Acts
of Parliament
Agriculture
The Radioactive Contaminated Land (Modification of Enactments) (England) (Amendment) Regulations 2007
Crown Copyright Acknowledged
The Radioactive Contaminated Land (Modification of Enactments) (England) (Amendment) Regulations 2007
STATUTORY INSTRUMENTS
Made
Laid before Parliament
Coming into force
12th November 2007
16th November 2007
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(1):
1-
Citation and commencement
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.
2-
Interpretation
In
these Regulations “the 2006 Regulations” means
the Radioactive Contaminated Land (Modification of Enactments)
(England) Regulations 2006(2).
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;”;
(d)
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 past practice or past work activity, but shall not
include radon gas or the following radionuclides: Po-218,
Pb-214, At-218, Bi-214, Rn-218, Po-214 and Tl-210;”;
and
(e)
after
the definition of “unitary authority”, insert—
“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—
9.
“Section
78F (determination of the appropriate person to bear responsibility
for remediation)
(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—
11.
“Section
78H (restrictions and prohibitions on serving remediation
notices)
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—
14.
“Section
78N (powers of the enforcing authority to carry out remediation)
(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.”.”.
(6)
For
regulation 17, substitute—
17.
“Section
78YB (interaction of Part 2A with other enactments)
(1)
Section
78YB (interaction of Part 2A with other enactments) has
effect with the following modifications.
(2)
For
subsection (1), substitute—
“(1)
A remediation
notice shall not be served if and to the extent that it
appears to the enforcing authority that the powers of
the appropriate Agency under section 27 above may be exercised
in relation to the harm (if any) by reason of which the
contaminated land in question is such land.”.
(3)
In
subsections (2), (2A) and (2B), for “significant
harm, or pollution of controlled waters” substitute
“harm”.
(4)
After
subsection (4) insert—
“(5)
Nothing
in this Part applies in respect of land which, except
for this subsection, would otherwise fall to be regarded
as contaminated land within a nuclear site.
(6)
Nothing
in this Part applies in respect of land which, except
for this subsection, would otherwise fall to be regarded
as contaminated land on a site—
(a)
in
respect of which there is no nuclear site licence in force;
and
(b)
which
is used by or on behalf of the Secretary of State for
Defence for a purpose which, if section 1 of the 1965
Act applied to the Crown, would require the authority
of a nuclear site licence in respect of that site.
(7)
Nothing
in this Part applies in respect of land which, except
for this subsection, would otherwise fall to be regarded
as contaminated land if—
(a)
action
is required to be taken by a local authority under paragraph
(2) of regulation 13 (implementation of emergency plans)
of the Radiation (Emergency Preparedness and Public Information)
Regulations 2001; and
(b)
that
action would for the purposes of Part 2A amount to remediation
of the relevant land.
(8)
In
this section—
“nuclear
site” means any licensed site in respect of which,
or part of which—
(a)
a nuclear
site licence is for the time being in force; or
(b)
after
the revocation or surrender of a nuclear site licence,
the period of responsibility of the licensee has not come
to an end; and
“licensed
site”, “nuclear site licence” and, in
relation to a licensee, “period of responsibility”
have the meaning given by section 26(1) of the 1965 Act.”.”.
(7)
After
regulation 18, insert—
18.
“Modification
of the Contaminated Land (England) Regulations 2006
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;”.”.
Regulation
4 of, and the Schedule to, the 2006 Regulations are revoked.
12th November 2007
Phil
Woolas
Minister of State
Department for Environment, Food and Rural Affairs
(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). Back [1]
