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

Special Sites

7 Section 78C(8) provides that land is to be a special site if it is land of a description prescribed in regulations. Regulations 2 and 3, as read with Schedule 1, provide the necessary descriptions. The procedures related to special sites are described in section 18 of Annex 2 to this circular. It is not necessarily the case that special sites represent the most severely contaminated sites. For example, contaminated land may be assigned special site status on the basis of duality of control.

8 There are three main groups of cases where a description of land is prescribed for this purpose. The individual descriptions of land to be designated are contained in sub-paragraphs (a) to (h) of regulation 2(1). If land is contaminated land and it falls within one of the descriptions, it must be designated as a special site. Otherwise, it cannot be so designated. The descriptions of land do not imply that land of that type is more likely to constitute contaminated land. They identify cases where, if the land is contaminated land, SEPA is best placed to be the enforcing authority.

Water-pollution Cases

9 Regulations 2(1)(a) and 3 ensure that SEPA is the enforcing authority in three types of case where the contaminated land is affecting the water environment and its quality, and where SEPA will also have other concerns under other legislation. These cases are set out in regulation 3, and are broadly as follows:

(a) Wholesomeness of drinking water: Regulation 3(a) covers cases where contaminated land affects the water environment where the said water is used, or intended to be used, for the supply of drinking water. To meet the description, the water environment must be affected by the land in such a way that a treatment process or a change in treatment process is needed in order for such water to satisfy wholesomeness requirements. The standards of wholesomeness are currently set out in the Water Supply (Water Quality) (Scotland) Regulations 1990 ( SI 1990/119(S.11) as amended by SI 1991/1333(S.129)), and the Private Water Supplies (Scotland) Regulations 1992 ( SI 1992/575(S.69)). An intention to use water for the supply of drinking water could be demonstrated by the existence of a water order made under section 17 of the Water (Scotland) Act 1980 for a public supply.

(b) Surface-water classification criteria: Regulation 3(b) covers cases where the water environment is being affected so that that environment does not meet or is not likely to meet relevant surface water criteria. These are currently set out in the Surface Waters (Dangerous Substances) (Classification) (Scotland) Regulations 1990, 1992, 1998 and 1998 (No 2).

(c) Key highly permeable aquifers: Regulation 3(c) covers cases where particular substances are affecting such aquifers. SEPA will already be concerned both with substances of this type and with managing water quality. The list of substances is set out in paragraph 1 of Schedule 1. It corresponds to List I of the Groundwater Directive (80/86/EEC). Key highly permeable aquifers are described in regulation 3(c)(ii) by reference to the underground strata in which they are contained. The British Geological Survey publishes maps which show the location and boundaries of such strata.

10 For the purposes of regulation 3(c), the fact that contaminated land may be located over one of the listed underground strata does not by itself make the land a special site. The land must be contaminated land on the basis that it is causing, or there is a significant possibility that it will cause, significant pollution of the water environment; the pollution must be by reason of one or more substances from schedule 1; and the water environment being or likely to be polluted must be contained within the strata.

Industrial Cases

11 The subsequent items in regulation 2(1) ensure that SEPA is the enforcing agency in respect of contaminated land which is, or has been, used as a site for industrial activities that either pose special remediation problems or are subject to regulation under other national systems, either by SEPA itself, or by some other national agency. The designation of such sites as special sites is intended to deploy the necessary expertise and to help co-ordination between the various regulatory systems. The descriptions are in respect of:

(a) Waste acid tar lagoons (regulations 2(1)(b): Regulation 2(2) defines what falls into this description. The retention basins (or lagoons) concerned typically involve cases where waste acid tar arose from the use of concentrated sulphuric acid in the production of lubricating oils and greases or the reclamation of base lubricants from mineral oil residues. The description is not intended to include cases where the tars resulted from coal product manufacture, or where these tars were placed in pits or wells.

(b) Oil refining (regulation 2(1)(c)(i)): The problems resulting from this are again considered more appropriate for the expertise of SEPA. As for waste acid tar lagoons, activities related to coal are not included.

(c) Explosives (regulation 2(1)(c)(ii)): The relatively few sites in this category pose specific problems, which are more appropriately handled by SEPA.

