Protecting the public from radioactive contamination in land: consultation

2. Proposed amendments to the RCL Guidance

37. The first change we propose to make is to change the title of the Guidance to make clear that it covers a description of, and best practice guidance on, the wider use of powers and duties that ensures the protection of the public from radioactive contamination in land. The statutory guidance on the RCL regulations themselves will form a part of this wider guidance. The proposed new title is:

Scottish Government guidance on protecting the public from radioactive contamination in land.

Incorporating statutory guidance on the Radioactive Contaminated Land (Scotland) Regulations 2007 (as amended)

2.1 Proposed replacement content of Introduction and Annex 1

" Introduction

1.1. This is the Scottish Government's guidance on protecting the public from radioactive contamination in land. It consists of these elements:-

• the rest of this Introduction section contains a description of, and best practice guidance on, the measures to protect the public in Scotland from radioactive contamination in land;
• Annex 1 presents a flow chart for an overview of the process that can lead to the identification of radioactive contaminated land;
• Annex 2 is a detailed technical description of the regime put in place by the RCL Regulations; and
• Annex 3 contains the Statutory Guidance on the Radioactive Contaminated Land ( RCL) Regulations. The Statutory Guidance is issued under the Environmental Protection Act 1990.

Policy background

Objective of the regime

1.2. The aim of this guidance, and of the measures to detect and control radioactive contamination in land, is the protection of human health and of the wider environment.

Prevention

1.3. Radioactive contaminated land, like other types of contaminated land, is evidence of past failures to manage the environmental impact of activities. The first priority of the Scottish Government's policy on land contamination is to prevent the creation of new contamination. SEPA operates the radioactive substances regulatory regime, including the regulation of solid radioactive waste management and of liquid and gaseous emissions. In addition, the Office for Nuclear Regulation regulates safety on nuclear sites and the transportation of nuclear materials. These regimes ensure that there are no planned emissions of radioactivity that could cause future contamination to land, and mitigate as far as possible the risks of any accidental releases.

Polluter pays

1.4. An important principle for Scottish Government environmental policy is that the polluter should pay for the prevention and remediation of contamination, wherever the responsible polluter can be identified.

Protecting the public from radioactive contamination in land

1.5. The public is protected from radioactive contamination in land through a set of measures, underpinned by the regime set out in 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, mainly by SEPA and local authorities, to protect the public from exposures.

1.6. The RCL Regulations are based on the regulations that put in place the wider contaminated land regime. Both sets of regulations deal with the identification of contaminated land, the assignment of responsibility and the arrangements to require remediation. In both regimes, the formal regulatory process of designating land has, in practice, been regarded as a back stop. In both regimes, the major protection of the public from any contamination in land has come from other measures, notably the planning system, rather than from formal designation of land as contaminated.

1.7. The wider contaminated land regime is found in Part IIA of the Environment 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.

1.8. 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.

1.9. 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 planning consultations for its proposed use. Planning Advice Note 33 provides advice, good practice and information on the development of contaminated land.

1.10. In most instances, where land is undisturbed there is no risk to the public from any contamination contained within the land, which is why the planning system can be so effective in preventing harm. 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.

Outline of steps to protect the public from radioactive contamination in land

Collection and storage of information

1.11. The important first step in protecting the public from radioactive contamination in land is the collection and storage of information about where there is potential for such contamination. Unlike for the wider contaminated land regime, local authorities have no duty to survey their areas for situations of potential radioactive contamination. However, good practice in local authorities is to store any information they have about potential radioactive contamination on internal databases, alongside such information for other contamination. In most instances, sites of concern from a radioactive contamination perspective will have the potential for multiple types of contamination, so will in any case be flagged. In many instances, these are not sites which have been investigated and contamination found. Rather they are sites that, because of their history and other factors, are deemed worthy of consideration, as required under Part IIA, or should they be subject to a planning application for a development or change of use.

1.12. 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.

Planning powers

1.13. 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. In the absence of specific information, local authorities will use judgment as to the likelihood of contamination from the nature of the site and the previous site use. Local authorities can place conditions on developers, including investigating and cleaning up any contamination. SEPA are consulted as statutory consultees with regard to sites that are designated Part IIA Contaminated Land or RCL, and will be able to comment on applications, and make recommendations if appropriate on the nature of planning conditions. Planning conditions will reflect the proposed use of the land. It is best practice in the interests of protecting public health for planning authorities to consult SEPA on planning applications for brownfield sites where there evidence or suspicion of previous use of radioactive substances, and pay due account to advice received from SEPA in response.

