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

ANNEX 2: A Description of the Regime for Radioactive Contaminated Land

Contents of this Annex

1 - Introduction
2 - The definition of contaminated land
3 - The Identification of contaminated land
4 - Identifying and Notifying Those Who May Need to Take Action 19

Sections 5 - 17 of Annex 2 of Paper SE/2006/44 are applicable to radioactive contaminated land without amendment.

1 - Introduction

1.1 Part IIA of the Environmental Protection Act 1990 - which was inserted into that Act by section 57 of the Environment Act 1995 - provides a regulatory regime for the identification and remediation of contaminated land. In addition to the requirements contained in the primary legislation, operation of the regime is subject to the Contaminated Land (Scotland) Regulations 2000, the 2007 Regulations, the Radioactive Contaminated Land (Scotland) (Amendment) Regulations 2007 ( SI 2007 No. 3240) and the Radioactive Contaminated Land (Scotland) Amendment Regulations 2009 ( SI 2009 No. 202) and Statutory Guidance.

1.2 Annex 2 of Paper SE/2006/44 (Environmental Protection Act 1990: Part IIA Contaminated Land Statutory Guidance: Edition 2) described, in general terms, the operation of the contaminated land regime, setting out the procedural steps the enforcing authority takes, and some of the factors which may underlie its decisions at each stage. This annex supplements that description by providing replacement sections of text that describe the radioactive contaminated land regime. This replacement text refers only to radioactive contaminated land; for other types of contaminated land the description remains unchanged. Where no alterative description for the radioactive contaminated land is presented the original description should be referred to.

Definitions

1.3 Throughout the text, various terms are used which have specific meanings under the primary legislation, or in the regulations or the statutory guidance. Where this is the case, the terms are printed in small capitals. The Glossary of Terms at Annex 4 to this paper either repeats these definitions or shows where they can be found.

1.4 Unless the contrary is shown, references in this document to "sections" are to sections of the Environmental Protection Act 1990 (as amended and as modified by regulations) and references to "regulations" are references to either the Contaminated Land (Scotland) Regulations 2000 ( SI 2000 No. 178), the Contaminated Land (Scotland) Regulations 2005 ( SI 2005 No. 658), the Radioactive Contaminated Land (Scotland) Regulations 2007 ( SI 2007 No. 179), the Radioactive Contaminated Land (Scotland) (Amendment) Regulations 2007 ( SI 2007 No. 3240) or the Radioactive Contaminated Land (Scotland) Amendment Regulations 2009 ( SI 2009 No 202). References to the Statutory Guidance include the relevant Chapter in Annex 3 to this Circular and the specific paragraph (so that, for example, a reference to paragraph 13 of Chapter B is shown as "paragraph B.13".) Such references are to the most relevant paragraph(s): those paragraph(s) must, of course, be read in the context of the relevant guidance as a whole.

2 - The definition of contaminated land

2.1 Section 78A(2) defines contaminated land for the purposes of Part IIA as:

"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 -

(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".

2.2 This definition reflects the role of the Part IIA regime, which is to enable the identification and Remediation of land on which contamination is causing unacceptable risks to human health or the wider environment. It does not necessarily include all land where contamination is present, even though such contamination may be relevant in the context of other regimes. For example, contamination, whilst not necessarily causing a significant level of hazard in the context of new development of land, may still be deemed a material planning consideration under the Town and Country Planning (Scotland) Act 1997.

2.3 The definition of contaminated land is essentially the same for radioactive contaminated land as it is for other types of contaminated land. Therefore, paragraph 2.3 in Annex 2 of Paper SE/2006/44 which excludes harm or pollution attributable to radioactivity from this definition is no longer valid.

