Scottish Government

Consultation on proposed amendments to Part IIA of the Environmental Protection Act 1990 - Contaminated Land

ANNEX A

Draft Regulations laid before the Scottish Parliament under section 36(6) of the Water Environment and Water Services (Scotland) Act 2003, for approval by resolution of the Scottish Parliament.

DRAFT SCOTTISH STATUTORY INSTRUMENTS

2005 No. ENVIRONMENTAL PROTECTION

The Contaminated Land (Scotland) Regulations 2005

Laid before Parliament in draft

The Scottish Ministers, in exercise of the powers conferred on them by section 20 of [and Schedule 2 to] the Water Environment and Water Services (Scotland) Act 2003( ¹) and of all other powers enabling them in that behalf, having in accordance with section 21 of that Act consulted with the Scottish Environment Protection Agency, [every responsible authority], such persons appearing to them to be representative of the interests of local government, industry, agriculture, fisheries and small business respectively as they think fit, and such other person as they think fit, [OR - and having complied with the requirements of section 21 of that Act] hereby make the following Regulations, a draft of which has, in accordance with section 36(6) of that Act, been laid before, and approved by, a resolution of the Scottish Parliament:

Citation, commencement and extent

1. - (1) These Regulations may be cited as the Contaminated Land (Scotland) Regulations 2005 and shall come into force on the day after the day on which they are made.

   (2) These Regulations extend to Scotland only.

Amendment of the Environmental Protection Act 1990

1. - (1) The Environmental Protection Act 1990( ²) is amended as follows.

   (2) In each of the following provisions, for "controlled waters" wherever the expression occurs substitute "the water environment"-

2. 1. section 78A(5)(c),
      section 78A(7)(b)(i),
      section 78C(10)(b),
      section 78E(4)(b),
      section 78G(4),
      section 78H (4),
      section 78J(2),
      in the full-out to section 78J(3),
      section 78N(3)(a),
      section 78YB(2A)(a),
      section 78YB(2B)(a),
      section 78YC(a).

   (3) In section 78A (Preliminary)-

   1. in sub-section (2), in the definition of "contaminated land", for paragraph (b) substitute-

   "(b) significant pollution of the water environment is being caused or there is a significant possibility of such pollution being caused.".

   1. in subsection (4), before "Harm", insert-

   "Subject to sub-section (4)A,";

   1. after sub-section (4) insert-

   "(4A) "Harm", in relation to the water environment has the same meaning as in section 20(6) of the Water Environment and Water Services (Scotland) Act 2003 (asp 3).";

   1. in sub-section (5),

      (i) in paragraph (a), after "harm" insert "or pollution of the water environment";
      (ii) in paragraph (b), after "harm" insert "or of significant pollution of the water environment"; and
      (iii) delete paragraph (c);

   2. in sub-section (6),

      (i) in paragraph (a), after "systems" insert ", or substances which may give rise to pollution;";
      (ii) in paragraph (b), after "places" insert "or of the water environment, or different degrees of pollution"; and
      (iii) after "significant harm" insert "or of significant pollution".

   3. in sub-section (7)(a)(ii), for "any controlled waters", substitute "the water environment";

   4. in sub-section (7)(b), for "waters" substitute "the water environment";

   5. in sub-section (7)(b)(i), before "pollution" insert "significant";

   6. in sub-section (7)(b)(ii), for "waters to their" substitute "water environment to its";

   7. in sub-section (7)(c), for "waters" substitute "the water environment";

   8. in sub-section (8)-

      (i) for "controlled waters are" substitute "the water environment is"; and
      (ii) delete from "pollution" to the end, and substitute "significant pollution of that water environment is being caused or there is a significant possibility of such pollution being caused".

   9. In sub-section (9)-

      (i) delete the definitions of-

      (aa) "controlled waters"; and
      (bb) "pollution of controlled waters"; and

      (i) insert in the appropriate places-

   ""the water environment" has the same meaning as in section 3 of the Water Environment and Water Services Act 2003 (asp 3)"; and

   "pollution", in relation to the water environment has the same meaning as in section 20(6) of the Water Environment and Water Services Act 2003 (asp 3), under deletion of the words "or heat" in that section;".

   (4) In section 78C (Identification and designation of special sites)-

   (a) for sub-section (10)(a)(ii) substitute "(ii) serious pollution of the water environment would or might be caused; or"; and
   (b) in sub-section (10)(b), before "pollution" insert "significant".

