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

CHAPTER A: Statutory Guidance on the Definition of Radioactive Contaminated Land

Part 1 - Scope of the Chapter

Part 2 - Definitions of Terms and General Material

Part 3 - Significant Harm and the Significant Possibility of Significant Harm

Part 4 - Significant Pollution and the Significant Possibility of Significant Pollution of the Water Environment

PART 1

Scope of the Chapter

A.1 The statutory guidance in this Chapter is issued under section 78A(2), (2ZA) and (5) of Part IIA of the Environmental Protection Act 1990 as modified and provides guidance on applying the definition of contaminated land in the cases where radioactive contamination is involved.

A.2 "Contaminated land" is defined at section 78A(2) 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;".

A.3 Section 78A(5) further provides that:

"The questions -

(a) what harm or pollution of the water environment is to be regarded as "significant",

(b) whether the possibility of significant harm or of significant pollution of the water environment being caused is "significant",

shall be determined in accordance with guidance issued by the Scottish Ministers".

A.4 Section 78BB places the duty for identifying land that may be contaminated land as a result of radioactivity possessed by any substance (i.e. radioactive contaminated land) on SEPA.

A.5 As well as placing a duty on SEPA to identify radioactive contaminated land, Section 78BB(4) further provides that:

" ..... in performing its duties [to identify radioactive contaminated land], the appropriate Agency [ SEPA] shall act in accordance with guidance issued by the Scottish Ministers...".

A.6 In determining the questions above and consequently whether land is radioactive contaminated land, SEPA is therefore required to act in accordance with the guidance contained in this Chapter.

A.7 Guidance on the manner in which that determination is to be made is set out in Part 4 of the statutory guidance in Chapter B.

PART 2

Definitions of Terms and General Material

A.8 Unless otherwise stated, any word, term or phrase given a specific meaning in Part IIA of the Environmental Protection Act 1990 as modified has the same meaning for the purposes of the guidance in this Chapter.

A.9 Any reference to "Part IIA" means "Part IIA of the Environmental Protection Act 1990". Any reference to a "section" in primary legislation means a section of the Environmental Protection Act 1990 (where applicable, as modified by Regulations), unless it is specifically stated otherwise.

Risk Assessment

A.10 The definition of contaminated land is based upon the principles of risk assessment. For the purposes of this guidance, "risk" is defined as the combination of:

(a) the probability, or frequency, of occurrence of a defined hazard (for example, exposure to a property of a substance with the potential to cause harm); and

(b) the magnitude (including the seriousness) of the consequences.

A.11 The guidance below follows established approaches to risk assessment, including the concept of contaminant-pathway-receptor. (In the technical literature, this is sometimes referred to as source-pathway-target.).

A.12 There are two steps in applying the definition of contaminated land.

STEP ONE

A.13 The first step is for SEPA to satisfy itself that a "radioactive contaminant", a "pathway" (or pathways), and a "receptor" have been identified with respect to that land. These three concepts are defined for the purposes of this Chapter in paragraphs A.14 to A.16 below.

A.14 A radioactive contaminant is a substance which is in, on or under the land and which has the potential to cause harm or to cause pollution of the water environment.

A.15 A receptor is:

(a) a human being which is being, or could be, harmed by a radioactive contaminant; or

(b) a water environment which is being, or could be, polluted by a radioactive contaminant.

A.16 A pathway is one or more routes or means by, or through, which a receptor:

(a) is being exposed to, or affected by, a radioactive contaminant, or

(b) could be so exposed or affected.

A.17 It is possible for a pathway to be identified for this purpose on the basis of a reasonable assessment of the general scientific knowledge about the nature of a particular contaminant and of the circumstances of the land in question. Direct observation of the pathway is not necessary.

A.18 The identification of each of the three elements in A.11 is linked to the identification of the others. A pathway can only be identified if it is credible and capable of exposing an identified receptor to an identified radioactive contaminant. That particular radioactive contaminant should likewise be capable of harming, or in the case of the water environment be capable of polluting, that particular receptor.

A.19 In this Chapter, a "pollutant linkage" means the relationship between a radioactive contaminant, a pathway and a receptor, and a "pollutant" means the radioactive contaminant in a pollutant linkage. Unless all three elements of a pollutant linkage are identified in respect of a piece of land, that land should not be identified as radioactive contaminated land. There may be more than one pollutant linkage on any given piece of land.

A.20 All radioactive substances emit ionising radiation, therefore for the purposes of determining whether a pollutant linkage exists (and for describing any such linkage), SEPA may treat two or more substances as being a single substance.

