Protecting the public from radioactive contamination in land: consultation

1. Introduction

1. The Radioactive Contaminated Land (Scotland) Regulations came into force on October 2007. The Regulations were subsequently amended and came into force on June 2009. The current Guidance (including Statutory Guidance) on the application of the Radioactive Contaminated Land (Scotland) Regulations (as amended) was published, following consultation, in March 2010.

2. The current Guidance gives a brief policy background to the Radioactive Contaminated Land ( RCL) regime, detailed information about the regime in the RCL Regulations, and Statutory Guidance to the Scottish Environment Protection Agency ( SEPA) on how to perform their duties and functions under the Regulations.

3. We are now consulting on revisions to this Guidance. These revisions have the following aims:

• to respond to the Committee on Medical Aspects of Radiation in the Environment ( COMARE)'s 15 ^th Report on radium contamination in the area around Dalgety Bay , which drew lessons from SEPAs' consideration of radioactive contamination found at Dalgety Bay,
• to reflect on experience with the operation of the wider set of measures for protecting the public from radioactive contamination in land, which relies on wider powers and duties of public bodies, with the formal role of SEPA under the RCL Regulations regime acting as a measure of last resort,
• to ensure that there is explicit transposition of relevant elements of the EU Basic Safety Standards Directive (Council Directive 2013/59/Euratom), hereafter BSSD 2013.

4. This consultation paper will present revised draft sections to replace the Introduction and Annex 1 of the current guidance. These sections are intended to improve the description of the set of measures for protecting the public from radioactive contamination in land in Scotland, which will involve description of powers and duties of public bodies that are broader than the RCL Regulations. These sections are not statutory guidance, and will not impose any new duties on any public bodies, including local authorities.

5. We shall also present a new draft section to be incorporated into Annex 3 of the Statutory Guidance, which will explicitly ensure that SEPA carries out their functions under the RCL Regulations in a way that ensures transposition of the BSSD 2013.

6. The transposition deadline for the BSSD 2013 has now passed. The Scottish Government regrets that it has not yet put in place the minor changes to the RCL regime that will ensure explicit transposition. This delay will have no significant impact on individuals or communities as:-

• Scotland already has a mature RCL regime, and effective planning and public health systems;
• The changes to the regime are minor, and will only take effect when an individual area is being considered as potential RCL;
• No area of land is currently under formal consideration under the regulations as potential RCL.

7. The Scottish Government will work with SEPA to ensure that, should any decision or action be considered that could be affected by the provisions of BSSD 2013 prior to the revision of the regime, any necessary steps will be taken to ensure that the provisions of BSSD 2013 have effect.

1.1 COMARE report

8. The Committee on Medical Aspects of Radiation in the Environment ( COMARE) published a report on 19 May 2014, reviewing the radium contamination in the area around Dalgety Bay. The report covers the history of the site, the type and extent of the contamination, the recent investigations and the cancer epidemiology for the area. The report also considered the implications for other similarly contaminated sites. The report made a number of recommendations that were acted on by government and regulators. Since the time of publication of the report, a programme of remediation has commenced.

9. The report recommended a UK-wide list of land which is known to have been, or thought to be potentially, contaminated with radium. Following consideration with the other UK administrations, we shall not be taking forward this recommendation at this time, although we are responding to the concerns raised. There are a number of problems with making the recommendation operational, in particular it would not be possible to put on such a public register land that had not been robustly shown to be contaminated, as this could unnecessarily blight the land and its value. No area of land has been declared as RCL under the Regulations, and there is currently no other robust process available to assess land for a public register. We believe that it is more important that all information about possible contamination with radioactivity is collected and stored where it will be considered should any proposal for use of that land come forward. There are separate processes for identifying areas where potential contamination is believed to be an immediate threat to public health. Moreover, it is clear that Dalgety Bay was a rare, and perhaps unique case, because of the interaction of contamination with coastal realignment and erosion.

10. As set out in the revised guidance, there are systems and processes that can ensure that information about land with potential radioactive contamination is managed and used as necessary to mitigate risks. The revised guidance will promote best practice in the collection, storage and use of this information.

