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Statutory Instruments

2007 No. 3245

ENVIRONMENTAL PROTECTION, england

The Radioactive Contaminated Land (Modification of Enactments) (England) (Amendment) Regulations 2007

Made

12th November 2007

Laid before Parliament

16th November 2007

Coming into force

10th December 2007

The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 78A(9) and 78YC of the Environmental Protection Act 1990 M1:

Marginal Citations

M11990 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).

Citation and commencementE+W+S

1.  These Regulations may be cited as the Radioactive Contaminated Land (Modification of Enactments) (England) (Amendment) Regulations 2007 and come into force on 10th December 2007.

InterpretationE+W+S

2.  In these Regulations “the 2006 Regulations” means the Radioactive Contaminated Land (Modification of Enactments) (England) Regulations 2006 M2.

Marginal Citations

AmendmentsE+W+S

3.—(1) The 2006 Regulations are amended as follows.

(2) For regulation 5, substitute—

“Section 78A (preliminary)

5.—(1) Section 78A (preliminary) has effect with the following modifications.

(2) For subsection (2), substitute—

“(2) “Contaminated land” is 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)harm is being caused; or

(b)there is a significant possibility of harm being caused;

and in determining whether any land appears to be such land, a local authority shall, subject to subsection (5) below, act in accordance with guidance issued by the Secretary of State in accordance with section 78YA below with respect to the manner in which that determination is to be made.

(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.”.

(3) For subsection (4), substitute—

“(4) “Harm” means lasting exposure to any person resulting from the after-effects of a radiological emergency, past practice or past work activity.”.

(4) For subsection (5), substitute—

“(5) The questions—

(a)whether harm is being caused, and

(b)whether the possibility of harm being caused is “significant”,

shall be determined in accordance with guidance issued for the purpose by the Secretary of State in accordance with section 78YA below.”.

(5) For subsection (6), substitute—

“(6) Without prejudice to the guidance that may be issued under subsection (5) above—

(a)guidance under paragraph (a) of that subsection may make provision for different degrees and descriptions of harm;

(b)guidance under paragraph (b) of that subsection may make provision for different degrees of possibility to be regarded as “significant” (or as not being “significant”) in relation to different descriptions of harm.”.

(6) For subsection (7), substitute—

“(7) “Remediation” means—

(a)the doing of anything for the purpose of assessing the condition of—

(i)the contaminated land in question; or

(ii)any land adjoining or adjacent to that land;

(b)the doing of any works, the carrying out of any operations or the taking of any steps in relation to any such land for the purpose—

(i)of preventing or minimising, or remedying or mitigating the effects of, any harm by reason of which the contaminated land is such land; or

(ii)of restoring the land to its former state; or

(c)the making of subsequent inspections from time to time for the purpose of keeping under review the condition of the land;

and cognate expressions shall be construed accordingly.

(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” shall include ensuring that—

(a)any such area is demarcated;

(b)arrangements for the monitoring of the harm are made;

(c)any appropriate intervention is implemented; and

(d)access to or use of land or buildings situated in the demarcated area is regulated.”.

(7) Subsection (8) is omitted.

(8) In subsection (9)—

(a)before the definition of “the appropriate Agency”, insert—

““the 1965 Act” means the Nuclear Installations Act 1965;”;

(b)omit the definitions of “controlled waters” and “pollution of controlled waters”;

(c)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;”;

F1(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2(...)

“and any other word or expression used both in this Part and in Council Directive 96/29/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 has the same meaning for the purposes of this Part as it has in that Directive.”.”.

(3) For regulation 9, substitute—

“Section 78F (determination of the appropriate person to bear responsibility for remediation)

9.—(1) Section 78F (determination of the appropriate person to bear responsibility for remediation) has effect with the following modifications—

(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”.”.

(4) For regulation 11, substitute—

“Section 78H (restrictions and prohibitions on serving remediation notices)

11.  Section 78H (restrictions and prohibitions on serving remediation notices) has effect with the following modifications—

(a)in subsection (4) omit “, or serious pollution of controlled waters,”; and

(b)in paragraph (c) of subsection (5), after “the authority itself” insert “or the Secretary of State by virtue of section 78F(1A)”.”.

(5) For regulation 14, substitute—

“Section 78N (powers of the enforcing authority to carry out remediation)

14.—(1) Section 78N (powers of the enforcing authority to carry out remediation) has effect with the following modifications.

(2) In subsection (1), omit “or waters”.

(3) 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 Secretary of State 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).”.

(4) In subsection (3)—

(a)in paragraph (a), omit “, or serious pollution of controlled waters,”;

(b)in paragraph (d), omit “78J or”; and

(c)at the end of paragraph (f), insert—

“;

(g)where section 78F(1A) applies”.

(5) In subsection (4)(d), omit “78J or”.

(6) For subsection (5), substitute—

“(5) In this section “the relevant land” means—

(a)the contaminated land in question; or

(b)any land adjoining or adjacent to that land.”.”.

F3(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) After regulation 18, insert—

“Modification of the Contaminated Land (England) Regulations 2006

19.  The Contaminated Land (England) Regulations 2006 apply with the modification that in regulation 7, 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;”.”.

Textual Amendments

RevocationsE+W+S

4.  Regulation 4 of, and the Schedule to, the 2006 Regulations are revoked.

Phil Woolas

Minister of State

Department for Environment, Food and Rural Affairs

Explanatory Note

(This note is not part of the Regulations)

Part 2A of the Environmental Protection Act 1990 (c. 43) (“Part 2A” of “the 1990 Act”) sets out a regime for the identification and remediation of contaminated land. In England the Radioactive Contaminated Land (Enabling Powers) (England) Regulations 2005 (S.I. 2005/3467) apply the powers under the 1990 Act to make regulations and guidance in relation to radioactive substances and the Radioactive Contaminated Land (Modification of Enactments) (England) Regulations 2006 (S.I. 2006/1379) (“the 2006 Regulations”) make provision for Part 2A to have effect with modifications for the purpose of the identification and remediation of radioactive contaminated land.

The 2006 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. The effect of these Regulations is to amend the 2006 Regulations so as to apply the modifications they make to Part 2A to all radioactivity (paragraphs (2) to (6) of regulation 3) and to modify the Contaminated Land (England) Regulations 2006 (S.I. 2006/1380) to provide for a new ground of appeal against a remediation notice (regulation 3(7)).

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 2006 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.