STEP TWO

A.21 The second step in applying the definition of contaminated land is for SEPA to satisfy itself that both:

(a) such a pollutant linkage exists in respect of a piece of land; and

(b) that the pollutant linkage:

(i) is resulting in significant harm being caused to the receptor in the pollutant linkage, or

(ii) presents a significant possibility of significant harm being caused to that receptor, or

(iii) is resulting in the Significant pollution of the water environment which constitutes the receptor, or

(iv) is likely to result in a significant possibility of significant pollution of the water environment being caused.

A.22 In this Chapter, a "significant pollutant linkage" means a pollutant linkage which forms the basis for a determination that a piece of land is contaminated land. A "significant pollutant" is a pollutant in a " significant pollutant linkage".

A.23 The guidance in Part 3 below relates to questions about significant harm and the significant possibility of such harm being caused. The guidance in Part 4 below relates to the Significant pollution of the water environment and the significant possibility of such pollution being caused.

PART 3

Significant Harm and the Significant Possibility of Significant Harm

A.24 The modified Section 78A(4) defines "harm" as meaning "lasting exposure to any person resulting from the after-effects of a radiological emergency, past practice or past work activity". Section 78A(5) provides that what harm is to be regarded as "significant" and whether the possibility of significant harm being caused is significant shall be determined in accordance with this guidance.

What harm is to be regarded as "significant"?

A.25 SEPA should regard as significant only harm which meets the description of significant harm for human beings (receptors) as specified in paragraphs A.25 to A.28 of this guidance.

A.26 SEPA should disregard any receptors which are not likely to be present, given the ''current use'' of the land or other land which might be affected.

A.27 For the purposes of this guidance, the "current use" means any use which is currently being made, or is likely to be made, of the land and which is consistent with any existing planning permission (or is otherwise lawful under town and country planning legislation). This definition is subject to the following qualifications:

(a) the ''current use'' should be taken to include any temporary use, permitted under town and country planning legislation, to which the land is, or is likely to be, put from time to time;

(b) the ''current use'' includes future uses or developments which do not require a new, or amended, grant of planning permission (but see also paragraph A.35 below);

(c) the ''current use'' should, nevertheless, be taken to include any likely informal recreational use of the land, whether authorised by the owners or occupiers or not, (for example, children playing on the land); however, in assessing the likelihood of any such informal use, SEPA should give due attention to measures taken to prevent or restrict access to the land; and

(d) in the case of agricultural land, however, the current agricultural use should not be taken to extend beyond the growing or rearing of the crops or animals which are habitually grown or reared on the land.

Significant harm to human beings

A.28 SEPA should regard significant harm as being caused to human beings when lasting exposure gives rise to a dose in a year to an individual exceeding one or more of the following:

(a) an effective dose of 3 millisieverts;

(b) an equivalent dose to the lens of the eye of 15 millisieverts;

(c) an equivalent dose to the skin of 50 millisieverts averaged over any 1cm ² area of skin, regardless of the area exposed.

Background radiation

A.29 When assessing doses arising from lasting exposure no account shall be taken of the natural level of background ionising radiation, for example, to radionuclides contained in the human body, to cosmic radiation or to radionuclides present in the undisturbed Earth's crust.

Whether the possibility of significant harm being caused is ''significant''?

A.30 In cases of lasting exposure when radiation exposure is not certain to occur the probability of radiation dose being received needs to be taken into account. In paragraph A.31, "potential effective dose" and "potential equivalent dose" are doses that are not certain to occur.

A.31 Where, in a year:

(a) the potential effective dose is less than 3 millisieverts; and

(b) the potential equivalent dose to the lens of the eye is less than 15 millisieverts; and

(c) the potential equivalent dose to the skin is less than 50 millisieverts averaged over any 1cm ² area of skin, regardless of the area exposed;

SEPA should not regard the possibility of significant harm as significant, irrespective of the probability of radiation dose being received.

A.32 Where:

(a) in a single exposure event, the potential effective dose would be greater than 100 millisieverts; or

(b) contact with contamination would result in a potential absorbed dose to the skin greater than 10 Grays in an hour;

SEPA shall regard the possibility of significant harm as significant, irrespective of the probability of radiation dose being received.

A.33 If the conditions in paragraphs A.31 and A.32 are not met, the probability of radiation dose being received needs to be taken into account. SEPA shall regard the possibility of significant harm as significant where, in a year:

(a) the potential effective dose multiplied by the probability of exposure is greater than 3 millisieverts; or

(b) the potential equivalent dose to the lens of the eye multiplied by the probability of exposure is greater than 15 millisieverts; or

(c) the potential equivalent dose to the skin multiplied by the probability of exposure is greater than 50 millisieverts averaged over any 1cm ² area of skin, regardless of the area exposed.

A.34 The possibility of significant harm being caused as a result of any changes of use of any land to one which is not a "current use" of that land (as defined in paragraph A.27 above) should not be regarded as a significant possibility of significant harm.