Investigation of land

1.14. There may be occasions when local authorities or other agents decide to initiate investigations of land to test for contamination with radiation. This may be land where development is foreseen in the near future, or land where there is not yet sufficient information to make a report to SEPA under the provisions of the RCL Regulations.

1.15. Inspections will generally be carried out by contractors for local authorities, and it is important that the work is correctly specified to be effective. SEPA can provide advice and has produced guidance to planning authorities and contractors on the commissioning of investigations for Contaminated Land and Radioactive Contaminated Land.

Reporting RCL concerns to SEPA

1.16. Local Authorities have a duty under the RCL Regulations to notify SEPA of land that is potentially contaminated with radioactivity. In making such notifications, local authorities must have due regard to SEPA needing the following reasonable grounds to inspect:

• Substance identified as being present on Land;
• Receptors identified as being present on Land; and
• Possibility of dose criteria being exceeded.

SEPA's investigation of land

1.17. Once SEPA has information, from reports from a local authority or other sources, about areas of land with potential radioactive contamination, they will commence their own investigations into the land.

1.18. If reasonable grounds criteria are satisfied, inspection will include the collation of documentary evidence, a site visit with radiological walkover if deemed necessary and, if justified, an intrusive investigation. Where reasonable grounds exist and an investigation has been carried out, SEPA must inform the local authority of the outcome.

1.19. Section 5 of the RCL guidance describes in greater detail the process for investigating Radioactive Contaminated Land.

SEPA taking formal steps under RCL Regulations

1.20. Following inspection of the land, SEPA can make a determination as to whether the land meets the criteria to be declared as radioactive contaminated land. There are similar considerations for this decision as for the equivalent decision for other contaminated land. Considerations include, the physical extent of the land, consistency with other statutory bodies, a risk assessment to establish that there is Significant Harm or Significant Possibility of Significant Harm. Part 4 of the RCL Guidance describes in greater detail to process of making a Determination.

Opportunity for voluntary remediation

1.21. The provisions with respect to remediation under the RCL Regulations match those in the wider contaminated land regime, and so existing guidance on remediation can be applied to both regimes.

1.22. SEPA may decide that the owner of the land, or any other person who might be liable for remediation, can carry out remediation on a voluntary basis. In these circumstances, a voluntary agreement should be agreed by the person(s) who might be liable for remediation and SEPA. A voluntary agreement should contain provisions to remediate land in a safe, transparent and timely manner. Local authorities and health authorities must be consulted on any agreement.

Naming of Appropriate Person and requirement to remediate

1.23. In the event that no voluntary agreement can be reached, or if SEPA decides for other reasons that the voluntary remediation is not appropriate, the RCL Regulations give powers for SEPA to name the Appropriate Person and require remediation. The provisions with respect to remediation under the RCL Regulations generally match those in the wider contaminated land regime, and so existing guidance on remediation can be applied to both regimes.

Summary of the roles of public bodies

Scottish Ministers

1.24. Scottish Ministers have responsibilities relevant to the protection of the public from radioactive contamination, including:

• maintaining the policy and legal framework for protecting the Scotland's environment and public health;
• issuing guidance on the planning system, on the Contaminated Land regime and statutory guidance under the Radioactive Contaminated Land (Scotland) Regulations 2007; and
• considering Environmental appeals by people on whom remediation notices are served by SEPA.

Scottish Environment Protection Agency

1.25. SEPA is the environmental regulator for Scotland, including for all devolved radioactive substances regimes in Scotland.

1.26. The Regulatory Reform (Scotland) Act 2014 introduced a general purpose for SEPA, as follows:

(1) SEPA is to carry out the functions conferred on it by or under this Act or any other enactment for the purpose of protecting and improving the environment (including managing natural resources in a sustainable way).

(2) In carrying out its functions for that purpose SEPA must, except to the extent that it would be inconsistent with subsection (1) to do so, contribute to-

(a) improving the health and well-being of people in Scotland, and

(b) achieving sustainable economic growth

The Scottish Government has issued guidance on the interpretation of this provision.

