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.
70 Section 78R requires each enforcing authority to keep a public register. The public register is intended to act as a full and permanent record, open for public inspection, of all regulatory action taken by the enforcing authority in respect of the remediation of contaminated land, and will include information about the condition of land.
71 As a record of regulatory activity, registers are broadly similar in purpose to, and part of the suite of, registers kept in relation to other environmental protection controls, including those kept under Part I and Part II of the Act ( IPC etc, and waste regulation); and planning registers kept under the Town and Country Planning (Scotland) Act 1997, which may also contain valuable information relevant to the condition of land in particular locations.
72 SEPA's register is to be kept at its local office for the area in question, and the local authority register is kept at the authority's principal office (regulation 14(3)).
Content of the Registers
73 Section 78R(1) specifies what material is to be entered on the register. It leaves the details of that material to be prescribed in regulations. These details are prescribed in Schedule 4 to the Regulations.
74 It is good practice to ensure that the register is so organised that all the entries relating to a particular site can be readily consulted in connection with each other.
75 Schedule 4 requires registers to include full particulars of certain matters, rather than copies of the various forms of notice and other documents listed. However, there is no legal objection to authorities placing a copy of the various documents on the register. Any document not placed on the register may, in any case, be accessible under the Environmental Information Regulations 1992 ( SI 1992/3240, as amended).
Information to be Placed on the Register
INFORMATION ABOUT REMEDIATION
76 For a remediation notice , the effect of regulation 14 and Schedule 4 is that the following information must be placed on the register:
(a) the location and extent of the contaminated land sufficient to enable it to be identified; this requirement would ideally be met by showing its address and the estimated area in hectares, together with a plan to a suitable scale and a National Grid reference;
(b) the significant harm or significant pollution of the water environment by reason of which the land is contaminated land;
(c) the substances by reason of which the land is contaminated land and, if any of the substances have escaped from other land, the location of that other land;
(d) the current use of the land in question;
(e) the name and address of the person on whom the notice is served;
(f) what each appropriate person is to do by way of remediation, and the periods within which they are required to do each of the things;
77 In cases where site investigation reports obtained by or provided to the authority, which relate to the condition of land or any remediation action, are likely to be publicly accessible under the Environmental Information Regulations, it would also be good practice to include a reference to such information. The entry could include:
(a) a description of the information,
(b) the date on which it was prepared,
(c) the person by whom and for whom it was prepared, and
(d) where it is available to be inspected or copied.
78 It is also good practice for the remediation particulars referred to in paragraph 76(f) above to include an indication of whether the action required was "assessment action", "remedial treatment action" or "monitoring action" (see the definitions of these terms in paragraph C.8 of Chapter C of the statutory guidance, reflecting section 78A(7)).
79 For remediation declarations , remediation statements and notifications of claimed remediation (that is notifications for the purposes of section 78R(1)(h) or (j)), the requirement is to enter full particulars of the instrument in question, together with the site information described at paragraphs 76(a) to (d) above. This means that the registers should show, in addition to the date of the instrument and the site information, at least:
(a) for remediation declarations (see paragraphs 5 and 6 of Schedule 4): the reason why the authority was precluded from specifying a particular remediation action (where, therefore, in the case of significant pollution of the water environment, the authority considered that remediation of pollution was precluded on the basis that it would be unreasonable, having regard to the nature of that pollution, the register will show why the authority considered that the contamination was not significant);
(b) for remediation statements (see paragraphs 7 and 8 of Schedule 4): the remediation action that has been, is being or will be taken, the timescale for that action and the details of the person who is taking it;
(c) for notifications of claimed remediation (see regulations 14(2) and paragraph 10 of Schedule 4): the remediation action that is claimed to have been taken, the timescale of that action and the details of the person who claims to have taken it.
