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

7 - Limitations on Remediation Notices

7.1 In addition to circumstances where REMEDIATION takes place without the service of a REMEDIATION NOTICE (see section 8 of this Annex), there are a number of restrictions on the service or contents of a REMEDIATION NOTICE.

Interactions with Other Provisions in the 1990 Act and PPC Regulations

7.2 REMEDIATION cannot be required under Part IIA where the SIGNIFICANT HARM or SIGNIFICANT POLLUTION OF THE WATER ENVIRONMENT in question results from an offence under the integrated pollution control regime or the waste management licensing regime, and powers are available under the relevant regime to deal with that HARM or POLLUTION OF THE WATER ENVIRONMENT.

7.3 Nevertheless, even in such cases, the ENFORCING AUTHORITY needs to consider whether additional REMEDIATION is required on the RELEVANT LAND OR WATER ENVIRONMENT under Part IIA, to deal with matters which cannot be dealt with under those other powers.

7.4 If no such additional REMEDIATION is necessary, the ENFORCING AUTHORITY takes no further action, under Part IIA, with respect to the CONTAMINATED LAND in question. However, it then needs to include information about the exercise of these powers on its REGISTER ( Schedule 3, Contaminated Land (Scotland) Regulations 2000; see also Annex 4, paragraph 82).

INTEGRATED POLLUTION CONTROL

7.5 If the SIGNIFICANT HARM or SIGNIFICANT POLLUTION OF THE WATER ENVIRONMENT in question results from the carrying out of a process covered by the Integrated Pollution Control ( IPC) regime or the Local Air Pollution Control ( LAPC) regime, SEPA may have powers under section 27 of the Environmental Protection Act 1990 to remedy that HARM or POLLUTION OF THE WATER ENVIRONMENT.

7.6 Section 27 gives the Agency the power to carry out remedial steps where:

(a) the process has been carried out either without the necessary authorisation, or in contravention of an enforcement or prohibition notice;

(b) harm has been caused and it is possible to remedy that harm;

(c) the Scottish Ministers give their written approval to the exercise of the powers; and

(d) the occupier of any affected land, other than the land on which the process is being carried out, gives his permission.

7.7 If a LOCAL AUTHORITY is the ENFORCING AUTHORITY and it considers that this might apply, it needs to consult SEPA to find out whether the powers under section 27 are available to the Agency. In any case where the powers under section 27 may be exercised by SEPA, a REMEDIATION NOTICE cannot include a REMEDIATION ACTION which would be carried out in order to achieve a purpose which could be achieved by the exercise of those powers ( section 78YB(1)).

POLLUTION PREVENTION AND CONTROL

7.8 The Pollution Prevention and Control (Scotland) Regulations 2000 ( PPC) transpose the requirements of the Integrated Pollution Prevention and Control Directive (96/61/EC) into Scottish law. The PPC regime will eventually replace the current regimes under Part I of the 1990 Act (ie IPC and LAPC). 7.9 Regulations 19 and 21 in the PPC Regulations give SEPA powers, respectively, to (a) specify the steps that must be taken to remedy the effects of any pollution caused by a contravention of a PPC permit condition; and (b) take steps to deal with an imminent risk of serious pollution caused by the operation of an industrial installation or mobile plant regulated under PPC, and to recover the cost of taking these steps from the operator.

WASTE MANAGEMENT LICENSING

7.10 SEPA (in its capacity as the "waste regulation authority"), and the waste collection authority for the area, have powers under section 59 of the Environmental Protection Act 1990 to deal with illegally-deposited controlled waste. These powers may permit the Agency or authority to remove, or require the removal of the waste, and to take other steps to eliminate or reduce the consequences of the deposit of the waste.

7.11 Section 59 applies where controlled waste has been deposited

(a) without a waste management licence being in force authorising the deposit (except where regulations provide an exemption from licensing); or

(b) in a manner which is not in accordance with a waste management licence.

7.12 If a LOCAL AUTHORITY is the ENFORCING AUTHORITY and it considers that these circumstances might apply, it needs to consult SEPA and to consider its position where it is the waste collection authority. If the powers under section 59 may be exercised, any REMEDIATION NOTICE cannot include a REMEDIATION ACTION which would be carried out in order to achieve a purpose which could be achieved by the exercise of those powers ( section 78YB(3)).

Other Precluded Remediation Actions

ACTIONS WHICH WOULD BE UNREASONABLE

7.13 In identifying an appropriate REMEDIATION SCHEME, the ENFORCING AUTHORITY may lead to a situation in which no REMEDIATION may have been precluded from specifying particular REMEDIATION ACTIONS on the grounds that they would not be reasonable, having regard to their likely cost and the seriousness of the HARM or the POLLUTION OF THE WATER ENVIRONMENT to which they relate. In some cases, such restrictions may lead to a situation in which REMEDIATION ACTION may be required (see, for one example, paragraph 6.31 above). Alternatively, the preclusion of a particular REMEDIATION ACTION or actions may lead to the adoption of an alternative REMEDIATION SCHEME.

7.14 Where particular REMEDIATION ACTIONS have been precluded because they would not be reasonable, the ENFORCING AUTHORITY needs to prepare and publish a REMEDIATION DECLARATION which records:

(a) the reasons why the authority would have specified the REMEDIATION ACTIONS in a REMEDIATION NOTICE; and

(b) the grounds on which it is satisfied that it is precluded from including them in any such notice - that is, why it considers that they are unreasonable ( section 78H(6)).

7.15 The ENFORCING AUTHORITY also needs to enter details of the REMEDIATION DECLARATION on its REGISTER ( section 78R(1)(c); see paragraphs 17.1 to 17.19 below and Annex 4, paragraph 79).

ACTIONS WHICH WOULD BE CONTRARY TO THE STATUTORY GUIDANCE

7.16 In rare circumstances, there may also be a particular REMEDIATION ACTION which the ENFORCING AUTHORITY would include in a REMEDIATION NOTICE, but it cannot do so because that action is not consistent with the statutory guidance in Chapter C. In any such case, the authority needs to proceed in the same way as if that REMEDIATION ACTION had been precluded on the ground that it was unreasonable ( sections 78E(5) and 78H(6)).

DISCHARGES INTO THE WATER ENVIRONMENT

7.17 The ENFORCING AUTHORITY also needs to consider whether any REMEDIATION ACTION in the REMEDIATION SCHEME would have the effect of impeding or preventing any controlled activity in relation to the WATER ENVIRONMENT for which a consent has been given under the Water Environment (Controlled Activities) (Scotland) Regulations 2005..

7.18 If this is the case, the ENFORCING AUTHORITY is precluded from specifying the REMEDIATION ACTION in question in any REMEDIATION NOTICE ( section 78YB(4)). However, it will be good practice for the ENFORCING AUTHORITY to consider in such circumstances whether there is a REMEDIATION ACTION which could address the problems posed by the SIGNIFICANT POLLUTANT LINKAGE without impeding or preventing the discharge.

7.19 However, if a REMEDIATION ACTION cannot be specified because of the restriction in section 78YB(4), the ENFORCING AUTHORITY needs to include information about the circumstances on its REGISTER ( Schedule 3, Contaminated Land (Scotland) Regulations 2000; see also Annex 4, paragraph 83).