A.35 When considering the possibility of significant harm being caused in relation to any future use or development which falls within the description of a "current use" as a result of paragraph A.27(b) above, SEPA should assume that if the future use is introduced, or the development carried out, this will be done in accordance with any existing planning permission for that use or development. In particular, SEPA should assume:

(a) that any Remediation, which is the subject of a condition attached to that planning permission or is the subject of any planning obligation, will be carried out in accordance with that permission or obligation; and

(b) where a planning permission has been given subject to conditions which require steps to be taken to prevent problems which might be caused by contamination and those steps are to be approved by the planning authority, that the planning authority will ensure that those steps include adequate Remediation.

PART 4

Significant Pollution and the Significant Possibility of Significant Pollution of the Water Environment

A.36 In accordance with section 2(2) of the Radioactive Contaminated Land (Scotland) Regulations 2007 the statutory guidance given in this Part does not apply to pollution of the water environment resulting from a nuclear occurrence.

A.37 Section 78A(9) defines pollution in relation to the water environment as:

'' 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…''.

Section 78A(4A) defines harm in relation to the water environment as having:

''the same meaning as in section 20(6) of the Water Environment and Water Services (Scotland) Act 2003.''

In accordance with the provisions of section 78A(6) of Part IIA and section 20(6) of the Water Environment and Water Services (Scotland) Act 2003, harm (in relation to the water environment) is taken to mean harm to the health of human beings or other living organisms.

In relation to the water environment, SEPA should regard pollution of the water environment as significant when significant harm is being caused to either:

1. human beings;
2. all other living organisms.

A.38 Section 78A(2) provides that land is to be considered contaminated land for the purposes of Part IIA only in cases where pollution resulting therefrom is significant or where there is a significant possibility of significant pollution of the water environment occurring.

A.39 Section 78A(5) provides that what pollution is to be regarded as significant and whether the possibility of significant pollution of the water environment being

caused is significant shall be determined in accordance with this guidance.

A.40 Section 78A(2) requires that if Significant pollution of the water environment results in significant harm or a significant possibility of significant harm, the land should be identified as contaminated land.

A.41 Before determining that Significant pollution of the water environment is being, or is likely to be, caused, SEPA should be satisfied that a substance is continuing to enter, or is likely to enter, the water environment. For this purpose, SEPA should regard something as being "likely" when it is judged more likely than not to occur. The term "continuing to enter" should be taken to mean any entry additional to that which has already occurred.

A.42 Land should not be designated as contaminated where:

(a) a substance is already present in the water environment; and

(b) entry of that substance from land into the water environment has ceased; and

(c) it is not likely that further entry will take place.

A.43 If a substance is present in a source material which is immiscible with water, entry means actual dissolution of the substance from the material into the water environment.

What pollution of the water environment is to be regarded as

''significant"?

A.44 SEPA should regard pollution of the water environment as significant where the after-effects of a radiological emergency, past practice or past work activity give rise to concentrations of radionuclides that would result in significant harm to human beings or non-human species, as described below.

Significant harm to human beings

A.45 SEPA should regard significant pollution of the water environment as occurring where significant harm is being caused to human beings. SEPA should determine if such harm is occurring in accordance with the conditions set out in paragraph A.28 in Part 3 of this Chapter .

Significant harm to non-human species.

A.46 SEPA should regard significant pollution of the water environment as occurring where significant harm is occurring to non-human species. SEPA should consider that such harm is occurring where substances present in the water environment result in dose rates which are greater than:

(a) 400 micrograys per hour to aquatic biota or plants;

(b) 40 micrograys per hour to terrestrial biota or plants.

A.47 In assessing doses to non-human species SEPA will take account of the most up-to-date methodology.

Whether the possibility of significant pollution being caused to the water environment is ''significant''?

A.48 SEPA should regard the possibility of significant pollution of the water environment as significant where the after-effects of a radiological emergency, past practice or past work activity give rise to concentrations of radionuclides that result in the possibility of significant harm to human beings or non-human species being significant.

Whether the possibility of significant harm being caused to human

beings (as a result of pollution of the water environment) is

''significant''?

A.49 SEPA should determine if the possibility of significant harm being caused to human beings is significant in accordance with the conditions set out in paragraphs A.30 to A.35 in Part 3 of this Chapter .

Whether the possibility of significant harm being caused to non-human species (as a result of pollution of the water environment) is ''significant''?

A.50 SEPA should regard the possibility of significant pollution being caused to the water environment as significant when the possibility of significant harm, occurring to non-human species, is significant. For this purpose, SEPA should regard something as being ''significant" when, on the balance of probabilities, it is judged more likely than not to occur.