"
Section 78A
3.
In section 78A of the 1990 Act (preliminary)—
(a) after subsection (2), insert—
"
(2A) "Land contaminated by a nuclear occurrence" means land which is contaminated land by reason of the presence in, on or under that land of any substances, in so far as by reason of that presence damage to that land has occurred, being—
(a) damage caused in breach of any duty imposed by section 7, 8, 9 or 10 of the 1965 Act, or deemed to be so caused by section 12(2) of that Act;
(b) damage which would have been so caused or would have been deemed by section 12(2) of the 1965 Act to have been so caused if, in section 7(1)(a) or (b) of that Act, the words "other than the licensee" or, in section 10(1) of that Act, the words "other than that operator" had not been enacted; or
(c) damage in respect of which any relevant foreign operator or other person is liable under any relevant foreign law, or for which he would be so liable—
(i) but for any exclusion or limitation of liability applying by virtue of any provision of that law made for purposes corresponding to those of section 13(3) or (4)(a), 15, 16(1) and (2) or 18 of the 1965 Act; or
(ii) if any such relevant foreign law which does not contain provision made for purposes corresponding to those of section 13(4)(b) of the 1965 Act did contain such provision.";
(b) in subsection (3), in paragraph (a), after "section" insert "78BC(4),";
(c) for subsection (4) substitute—
"
(4) Subject to subsection (4A) below, "harm" means lasting exposure to any person resulting from the after-effects of a radiological emergency, past practice or past work activity.";
(d) after subsection (7) insert—
"
(7A) For the purpose of paragraph (b) of subsection (7) above, "the doing of any works, the carrying out of any operations or the taking of any steps in relation to any such land or the water environment" shall include ensuring that—
(a) any such area is demarcated;
(b) arrangements for the monitoring of the harm or pollution are made;
(c) any appropriate intervention is implemented; and
(d) access to or use of land or the water environment or buildings situated in the demarcated area is regulated."; and
(e) in subsection (9)—
(i) before the definition of "the appropriate Agency" insert—
"
"the 1965 Act" means the Nuclear Installations Act 1965 (c.57);";
(ii) after the definition of "heritable security", insert—
"
"licensee", "relevant foreign law" and "relevant foreign operator" have the meanings given by section 26(1) of the 1965 Act.";
(iii) for the definition of "substance" substitute—
"
"substance" means, 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
(iv) after the definition of "the water environment" insert–
"
and any other word or expression used both in this Part and in Council Directive 96/29/Euratom of 13th 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 has the same meaning for the purposes of this Part as it has in that Directive.".".
(5) For regulation 9, substitute—
"
Section 78F
9.
In section 78F of the 1990 Act (determination of the appropriate person to bear responsibility for remediation)—
(a) after subsection (1), insert—
"
(1A) In relation to any land contaminated by a nuclear occurrence, the Secretary of State is deemed to be the appropriate person.";
(b) for subsection (2), substitute—
"
(2) Except where subsection (1A) applies and subject to the following provisions of this section, any person, or any of the persons, who caused or knowingly permitted the substances, or any of the substances, by reason of which the contaminated land in question is such land to be in, on or under that land is an appropriate person."; and
(c) in subsection (9), after "biological process", insert "or radioactive decay".".
(6) In regulation 10, for sub–paragraph (b), substitute—
"
(b) in subsection (5)—
(i) in paragraph (a), after "78E(4)" insert, ", (4A)"; and
(ii) in paragraph (c), after "the authority itself" insert "or the Secretary of State by virtue of section 78F(1A)";".
(7) For regulation 11, substitute—
"
Section 78N
11.
In section 78N of the 1990 Act (powers of the enforcing authority to carry out remediation)—
(a) after subsection (1), insert—
"
(1A) The enforcing authority shall exercise its power under subsection (1) in any case falling within paragraph (c), (d), (e), (f) or (g) of subsection (3).
(1B) In relation to any land which is not land contaminated by a nuclear occurrence, the Scottish Ministers may make available to the enforcing authority a sum of money in respect of costs and expenses incurred or to be incurred by the enforcing authority (or by a person on its behalf) in relation to the exercise of its duty under subsection (1A) provided that—
(a) the amount of such costs and expenses exceeds or is expected to exceed any reasonable provision for such costs and expenses made by the appropriate Agency; and
(b) the total amount made available does not exceed the difference between the amount of such costs and expenses and the amount of such provision.
