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

PART 4: The Standard to which Land or Waters should be Remediated

C.16 The statutory guidance in this Part is issued under section 78E(5)(b) and provides guidance on the standard to which land or the water environment should be remediated.

The Standard of Remediation

C.17 The Scottish Executive's intention is that any remediation required under this regime should result in land being "suitable for use". The aim of any remediation should be to ensure that the circumstances of the land are such that, in its current use (as defined in paragraph A.26 of Chapter A) it is no longer contaminated land (as defined in section 78A(2)), and that the effects of any significant harm or significant pollution of the water environment which has occurred are remedied. However, it is always open to the appropriate person to carry out remediation on a broader basis than this, if he considers it in his interests to do so, for example if he wishes to prepare the land for redevelopment.

C.18 The standard to which the relevant land or water environment as a whole should be remediated should be established by considering separately each significant pollutant linkage identified on the land in question. For each such linkage, the standard of remediation should be that which would be achieved by the use of a remediation package which forms the best practicable techniques of remediation for:

(a) ensuring that the linkage is no longer a significant pollutant linkage, by doing any one or more of the following:

(i) removing or treating the pollutant;

(ii) breaking or removing the pathway; or

(iii) protecting or removing the receptor; and

(b) remedying the effect of any significant harm or significant pollution of the water environment which is resulting, or has already resulted from, the significant pollutant linkage.

C.19 In deciding what represents the best practicable technique for any particular remediation, the enforcing authority should look for the method of achieving the desired results which, in the light of the nature and volume of the significant pollutant concerned and the timescale within which remediation is required:

(a) is reasonable, taking account of the guidance in Part 5; and

(b) represents the best combination of the following qualities:

(i) practicability, both in general and in the particular circumstances of the relevant land or water environment;

(ii) effectiveness in achieving the aims set out in paragraph C.18 above; and

(iii) durability in maintaining that effectiveness over the timescale within which the significant harm or significant pollution of the water environment may occur.

C.20 Further guidance on how the factors set out in sub-paragraph b) above should be considered is set out in Part 6. The determination of what, in any particular case, represents the best practicable technique of remediation may require a balance to be struck between these factors.

C.21 When considering what would be the best practicable techniques for remediation in any particular case, the enforcing authority should work on the basis of authoritative scientific and technical advice. The authority should consider what comparable techniques have recently been carried out successfully on other land, and also any technological advances and changes in scientific knowledge and understanding.

C.22 Where there is established good practice for the remediation of a particular type of significant pollutant linkage, the authority should assume that this represents the best practicable technique for remediation for a linkage of that type, provided that:

(a) it is satisfied that the use of that means of remediation is appropriate, given the circumstances of the relevant land or water environment; and

(b) the remediation actions involved would be reasonable having regard to the cost which is likely to be involved and the seriousness of the harm or pollution of the water environment in question.

C.23 In some instances, the best practicable techniques of remediation with respect to any significant pollutant linkage may not fully achieve the aim in subparagraph C.18(a), that is to say that if the remediation were to be carried out the pollutant linkage in question would remain a significant pollutant linkage. Where this applies, the standard of remediation with respect to that significant pollutant linkage should be that which, by the use of the best practicable techniques:

(a) comes as close as practicable to achieving the aim in subparagraph C.18(a);

(b) achieves the aim in subparagraph C.18(b); and

(c) puts arrangements in place to remedy the effect of any significant harm or significant pollution of the water environment which may be caused in the future as a consequence of the continued existence of the pollutant linkage.

C.24 In addition, the best practicable techniques for remediation with respect to a significant pollutant linkage may, in some circumstances, not fully remedy the effect of past or future significant harm or significant pollution of the water environment. Where this is the case the standard of remediation should be that which, by the use of the best practicable techniques, mitigates as far as practicable the significant harm or significant pollution of the water environment which has been caused as a consequence of the existence of that linkage, or may be caused in the future as a consequence of its continued existence.

C.25 For any remediation action, package or scheme to represent the best practicable techniques, it should be implemented in accordance with best practice, including any precautions necessary to prevent damage to the environment and any other appropriate quality assurance procedures.

MULTIPLE POLLUTANT LINKAGES

C.26 Where more than one significant pollutant linkage has been identified on the land, it may be possible to achieve the necessary overall standard of remediation for the relevant land or water environment as a whole by considering what remediation actions would form part of the appropriate remediation package for each linkage ( i.e., representing the best practicable techniques of remediation for that linkage) if it were the only such linkage, and then carrying out all of these remediation actions.

C.27 However, the enforcing authority should also consider whether there is an alternative remediation scheme which would, by dealing with the linkages together, be cheaper or otherwise more practicable to implement. If such a scheme can be identified which achieves an equivalent standard of remediation with respect to all of the significant pollutant linkages to which it is referable, the authority should prefer that alternative scheme.

AGREED REMEDIATION

C.28 In some cases, the person carrying out remediation may wish to adopt an alternative remediation scheme to that which could be required in a remediation notice. This might occur, in particular, if the person concerned wished also to prepare the land for redevelopment. The enforcing authority should consider such a remediation scheme as appropriate remediation provided the scheme would achieve at least the same standard of remediation with respect to each of the significant pollutant linkages identified on the land as would be achieved by the remediation scheme which the authority would otherwise specify in a remediation notice. In such circumstances the responsible person is required to prepare and publish a remediation statement detailing the remediation actions which are being, have been, or are expected to be done (section 78H(7)).