   (5) In section 78E (Duty of Enforcing authority to require remediation of contaminated land etc.)-

   (a) in sub-section (2), for "waters" substitute "the water environment";
   (b) in sub-section (4)(b), after "or" insert "of the"; and
   (c) in sub-section (5)(b), for "is, or waters are," substitute ", or the water environment is".

   (6) In section 78G (Grant of, and compensation for, rights of entry etc.)-

   (a) in sub-section (2), for "waters" substitute "water environment";
   (b) in sub-section (3)(a), for "waters" substitute "water environment"; and
   (c) for sub-section (7), substitute-

   "(7) In this section, "relevant land or water environment means-

   (a) the contaminated land in question;
   (b) the water environment affected by that land; or
   (c) any land adjoining or adjacent to that land or that water environment.".

   (7) In section 78J (Restrictions on liability relating to the pollution of the water environment)-

   (a) in sub-section (2), for "any waters" substitute "the water environment";
   (b) in sub-section (3)(a), for "any controlled waters" substitute "the water environment";
   (c) in sub-section (3)(b), for "such waters" substitute "the water environment"; and
   (d) in the full-out to sub-section (3), for "or waters" substitute "or the water environment".

   (8) In section 78K (Liability in respect of contaminating substances which escape to other land)-

   (a) in the full-out to sub-section (3)-

   (i) for "or waters" in both places it occurs, substitute "or the water environment";
   (ii) for "is being caused" to "likely to be caused" substitute ", or significant pollution of the water environment, is being caused, or there is a significant possibility of such harm or pollution being caused;" and;

   (b) in the full-out to sub-section (4), for "is being caused" to "likely to be caused" substitute ", or significant pollution of the water environment, is being caused, or there is a significant possibility of such harm or pollution being caused.".

   (9) In section 78N (Powers of the enforcing authority to carry out remediation)-

   (a) in sub-section (1), for "waters" substitute "the water environment"; and
   (b) for sub-section (5) substitute-

   "(5) In this section "the relevant land or water environment" means-

   (a) the contaminated land in question;
   (b) the water environment affected by that land; or
   (c) any land adjoining or adjacent to that land or that water environment.".

   (10) In section 78X (Supplementary provisions)-

   (a) in sub-section (1)-

   (i) for paragraph (b), substitute "significant pollution of the water environment, is being caused, or there is a significant possibility of such pollution being caused,"; and
   (ii) for "is being caused, or" to "likely to be caused", substitute ", or significant pollution of the water environment, is being caused, or there is a significant possibility of such harm or pollution being caused"; and

   (c) in sub-section (2), for "is being caused" to "likely to be, caused" substitute ", or significant pollution of the water environment, is being caused, or there is a significant possibility of such harm or pollution being caused".

   (11) In section 78YB (Interaction of this Part with other enactments)-

   (a) in sub-section (1)(b), for "pollution of controlled waters" substitute "significant pollution of the water environment"; and

   (b) in sub-section (2), for "pollution of controlled waters" substitute "significant pollution of the water environment".

Amendment of the Contaminated Land (Scotland) Regulations 2000

1. - (1) The Contaminated Land (Scotland) Regulations 2000( ³) are amended as follows.

   (2) In each of the following provisions, for "controlled waters" wherever the expression occurs, substitute "the water environment"-

2. 1. regulation 3(a), (b) and (c),
      regulation 5(2),
      regulation 7(1)(h) and (j),
      in Schedule 2 (Remediation Notice), in the remediation notice Schedule 1, in the following paragraphs-

      (a) "The determination that the site is contaminated land"; and
      (b) "The determination of liability and the appointment of remediation costs",

      in paragraphs 2(c) and 13(c) of Schedule 4 (Registers).

   (3) In regulation 3 (Pollution of the water environment)-

   (a) in paragraph (a) for "those waters", substitute "that water environment";
   (b) for paragraph (b) substitute-

   "(b) the water environment is being affected by the land and, as a result, the water environment does not meet or is not likely to meet the criterion for classification applying to the relevant description of the water environment specified in regulations made under section 30B of the Control of Pollution Act 1974;";

   (c) in paragraph (c)(i) for "the waters" substitute "the water environment"; and
   (d) in paragraph (c)(ii)-

   (i) for "the waters" (where it first occurs), substitute "the water environment"; and
   (ii) for "the waters, are "substitute "the water environment, is".

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Date

EXPLANATORY NOTE

(This note is not part of the Regulations)

Part IIA of the Environmental Protection Act 1990 (c.43) ("the 1990 Act") establishes a regime for contaminated land in Scotland, and requires local authorities to identify and secure the remediation of contaminated land in their area.

