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

PART 4: Determining whether Land Appears to be Contaminated Land

B.31 The local authority has the sole responsibility for determining whether any land appears to be contaminated land. It cannot delegate this responsibility (except in accordance with section 56 of the Local Government (Scotland) Act 1973), although in discharging it the local authority can choose to rely on information or advice provided by another body such as SEPA or by a consultant appointed for that purpose. This applies even where the Agency has carried out the inspection of land on behalf of the local authority (see paragraph B.30 above).

Physical Extent of Land

B.32 A determination that land is contaminated land is necessarily made in respect of a specific area of land. In deciding what that area should be, the primary consideration is the extent of the land which is contaminated land. However, there may be situations in which the local authority may consider that separate designations of parts of a larger area of contaminated land may simplify the administration of the consequential actions. In such circumstances, the local authority should do so, taking into account:-

(a) the location of significant pollutants in, on or under the land;

(b) the nature of the remediation which might be required; and

(c) the likely identity of those who may be the appropriate persons to bear responsibility for the remediation (where this is reasonably clear at this stage).

B.33 If necessary, the local authority should initially review a wider area, the history of which suggests that contamination problems are likely. It can subsequently refine this down to the precise areas which meet the statutory tests for identification as contaminated land, and use these as the basis for its determination.

B.34 In practice, the land to be covered by a single determination is likely to be the smallest area which is covered by a single remediation action which cannot sensibly be broken down into smaller actions. Subject to this, the land is likely to be the smaller of:-

(a) the plots which are separately recorded in the Land Register or are in separate ownership or occupation; and

(b) the area of land in which the presence of significant pollutants has been established.

B.35 The determination should identify the area of contaminated land clearly, including reference to a map or plan at an appropriate scale.

B.36 The local authority should also be prepared to review the decision on the physical extent of the land to be identified in the light of further information.

Making the Determination

B.37 In determining whether any land appears to the local authority to be contaminated land, the authority is required to act in accordance with the guidance on the definition of contaminated land set out in Chapter A. Guidance on the manner in which the local authority should determine whether land appears to it to be contaminated land, by reason of substances in, on or under the land, is set out in paragraphs B.39 to B.51 below.

B.38 There are four possible grounds for the determination, (corresponding to the parts of the definition of contaminated land in section 78A(2)) namely that:

(a) significant harm is being caused (see paragraph B.44 below);

(b) there is a significant possibility of significant harm being caused (see paragraphs B.45 to B.49 below);

(c) significant pollution of the water environment is being caused (see paragraph B.50 below); or

(d) there is a significant possibility of significant pollution of the water environment being caused (see paragraph B.51 below).

B.39 In making any determination, the local authority should take all relevant and available evidence into account and carry out an appropriate scientific and technical assessment of that evidence.

B.40 The local authority should identify all significant pollutant linkages (as defined in paragraph A.21 of Chapter A) as the basis for the determination. All three elements of any pollutant linkage (pollutant, pathway and receptor) should be identified. A linkage which forms a basis for the determination that land is contaminated land is then a "significant pollutant linkage"; and any pollutant which forms part of it is a "significant pollutant".

B.41 The local authority should consider whether:-

(a) there is evidence that additive or synergistic effects between potential pollutants, whether between the same substance on different areas of land or between different substances, may result in a significant pollutant linkage;

(b) a combination of several different potential pathways linking one or more potential pollutants to a particular receptor, or to a particular class of receptors, may result in a significant pollutant linkage; and

(c) there is more than one significant pollutant linkage on any land; if there are each should be considered separately, since different people may be responsible for the remediation.

CONSISTENCY WITH OTHER STATUTORY BODIES

B.42 In making a determination which relates to an "ecological system effect" as defined in Table A of Chapter A, the local authority should adopt an approach consistent with that adopted by Scottish Natural Heritage. To this end, the local authority should consult that authority and have regard to its comments in making its determination.

B.43 In making a determination which relates to pollution of the water environment the local authority should adopt an approach consistent with that adopted by SEPA in applying relevant statutory provisions. To this end, where the local authority is considering whether significant pollution of the water environment is being caused or there is a significant possibility of such pollution being caused, , it should consult SEPA and have regard to its comments before determining whether significant pollution of the water environment is being caused or there is a significant possibility of such pollution being caused..

DETERMINING THAT "SIGNIFICANT HARM IS BEING CAUSED"

B.44 The local authority should determine that land is contaminated land on the basis that significant harm is being caused where:-

(a) it has carried out an appropriate scientific and technical assessment of all the relevant and available evidence; and

(b) on the basis of that assessment, it is satisfied on the balance of probabilities that significant harm is being caused.