2.4 Although the definition of contaminated land has not been modified, the effect of the modifications made by the 2007 and 2009 Regulations has been to create a different definition of contaminated land which applies specifically to radioactive contaminated land:

"any land which appears to SEPA to be 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";

where, '' substance'' means, in relation to land contaminated by a nuclear occurrence,whether in solid or liquid form or in the form of a gas or vapour, any substance which contains radionuclides which have resulted from the after-effects of a radiological emergency or which are or have been processed as part of a work activity or past practice, but shall not include radon gas and any radionuclide present as a result of the radioactive decay of radon; and,

other than in relation to land contaminated by a nuclear occurrence,

"substance" means, whether in solid or liquid form or in the form of a gas or vapour, any substance containing radionuclides which have resulted from the after-effects of a radiological emergency or have been processed as part of a past practice or past work activity.

Throughout this circular the term radioactive contaminated land is used and refers to the definition given in 2.4

Significant harm

2.5 The definition of contaminated land includes the notion of "significant harm'' and the "significant possibility" of such harm being caused. When considering land that may be contaminated with radioactivity SEPA is required to act in accordance with statutory guidance issued by the Scottish Ministers in determining what is "significant" in either context (section 78A(2 ), (2ZA) & (5 )). This statutory guidance is set out at Chapter A of Annex 3 to this circular.

2.6 The statutory guidance uses the concept of a "pollutant linkage" - that is, a linkage between a contaminant and a receptor, by means of a pathway. The contaminant may be described as a pollutant only when a pathway and receptor are present. The statutory guidance then explains: (a) the types of receptor to which significant harm can be caused (harm to any other type of receptor can never be regarded as Significant harm); (b) the degree or nature of harm to each of these receptors which constitutes significant harm (Chapter A , paragraphs A.25 to A.28); and (c) for each receptor, the degree of possibility of the significant harm being caused which will amount to a ''significant possibility'' (Chapter A , paragraphs A.30 to A35).

2.7 Before SEPA can make the judgement that any land appears to be contaminated land on the basis that significant harm is being caused by radioactivity possessed by any substance, or that there is a significant possibility of such harm being caused by radioactivity possessed by any substance, SEPA must therefore identify a significant pollutant linkage. This means that each of the following has to be identified ( paragraphs A.13 to A.22):

(a) a radioactive contaminant;

(b) a relevant receptor; and

(c) a pathway by means of which either:

(i) that radioactive contaminant is causing significant harm to that receptor, or

(ii) there is a significant possibility of such harm being caused by that radioactive contaminant to that receptor.

Pollution of the water environment

2.8 SEPA is also required to act in accordance with statutory guidance issued by the Scottish Ministers in determining whether Significant pollution of the water environment is being caused or there is a significant possibility of such pollution being caused ( section 78A(5)). This guidance is also set out at Chapter A of Annex 3 to this circular.

2.9 Before SEPA can make the judgement that any land appears to be radioactive contaminated land on the basis that significant pollution of the water environment is being caused or there is a significant possibility of such pollution being caused, the Agency must identify a significant pollutant linkage, where the water environment forms the receptor ( paragraphs A.13 and A.22).

2.10 Guidance on what constitutes significant pollution of the water environment, or the significant possibility of such pollution, is contained in paragraphs A.36 to A.50 of Annex 3 and paragraphs B.42 to B.44 of Annex 3.

3 - The Identification of Contaminated Land

Strategic approach to inspection of land

3.1 There is no requirement for local authorities to cause their areas to be inspected for the purpose of identifying radioactive contaminated land. Similarly there is no requirement for SEPA to prepare a strategy that will cause all land to be inspected for the purpose of identifying radioactive contaminated land. It is SEPA's responsibility to prioritise the inspection of land that it has reasonable grounds to believe may be radioactive contaminated land and to allocate resources accordingly.

Notifying SEPA that land is considered to be potentially radioactive contaminated land

3.2 Where a local authority considers that land in its area may be radioactive contaminated land it has a duty to give notice of that fact to SEPA. The authority may consider that land may be radioactive contaminated land as a result of:

(a) its own gathering of information as part of its inspection strategy which has been developed to look for land contaminated as a result of substances that are not radioactive;

(b) receiving information or a complaint from a member of the public, business or a voluntary organisation.

