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

PART 5: The Reasonableness of Remediation

C.29 The statutory guidance in this Part is issued under section 78E(5)(c) and provides guidance on the determination by the enforcing authority of what remediation is, or is not, to be regarded as reasonable having regard to the cost which is likely to be involved and the seriousness of the harm or of the pollution of the water environment to which it relates.

C.30 The enforcing authority should regard a remediation action as being reasonable for the purpose of section 78E(4) if an assessment of the costs likely to be involved and of the resulting benefits shows that those benefits justify incurring those costs. Such an assessment should include the preparation of an estimate of the costs likely to be involved and of a statement of the benefits likely to result. This latter statement need not necessarily attempt to ascribe a financial value to these benefits.

C.31 For these purposes, the enforcing authority should regard the benefits resulting from a remediation action as being the contribution that the action makes, either on its own or in conjunction with other remediation actions, to:

(a) reducing the seriousness of any harm or pollution of the water environment which might otherwise be caused; or

(b) mitigating the seriousness of any effects of any significant harm or significant pollution of the water environment.

C.32 In assessing the reasonableness of any remediation, the enforcing authority should make due allowance for the fact that the timing of expenditure and the realisation of benefits is relevant to the balance of costs and benefits. In particular, the assessment should recognise that:

(a) expenditure which is delayed to a future date will have a lesser impact on the person defraying it than would an equivalent cash sum to be spent immediately;

(b) there may be a gain from achieving benefits earlier but this may also involve extra expenditure; the authority should consider whether the gain justifies the extra costs. This applies, in particular, where natural processes, managed or otherwise, would over time bring about remediation; and

(c) there may be evidence that the same benefits will be achievable in the foreseeable future at a significantly lower cost, for example, through the development of new techniques or as part of a wider scheme of development or redevelopment.

C.33 The identity or financial standing of any person who may be required to pay for any remediation action are not relevant factors in the determination of whether the costs of that action are, or are not, reasonable for the purposes of section 78E(4). (These factors may however be relevant in deciding whether or not the enforcing authority can impose the cost of remediation on that person, either through the service of a remediation notice or through the recovery of costs incurred by the authority; see section 78P and the guidance in Chapter E.)

The Cost of Remediation

C.34 When considering the costs likely to be involved in carrying out any remediation action, the enforcing authority should take into account:

(a) all the initial costs (including tax payable) of carrying out the remediation action, including feasibility studies, design, specification and management, as well as works and operations, and making good afterwards;

(b) any on-going costs of managing and maintaining the remediation action; and

(c) any relevant disruption costs.

C.35 For these purposes, "relevant disruption costs" mean depreciation in the value of land or other interests, or other loss or damage, which is likely to result from the carrying out of the remediation action in question. The enforcing authority should assess these costs as their estimate of the amount of compensation which would be payable if the owner of the land or other interest had granted rights under section 78G(2) to permit the action to be carried out and had claimed compensation under section 78G(5) and regulation 6 of the Contaminated Land (Scotland) Regulations 2000 (whether or not such a claim could actually be made).

C.36 Each of the types of cost set out in paragraph C.34 above should be included even where they would not result in payments to others by the person carrying out the remediation. For example, a company may choose to use its own staff or equipment to carry out the remediation, or the person carrying out the remediation may already own the land in question and would therefore not be entitled to receive compensation under section 78G(5). The evaluation of the cost involved in remediation should not be affected by the identity of the person carrying it out, or internal resources available to that person.

C.37 The enforcing authority should furthermore regard it as a necessary condition of an action being reasonable that:

(a) where two or more significant pollutant linkages have been identified on the land in question, and the remediation action forms part of a wider remediation scheme which is dealing with two or more of those linkages, there is no alternative scheme which would achieve the same purposes for a lower overall cost; and

(b) subject to subparagraph a) above, where the remediation action forms part of a remediation package dealing with any particular significant pollutant linkage, there is no alternative package which would achieve the same standard of remediation at a lower overall cost.

C.38 In addition, for any remediation action to be reasonable there should be no alternative remediation action which would achieve the same purpose, as part of any wider remediation package or scheme, to the same standard for a lower cost (bearing in mind that the purpose of any remediation action may relate to more than one significant pollutant linkage).

The Seriousness of Harm or of Pollution of the Water Environment

C.39 When evaluating the seriousness of any significant harm, for the purposes of assessing the reasonableness of any remediation, the enforcing authority should consider:

(a) whether the significant harm is already being caused;

(b) the degree of the possibility of the significant harm being caused;

(c) the nature of the significant harm with respect, in particular, to:

(i) the nature and importance of the receptor,

(ii) the extent and type of any effects on that receptor of the significant harm,

(iii) the number of receptors which might be affected, and

(iv) whether the effects would be irreversible; and

(d) the context in which the effects might occur, in particular:

(i) whether the receptor has already been damaged by other means and, if so, whether further effects resulting from the harm would materially affect its condition, and

(ii) the relative risk associated with the harm in the context of wider environmental risks.

C.40 Where the significant harm is an "ecological system effect" as defined in Chapter A the enforcing authority should take into account any advice received from Scottish Natural Heritage.

C.41 In evaluating for this purpose the seriousness of any significant pollution of the water environment the enforcing authority should consider:

(a) whether the significant pollution of the water environment is already being caused;

(b) the likelihood of the significant pollution of the water environment being caused;

(c) the nature of the significant pollution of the water environment involved with respect, in particular, to:

(i) the nature and importance of the water environment which might be affected,

(ii) the extent of the effects of the actual or likely significant pollution on that water environment, and

(iii) whether such effects would be irreversible; and

(d) the context in which the effects might occur, in particular:

(i) whether the water environment has already been polluted by other means and, if so, whether further effects resulting from the pollution would materially affect its condition, and

(ii) the relative risk associated with the pollution in the context of wider environmental risks.

C.42 Where the enforcing authority is the local authority, it should take into account any advice received from SEPA when it is considering the seriousness of any significant pollution of the water environment.

C.43 In some instances, it may be possible to express the benefits of addressing the harm or pollution of the water environment in direct financial terms. For example, removing a risk of explosion which renders a building unsafe for occupation could be considered to create a benefit equivalent to the cost of acquiring a replacement building. Various Government departments have produced technical advice, which the enforcing authority may find useful, on the consideration of non-market impacts of environmental matters (see paragraph C.4 above).