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

CHAPTER B: Statutory Guidance on the Identification of Radioactive Contaminated Land

Part 1 - Scope of the Chapter

Part 2 - Definitions of Terms and General Material

Part 3 - Inspection of Land for the Purposes of Identifying Radioactive Contaminated Land

Part 4 - Determining whether Land Appears to be Radioactive Contaminated Land

Part 1 Scope of the Chapter

B.1 The statutory guidance in this Chapter is issued under section 78BB(4) of Part IIA of the Environmental Protection Act 1990, and provides guidance on the inspection of land by SEPA and the manner in which SEPA is to determine whether any land appears to it to be radioactive contaminated land.

B.2 Section 78BB(1) provides that "Where the appropriate Agency considers that there are reasonable grounds for believing that land may be contaminated land as a result of any radioactivity possessed by any substance, it shall inspect that land for the purposes of identifying whether it is so contaminated and requires designation as a special site…".

B.3 Section 78BB(4) further provides that "In performing its… [inspection duties], the appropriate Agency shall act in accordance with any guidance issued for the purpose in accordance with section 78YA below.".

B.4 SEPA is therefore required to act in accordance with the guidance contained within this Chapter.

B.5 The questions of what harm is to be regarded as significant, whether the possibility of significant harm being caused is significant, what level of pollution of the water environment is to be regarded as significant and whether the possibility of such pollution being caused is significant are to be determined in accordance with guidance contained in Chapter A.

Part 2 Definitions of Terms and General Material

B.6 Unless otherwise stated, any word, term or phrase given a specific meaning in Part IIA of the Environmental Protection Act 1990 as modified by Regulations, or in the guidance at Chapter A, has the same meaning for the purposes of the guidance in this Chapter.

B.7 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 as modified by Regulations, unless it is specifically stated otherwise.

PART 3

Inspection of Land for the Purposes of Identifying Radioactive Contaminated Land

Duty of a local authority to advise SEPA that land may be radioactive contaminated land

B.8 Section 78BA provides that "If at any time… 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 the appropriate Agency [ SEPA]".

B.9 This duty imposed by section 78BA is not limited to land that has been statutorily identified as contaminated land under section 78B.

Procedure adopted by SEPA when notified under section 78BA

B.10 Upon receipt of any notice under issued under section 78BA, SEPA will assess the information received and will advise the informing Local Authority of the following:

(a) its decision regarding whether or not it has reasonable grounds for inspection; and

(b) the reasons for that decision; and

(c) any future actions it plans to take.

B.11 If reasonable grounds exist and the land is inspected, the outcome of the inspection will be notified to the local authority as required by section 78BB(3).

Reasonable grounds for inspection

B.12 SEPA will have reasonable grounds for inspection where;

(a) a substance arising from a past practice, past work activity, or radiological emergency has been identified as present on the land; and

(b) Receptors have been identified on that land; and

(c) it is SEPA's opinion that it is possible that the identified contamination may cause lasting exposure giving rise to radiation doses exceeding those set out in Part A of this guidance.

B.13 Former historical land-uses may be evidence that lasting exposure can give rise to doses exceeding those set out in Part A of this guidance but the fact that land had a particular historical land-use does not in itself give rise to reasonable grounds for inspection.

Inspecting particular areas of land

B.14 Where SEPA is satisfied that reasonable grounds exist it should carry out a detailed inspection of any such area to obtain sufficient information to determine in accordance with the guidance on the manner of determination in Part 4 below whether the land appears to be radioactive contaminated land.

B.15 To be sufficient for this purpose the information should include, in particular, evidence of the actual presence of one or more radioactive contaminants and receptors. Such evidence may confirm the information that formed the basis of reasonable grounds or may be evidence of new receptors and radioactive contaminants.

B.16 Detailed inspection may include any or all of the following:

(a) the collation and assessment of documentary information, or other information from other bodies;

(b) a visit to the particular area for the purposes of visual inspection and, in some cases, limited sampling (for example, of surface deposits); or

(c) intrusive investigation of the land (for example by exploratory excavations).

B.17 Section 108 of the Environment Act 1995 gives SEPA the power to authorise a person to exercise specific powers of entry. For the purposes of this Chapter, any detailed inspection of land carried out through use of this power by SEPA is referred to as an "inspection using statutory powers of entry".

B.18 SEPA should only carry out an inspection using statutory powers of entry, if it has reasonable grounds to believe that land may be radioactive contaminated land as defined in paragraph B.12.

B.19 SEPA should not carry out any inspection using statutory powers of entry which takes the form of intrusive investigation if:

(a) it has already been provided with detailed information on the condition of the land, which provides an appropriate basis upon which SEPA can determine whether the land is contaminated land in accordance with the requirements of the guidance in this Chapter; or

(b) a person offers to provide such information within a reasonable and specified time, and then provides such information within that time.

B.20 SEPA should carry out any intrusive investigation in accordance with appropriate technical procedures for such investigations. It should also ensure that it takes all reasonable precautions to avoid harm, or pollution of the water environment or damage to natural resources or features of historical or archaeological interest which might be caused as a result of its investigation. Before carrying out any intrusive investigation on any area notified as a Site of Special Scientific Interest ( SSSI), SEPA should consult Scottish Natural Heritage on any action which, if carried out by the owner or occupier, would require the consent of Scottish Natural Heritage under section 28 of the Wildlife and Countryside Act 1981.

