To make this section of our website easier to use, we have broken down the questions most commonly asked of us into two sections:
Section A gives an introduction to the regulations and how they are enforced and may be of use to smaller businesses and contractors.
Section B goes into more detail and describes definitions, concepts and processes and is a useful resource for consultants, regulators and larger businesses and contractors. It also gives more information about how the regulations differ between Scotland and England.
Our guidance section contains further advice, good practice guides and position statements.
What is Part IIA?
Part IIA refers to the contaminated land regime, the provisions of which came into force in Scotland on 14 July 2000. The contaminated land regime is often referred to as Part IIA because the underlying primary legislation is provided in Part IIA of the Environmental Protection Act 1990 (as inserted by section 57 of the Environmental Act 1995).
The regime also comprises the Contaminated Land (Scotland) Regulations and Part IIA Contaminated Land Statutory Guidance. Much of the detail and explanatory information about the regime is contained in the statutory guidance.
How can I find out more about Part IIA?
The best sources of information are the legislation referred to above, namely :
- Paper SE/2006/44: Environmental Protection Act 1990: Part IIA Contaminated Land - Statutory Guidance: Edition 2
- The Contaminated Land (Scotland) Regulations 2000 (SSI 178
- The Contaminated Land (Scotland) Regulations 2005
- Section 57 of the Environment Protection Act 1995
- The Regulatory Reform (Scotland) Act 2014
- The Radioactive Contaminated Land (Scotland) Regulations 2007 (as amended)(SSI 179)
- Environmental Protection Act 1990: Part IIA Contaminated Land, Radioactive Contaminated Land (Scotland) Regulations 2007 Statutory Guidance 28 May 2009 SG/2009/87
What does Part IIA do?
It provides the legislative framework for the identification and remediation of contaminated land, introducing a statutory definition of contaminated land.
It is aimed at addressing land which has been historically contaminated with chemicals and which poses unacceptable risks to human health or the wider environment in the context of current use of the land.
Who are the lead regulators for Part IIA?
Local authorities are the lead regulators.
What do local authorities do under Part IIA?
Local authorities have duties to:
- inspect their areas to identify contaminated land and designate special sites;
- secure remediation of land identified as contaminated;
- maintain public registers of remediation of such land.
Local authorities also have powers to recover the costs of remediation that they undertake themselves.
How does Part IIA work?
Part IIA enables local authorities to enforce the regulations by developing and implementing strategic approaches to the identification of contaminated land, known as Inspection Strategies.
Once land has been identified as contaminated, the enforcing authority holds discussions with persons likely to be responsible for addressing the contamination, to agree on what remediation action is required.
What does SEPA do under Part IIA?
We are the regulator for a sub-set of sites known as special sites, as defined within the regulations.
We have duties to:
- secure remediation of special sites;
- maintain a register of special sites and their remediation;
- prepare a national report on the state of contaminated land at the direction of the Scottish Government;
- act as the enforcing authority for the investigation, identification, characterisation and regulation of remediation of radioactively contaminated land (RCL).
We may also provide site specific advice to local authorities and recover the costs of remediation that we undertake.
Who cleans up contaminated land?
People who have caused or knowingly permitted the substances to be in, on or under the land (see the definition of contaminated land will have the primary responsibility for remediating contaminated land.
If these people cannot be found, then existing owner or occupiers may become responsible. The legislation and the statutory guidance refers to these people as ‘appropriate persons’ and the statutory guidance should be referred to for further information on who constitutes an appropriate person and on the apportionment of liability between such persons.
Can SEPA tell me if I will have to clean up any land?
No. It is likely that the local authority will be the first to contact an ‘appropriate person’ at the correct stage in the regulatory process. This is usually relatively early on and prior to identification of a contaminated land site.
What will be the benefit of cleaning up all the contaminated land? What if it is so expensive that it puts me out of business?
The key benefit of cleaning up contaminated land is that harm to people and the environment will be stopped. This is consistent with sustainable development.
However, it is not the intention of the legislation to put anyone out of business. With this in mind, the statutory guidance provides advice on apportioning the costs of remediation and only requires remediation when it is reasonable to do so.
Can SEPA tell me if an area of land is likely to be a special site?
No. Local authorities are responsible for designating contaminated land as a special site, but they are unlikely to provide comment prior to arriving at such a decision.
A site must be formally identified as contaminated land by the local authority before it can subsequently be designated as a special site. The local authority will consider if the contaminated land site fits any of the special site descriptions. These relate to particular types of land use or water pollution specified in the regulations. If you want to know if an area of land is likely to be a special site, reference should be made to these regulations, together with the statutory guidance.
Will regulators be serving lots of remediation notices?
Voluntary remediation is encouraged, where possible.
The aim is to arrive at an agreement on what remediation needs to be carried out, rather than serving notices.
Does SEPA ‘sign off’ sites as not being contaminated?
No. Local authorities have the responsibility for deciding whether a site should be identified as contaminated land.
Part IIA provides for details being entered onto the register, indicating what has been claimed to have been done by way of remediation.
The contaminated land circular indicates that enforcing authorities may wish to consider writing to appropriate persons confirming the position with respect to any further enforcement action.
The Regulatory Reform (Scotland) Act 2014 has further introduced some provisions in relation to public registers and the serving of ‘non contamination notices’ by the local authority. For further information reference should be made to S45 of the Act.
Does land which is being redeveloped fall under Part IIA?
No, land subject to a change of use falls under the planning system.
Any issues regarding chemical contamination should be addressed in the planning process with a view that the redeveloped land should not be identified as statutorily contaminated when put to the new use.
Will Part IIA affect the way contaminated land is dealt with under planning?