3.3 Prior to giving notice to SEPA the authority should have due regard to the statutory guidance contained within paragraphs B12 and B13 which describes the circumstances where SEPA will have reasonable grounds to inspect land.

Inspecting land

3.4 SEPA may identify a particular area of land where it is possible that a pollutant linkage involving a radioactive substance exists. SEPA could do so as a result of:

(a) Information that it holds as part of fulfilling its other duties;

(b) receiving information from another regulatory body, such as a local authority;

(c) receiving information or a complaint from a member of the public, business or a voluntary organisation.

3.5 Where this is the case, SEPA needs to consider whether to carry out a detailed inspection to determine whether or not the land actually appears to be radioactive contaminated land.

3.6 SEPA may already have detailed information concerning the condition of the land. This may have been provided, for example, by a local authority or by a person such as the owner of the land. Alternatively, such a person may offer to provide such information within a reasonable and specified time. It may therefore be helpful for SEPA to consult the owner of the land and other persons, in order to find out whether information already exists, or could be made available to the Agency.

3.7 Where information is already available, or will become available, SEPA needs to consider whether the information provides, or would provide, a sufficient basis on which it can determine whether or not the land appears to be radioactive contaminated land. If the information meets this test, SEPA does not need to carry out any further investigation of the land ( paragraph B.19) and will proceed to make a determination on that basis ( see paragraph 3.25 below).

3.8 Where SEPA does not have sufficient information, it needs to consider whether there are reasonable grounds to make an inspection of the land including as a first step, the collation and assessment of documentary information or information from other bodies. SEPA may undertake an inspection only where there are reasonable grounds for believing that land may be contaminated as a result of any radioactivity possessed by any substance. Statutory guidance on what constitutes reasonable grounds is contained within paragraphs B12 to B13.

3.9 If reasonable grounds exist SEPA needs to carry out an inspection of the land. It has specific powers under section 108 of the Environment Act 1995 to authorise suitable persons to carry out any such investigation. This can involve entering premises, taking samples or carrying out related activities for the purpose of enabling the authority to determine whether any land is radioactive contaminated land. In some circumstances, the authorised person can also ask other persons questions, which they are obliged to answer, and make copies of written or electronic records.

3.10 If there is to be an inspection of the land, SEPA needs to consider whether it needs to carry out an intrusive investigation (for example, exploratory excavations) into the land. Under the statutory guidance, SEPA should carry out an intrusive investigation only where it considers that it is likely (rather than only "reasonably possible") that a radioactive contaminant and pathway are actually present and that, given the ''current use'' of the land (as defined at paragraph A.27) a receptor is present or is likely to be present ( paragraph B.18).

Special Sites

3.11 The modified Part IIA requires that radioactive contaminated land is designated as a special site. Unlike other types of contamination there is no requirement that land must be identified as contaminated land before designation as a special site takes place. For radioactive contaminated land identification and designation will occur simultaneously.

3.12 radioactive contaminated land is always designated as a special site therefore SEPA is the enforcing authority for the purposes of the Part IIA regime.

Inspection using Statutory Powers of Entry

3.13 If the premises to be inspected are used for residential purposes, or if the inspection will necessitate taking heavy equipment on to the premises, the authorised person needs to give the occupier of the premises at least seven days notice of his proposed entry on to the premises. The authorised person can then enter the premises if he obtains either the consent of the occupier or, if this is not forthcoming, a warrant issued by a sheriff ( section 108(6) and Schedule 18, Environment Act 1995).

3.14 In other cases, consultation with the occupier prior to entry on to the premises may be identified and then incorporated into the inspection. In some instances, specific consents or regulatory permissions may be needed for access to, or work on, the site.