The Contaminated Land (Scotland) Regulations 2000 (SSI 2000/178) ("the 2000 Regulations") provides for the circumstances in which contaminated land requires to be designated as a special site, and provides for a remediation regime in that regard.

Directive 2000/60/EC of the European Parliament and of the Council establishes a framework [for the protection of inland surface, transitional and coastal waters, and groundwater] OR - [for Community action in the field of water policy] and the Directive has been transposed in Scotland by the Water Environment and Water Services (Scotland) Act 2003 (asp 3) ("the 2003 Act"). Section 20 of the 2003 Act enables the Scottish Ministers to make regulations for or in connection with regulating any activity for the purposes of protection of "the water environment".

Both Part IIA to the 1990 Act, and the 2000 Regulations, make provision in relation to the pollution of controlled waters. In so far as contaminated land is a source of pollution of controlled waters, it is necessary to amend the relevant provisions of Part IIA of the 1990 Act and the 2000 Regulations to align the contaminated land regime provided for thereunder with the requirements of Directive 2000/60/EC and the 2003 Act. The amendments accommodate a change in terminology from "controlled waters" to "water environment" to ensure consistency of approach in the operation of the pollution control regime as provided for under the 2003 Act, with the provisions of Part IIA of the 1990 Act which concern contaminated land as a source of pollution of the water environment. Similar amendments are made to the 2000 Regulations to ensure consistency of approach in the designation of special sites under those Regulations with the pollution control regime provided for under the 2003 Act.

Regulation 2(3)(a) amends the definition of contaminated land (section 78A(2) of the 1990 Act) by introducing a requirement that pollution be "significant" to ensure that the definition does not result in land which causes trivial amounts of pollution of the water environment being designated as contaminated, as such a designation will have a blighting effect on the land or its use. [Detailed statutory guidance on what criteria is to be considered when determining "significant harm" or "significant pollution" is to be issued].

Regulation 2(3)(c) inserts a definition of "harm" in relation to the water environment with reference to the 2003 Act.

Regulation 3(l)(iii) provides for definitions of "the water environment" and "pollution", both with reference to the 2003 Act.

ANNEX B

DRAFT STATUTORY GUIDANCE

(TEXT PROPOSED TO REPLACE THAT IN PART 4 OF CHAPTER A TO ANNEX 3 TO SCOTTISH EXECUTIVE RURAL AFFAIRS DEPARTMENT CIRCULAR 1/2000)

PART 4 - Significant Pollution and the Significant Possibility of Significant Pollution of the Water Environment

A.38 Section 78A(9) defines pollution of the water environment in terms of the direct or indirect introduction into the water environment of substances which may be harmful to human health or the quality of aquatic ecosystems or terrestrial ecosystems directly depending on aquatic ecosystems, result in damage to material property or impair or interfere with amenities and other legitimate uses of the water environment.

A.39 Section 78A(2) provides that land is to be considered contaminated land for the purposes of Part IIA only in cases where pollution resulting therefrom is significant or where there is a "significant" possibility of significant pollution or harm occurring.

Section 78A(5) provides that what pollution is to be regarded as significant and whether the possibility of significant pollution being caused is significant shall be determined in accordance with this guidance.

A.40 Section 78A(2) requires that if significant pollution of the water environment results in significant harm or a significant possibility of significant harm, the land should be identified as contaminated.

A.41 Before determining that significant pollution of the water environment is being, or is likely to be, caused, the local authority should be satisfied that a substance is continuing to enter, or is likely to enter, the water environment. For this purpose, the local authority should regard something as being "likely" when it is judged more likely than not to occur. The term "continuing to enter" should be taken to mean any entry additional to that which has already occurred.

A.42 Land should not be designated as contaminated where:

A.43 If a substance is present in a source material which is immiscible with water, entry means actual dissolution of the substance from the material into the water environment.

What Pollution is to be Regarded as "Significant"?

A.44 Significant pollution is determined by assessing the potential for impact/harm/damage associated with the substance in the water environment. The pollution needs to be attributable to the pollutant linkage on its own, or where it contributes to significant pollution in conjunction with other sources, the area of land in question must be a major contributor to the resultant pollution of the water environment.

A.45 In determining whether pollution of the water environment is "significant pollution of the water environment" for the purposes of Section 78A(2) (b), the local authority shall have regard to the following:

Measures of significant pollution

Scale of significant pollution

For significant pollution to occur, failure of the standards above should not be:

Significant Possibility of Significant Pollution

A.46 Consideration shall be based on the principles of risk assessment and, in particular, on the likelihood of entry resulting in significant pollution.

