Radioactive Contaminated Land (Scotland) Regulations 2007: 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 Regulation come into force, subject to Regulation 2, on 30 ^th October 2007. Regulation 2 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 Radioactive Contaminated Land (Scotland) Regulations 2007 to make regulations or orders, give directions or issue guidance.

3. 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 delivers a long-standing policy commitment of the Scottish Ministers to complete the package for dealing with contaminated land.

4. 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 provides 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 will also allow 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. This Directive is subsequently referred to in this consultation document as the Basic Safety Standards Directive.

5. 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 have accepted this criticism and, in addition to the earlier high-level advice, upon which we consulted, Scottish Ministers are now providing this further detailed guidance.

6. The Regulations themselves have to be read in conjunction with the existing Part IIA regime, since they are not stand-alone Regulations but modifying Regulations. Similarly, this

Statutory Guidance amends or adds to the existing Statutory Guidance and so 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 the 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

7. Section 78BA of The Radioactive Contaminated Land (Scotland) Regulations 2007 requires that, if at any time [whether or not in performing its functions under section 78B(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

8. This document provides detailed statutory guidance and other guidance to SEPA in carrying out its new duties resulting from the extension of the contaminated land regime to include radioactivity. The Statutory Guidance applies only to SEPA.

Application to nuclear sites

9 For the purposes of the radioactive contaminated land regime, it was intended that all land is covered by that regime with one exception that 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.

10. There was an issue with third party liability for contamination resulting from an 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 Installation Act 1965. Because nuclear liability is a reserved matter and other concerns, the Scottish Regulations exempted, from the regime, contamination from or caused by a site in respect of which a nuclear site licence was in place. Regulations for such sites are to be made in the UK Parliament and will have the effect of bringing such contamination back into the Scottish regime for radioactive contamination of land.

Financial Implications

11. 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 licensed sites.

12. 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.

13. 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, will also be affected.

14. There are no provisions for Crown Immunity to be applied to the regime. 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 an activity on a nuclear licensed site will be brought back into the regime with the introduction of the Westminster Regulations, and this guidance applies to such land.

Regulatory Impact Assessment

15. A Regulatory Impact Assessment ( RIA) on the extension of the Part IIA contaminated land regime was published with the consultation on the proposed changes to the regime. Copies are available from the address given at page 2 of this document.