Amendment of the Environmental Protection Act 19902

1

The Environmental Protection Act 19902 is amended as follows.

2

In each of the following provisions, for “controlled waters” wherever the expression occurs substitute “the water environment”–

  • section 78A(7)(b)(i),

  • section 78C(10)(b),

  • section 78E(4)(b),

  • section 78G(4),

  • section 78H(4),

  • section 78J(2),

  • section 78J(3) (where the expression appears for the second time),

  • section 78N(3)(a),

  • section 78YB(2A)(a),

  • section 78YB(2B)(a),

  • section 78YC.

3

In section 78A (Preliminary)–

a

in subsection (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.

b

in subsection (4), for “Harm”, substitute–

  • Subject to sub section (4A), “harm”

c

after subsection (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.

d

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);

e

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”;

f

in subsection (7)(a)(ii), for “any controlled waters”, substitute “the water environment”;

g

in subsection (7)(b), for “waters”, where it first appears, substitute “the water environment”;

h

in subsection (7)(b)(i), before “pollution” insert “significant”;

i

in subsection (7)(b)(ii), for “waters to their” substitute “water environment to its”;

j

in subsection (7)(c), for “waters” substitute “the water environment”;

k

in subsection (8)–

i

for “Controlled waters are” substitute “The water environment is”; and

ii

delete from “pollution” to the end, and substitute “significant pollution of the water environment is being caused or there is a significant possibility of such pollution being caused”.

l

in subsection (9)–

i

delete the definitions of–

aa

“controlled waters”; and

bb

“pollution of controlled waters”; and

ii

insert in the appropriate places–

  • “pollution”, in relation to the water environment, means the direct or indirect introduction, as a result of human activity, of substances into the water environment, or any part of it, which may give rise to any harm

  • “the water environment” has the same meaning as in section 3 of the Water Environment and Water Services (Scotland) Act 2003

4

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

a

for subsection (10)(a)(ii) substitute–

ii

serious pollution of the water environment would or might be caused;

b

in subsection (10)(b), before “pollution” insert “significant”.

5

In section 78E (Duty of enforcing authority to require remediation of contaminated land etc.)–

a

in subsection (2), for “waters” substitute “the water environment”;

b

in subsection (4)(b), after “or” insert “of the”; and

c

in subsection (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 subsection (2), for “waters” substitute “water environment”;

b

in subsection (3)(a), for “waters” substitute “water environment”; and

c

for subsection (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 water environment.

7

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

a

in subsection (2), for “any waters” substitute “the water environment”;

b

in subsection (3)(a), for “any controlled waters” substitute “the water environment”;

c

in subsection (3)(b), for “such waters” substitute “the water environment”; and

d

in subsection (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 subsection (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 subsection (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 subsection (1), for “waters” substitute “the water environment”; and

b

for subsection (5) substitute–

5

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.

10

In section 78X (Supplementary provisions)–

a

in subsection (1)–

i

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,”; and

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 subsection (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 subsection (1)(b), for “pollution of controlled waters” substitute “significant pollution of the water environment”;

b

after subsection (1), insert–

1A

A remediation notice shall not be served if and to the extent that it appears to the enforcing authority that–

a

the significant harm (if any); and

b

the significant pollution of the water environment (if any),

by reason of which the contaminated land in question is such land, is as a result of an activity to which–

a

the Water Environment (Controlled Activities) (Scotland) Regulations 2005 apply; and

b

enforcement action may be taken in relation to that activity.

c

in subsection (2), for “pollution of controlled waters” substitute “significant pollution of the water environment”.

12

For section 79(1B) (statutory nuisances)3, substitute–

1B

Land is in a “contaminated state” for the purposes of sub section (1A) above if, and only if, it is in such a condition, by reason of substances in, on or under the land, that–

a

significant harm is being caused or there is a significant possibility of such harm being caused; or

b

significant pollution of the water environment is being caused or there is a significant possibility of such pollution being caused;

and in this subsection “harm”, “pollution” in relation to the water environment, “substance” and “the water environment” have the same meanings as in Part IIA of this Act.