B.21 If at any stage, SEPA considers, on the basis of information obtained from a detailed inspection, that there is no longer a reasonable possibility that a particular pollutant linkage exists on the land, SEPA should not carry out any further detailed inspection for that pollutant linkage.

Non-radioactive pollutant linkages and delegation of inspection powers

B.22 If land has been determined to be radioactive contaminated land and the presence of non-radioactive pollutant linkages have been identified, it is possible that a Local authority would become the Enforcing authority for the non-radioactive pollutant linkages in the future. It is therefore helpful for the relevant Local Authority to have an informal role at the inspection stage for any such land.

B.23 In some limited circumstances a Local Authority may agree, after discussion with SEPA, that it is appropriate for the Local Authority to carry out the inspection on behalf of SEPA. In such cases SEPA would remain responsible for any costs incurred by the Local Authority. Where the Local Authority is to carry out an inspection on behalf of SEPA, SEPA should authorise such persons as necessary to exercise the ''powers of entry'' conferred by section 108 of the Environment Act 1995. Before SEPA gives such an authorisation, it should ensure that the conditions for the use of the statutory powers of entry, set out in paragraph B.18 above, are met.

PART 4

Determining whether Land appears to be Radioactive Contaminated Land

B.24 SEPA has the sole responsibility for determining whether any land appears to be radioactive contaminated land. SEPA cannot delegate this responsibility, although in discharging it, SEPA can choose to rely on information or advice provided by another body such as a local authority or by a consultant appointed for that purpose. This applies even where a Local Authority has carried out the inspection of land on behalf of SEPA (see paragraph B.23 above).

Physical extent of land

B.25 A determination that land is radioactive contaminated land is necessarily made in respect of a specific area of land. In deciding what that area should be, the primary consideration is the extent of the land which is radioactive contaminated land. However, there may be situations in which SEPA may consider that separate designations of parts of a larger area of radioactive contaminated land may simplify the administration of the consequential actions. In such circumstances, SEPA should do so taking into account:

(a) the location of significant pollutants in, on or under the land;

(b) the nature of the Remediation which might be required; and

(c) the likely identity of those who may be the appropriate persons to bear responsibility for the Remediation (where this is reasonably clear at this stage).

B.26 If necessary, SEPA should initially review a wider area, the history of which suggests that contamination problems are likely. It can subsequently refine this down to the precise areas which meet the statutory tests for identification as contaminated land, and use these as the basis for its determination.

B.27 In practice, the land to be covered by a single determination is likely to be the smallest area which is covered by a single remediation action which cannot sensibly be broken down into smaller actions. Subject to this, the land is likely to be the smaller of:

(a) the plots which are separately recorded in the Land Register or are in separate ownership or occupation; and

(b) the area of land in which the presence of significant pollutants has been established.

B.28 The determination should identify the area of radioactive contaminated land clearly, including reference to a map or plan at an appropriate scale.

B.29 SEPA should also be prepared to review the decision on the physical extent of the land to be identified in the light of further information.

Making the determination

B.30 In determining whether any land appears to SEPA to be radioactive contaminated land, the Agency is required to act in accordance with the guidance on the definition of contaminated land set out in Chapter A. Guidance on the manner in which SEPA should determine whether land appears to it to be radioactive contaminated land, by reason of substances in, on or under the land, is set out in paragraphs B.31 to B.44 below.

B.31 There are four possible grounds for the determination, (corresponding to the parts of the definition of contaminated land in section 78A(2)) namely that:

(a) significant harm is being caused (see paragraph B.36 below);

(b) there is a significant possibility of significant harm being caused (see paragraphs B.37 to B.41 below);

(c) Significant pollution of the water environment is being caused (see paragraph B.42 below); or

(d) there is a significant possibility of Significant pollution of the water environment being caused (see paragraph B.43 to B.44 below).

B.32 In making any determination, SEPA should take all relevant and available evidence into account and carry out an appropriate scientific and technical assessment of that evidence.

B.33 SEPA should identify all significant pollutant linkages (as defined in paragraph A.22 of Chapter A) as the basis for the determination. All three elements of any pollutant linkage (pollutant, pathway and receptor) should be identified. A linkage which forms a basis for the determination that land is contaminated land is then a "significant pollutant linkage"; and any pollutant which forms part of it is a "significant pollutant".

B.34 SEPA should consider whether:

(a) there is evidence that additive or synergistic effects between potential pollutants, whether between the same substance on different areas of land or between different substances, may result in a significant pollutant linkage;

(b) a combination of several different potential pathways linking one or more potential pollutants to a particular receptor, or to a particular class of receptors, may result in a significant pollutant linkage; and

(c) there is more than one significant pollutant linkage on any land; if there are, each should be considered separately since different people may be responsible for the Remediation.

