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In March 2007, in exercise of the powers conferred by the Environmental Protection Act 1990, the Scottish Ministers laid before Parliament the Radioactive Contaminated Land (Scotland) Regulations 2007. Those Regulations enabled Scottish Ministers to issue guidance on the contaminated land regime and they subsequently did so in 2007.
Following subsequent amendments to the Regulations land contaminated by a nuclear occurrence now falls within the contaminated land regime under the 1990 Act and the Regulations. Consequently, the guidance has also been amended and the final guidance under the Radioactive Contaminated Land (Scotland) Regulations 2007 was issued by the Scottish Environmental Protection Agency (SEPA) and the Scottish Ministers in May 2009.
The objective for the contaminated land regime is to apply the “polluter pays principle” so that those liable for any contamination of land become responsible for its remediation. SEPA has rights to access and identify land that may be contaminated by radioactivity. The new guidance effectively aids SEPA in carrying out its duties under the contaminated land regime and provides a guide for landowners and those potentially responsible for remediation of contaminated land as to how SEPA should be exercising its powers. The new guidance must be read in conjunction with that of 2007. This note considers only the changes made by the 2009 guidance.
The New Statutory Guidance
In relation to the radioactive contaminated land regime, the guidance requires that, if SEPA has information which is sufficient to enable it to make a determination on a particular area of land, SEPA should not carry out investigations but should make a determination based on the information. If, however, SEPA do not have sufficient information upon which they can base a determination they must consider whether “reasonable grounds” exist for invoking powers of entry for the purposes of inspection under the Environment Act 1995. Assuming that they do, SEPA can carry out an investigation of the land in question. SEPA are then able to designate land as radioactive contaminated land on four grounds:
• Significant harm is being caused;
• There is a significant possibility of such harm being caused;
• Significant pollution of the water environment is being caused; or,
• There is a significant possibility of such harm being caused.
The salient changes to the statutory guidance include changes to the definitions of significant harm and possibility of harm. A definition of reasonable grounds is also given.
Significant Harm
SEPA is required to regard significant harm as being caused to humans when lasting exposure gives rise to a dose in a year to an individual exceeding one or more of the following:
• An effective dose of 3 millisieverts; and,
• An equivalent dose to the lens of the eye of 15 millisieverts; and,
• An equivalent dose to the skin of 50 millisieverts averaged over any 1cm2 area of skin, regardless of the area exposed.
SEPA should not regard as significant anything below these thresholds, nor should they take into account any naturally occurring radiation.
Possibility of Harm
SEPA must also regard the possibility of harm as being significant, irrespective of the probability of the radiation dose being received, where:
• In a single event the potential effective dose would be greater than 100 millisieverts; or
• Contact with contamination would result in a potential absorbed dose to the skin greater than 10 Grays in an hour.
If neither of the above conditions are met, the probability of the radiation dose needs to be considered. SEPA must then regard the possibility of significant harm as being significant where, in a year:
• The potential effective dose multiplied by the probability of exposure is greater than 3 millisieverts; or
• The potential equivalent dose to the lens of the eye multiplied by the probability of exposure is greater than 15 millisieverts; or
• The potential equivalent dose to the skin multiplied by the probability of exposure is greater than 50 millisierverts over any 1cm2 area of skin, regardless of the area exposed.
If any of the thresholds are exceeded, SEPA is bound by the guidance to designate that area of land as radioactive contaminated land.
Reasonable Grounds
SEPA is granted the power to enter premises under s108 Environment Act 1995 provided it has reasonable grounds for inspection. These exist where:
• A substance arising from past practice, past work activity, or radiological emergency has been identified as present on the land; and,
• Receptors have been identified on the land; and,
• It is SEPA’s opinion that it is possible that the identified contamination may cause lasting exposure giving rise to radiation doses exceeding those above.
Morton Fraser Comment
Having considered the changes made it seems apparent that numerous issues remain unresolved:
1. The stated dose must arise from “lasting exposure”. That term is not defined in the guidance. It may be that a period of exposure of seconds, minutes or hours suffices. Alternatively, it may be that the guidance requires periods of weeks, months or possibly even years.
2. If particles are found and are below the thresholds, there is an implication that other (undiscovered) particles exist. The guidance suggests that SEPA are not to regard the discovered particles as significant for the purposes of establishing significant harm because they do not meet the thresholds, despite the implication. There is no indication as to how the implication affects the situation or how SEPA are to deal with it.
3. The finding of one single particle in excess of the thresholds requires SEPA to designate land as radioactive contaminated land, disregarding the site specific investigation guidance under the contaminated land regime.
4. There is no indication as to the extent of land to be designated. This is left to SEPA. It is unclear whether one single particle on, for example, a beach requires the whole beach to be designated.
5. There is no indication as to whether the “and” succeeding the first two “reasonable grounds” defined above dictates that all three grounds must be present before reasonable grounds actually exist.
Clearly, there are several issues which will doubtless be clarified by developing practice. It will be interesting to see how these unravel.
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