1.2 Experience with the RCL regime and wider measures

11. This section considers experience with the operation of the set of measures for the protection of the public from radioactive contamination in land since the passing of the RCL Regulations. This set of measures is not a single operational system, but the combined effect of actions taken under various powers and duties, largely by SEPA and local authorities, to protect the public from exposures. SEPA has carried out valuable work through meetings with local authority representatives to gain a good understanding of the practical operation of this set of measures. However, our understanding of the interaction of planning functions and the RCL system is not complete, and we would welcome comments on the accuracy of the description of current practice contained in this section.

12. Since the introduction of the RCL Regulations, no land in Scotland has been designated as Radioactive Contaminated Land. The RCL Regulations regime has, however, led to the investigation of some areas of land. There was one case where the steps to determination set out in the regulations were undertaken by SEPA (the Dalgety Bay case, as discussed above), however the outcome was a voluntary agreement to remediate the land, without a formal regulatory determination of responsibility.

13. The RCL Regulations are based on the wider contaminated land regime. Both regimes deal with the identification of contaminated land, the assignment of responsibility and the arrangements to require remediation. Both regimes have, in practice, been regarded as back stops – with the major protection of the public from any contamination in land coming from other measures, notably the planning system, rather than from formal designation of the land as contaminated. Very few areas of land have been declared to be Contaminated Land under the Contaminated Land regulations, and in many local authorities the Contaminated Land register has no entries. The position for RCL is therefore not out of line with the experience with the wider Contaminated Land regime.

14. The wider contaminated land regime is found in Part IIA of the Environmental Protection Act 1990. The RCL regulations modify the Part IIA regime, providing separate provisions for the identification of contaminated land and the assignment of responsibility. However, the provisions for remediation are only amended to provide coverage of radioactive contamination and are otherwise shared. For this reason, some parts of the guidance issued for land with contamination, such as Planning Advice Note 33, would be relevant to any land declared to be RCL.

15. There is a significant difference between the RCL regime and the wider Contaminated Land regime in that, in the wider regime, local authorities have a duty to carry out surveys of their area to identify contaminated land. Under the RCL regime, they have the narrower duty to inform SEPA should they become aware of an area of land they believe is potentially contaminated with radioactivity.

16. Local Authorities have responsibility under the development control regime to ensure that land is suitable for its proposed use. This is complementary to the local authority duty under Part IIA to collate data on historic land uses for land in its current use, and the use of this database in the consideration of proposed changes of use. Planning Advice Note 33 provides advice, good practice and information on the development of contaminated land.

17. In most instances, where land is undisturbed there is no risk to the public from any contamination contained within the land. Local authorities maintain databases of information that they have about potential contamination of areas of land, and best practice is for this to include information on potential radioactive contamination. SEPA retains management information about sites where concerns have been raised about radioactive contamination and where they have their own information about concerns. This includes information on sites where it has carried out investigations in the past. This information is used to inform possible further investigations and SEPA's response to any proposed changes of use for the land. However, this information is not a list of sites with radioactive contamination. Any application for planning permission to develop land will be checked against the local authority's database of known concerns and previous use of the land, and appropriate requirements to investigate the land for contamination, and deal with the contamination if necessary, will be included in any permission to develop the land. It was never intended that the RCL Regime would cover land once it is under development, as it is then covered by planning controls and the radioactive substances regime for any radioactive waste management.

1.3 The Basic Safety Standards Directive 2013

18. The Basic Safety Standards Directive 2013 includes a number of provisions for the protection of the public from what are termed "existing exposure situations." These measures were due to be brought into effect by the transposition deadline of 6 February 2018. The UK Government is negotiating to take the UK out of the Euratom Community. The law that is in force on the date when the UK leaves the Euratom Community, which will include measures to transpose the BSSD, will continue to have effect unless and until it is changed.