Consistency with other statutory bodies

B.35 In making a determination which relates to harm of non-human species in or dependent on the water environment (as defined in paragraphs A.46 to A.48 and A.50), SEPA should adopt an approach consistent with that adopted by Scottish Natural Heritage. To this end, SEPA should consult that authority and have regard to its comments in making its determination.

Determining that "significant harm is being caused"

B.36 SEPA should determine that land is radioactive contaminated land on the basis that significant harm is being caused where:

(a) it has carried out an appropriate scientific and technical assessment of all the relevant and available evidence; and

(b) on the basis of that assessment, it is satisfied that significant harm is being caused.

Determining that "there is a significant possibility of significant harm being caused"

B.37 SEPA should determine that land is radioactive contaminated land on the basis that there is a significant possibility of significant harm being caused (as defined in Part 3 of Chapter A), where:

(a) it has carried out a scientific and technical assessment of the risks arising from the pollutant linkage, according to relevant, appropriate, authoritative and scientifically based guidance on such risk assessments;

(b) that assessment shows that there is a significant possibility of significant harm being caused; and

(c) there are no suitable and sufficient risk management arrangements in place to prevent such harm.

B.38 In following any such guidance on risk assessment, SEPA should be satisfied that it is relevant to the circumstances of the pollutant linkage and land in question, and that any appropriate allowances have been made for particular circumstances.

B.39 To simplify such assessment of risks, SEPA may use authoritative and scientifically based guideline values, or methods for deriving values, for concentrations of the radionuclide content of substances in, on or under the land which are appropriate to the specific pollutant linkage being considered. If it does so, SEPA should be satisfied that:

(a) an adequate scientific and technical assessment of the information on the potential pollutant, using the appropriate, authoritative and scientifically based guideline values, shows that there is a significant possibility of significant harm; and

(b) there are no suitable and sufficient risk management arrangements in place to prevent such harm.

B.40 In using any guideline values (including methods for deriving values), SEPA should be satisfied that:

(a) the guideline values are relevant to the judgement of whether the effects of the pollutant linkage in question constitute a significant possibility of significant harm;

(b) the assumptions underlying the derivation of any numerical values in the guideline values (for example, assumptions regarding soil conditions, the behaviour of potential pollutants, the existence of pathways, the land-use patterns, and the availability of receptors) are relevant to the circumstances of the pollutant linkage in question;

(c) any other conditions relevant to the use of the guideline values have been observed (for example, the number of samples taken or the methods of preparation and analysis of those samples);

(d) appropriate adjustments have been made to allow for the differences between the circumstances of the land in question and any assumptions or other factors relating to the guideline values; and

(e) the guideline values are appropriate to the receptor and site under consideration.

B.41 SEPA should be prepared to reconsider any determination based on such use of guideline values if it is demonstrated to SEPA's satisfaction that, under some other more appropriate method of assessing the risks, SEPA would not have determined that the land appeared to be radioactive contaminated land.

Determining that "significant pollution of the water environment is being caused"

B.42 SEPA shall determine that land is radioactive contaminated land on the basis that there is Significant pollution of the water environment where:

(a) it has carried out an appropriate scientific and technical assessment of all the relevant and available evidence; and

(b) on the basis of that assessment it is satisfied that, on the balance of probabilities, both of the following circumstances apply:

(i) a substance is present in, on or under the land in question, which has the potential to result in Significant pollution of the water environment; and

(ii) the substance in question is in such a condition that it is capable of entering the water environment by the pathway (as defined in paragraph A. 16 of Part 2 of Chapter A) identified in the pollutant linkage.

Determining that "there is a significant possibility of significant pollution of the water environment being caused"

B.43 Consideration shall be based on the principles of risk assessment and, in particular, on the likelihood of entry resulting in significant pollution of the water environment.

B.44 SEPA shall determine that land is radioactive contaminated land on the basis that there is a significant possibility of Significant pollution of the water environment where:

(a) it has carried out an appropriate scientific and technical assessment of all the relevant and available evidence; and

(b) on the basis of that assessment it is satisfied that, on the balance of probabilities, all of the following circumstances apply:

(i) a substance is present in, on or under the land in question, which has the potential to result in Significant pollution of the water environment;

(ii) the substance in question is in, or is likely to be in, such a condition that it is capable of entering the water environment;

(iii) taking into account the geology and other circumstances of the land in question, there is a pathway (see paragraph B.42 (b)(ii) above) by which the substance can enter the water environment;

(iv) the substance is more likely than not to enter the water environment and would result in Significant pollution of the water environment; and

(v) there are no suitable and sufficient risk management arrangements relevant to the pollutant linkage in place to prevent such significant pollution of the water environment.

Record of the determination that land is radioactive contaminated land

B.45 SEPA should prepare a written record of any determination that particular land is radioactive contaminated land. The record should include (by means of a reference to other documents if necessary):

(a) a description of the particular significant pollutant linkage, identifying all three components of pollutant, pathway and receptor;

(b) a summary of the evidence upon which the determination is based;

(c) a summary of the relevant assessment of this evidence; and

(d) a summary of the way in which the Agency considers that the requirements of the guidance in this Part and in Chapter A of the guidance have been satisfied.