3.15 In an ''emergency'', these powers of entry can be exercised forthwith if this is necessary ( section 108(6)). For these purposes, a case is an ''emergency'' if it appears to the authorised person-

"(a) that there is an immediate risk of serious pollution of the environment or serious harm to human health, or

"(b) that circumstances exist which are likely to endanger life or health "and that immediate entry to any premises is necessary to verify the existence of that risk or those circumstances or to ascertain the cause of that risk or those circumstances or to effect a remedy" ( section 108(15), Environment Act 1995).

3.16 Compensation may be payable by SEPA for any disturbance caused by an inspection using statutory powers of entry ( paragraph 6 of Schedule 18 of the Environment Act 1995).

Objectives for the inspection of land

3.17 The primary objective in inspecting land is to enable SEPA to obtain the information needed to decide whether or not the land appears to be radioactive contaminated land.

3.18 It is not necessary for SEPA to produce a complete characterisation of the nature and extent of all contaminants, pathways and receptors on the land, or of other matters relating to the condition of the land. The identification of non-radioactive contaminants, pathways and receptors remains the responsibility of the local authority.

3.19 Where it is practicable and appropriate to do so, SEPA and the local authority shall undertake joint inspections in order to minimise the duplication of effort.

3.20 In some cases the information obtained from an inspection may lead SEPA to the conclusion that, whilst the land does not appear to be radioactive contaminated land on the basis of the information assessed, it is still possible that the land is radioactive contaminated land. In cases of this kind, SEPA will need to consider whether to carry out further inspections or pursue other lines of enquiry to enable it to either, discount the possibility that the land is radioactive contaminated land, or conclude that the land does appear to be radioactive contaminated land. In the absence of any such further inspection or enquiry SEPA will need to proceed to make its determination on the basis that it cannot be satisfied that the land falls within the statutory definition of radioactive contaminated land.

3.21 In other cases, an inspection may yield insufficient information to enable SEPA to determine, in the manner described at paragraphs 3.22 to 3.27 below, whether or not the land appears to be radioactive contaminated land. In such cases, SEPA will need to consider whether carrying out further inspections (for example, taking more samples) or pursing other lines of enquiry (for example, carrying out or commissioning more detailed scientific analysis of a substance or its properties) would be likely to provide the necessary information. If it is not possible to obtain the necessary information, SEPA will need to proceed to make its determination on the basis that it cannot be satisfied that the land falls within the statutory definition of radioactive contaminated land.

Determining whether land is contaminated land

3.22 Any determination by SEPA that particular land appears to be radioactive contaminated land is made on one or more of the following bases, namely that:

(a) significant harm is being caused;

(b) there is a significant possibility of such harm being caused;

(c) significant pollution of the water environment is being caused; or

(d) there is a significant possibility of such pollution being caused ( paragraph B.44).

Consistency with other regulatory bodies

3.23 If SEPA is considering whether land might be radioactive contaminated land by virtue of harm to certain non-human species as a result of pollution of the water environment ( paragraphs A.46 to A.48 and A.50),SEPA shall consult Scottish Natural Heritage ( paragraph B.35).

Land on nuclear licensed sites

3.24 Land within a nuclear licensed site or within any part of an MoD site, which would have required a nuclear site licence had Crown Immunity not applied, is outwith the scope of this regime and cannot be radioactive contaminated land.

Making the determination / designation

3.25 SEPA needs to carry out an appropriate, scientific and technical assessment of the circumstances of the land, using all of the relevant and available evidence. SEPA then determines whether any of the land appears to it to meet the definition of radioactive contaminated land. Chapter B provides statutory guidance on the manner in which SEPA makes this determination (Chapter B, Part 4). This includes guidance on the physical extent of the land which should be covered by any single determination ( paragraphs B.25 to B.29).

3.26 There may be cases where the presence of one or more radioactive contaminants are discovered on land which is undergoing, or is about to undergo, development. Where this occurs, SEPA will need to consider what action is appropriate under Part IIA and what action may be taken by the local authority under town and country planning legislation (see Annex 1, paragraph 2).