(1C) In relation to any land contaminated by a nuclear occurrence, the Secretary of State shall make available to the enforcing authority a sum of money in respect of costs and expenses incurred or to be incurred by the enforcing authority (or by a person on its behalf) in relation to the exercise of its duty under subsection (1A).";
(b) in subsection (3), at the end of paragraph (f), insert—
"
;
(g) where section 78F(1A) applies";
(c) in subsection (4), after "78E(4)" insert ", (4A)".".
(8) For regulation 15, substitute—
"
Section 78YB
15.
In section 78YB of the 1990 Act (interaction of part IIA with other enactments), after subsection (4) insert—
(9) After regulation 17, insert—
"
Modification of the Contaminated Land (Scotland) Regulations 2000
18.
Regulation 7 of the Contaminated Land (Scotland) Regulations 2000 applies with the modification that after paragraph (1)(n) there is inserted—
"
(na) that the enforcing authority itself has power, in a case falling within section 78N(3)(g), to do what is appropriate by way of remediation;".
Extension of the effect of the modification and amendment made by regulations 16 and 17 respectively
19.
For the avoidance of doubt, the modification made by regulation 16 and the amendment made by regulation 17 also have effect in relation to land contaminated by a nuclear occurrence.".
Phil Woolas
Minister of State Department for Environment, Food and Rural Affairs
12th November 2007
EXPLANATORY NOTE
(This note is not part of the Regulations)
Part IIA of the Environmental Protection Act 1990 (c. 43) ("Part IIA" of "the 1990 Act") sets out a regime for the identification and remediation of contaminated land. In Scotland the Radioactive Contaminated Land (Scotland) Regulations 2007 (S.S.I. 2007/179) ("the 2007 Regulations") apply the powers under the 1990 Act to make regulations and guidance in relation to radioactive substances and make provision for Part IIA to have effect with modifications for the purpose of the identification and remediation of radioactive contaminated land.
The 2007 Regulations exclude circumstances where civil liability for damage to the land is regulated, for the purposes of the Paris Convention on third party liability in the field of nuclear energy, by the Nuclear Installations Act 1965 (c. 57) or foreign law (in other words, situations where radiation arises from a nuclear occurrence). The effect of these Regulations is to amend the 2007 Regulations so as to apply the modifications they make to Part IIA and to the Environment Act 1995 (c. 25) to all radioactivity (paragraphs (4) to (9) of regulation 3). Regulation 3(3) excludes provisions relating to the water environment or pollution of the water environment in Part IIA from having effect in relation to situations arising from a nuclear occurrence. These Regulations also apply the amendment made to the Contaminated Land (Scotland) Regulations 2000 (S.S.I. 2000/178) to all radioactivity and modify those Regulations so as to provide for a new ground of appeal against a remediation notice (regulation 3(9)).
These Regulations also implement obligations arising under Articles 48 and 53 of Council Directive 1996/29/Euratom laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionizing radiation (OJ No. L 159, 29.06.1996, p.1).
A full regulatory impact assessment was produced in relation to the 2007 Regulations and that remains relevant to these Regulations. As such a further full regulatory impact assessment has not been produced for this instrument as no additional impact on the private or voluntary sectors is foreseen. A Transposition Note in relation to these Regulations has been prepared and placed in the library of each House of Parliament. Copies of this document can be obtained from the Radioactive Substances Division, Department for Environment, Food and Rural Affairs, Room 4C, Ergon House, Horseferry Road, London, SW1P 2AL.
Notes:
[1]
1990 c. 43. Sections 78A to 78YC were inserted by section 57 of the Environment Act 1995 (c. 25). See the definition of "prescribed" and "regulations" in section 78A(9). The powers under these sections have been devolved to the Scottish Ministers (see section 53 of the Scotland Act 1998 (c. 46)). The Secretary of State's power to make regulations under section 78YC is preserved by section 57(1) of the Scotland Act 1998 for the purpose of implementing obligations under Articles 48 and 53 of Council Directive 96/29/Euratom.back
[2]
As inserted by paragraphs (5) and (7) respectively of regulation 3 of these Regulations.back
[3]
S.S.I. 2007/179.back
ISBN
978 0 11 078972 9
| © Crown copyright 2007 |
Prepared
19 November 2007
|