(d) IPC (Integrated Pollution Control) and PPC ( Pollution Prevention and Control) sites (regulation 2(1)(d)): Sites which are regulated under Part I of the 1990 Act and the PPC (Scotland) Regulations 2000 which have become contaminated will generally be regulated under those powers. But there may be situations where Part IIA powers will be needed. This item ensures that SEPA will be the enforcing authority under Part IIA where it is already the regulatory authority under Part I or PPC. The description therefore refers to a "prescribed process designated for central control". In Scotland, this means a Part A process. This description covers:-

(i) land on which past activities were authorised under "central control" but which have ceased;

(ii) land where the activities are continuing but the contamination arises from a non-"central control" process on the land; and

(iii) land where the contamination arises from an authorised "central control" process but a remediation notice could nevertheless be served. (Sections 78YB(1) and 78YB(2B) and 78YB(2C) preclude the service of a remediation notice in cases where it appears to the authority that the powers in section 27 of the 1990 Act or regulation 21 of the PPC Regulations may be exercised.) This description does not cover land where the Part I authorisation is obtained in order to carry out remediation required under Part IIA. It also does not cover land which has been contaminated by an activity which ceased before the application of "central controls", but would have been subject to those controls if it had continued after they came into force.

(e) Nuclear sites (regulation 2(1)(e)): Regulation 2(4) defines what is to be treated as a nuclear site for this purpose. At present, the designation of a nuclear site as contaminated land under these regulations will have effect only in relation to non-radioactive contamination. The Scottish Executive consulted in October 2005, however, on proposals that, if implemented, would have the effect that any harm, or pollution of the water environment, attributable to radioactivity will be dealt with under a separate regime to be introduced by regulations to be made under section 78YC. For the purposes of the extension of the Part IIA regime to include radioactivity, the Executive proposals are that all land is to be covered by the extended regime, with one exception, which is that part of a site, owned or occupied by a nuclear site operator, for which a nuclear-site licence is in place. This is because there are sufficient regulatory controls already in place through the Nuclear Installations Inspectorate of the Health and Safety Executive ( HSE) to require remediation there if necessary. Moreover, under the terms of the Memorandum of Understanding between HSE and SEPA, it is possible for SEPA to press for early remediation of contaminated land on the nuclear-licensed site, where that land might cause contamination of the site. It is considered that HSE delicensing requirements are likely to ensure that land on nuclear-licensed sites that are subsequently delicensed will not require future remediation. Nevertheless, the effect of the proposed Regulations will allow for such action to be taken, if necessary, when any nuclear site licence is withdrawn.

Defence Cases

12 Regulation 2(1)(f) and (g) ensures that SEPA deals with most cases where contaminated land involves the Ministry of Defence ( MOD) estate. Broadly speaking, the descriptions include any contaminated land at current military, naval and airforce bases and other properties, including those of visiting forces (section 30 of the Armed Forces Act 1996). However, off-base housing or off-base NAAFI premises are not included, and nor is property which has been disposed of to civil ownership or occupation. Training areas and ranges that MOD does not own or occupy but may use occasionally do not fall within the descriptions. Regulation 2(1)(g) describes land formerly used for the manufacture, production or disposal of chemical and biological weapons and related materials, regardless of current ownership. In all these cases, SEPA is best placed to ensure uniformity across the country and liaison with the Ministry of Defence and the armed forces.

OTHER ASPECTS OF SPECIAL SITES

13 Adjoining/adjacent land (regulation 2(1)(h): Where the conditions on a special site lead to adjacent or adjoining land also being contaminated land by reason of the presence of substances which appear to have escaped from the special site, that adjacent or adjoining land is also to be a special site. This does not apply where the special site is one of the water pollution cases described in regulations 2(1)(a) and 3. With this exception, SEPA will be the enforcing authority for the adjoining land as well as for the special site that has caused the problem. This approach is intended to avoid regulatory control being split.

14 Waste management sites: Land used for waste management activity, such as landfill, is not as such designated as a special site. This is because Part II of the 1990 Act already contains wide powers for SEPA to ensure that problems are tackled. However, such land may fall within one or more of the special site descriptions, for example if significant pollution of the water environment is being caused. The interface between Part IIA controls and waste management controls is described at Annex 1, paragraphs 55 to 58.

15 Role of SEPA: It remains the task of the local authority to decide, in the first instance, whether land within the description of a special site is contaminated land or not. The work of SEPA as enforcing authority only starts once that determination is made. However, the statutory guidance on the identification of contaminated land says that, in making that determination, local authorities should consider whether, if land were designated, it would be a special site. If that is the case, the local authority should seek advice from SEPA (see Annex 3, paragraphs B.26 to B.30).