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

This document promulgates revised statutory guidance for the operation of the contaminated land regime following implementation of the Contaminated Land (Scotland) Regulations 2005. It replaces the earlier 2000 version.

5 - Urgent Remediation Action

5.1 Where it appears to the ENFORCING AUTHORITY that there is an imminent danger of serious HARM or serious POLLUTION OF THE WATER ENVIRONMENT being caused as a result of a SIGNIFICANT POLLUTANT LINKAGE that has been identified, that authority may need to ensure that urgent REMEDIATION is carried out.

5.2 The ENFORCING AUTHORITY needs to keep this question under review as it receives further information about the condition of the CONTAMINATED LAND. It may decide that urgent REMEDIATION is needed at any stage in the procedures set out below. It is likely that any REMEDIATION ACTION carried out on an urgent basis will be only a part of the total REMEDIATION SCHEME for the RELEVANT LAND OR WATER ENVIRONMENT, as not all of the REMEDIATION ACTIONS will need to be carried out urgently.

5.3 The terms "imminent" and "serious" are not defined in Part IIA. The ENFORCING AUTHORITY needs to judge each case on the normal meaning of the words and the facts of that case. However, the statutory guidance in Part 5 of Chapter C sets out a number of considerations relating to the assessment of the seriousness of any HARM or POLLUTION OF THE WATER ENVIRONMENT which may be relevant.

5.4 Where the ENFORCING AUTHORITY is satisfied that there is a need for urgent REMEDIATION, two requirements which normally apply to the service of REMEDIATION NOTICES are disapplied ( sections 78G(4) & 78H(4)). These are the requirements for:

(a) prior consultation ( section 78H(1); see paragraphs 6.10 to 6.17 below); and

(b) a three month interval between:

(i) the notification to the APPROPRIATE PERSON that the land has been identified as CONTAMINATED LAND or the land's designation as a SPECIAL SITE, and

(ii) the service of the remediation notice ( section 78H(3); see paragraphs 12.4 and 12.5 below).

5.5 However, other requirements in the primary legislation and in the statutory guidance continue to apply, in particular with respect to:

(a) the standard of REMEDIATION and what REMEDIATION ACTIONS may be required ( section 78E(4) and Chapter C; see paragraphs 6.18 to 6.29 below); and

(b) the identification of the APPROPRIATE PERSON and any EXCLUSIONS from, or APPORTIONMENTS of, responsibility to bear the cost of REMEDIATION ( section 78F and Chapter D; see paragraphs 9.3 to 9.49 below).

5.6 In general where there is a need for urgent REMEDIATION ACTION, the ENFORCING AUTHORITY will act by serving a REMEDIATION NOTICE on an urgent basis (that is, without necessarily consulting or waiting for the end of the three month period referred to in paragraph 5.4(b) above). However, if the ENFORCING AUTHORITY considers that serving a REMEDIATION NOTICE in this way would not result in the REMEDIATION happening soon enough, it may decide to carry out the REMEDIATION itself. The authority has the power to do this only where it considers that:

(a) there is an imminent danger of serious HARM or serious POLLUTION OF THE WATER ENVIRONMENT, being caused; and

(b) it is necessary for the authority to carry out REMEDIATION itself to prevent that harm or pollution ( section 78N(3)(a)).

5.7 These circumstances may apply, in particular, if the ENFORCING AUTHORITY cannot readily identify any APPROPRIATE PERSON on whom it could serve a REMEDIATION NOTICE. There may also be cases where the ENFORCING AUTHORITY considers that urgent REMEDIATION is needed and has already specified the necessary REMEDIATION ACTIONS in a REMEDIATION NOTICE, but the requirements of that notice have been suspended pending the decision in an appeal against the notice (see paragraphs 13.5 to 13.7 below).

5.8 If the ENFORCING AUTHORITY carries out any urgent REMEDIATION itself, it needs to prepare and publish a REMEDIATION STATEMENT describing the REMEDIATION ACTIONS it has carried out ( section 78H(7)). It needs also to consider whether to seek to recover, from the appropriate person, the reasonable costs the authority has incurred in carrying out the REMEDIATION ( section 78P(1) and Chapter E; see paragraphs 16.1 to 16.6 below).


Email: Central Enquiries Unit ceu@gov.scot

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