19. The proposals of the four UK administrations for the transposition of the "existing exposure situations" measures in the BSSD were subject to public consultation in the Consultation on implementing the Euratom Basic Safety Standards Directive: requirements for radiological protection of the public in existing and planned exposure situations and for the justification of practices involving ionising radiation. An existing exposure situation in the BSSD is a situation of exposure which already exists when a decision on the need for control needs to be taken.

20. A brief summary of these proposals, as they effect the development of this draft guidance is given below.

Article 7 – Reference levels

21. Article 7 of the BSSD 2013 introduces a new requirement to establish reference levels. For a given exposure situation, reference levels specify the residual dose above which it is judged inappropriate to allow exposures to occur. Reference levels relate to the exposure of individuals from a single source ( e.g. contamination of the environment). They provide a guideline rather than an absolute limit that must not be exceeded and so perform the role of informing optimisation decisions about the types of protection actions that may be appropriate in different situations. They can be viewed as a tool for supporting the practical implementation of the optimisation principle and ensuring greater clarity for all relevant stakeholders.

22. The BSSD has introduced a new requirement that Member States must set reference levels for existing exposure situations. Optimisation of protection must give priority to exposures above the reference level and continue to be implemented below it. The BSSD recognises that the values chosen for reference levels will depend on the type of exposure situation. The choice of reference levels should take into account radiological protection requirements and any relevant criteria relating to wider social implications. For public exposure, guidance on setting of reference levels is set out in Annex I of the BSSD. For existing exposures arising from contaminated land (including as a result of an emergency incident which has been declared ended) a reference level of 3 mSv/ y committed effective dose (and equivalent dose criteria) is already used in practice in Scotland and detailed in the RCL statutory guidance as the "harm threshold" for identifying RCL. The 3 mSv/y significant harm threshold is complemented by committed effective dose limits for the significant possibility of significant harm of 100 mSv in a single exposure event, and of 10Gy/hr as an absorbed dose on contact with contamination. In addition the RCL regimes already embed the concepts of justification and optimisation required by the BSSD 2013 through the establishment and use of reference levels.

Article 73.1 – Contaminated areas

23. Article 73.1 covers the management of contaminated areas, aiming to ensure that Member States' optimised protection strategies for such areas include, where applicable, a set of specified components listed within this Article. As applied to legacy land, this article needs to be reflected in the application of the RCL Regulations. We believe that most elements are already covered, but will place an explicit requirement on SEPA to consider Article 73.1 in carrying out their functions under the Regulations. In particular, we shall need to be explicit about the Reference levels.

Article 73.2 – Contaminated areas

24. Article 73.2 addresses the situation whereby a Member State has decided to allow habitation and a resumption of social and economic activities in an area with long-lasting contamination. This relates primarily to any future contaminated areas that may arise as a result of a radiation emergency incident, after the emergency exposure situation is declared ended. It can also not be ruled out that a Member State might decide to allow habitation on an existing contaminated area that has arisen from past activities. Given the situation where the decision described above has been made, Article 73.2 requires Member States to ensure, in consultation with stakeholders, that arrangements are in place, as necessary, for the ongoing control of the exposure situation with the ultimate aim of establishing living conditions that can be considered as normal.

25. The Scottish Government does not consider that there are any circumstances where the resumption of normal living conditions as described in Article 73.2 would be allowed on land while it was continuing to be determined to be Radioactive Contaminated Land. It is, however, noted in the Guidance that there are provisions of Article 73.2 that would be have to be fulfilled in that situation.

Article 100.1 – Existing exposure situations

26. Article 100.1 relates to the programmes that Member States are required to have in place for existing exposure situations. Specifically Article 100.1 introduces a new requirement for Member States; where there is indication or evidence of an existing exposure that cannot be disregarded from a radiation protection point of view, Member States must ensure that measures are taken to identify and evaluate the exposure and determine any associated public exposures arising from it. In relation to existing exposures due to contamination of areas by residual radioactive material from past work activities and practices, we propose that transposition of Article 100.1 will be achieved using the current RCL regimes and corresponding statutory guidance. We consider the 3 mSv/y RCL committed effective dose intervention level established in the RCL regime, with the complementary committed effective dose constraints, to be at an appropriate level to identify existing exposure situations that cannot be disregarded from a radiation protection point of view.

