domestic pets, death, serious disease or serious physical damage. For other property in this category, a substantial loss in its value resulting from death, disease or other serious physical damage.

The local authority should regard a substantial loss in value as occurring only when a substantial proportion of the animals or crops are dead or otherwise no longer fit for their intended purpose. Food should be regarded as being no longer fit for purpose when it fails to comply with the provisions of the Food Safety Act 1990. Where a diminution in yield or loss in value is caused by a pollutant linkage, a 20% diminution or loss should be regarded as a benchmark for what constitutes a substantial diminution or loss.

In this Chapter, this description of significant harm is referred to as an "animal or crop effect".

4

Property in the form of buildings.

For this purpose, "building" means "any structure or erection, and any part of a building including any part below ground level, but does not include plant or machinery comprised in a building".

Structural failure, substantial damage or substantial interference with any right of occupation.

For this purpose, the local authority should regard substantial damage or substantial interference as occurring when any part of the building ceases to be capable of being used for the purpose for which it is or was intended.

Additionally, in the case of a scheduled Ancient Monument, substantial damage should be regarded as occurring when the damage significantly impairs the historic, architectural, traditional, artistic or archaeological interest by reason of which the monument was scheduled.

In this Chapter, this description of significant harm is referred

to as a "building effect".

1

Human health effects arising from

• the intake of a contaminant, or
• other direct bodily contact with a contaminant (exposure).

If the amount of the pollutant in the pollutant linkage in question:

• which a human receptor in that linkage might take in,

or

• to which such a human might otherwise be exposed, as a result of the pathway in that linkage, would represent an unacceptable intake or exposure, assessed on the basis of relevant information on the toxicological properties of that pollutant.

Such an assessment should take into account:

• the likely total intake of, or exposure to, the substance or substances which form the pollutant, from all sources including that from the pollutant linkage in question;
• the relative contribution of the pollutant linkage in question to the likely aggregate intake of, or exposure to, the relevant substance or substances; and
• the duration of intake or exposure resulting from the pollutant linkage in question.
• The question of whether an intake or exposure is unacceptable is independent of the number of people who might experience or be affected by that intake or exposure.

Toxicological properties should be taken to include carcinogenic, mutagenic, teratogenic, pathogenic, endocrine-disrupting and other similar properties.

2

All other human health effects (particularly by way of explosion or fire).

If the probability, or frequency, of occurrence of significant harm of that description is unacceptable, assessed on the basis of relevant information concerning:

• that type of pollutant linkage, or
• that type of significant harm arising from other causes.

Such an assessment should take into account the levels of risk which have been judged unacceptable in other similar contexts.

3

All ecological system effects.

If significant harm of that description is more likely than not to result from the pollutant linkage in question, taking into account relevant information for that type of pollutant linkage, particularly in relation to the ecotoxicological effects of the pollutant.

4

All animal and crop effects.

If significant harm of that description is more likely than not to result from the pollutant linkage in question, taking into account relevant information for that type of pollutant linkage, particularly in relation to the ecotoxicological effects of the pollutant.

5

All building effects

If significant harm of that description is more likely than not to result from the pollutant linkage in question during the expected economic life of the building (or, in the case of a scheduled Ancient Monument, the foreseeable future), taking into account relevant information for that type of pollutant linkage.