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.
15 - Follow-up Action
15.1 The ENFORCING AUTHORITY needs to consider whether the REMEDIATION ACTIONS described in the REMEDIATION STATEMENT or specified in the REMEDIATION NOTICE have been carried out and, if so, whether they have been carried out adequately and satisfactorily. In many cases, the authority will do so on the basis of information generated by the quality assurance and verification procedures included within the R E M E D I A T I O N ACTIONS ( paragraphs C.25 and C.67).
15.2 Whatever it decides, the ENFORCING AUTHORITY also needs to consider whether any further REMEDIATION is appropriate. This applies particularly in circumstances where the completed REMEDIATION ACTIONS form only a single phase of the overall process of REMEDIATION for the RELEVANT LAND OR WATER ENVIRONMENT. If it decides that further REMEDIATION is appropriate, the authority repeats the procedures set out above for consultation, identifying appropriate REMEDIATION ACTIONS and requiring that REMEDIATION to be carried out by service of a REMEDIATION NOTICE.
Remediation Action has been Carried Out
NOTIFICATIONS OF "CLAIMED REMEDIATION"
15.3 Any person who has carried out any REMEDIATION which was required by a REMEDIATION NOTICE or described in a REMEDIATION STATEMENT can notify the ENFORCING AUTHORITY, providing particular details of the REMEDIATION he claims to have carried out ( regulation 15(2)). The OWNER or occupier of the CONTAMINATED LAND is also entitled to notify the authority.
15.4 If the ENFORCING AUTHORITY receives any notification of this kind, it will be under a duty to include on its REGISTER prescribed details of the REMEDIATION which it is claimed has been carried out ( sections 78R(1)(h) & (j) and regulation 15; see paragraphs 17.1 to 17.19 below and Annex 4, paragraph 80).
15.5 Part IIA provides that the inclusion of an entry of this kind on the REGISTER is not to be taken as a representation by the authority maintaining the REGISTER that the entry is accurate with respect to what is claimed to have been done, or the manner in which it may have been done ( section 78R(3)).
15.6 Although Part IIA does not include any formal "signing off" procedure, the ENFORCING AUTHORITY may wish to consider writing to the APPROPRIATE PERSON, confirming the position with respect to any further enforcement action. In a case where a REMEDIATION NOTICE has been served and appears to have been complied with, this could confirm that the authority currently sees no grounds, on the basis of available information, for further enforcement action.
Remediation Has Not Been Carried Out
IF A REMEDIATION STATEMENT HAS NOT BEEN FOLLOWED
15.7 If a REMEDIATION ACTION described in a REMEDIATION STATEMENT is not carried out in the manner and within the time period described, the ENFORCING AUTHORITY needs to consider whether it is necessary for a REMEDIATION NOTICE to be served requiring that REMEDIATION ACTION to be carried out.
15.8 The ENFORCING AUTHORITY has a duty to serve such a REMEDIATION NOTICE if:
(a) it considers that appropriate REMEDIATION is not being carried out and it is not satisfied that it will be carried out without the service of a notice; and
(b) it is not precluded for any other reason from serving a notice on the APPROPRIATE PERSON ( section 78H(10)).
15.9 In these circumstances, the ENFORCING AUTHORITY can serve the REMEDIATION NOTICE without making any further efforts to consult, provided that the REMEDIATION ACTIONS specified in the notice have previously been the subject of consultation with the person in question ( section 78H(10)).
IF A REMEDIATION NOTICE IS NOT COMPLIED WITH
15.10 If a REMEDIATION ACTION specified in a REMEDIATION NOTICE is not carried out within the time required, the ENFORCING AUTHORITY needs to consider whether to prosecute the APPROPRIATE PERSON who has failed to comply with the REMEDIATION NOTICE. It will normally be desirable for the authority to inform the APPROPRIATE PERSON that it is considering bringing such a prosecution before it actually does so. This may give that person an opportunity to avoid prosecution by carrying out the requirements of the REMEDIATION NOTICE.
15.11 Part IIA makes it an offence for any person to fail to comply with a REMEDIATION NOTICE "without reasonable excuse" ( section 78M(1)). The question of whether a person had a "reasonable excuse" in any case is a matter of fact to be decided on the basis of the particular circumstances of that case .
15.12 One defence is specified in Part IIA. This applies where:
(a) the APPROPRIATE PERSON was required by the REMEDIATION NOTICE to bear only a proportion of the cost of the REMEDIATION ACTION which has not been carried out; and
(b) that person can show that the only reason why he did not comply with the REMEDIATION NOTICE was that one or more of the other APPROPRIATE PERSONS who should have borne other shares of the cost refused, or were not able, to do so ( section 78M(2)).
15.13 In general, a person convicted of the offence of non-compliance with a REMEDIATION NOTICE is liable to a fine not exceeding level 5 on the standard scale; at the date of this circular, that is £5,000. Until either he complies with the REMEDIATION NOTICE, or the ENFORCING AUTHORITY uses its powers to act in default (see paragraph 15.15 below), he is also liable for additional daily fines up of up to one tenth of level 5; that is, at the date of this circular, £500 ( section 78M(3)).
15.14 However, where the CONTAMINATED LAND to which the notice relates is INDUSTRIAL, TRADE OR BUSINESS PREMISES, the limit on the fine is higher: the fine may be up to £20,000, with daily fines of up to £2,000 ( section 78M(4)). Part IIA provides a power to increase those limits by order: the Government's intention is to use that power where necessary to maintain the differential with level 5 on the standard scale.
15.15 In addition, the authority needs to consider whether to carry out the REMEDIATION ACTION itself ( section 78N(3)(c)). It can decide to do so whether or not it decides to prosecute the APPROPRIATE PERSON. If it does carry out the REMEDIATION, it is entitled to recover its reasonable costs from the APPROPRIATE PERSON ( sections 78P(1)).
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