80 In respect of notifications of claimed remediation, it is open to the person giving the notification to include additional material. In particular, it will be in the interests of both regulators and those giving the notifications to include, in addition, an indication of what the work carried out was intended to achieve; a description of any appropriate quality assurance procedure adopted relating to what has been claimed to be done; and a description of any verification measures carried out for the purpose of assessing the effectiveness of the remediation in relation to the particular significant harm or significant pollution of the water environment to which it was referable.
81 Section 78R(3) makes clear that an entry in the register relating to notifications of claimed remediation in no way represents any endorsement or confirmation by the authority maintaining the register that remediation measures have been carried out nor, therefore, that land is no longer contaminated land. It would be good practice to ensure that this disclaimer is clearly associated with all entries of this kind.
82 Other environmental controls: The register is required, by paragraphs 13 and 14 of Schedule 4, to include information in cases of situations where a site may be formally identified as contaminated land but is dealt with under other environmental controls, instead of under Part IIA (see section 78YB(1) and (3), 78YB(2B) and 78YB(2C)). These other powers are section 27 in Part I of the Environmental Protection Act 1990 (Integrated Pollution Control), regulation 21 of the Pollution Prevention and Control (Scotland) Regulations 2000 (Pollution Prevention and Control) and section 59 in Part II of the 1990 Act (waste management licensing). In these cases, the register is required to include, in addition to the site information described in paragraphs 76(a) to (d) above, particulars of any steps about which the enforcing authority knows that have been taken under those other powers.
83 The register is also required, by paragraph 15 of Schedule 4, to include information about any cases where particular remediation actions cannot be specified in a remediation notice because they would have the effect of interfering with a controlled activity in relation to the water environment for which consent has been given under the Water Environment (Controlled Activities) (Scotland) Regulations 2005 (see section 78YB(4)). In addition to the site information described in paragraphs 77(a) to (d) above, the register is required to give particulars of such a consent.
84 Where the land is a special site, the register should include the information required in respect of any other site. In addition, under paragraph 9 of Schedule 4, the register is required to include:
(a) the notice designating it as such (given by a local authority under section 78C(1)(b) or 78C(5)(a), or by the Scottish Ministers under section 78D(4)(b));
(b) an identification of the description of land under which it is a special site (see regulations 2 or 3 and Schedule 1);
(c) any notice given by SEPA of its decision to adopt a remediation notice;
(d) any notice given by or to the enforcing authority under section 78Q(4) terminating the designation.
Agency Site-specific Guidance
85 Under paragraph 12 of Schedule 4, the register is required to include the date of any site-specific guidance issued by SEPA under section 78V(1). Where such site-specific guidance exists, information in it may be required to be available to the public under the Environmental Information Regulations. Where this is likely, it would be good practice to include a reference to where it is available to be inspected or copied.
Appeals against a Remediation Notice
86 Where a person on whom a remediation notice has been served appeals against that notice, the register is required, under paragraphs 3 and 4 of Schedule 4, to include full particulars of:
(a) any appeal against a remediation notice, including the date and the name and address of the appellant; and
(b) the decision on such an appeal.
87 Under paragraph 11 of Schedule 4, the register is required to include full particulars of any conviction of a person for any offence under section 78M (failure to comply with a remediation notice), including the name of the offender, the date of conviction, the penalty imposed, and the name of the Court.
88 Authorities should have regard to the provisions of the Rehabilitation of Offenders Act 1974, under which convictions of individuals can become spent. The Executive understands that it would not be unlawful under that Act to retain details of a spent conviction on the register, but nonetheless retention would seem contrary to its spirit. The Executive recommends therefore that authorities should regularly review their registers with the aim of identifying and removing spent convictions, although it may be desirable to continue to record that an offence has taken place. In the case of convictions of a body corporate, the 1974 Act does not apply, but it would seem equitable for the same approach to be applied as for the spent convictions of individuals.
89 Sections 78S and 78T set out restrictions on information to be placed on the register because of considerations of national security or commercial confidentiality. The effect of these provisions is explained in Annex 2, paragraphs 17.8 to 17.19.
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