A.47 The local authority should determine that land is contaminated land on the basis that there is a significant possibility of significant pollution of the water environment where:

(a) it has carried out an appropriate scientific and technical assessment of all the relevant and available evidence, having regard to any advice provided by SEPA; and

(b) on the basis of that assessment it is satisfied that, on the balance of probabilities, all of the following circumstances apply:

(i) a substance is present in, on or under the land in question, which has the potential to result in significant pollution of the water environment;

(ii) the substance in question is in, or is likely to be in, such a condition that it is capable of entering the water environment;

(iii) taking into account the geology and other circumstances of the land in question, there is a pathway (as defined in Chapter A) by which the substance can enter the water environment;

(iv) the substance is more likely than not to enter the water environment and would result in significant pollution of the water environment; and

(v) there are no suitable and sufficient risk management arrangements relevant to the pollution linkage in place to prevent such significant pollution.

ANNEX C ( pdf format) (322k)

ANNEX D

LIST OF CONSULTEES

Trade Associations
Agricultural Engineers Association
Agricultural Industries Confederation
Association of Environmental Consultancies
Association of Independent Businesses
Association of port Health Authorities
Association of Private Crematoria & Cemeteries
Association of Private Pet Crematoria
British Aggregates Association
Cementitious Slag Makers Association
Chartered Institute of Waste Management
Chemical and Oil Recovery (Recycling) Association
Civil Engineering Contractors Association
Confederation of British Industry
Confederation of UK Coal Producers
Environmental Industries Commission
Environmental Services Association
Federation of British Cremation Authorities
Federation of Petroleum Supplies
Federation of Small Businesses (Scotland)
Institute of Waste Management
National Association of Waste Disposal
National Farmers Union (Scotland)
National Federation of Demolition Contractors
Newspaper Publishers Association
Newspaper Society
Paint Research Association
Refined Bitumen Association Ltd
Scottish Society of Directors of Planning
Silica and Moulding Sands Association
Soil and Groundwater Technology Association
Surface Engineering Association
The Construction Confederation
The Town and Country Planning Association
Union of Independent Companies
United Kingdom Agricultural Supply Trade Association
United Kingdom Petroleum Industry Association
Women's Environmental Network

Other Interested Organisations
Asbestos Information Centre
CBI
Chamber of Commerce
Chartered Institute of Environmental Health
Construction Industry Research and Information Association (CIRIA)
Contaminated Land Assessment and Remediation Research Centre
Contaminated Land: Application in Real Environments (CL:AIRE)
COSLA
Envirotech (Europe) Ltd
ERM
Firstfaraday
Food Standards Agency Scotland
Forestry Commission
Friends of the Earth (Scotland)
Greenpeace
Highlands and Islands Enterprise Council
HSE
ICI Group Headquarters
Ineos Chlor
National Society for Clean Air
Oil Technics Specialist Cleaning Products
Refined Bitumen Association Ltd
Royal Environmental Health Institute of Scotland
Royal Faculty of Procurators
Royal Incorporation of Architects in Scotland
Royal Institute of Chartered Surveyors
Royal Town Planning Institute
Scottish Agricultural College
Scottish Contaminated Land Forum
Scottish Enterprise
Scottish Environment Link
Scottish Environment Protection Agency
Scottish Natural Heritage
Scottish Power
Scottish Water
Sheppard & Weddderburn
SNIFFER
The Coal Authority
The Environment Angency
The Environmental Council
The Institute of Civil Engineers
The Law Society for Scotland

Local Authorities
Aberdeen City Council
Aberdeenshire Council
Angus Council
Argyll & Bute Council
City of Edinburgh Council
Clackmannanshire Council
Comhairle nan Eilean Siar
Dumfries & Galloway Council
Dundee City Council
East Ayrshire Council
East Dunbartonshire Council
East Lothian Council
East Renfrewshire Council
Falkirk Council
Fife Council
Glasgow City Council
Highland Council
Inverclyde Council
Midlothian Council
Moray Council
North Ayrshire Council
North Lanarkshire Council
Orkney Islands Council
Perth and Kinross Council
Renfrewshire Council
Scottish Borders Council
Shetland Islands Council
South Ayrshire Council
South Lanarkshire Council
Stirling Council
West Dunbartonshire Council
West Lothian Council

Small changes in the way we perform everyday tasks can have huge impacts on Scotland's environment.

Walking short distances rather than using the car, or being careful not to overfill the kettle are just two positive steps we can all take.

This butterfly represents the beauty and fragility of Scotland's environment. The motif will be utilised extensively by the Scottish Executive and its partners in their efforts to persuade people they can do a little to change a lot.