Contaminated land has been dealt with under the planning system for many years and this has not changed with the introduction of Part IIA, although the Scottish Government has updated the planning guidance PAN33 to authorities on how they should exercise their roles.
How do I find out the status of a site?
You should consult with the relevant local authority to find out the status of your site, namely whether it is identified as contaminated land or designated as a special site.
What is contaminated land according to the legislation?
‘…any land, which appears to the local authority in whose area it is situated, to be in such a condition, by reason of substances in, on or under the land, that:
- significant harm is being caused or there is a significant possibility of such harm being caused;
- significant pollution of the water environment is being caused or there is a significant possibility of such pollution being caused’.
In turn, each of the terms in the definition above has their own specific legislative definitions and/or descriptions – these can be found in the legislation and guidance.
There are, however, a few important over-arching points to remember:
- Not all land contamination is ‘contaminated land’.
- The simple presence of a contaminant in the soil would not necessarily cause a site to be identified as contaminated land.
- Part IIA only covers a subset of land contamination which, in its current use, is causing or has the potential to cause significant harm or significant pollution of the water environment
- In order to determine whether significant harm or significant pollution is taking place, Part IIA introduces the concept of site specific risk assessment (a, b)
- Risk assessment is site specific because the level of risk posed by a contaminant is dependent on a large number of factors which can vary tremendously from site to site (e.g. types of receptor present, types of contaminant pathways present, form in which the substance occurs, soil type, rock type, pH, etc.).
Harm is defined by Part IIA as ‘…harm to the health of living organisms or other interference with ecological systems of which they form a part and, in the case of man, includes harm to his property’.
The statutory guidance should be referred to for further advice.
Section 78A(9) of Part IIA defines pollution of the water environment in terms of the direct or indirect introduction of substances into the water environment which may give rise to harm 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.
The term ‘water environment’ is, itself, defined in the Water Environment and Water Services (Scotland) Act 2003 (WEWS), which gave Scottish ministers powers to introduce regulatory controls over activities in order to protect and improve Scotland's water environment.
What are special sites and do they represent the most severely contaminated land?
Special sites are a particular type of contaminated land site, the characteristics which are defined in the regulations.
A special site must be identified as contaminated land before it can subsequently be designated as special. The local authority is responsible for both identification of contaminated land and designation of a special site. If a contaminated land site is designated as a special site, we then become the enforcing authority.
Special sites fall to our control mainly on the basis of our involvement under other regulatory regimes or particular areas of expertise – not necessarily because they are the most contaminated.
Are there a set of numerical standards defining what is and is not contaminated land?
No, there are no statutorily defined standards for concentrations of contaminants in soil.
This is because Part IIA adopts a risk-based approach in which harm and pollution of the water environment should be considered on a site-by-site basis.
Why are there no standards for cleaning up contaminated land?
Remediation objectives are established for individual sites based on an assessment of the risks posed to the receptors at the site. The risks will be dependent on a large number of site specific factors which can vary widely from one site to the next.
If universal standards were adopted, they would need to be so conservative – so as to protect all receptors in all circumstances – that they would become impracticable.
What is a conceptual site model?
A conceptual site model (CSM) is a simplified representation of how a real site system is believed to behave, based on a qualitative analysis of field data. It is a vital part of the assessment of the risks posed by contaminated land.
The CSM should be formulated during the initial stages of a site investigation to help the assessor to verify that they have investigated all the potential pollution linkages present at the site. The CSM should be developed concurrently with the site investigation to allow the model to be progressively refined. The final CSM should incorporate all of the pollutant linkages for that site and should be refined by the data collected during the site investigation.
The CSM allows the assessor to determine the most likely pathways for contaminant movement, which is a vital part of the assessment. The assumptions made for the CSM and the pollutant linkages should then be used to inform the selection of the most appropriate model to use at that individual site.
The model that is finally selected for risk assessment should be capable of modelling ALL the identified pollution linkages, or if two or more models are needed, these should both be progressed. The assessor must justify the use of a particular model on a site by site basis and this justification should be included in any reports about the site.
A further useful check is to ensure that site data does not contradict the output from the model used. In cases where such conflicts arise it is recommended that the assessor should rely on the field monitoring data rather than the models outputs.
For information on how to develop a conceptual model the Environment Agency has published a useful Guide to good practice for the development of conceptual models and the selection and application of mathematical models of contaminant transport processes in the subsurface
What is a pollutant linkage?
A pollutant linkage represents the presence of a source of contamination which has the potential to impact on a receptor by means of a pathway.
|SOURCE (substances in soil or present as a discrete phase )||PATHWAY (air, soil, foodchain, groundwater, surface water)||RECEPTOR (humans, ecosystems, property, controlled waters)|
Significant pollutant linkages need to be present in order for land to be identified as contaminated. The statutory guidance limits what can be considered as a receptor under Part IIA to certain designated ecosystems, human health, property and the water environment.
What are the differences between Part IIA in Scotland and England?
While the regulations and statutory guidance are derived from the same primary legislation, there are some differences.
The major differences are:
- The provisions came into force in England in April 2000 and in July 2000 in Scotland.
- Our role is to provide advice to local authorities in relation to potential special sites, whereas in England, the Environment Agency undertakes the inspection on behalf of local authorities.
- Notifications of identification of contaminated land appear in the public registers in Scotland, whereas in England they do not.
- The 2000 Scottish regulations specify the form of the remediation notice, whilst the English regulations just specify the content.
- In 2012, the statutory guidance in England was revised, and now provides a four-category test to assist local authority risk-based decisions on whether land is to be identified as contaminated land; the approach in Scotland is also risk-based, but does not provide this categorisation process for the local authority decisions