DETERMINING THAT "THERE IS A SIGNIFICANT POSSIBILITY OF SIGNIFICANT HARM BEING CAUSED"

B.45 The local authority should determine that land is contaminated land on the basis that there is a significant possibility of significant harm being caused (as defined in Part 3 of

Chapter A), where:-

(a) it has carried out a scientific and technical assessment of the risks arising from the pollutant linkage, according to relevant, appropriate, authoritative and scientifically based guidance on such risk assessments;

(b) that assessment shows that there is a significant possibility of significant harm being caused; and

(c) there are no suitable and sufficient risk management arrangements in place to prevent such harm.

B.46 In following any such guidance on risk assessment, the local authority should be satisfied that it is relevant to the circumstances of the pollutant linkage and land in question, and that any appropriate allowances have been made for particular circumstances.

B.47 To simplify such assessment of risks, the local authority may use authoritative and scientifically based guideline values, or methods for deriving values, for concentrations of the substances in, on or under the land which are appropriate to the specific pollutant linkage being considered. If it does so, the local authority should be satisfied that:

(a) an adequate scientific and technical assessment of the information on the potential pollutant, using the appropriate, authoritative and scientifically based guideline values, shows that there is a significant possibility of significant harm; and

(b) there are no suitable and sufficient risk management arrangements in place to prevent such harm.

B.48 In using any guideline values (including methods for deriving values), the local authority should be satisfied that:-

(a) the guideline values are relevant to the judgement of whether the effects of the pollutant linkage in question constitute a significant possibility of significant harm;

(b) the assumptions underlying the derivation of any numerical values in the guideline values (for example, assumptions regarding soil conditions, the behaviour of potential pollutants, the existence of pathways, the land-use patterns, and the availability of receptors) are relevant to the circumstances of the pollutant linkage in question;

(c) any other conditions relevant to the use of the guideline values have been observed (for example, the number of samples taken or the methods of preparation and analysis of those samples);

(d) appropriate adjustments have been made to allow for the differences between the circumstances of the land in question and any assumptions or other factors relating to the guideline values; and

(e) the guideline values are appropriate to the receptor and site under consideration.

B.49 The local authority should be prepared to reconsider any determination based on such use of guideline values if it is demonstrated to the authority's satisfaction that under some other more appropriate method of assessing the risks the local authority would not have determined that the land appeared to be contaminated land.

DETERMINING THAT "SIGNIFICANT POLLUTION OF THE WATER ENVIRONMENT IS BEING CAUSED"

B.50 The local authority shall determine that land is contaminated land on the basis that there is significant pollution of the water environment where:

(a) it has carried out an appropriate scientific and technical assessment of all the relevant and available evidence, having regard to any advice provided by SEPA; and

(b) on the basis of that assessment it is satisfied that, on the balance of probabilities, that both of the following circumstances apply:

(i) a substance is present in, on or under the land in question, which has the potential to result in significant pollution of the water environment; and

(ii) the substance in question is in such a condition that it is capable of entering the water environment by the pathway (as defined in paragraph A.15 of Part 2 to Chapter A) identified in the pollutant linkage.

DETERMINING THAT "THERE IS A SIGNIFICANT POSSIBILITY OF SIGNIFICANT POLLUTION OF THE WATER ENVIRONMENT BEING CAUSED"

B.51 Consideration shall be based on the principles of risk assessment and, in particular, on the likelihood of entry resulting in significant pollution.

B.52 The local authority shall determine that land is contaminated land on the basis that there is a significant possibility of significant pollution of the water environment where:

(a) it has carried out an appropriate scientific and technical assessment of all the relevant and available evidence, having regard to any advice provided by SEPA; and

(b) on the basis of that assessment it is satisfied that, on the balance of probabilities, all of the following circumstances apply:

(i) a substance is present in, on or under the land in question, which has the potential to result in significant pollution of the water environment;

(ii) the substance in question is in, or is likely to be in, such a condition that it is capable of entering the water environment;

(iii) taking into account the geology and other circumstances of the land in question, there is a pathway (see paragraph B.50(b)(ii) above) by which the substance can enter the water environment;

(iv) the substance is more likely than not to enter the water environment and would result in significant pollution of the water environment; and

(v) there are no suitable and sufficient risk management arrangements relevant to the pollution linkage in place to prevent such significant pollution.

Record of the Determination that Land is Contaminated Land

B.53 The local authority should prepare a written record of any determination that particular land is contaminated land. The record should include (by means of a reference to other documents if necessary):

(a) a description of the particular significant pollutant linkage, identifying all three components of pollutant, pathway and receptor;

(b) a summary of the evidence upon which the determination is based;

(c) a summary of the relevant assessment of this evidence; and

(d) a summary of the way in which the authority considers that the requirements of the guidance in this Part and in Chapter A of the guidance have been satisfied.