3.27 SEPA needs to prepare a written record of any determination that land is radioactive contaminated land, providing a summary of the basis on which the land has been identified as such land ( paragraph B.45). This will include information on the specific significant pollutant linkage, or linkages, found.

Information arising from the inspection of land

3.28 As SEPA inspects land, it will generate information about the condition of that land.

3.29 Where land has been identified as being radioactive contaminated land, and consequent action taken, SEPA has to include specified details about the condition of the land, and the remediation actions carried out on it, in its register (section 78R). Having this information on the register makes it readily available to the public and to those with an interest in the land.

3.30 But SEPA may also be asked, for example as part of a "local search" for a property purchase, to provide information about other areas of land which have not been identified as radioactive contaminated land. This might include, for example, information on whether the authority had inspected the land and, if so, details of any site investigation reports prepared.

3.31 The Environmental Information Regulations 1992 ( SI 1992/3240 as amended) may apply to any information about land contamination. This means that, depending on the circumstances and the particular information requested, SEPA may be obliged to provide the information when requested to do so. However, this is subject to the requirements in the 1992 Regulations relating to commercial confidentiality, national defence and public security.

3.32 Even where land has not been identified as radioactive contaminated land, information collected under Part IIA may also be useful for the wider purpose of SEPA and other regulatory bodies, including:

(a) planning and building control functions;

(b) completion by Planning Authorities of the annual Scottish Vacant and Derelict

Land Survey ( SVDLS) returns; and

(c) other relevant statutory pollution control regimes (for example, powers to dispose of radioactive waste that is unlikely to be lawfully disposed of).

4 - Identifying and Notifying Those Who May Need to Take Action

Notification of the Identification of Contaminated Land

Identification of Interested Persons

4.1 For any piece of land identified as being radioactive contaminated land, SEPA needs to establish:

(a) who is the ''owner'' of the land ( defined in section 78A(9));

(b) who appears to be in occupation of all or part of the land; and

(c) who appears to be an appropriate person to bear responsibility for any remediation action which might be necessary ( defined in section 78F; see paragraphs 9.3 to 9.20 of Circular SE/2006/44).

4.2 At this early stage, SEPA may not be able to establish with certainty who falls into each of these categories, particularly the last of them. As it obtains further information, the Agency needs to reconsider these questions. It needs to act, however, on the basis of the best information available to it at any particular time.

The Notification

4.3 SEPA needs to notify, in writing, the persons set out in paragraph 4.1 above, as well as the relevant Local Authority, of the fact that the land has been identified as being radioactive contaminated land (section 78BC(1)). The notice given to any of these persons will inform them of the capacity - for example, ''owner'' or appropriate person - in which they have been sent it.

4.4 SEPA may, at any subsequent time, identify some other person who appears to be an appropriate person, either as well as or instead of those previously identified. Where this happens, SEPA needs to notify that person that he appears to be an appropriate person with respect to land which has been identified as radioactive contaminated land (section 78BC(2)) and include that person in the process of consultation on what remediation might be appropriate. SEPA may therefore wish to consider whether to provide any additional information to the recipients of the notification, in order to facilitate this consultation. The following categories of information may be useful for these purposes:

(a) a copy of the written record of the determination made by SEPA that the land appears to be radioactive contaminated land ( paragraph B.45);

(b) information on the availability of site investigation reports, with copies of the full reports being available on request;

(c) an indication of the reason why particular persons appear to SEPA to be appropriate persons; and

(d) the names and addresses of other persons notified at the same time or previously, indicating the capacity in which they were notified (e.g. as ''owner'' or as appropriate person).

18. - Procedures Relating to Special Sites

18.1 Any radioactive contaminated land will be de designated as a special site at the same time as it is identified by SEPA. There is no requirement for SEPA to request the advice of local Authority or any other stakeholder regarding designation of such sites.

18.2 There is no provision in the regulations to refer special site decisions relating to radioactive contaminated land to the Scottish Ministers.