1.27. SEPA has a range of functions under the RCL Regulations, which are set out in detail in this Guidance. These functions include responsibility for identifying, inspecting, determining, designating and securing remediation of Radioactive Contaminated Land. SEPA is the Regulator of Radioactive Contaminated Land Part IIA sites and the Regulator under the Environmental Authorisations (Scotland) Regulations 2018 with respect to the accumulation and disposal of radioactive waste.

Local Authorities

1.28. Local authorities are the lead authority on matters relating to the wider Contaminated Land regime. Their formal roles under the RCL Regulations are more limited in nature. Local authorities have a duty under the RCL Regulations to notify SEPA of land potentially contaminated with radioactivity. In making such notifications, local authorities must have due regard to SEPA needing the following reasonable grounds to inspect:

• Substance identified as being present on Land;
• Receptors identified as being present on Land; and
• Possibility of dose criteria being exceeded.

1.29. Local authorities have other powers, duties and functions that contribute to the set of measures that ensures the protection of the public from radioactive contamination in land. Local authorities have key responsibilities as planning authorities to control the development of land that might have contamination, including with radioactivity. Local authorities consult SEPA as they carry out their planning functions including on Strategic Environmental Assessments, Development Plans and certain Planning Applications.

1.30. Local authorities have responsibilities for public health under the Public Health Act (Scotland) Act 2008, which specifies responsibilities to protect the public from contamination, including with radioactivity.

The implementation of measures from the Basic Safety Standards Directive ( BSSD) 2013

1.31. There are measures in the BSSD 2013 that are relevant to the radioactive contaminated land regime. The RCL regime is our transposition of these measures for the types of situation that the regulations cover – historic contamination, and clear up after contamination of areas of land following activities involving radiation.

1.32. The relevant measures in the BSSD are:

Article 7, having reference to the appropriate reference level set by the Scottish Ministers, which for actions under the RCL Regulations is 3 mSv/year, aligned with the significant harm threshold, which 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;

Article 73(1) in determining the conditions for remediation of a contaminated area;

Article 100, and the related Annex XVII with respect to planning and carrying out inspections; and

Article 102, in the carrying out of their functions with respect to the RCL Regulations and the wider objectives set out in the Guidance on protecting the public from radioactive contamination in land, which expresses the Scottish Government's strategy in line with Article 101.

1.33. 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 that was determined to be Radioactive Contaminated Land. It is, however, noted that there are provisions of Article in 73(2) that would be have to be fulfilled in that situation.

1.34. To ensure an effective transposition of these measures, the relevant part of these articles are included in the Statutory Guidance on the RCL Regulations in Chapter BB.

Restrictions to the regime

1.35. For the purposes of the RCL regime, it was intended that all land is covered by that regime with two exceptions.

Civil Nuclear sites

1.36. The first is that part of a site, owned or occupied by a nuclear site operator, for which a nuclear-site licence is in place. This is because there are sufficient regulatory controls already in place through the Office of the Nuclear Regulatory to require remediation if necessary.

Defence sites

1.37. The second exception covers land used by or on behalf of the Secretary of State for Defence for a purpose which, if section 1 of the Nuclear Installations Act 1965 applied to the Crown, would require a nuclear site licence to be in place."

2.2 Proposed additional chapter to Statutory Guidance

38. We propose the following additional chapter, to appear after the existing Chapter B, to ensure a full and transparent transposition of the relevant measures from BSSD 2013.

"Chapter BB

In carrying out their duties and functions under the RCL Regulations, in line with the Statutory Guidance on these regulations, the relevant guidance on Contaminated Land, and the Scottish Government Guidance on protecting the public from radioactive contamination in land, SEPA shall ensure that they act in accordance with the provisions of the Euratom Basic Safety Standards Directive 2013.

In particular, SEPA shall ensure that they act in accordance with:

Article 7, having reference to the appropriate reference level set by the Scottish Ministers, which for actions under the RCL Regulations is 3 mSv/year, aligned with the significant harm threshold, which 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.

Article 73(1) in determining the conditions for remediation of a contaminated area;

Article 100, and the related Annex XVII with respect to planning and carrying out inspections;

Article 102, in the carrying out of their functions with respect to the RCL Regulations and the wider objectives set out in the Guidance on protecting the public from radioactive contamination in land, which expresses the Scottish Government's strategy in line with Article 101.

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 that was determined to be Radioactive Contaminated Land."