The Radioactive Contaminated Land (Scotland) Amendment Regulations 2009: Statutory Guidance

Introduction

1. In March 2007, the Scottish Ministers, in exercise of the powers conferred by sections 78(A)9 and 78YC of the Environmental Protection Act 1990 (EPA90) and of all the other powers enabling them in that behalf, laid before the Scottish Parliament the Radioactive Contaminated Land (Scotland) Regulations 2007 ( SI 2007 No. 179).

2. Those Regulations came into force, subject to Regulation 1(2), on 30 ^th October 2007. The Regulations came into force on 1 ^st April 2007 for the purpose of the exercise by the Scottish Ministers of powers conferred by Part IIA of the 1990 Act as modified by the Regulations to make regulations or orders, give directions or issue guidance.

3. The 2007 Regulations were amended by the Radioactive Contaminated Land (Scotland) (Amendment) Regulations 2007, made by the Secretary of State for the Environment, Food and Rural Affairs. The amendments brought land contaminated by a nuclear occurrence into the contaminated land regime and made the Secretary of State the appropriate person in relation to land contaminated by a nuclear occurrence. Provisions for pollution of the water environment do not have effect in relation to a nuclear occurrence.

4. The regime for radioactive contaminated land is now being amended to take account of experience gained during the application of the Regulations. In particular the definition of "substance" is being amended to include radon and its progeny (but not for land which has been contaminated by a nuclear occurrence). The changes being made also incorporate an amendment to further clarify that the body with responsibility for identifying radioactive contaminated land is the Scottish Environment Protection Agency ( SEPA).

5. This Statutory Guidance is being updated to reflect these amendments being made by the 2009 Regulations which were laid before the Scottish Parliament on 28 May 2009. Other minor changes are also being incorporated to make the guidance clearer, particularly in its application to pollution of the water environment and to correct some typographical errors. SEPA has been consulted during the drafting of this updated guidance, however, given the minor nature of the changes no other consultation was carried out.

6. Radioactivity was excluded, by Section 78YC of EPA90, from the provisions of the existing Part IIA regime. Extension of that Part IIA regime to include radioactivity delivered a long-standing policy commitment of the Scottish Ministers to complete the package for dealing with contaminated land.

7. The objectives for the radioactive contaminated land regime are broadly the same as those for the existing Part IIA regime. They include applying the principle that "the polluter pays" and the principle of sustainable development. The extension of the regime provided for access to and identification of land that may be contaminated by radioactivity. Where such land is causing lasting exposure of radiation to any person or where there is a significant possibility of such exposure, the regime allows for remediation, under circumstances where intervention is liable to be justified. The regime also ensures, therefore, the transparent implementation of the requirements of Articles 48 and 53 of Council Directive 96/29/Euratom of 13 May 1996, laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionizing radiation.

8. In February 2005, the Scottish Executive consulted on its proposals to extend the existing Part IIA regime to include radioactivity, Consultation on proposed amendments to Part IIA of the Environmental Protection Act 1990-Contaminated Land, SE paper 2005/2, February 2005. With one major exception, the proposals generally met with approval. The Executive proposed that, as the duty to identify and to appropriately remediate radioactively contaminated land was placed only on SEPA, then, in order to ensure a broadly consistent approach across Scotland, there was no need to issue detailed Statutory Guidance as had been done for the existing Part IIA regime. Thus, the Executive proposed that it would only issue high-level guidance, of the type included in its consultation paper. The provision of detailed guidance would be left to SEPA, and the manner and nature of such detailed prescription, for example, desk instructions to officers, would be provided by SEPA as part of its normal regulatory process. There was widespread criticism of this proposal, mainly on the basis that it could not be seen to be transparent. We accepted that criticism and, in addition to the earlier high-level advice, upon which we consulted, Scottish Ministers provided further detailed guidance.