Article 102.4 – Implementation of strategies

27. Article 102.4 relates to the implementation of strategies for the management of existing exposure situations. Specifically Article 102.4 requires that Member States must regularly carry out actions to evaluate and review remedial and protective measures, and provide information and guidance to any populations exposed to contamination.

28. The RCL regime transposes the component parts of 102.4, however there is currently no requirement relating to the regularity with which these activities should occur. The Ionising Radiation (Basic Safety Standards) (Miscellaneous Provisions) Regulations 2018 includes measures for the provision of information to the public parts of Article 102.4.

29. To ensure that the transposition of the BSSD is clear and transparent, we propose to add a chapter to the Statutory Guidance to SEPA on the RCL Regulations, which will ensure that the Regulations are interpreted and enforced in line with the provisions of the BSSD. A draft of the new chapter BB is presented in this consultation paper.

30. For the situations covered by the RCL Regulations and Guidance, historic contamination and potentially the clean up after localised contamination from activities involving radioactive substances, the Regulations and Guidance are the strategy for the management of existing exposure situations that is required by the BSSD. The appropriate Reference Level in terms of Article 7 is 3 mSv/year, which is the same as the harm threshold specified in the Regulations. This limit is complimented by the committed effective dose limits for significant possibility of harm. The 3 mSv/y value will therefore continue to be the threshold at which land is sufficiently contaminated to fall under the regime in the RCL regulations. The application of this Reference Level does not change the maximum permitted level of exposure that will be required by SEPA of developers on land considered under the planning regime, which will remain at 0.3 mSv/y.

31. The RCL Regulations, with the amended Guidance, will ensure that, for any land that is judged to be RCL under the Regulations, the remediation demanded by SEPA is the Optimised Protection Strategy for that land.

Possible need for amendments to RCL Regulations

32. The RCL Regulations need to be amended to change the reference to the old BSSD to the new BSSD in force. In England and Wales, the government has decided to amend their equivalent regulations, to clarify some definitions. Their amending regulations are The Radioactive Contaminated Land (Enabling Powers and Modification of Enactments) (England) (Amendment) Regulations 2018.

33. Our current judgement is that it will be sufficient to amend the statutory guidance in order to ensure that the regulations are interpreted in line with the BSSD 2013. However, this will be subject to final legal review following consultation and, if necessary to give legal certainty, we shall bring forward equivalent amendments to our regulations. We would welcome any views on whether amendments to the regulations are necessary.

The Ionising Radiation (Basic Safety Standards) (Miscellaneous Provisions) Regulations 2018

34. The Ionising Radiation (Basic Safety Standards) (Miscellaneous Provisions) Regulations 2018 make provision for elements of the BSSD 2013 that could not be readily accommodated within existing regulations. These are a UK set of regulations that make provisions for both reserved and devolved matters, to match the pre-existing split of responsibilities. There are two provisions with relevance to the RCL regime – the obligation to set reference levels for the restoration of land after contamination in different circumstances, and for the provision of information to the public on measures to protect themselves from contamination from a designated site.

Reference Levels for decisions under the RCL Regualtions

35. Our proposals at this time are to retain the current thresholds in the existing RCL Guidance in the revised Guidance, and therefore as the Reference Levels for the purpose of BSSD 2013. The 3mSv/y significant harm threshold is complemented by committed effective dose limits for the significant possibility of significant harm of 100 mSv in a single exposure event, and of 10Gy/hr as an absorbed dose on contact with contamination.

36. However, a change in the significant harm threshold, and therefore the Reference Level, to 1mSv/y would make little practical difference to the potential for land to be judged as radioactively contaminated, and could bring the regime better into alignment with best international practice on land with potential radioactive contamination. The Scottish Government will consider this further with SEPA, informed by the wider advice that we shall be receiving on Reference Levels for other situations. We would welcome views on the desirability of changing the harm thresholds in the RCL regime.