9. The 2009 Regulations themselves have to be read in conjunction with the existing Part IIA regime and with the modifications already made to that regime by the two sets of 2007 Regulations. Similarly, this Statutory Guidance needs to be read in conjunction with that existing Guidance, Environmental Protection Act 1990: Part IIA Contaminated Land Statutory Guidance: Edition 2, Paper SE/2006/44. May 2006. Where there is no need for change or addition, then the provisions of that existing guidance still apply, where appropriate, for the extension of the Part IIA regime to include radioactivity. In that context, references to the duties of local authorities are replaced with references to the duties of SEPA. The specific parts of Paper SE/2006/44 that have been amended are as follows:

Section 1-4 and Section 18 of Annex 2, and

Chapters A and B of Annex 3

10. Regulation 5 of the Radioactive Contaminated Land (Scotland) Regulations 2007 inserting Section 78BA into the Environmental Protection Act 1990 requires that, if at any time [whether or not in performing its functions under section 78 B(1)] a Local Authority considers that any contaminated land in its area may be contaminated as a result of any radioactivity possessed by any substance, it shall give notice of that fact to SEPA. We are not including guidance in this document as to how that may be done. Rather, this will be left to SEPA to consider with local authorities in the exercise of their normal functions.

Purpose

11. This document provides detailed statutory guidance and other guidance to SEPA in carrying out its duties resulting from the extension of the contaminated land regime to include radioactivity.

Application to Nuclear Sites

12 For the purposes of the radioactive contaminated land regime, it was intended that all land is covered by that regime with two exceptions. 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 Nuclear Installations Inspectorate ( NII) of the Health and Safety Executive ( HSE) to require remediation there if necessary. Moreover, under the terms of the Memorandum of Understanding between HSE and SEPA, it is possible for SEPA to press for early remediation of contaminated land on the nuclear-licensed site that might cause contamination off that site. We believe that the HSE delicensing requirements are such that land on nuclear-licensed sites that are subsequently delicensed will not require future remediation but the effect of the Regulations will be to allow for that, if necessary, after delincensing has taken place. 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.

13. There was an issue with third party liability for contamination resulting from any incident at a civil nuclear site. This relates to the Paris and Brussels Conventions on third party liability in the field of nuclear energy, which establishes a legal framework for the provision of compensation to victims in the event of a civil nuclear incident. That and supplementary convention requirements are implemented in the UK through provisions of the Nuclear Installations Act 1965. Because nuclear liability is a reserved matter under the Scotland Act 1998, the Scottish Regulations exempted, from the regime, contamination from or caused by a nuclear occurrence . The Radioactive Contaminated Land (Scotland) (Amendment) Regulations 2007 were made by the UK Government and brought such contamination back into the Scottish regime for radioactive contamination of land.

Financial Implications

14. It is not possible at this stage to determine other than in general terms the likely extent of land liable to be designated as contaminated and the likely costs of any remediation that will be required. UK Government will be responsible under the Westminster Regulations for financial liability for incidents in Scotland arising from nuclear occurrences.

15. The main immediate resource issue will be for the primary regulator, which is SEPA. Since there are no provisions for the time over which contaminated land issues are to be investigated, it will be possible for SEPA to prioritise its investigations and allocate resource requirements accordingly. Funding has already been given to SEPA for this purpose.

16. Under the Regulations, SEPA is to be the primary regulator. There is a duty on local authorities to notify SEPA in the event that they have information that would lead them to believe that land might be contaminated with radioactivity. Those who own or occupy land, designated for the purposes of the regime as being contaminated, or who may be liable for the costs of remediation where the contamination does not arise from a nuclear occurrence, will also be affected.

17. Land in respect of which a nuclear site licence is in force is not covered by the regime until such time as that nuclear site licence is given up. Land which is contaminated as a result of a nuclear occurrence was brought into the regime with the introduction of the Westminster Regulations, and this guidance applies to such land except in relation to pollution of the water environment.

Regulatory Impact Assessment

18. A Regulatory Impact Assessment ( RIA) on the extension of the Part IIA contaminated land regime was published with the consultation on the Radioactive Contaminated Land (Scotland) Regulations 2007. Changes introduced by the Radioactive Contaminated Land (Scotland) Amendment Regulations 2009 and updates to this Statutory Guidance are considered to be minor and therefore no new Regulatory Impact Assessment has been carried out.