Nuclear Law: The Law Applying to Nuclear Installations and Radioactive Substances in its Historic Context 9781472565037, 9781841138572

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PREFACE

This book is a very much expanded version of The Law of Nuclear Installations and Radioactive Substances which was published in 1997, and which set out to provide practical commentary on the two key pieces of legislation: the Nuclear Installations Act 1965 and the Radioactive Substances Act 1993. During the intervening period these two acts have remained the cornerstones of regulation in the UK, but the context within which they operate has changed markedly. Perhaps the main change has been the renewed interest by some countries, among them England and Wales, in the construction of new nuclear power stations. In his prescient Foreword to the 1997 work, Lord Lewis of Newnham pointed to the need for the hazards associated with carbon dioxide production from fossil fuels to be set against the longer-term problems of nuclear waste disposal in the debate on the future of nuclear energy. This has proved to be the case—along with domestic energy security, the reduction in emission of greenhouse gases has provided the impetus for policies favouring new nuclear build. Hence the inclusion in this book of chapter 5, dealing specifically with this topic. The stark reality for the UK as at Christmas 2009 was one of sharply declining North Sea gas output, and heavy reliance on imported gas as an energy source, much of it imported by ship in liquid form. Yet at the same time, the economic conditions must be right for the massive commercial investment necessary to develop nuclear power stations: in the order of £2.7 billion to build a new 1,000 MW station. The inconclusive outcome of the December 2009 UN Copenhagen summit on climate change and the consequent lack of certainty as to the future price for carbon emissions will have been very unhelpful in this regard. A coherent national energy policy, underpinned by a simple carbon tax to create long term certainty for investors in low—carbon technologies, is becoming ever more acutely necessary, if secure energy supplies at stable prices are to be achieved, and carbon emissions are to be cut in compliance with existing targets. Another major area of legal and policy development has been the decommissioning of former nuclear facilities, with the initiation of a multi-billion programme and the creation of a new body of central importance, the Nuclear Decommissioning Authority. This aspect, together with the inception of an entirely new regime for the clean-up of radioactively contaminated land, is covered in new chapter 11. The ever-growing importance of international and European Community law as the driving forces behind domestic law on nuclear safety and radiological protection are reflected in chapters 2 and 3, again almost entirely new material. Sadly, events since 1997 have also necessitated a much more intense focus on the issues of nuclear safeguards and security, a topic barely touched on in the original work, but now the subject of extended analysis in chapter 8. Other areas have not stood still by any means, and the chapters dealing with nuclear site licensing, liability and insurance, the use of radioactive substances and the disposal of radioactive waste have all been heavily revised and expanded. An emphasis which I have sought to retain is the provision of sufficient historical and technical material to put the current law into a more clearly understandable context.

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vi Preface One problem is of course that with such a multi-faceted and fast-moving subject there is no ideal time for publication and any text can only form a snapshot of the landscape at a particular point in time. In this case, the text was delivered to the publishers on 19 August 2009, and hence cannot include a number of developments after that date. To assist the reader, a brief overview of such developments follows this Preface. Particularly problematic has been the continued uncertainty as to the timing of changes to the regime for regulating radioactive substances and waste so as to bring these matters within the general environmental permitting regime, and the UK’s approach to implementing revisions to the Paris Convention on Third Party Liability. It appears that such developments may occur during 2010, but to await them before finalising the text would have meant that the book would not have been available to those needing it during 2010 for areas such as new build and decommissioning. The author’s decision on timing has therefore been a compromise, but heavily influenced by the large number of readers of the 1997 work who have made clear their views that an updated version is overdue and should not be delayed. I am most grateful to a number of people who have assisted in the work on the text. First, I must acknowledge with thanks the work of Andrew Jones, who acted as my research assistant from January–April 2009 and who assembled a substantial amount of the materials used in updating and re-writing. Secondly, I would like to thank Peter Dickinson of the Nuclear Directorate of the HSE, Ian Salter of Burges Salmon LLP, and Mark Tetley of Nuclear Risk Insurers Limited, all of whom were kind enough to read specific draft chapters. Responsibility for any errors and omissions of course rests with me. Thirdly, I have been greatly assisted, stimulated and encouraged by my membership of the International Nuclear Law Association (INLA) and involvement with a number of its working groups. Fourthly, staff at Hart Publishing have been extremely professional, supportive and diligent, and have greatly eased for the author the process of publication. I have been privileged in my professional work at the Bar to have been involved regularly on a number of significant pieces of work in the fields of nuclear law, both before and during my work on this text. This inevitably provides new practical insights and focus, but also means that writing tends to be confined to weekends and (in this case) to two summer stints in 2008 and 2009. Last but not least, my wife, Caroline, therefore is due my thanks for her patience in this regard. Stephen Tromans QC 39 Essex Street London WC2R 3AT

New Year’s Eve 2009

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Addendum vii ADDENDUM

Current Developments August–December 2009 The purpose of this Addendum is not to provide a detailed account of all developments since the text was finalised, but rather simply to highlight for the reader’s benefit the most important ongoing issues.

Chapter 4: Licensing The process of Generic Design Assessment (GDA) described in chapter 4 is continuing, with the issue of a number of reports following Step 3 of the assessment process for new power station designs. Step 3 provides an overall safety and security review and analysis of the proposed reactor designs. The next stage of the process is Step 4, in which the regulators will examine the evidence put forward by the design companies in support of their safety cases and will examine their security plans. This Step will provide a high-level indication of whether the proposed nuclear power station design is likely to meet the UK’s regulatory requirements. If the design is considered acceptable, the regulators will issue a Design Acceptance Confirmation at the end of Step 4. Where specific issues have not been fully resolved, these will be identified as exclusions which will have to be resolved before the plant can operate. In November 2009, a joint regulatory position statement was issued on the EPR pressurised water reactor designed by AREVA and the chosen type for EDF. Assessments undertaken independently by HSE, by the French nuclear regulator ASN and by the Finnish regulator STUK, have all raised issues regarding the plant’s control and instrumentation systems which require to be addressed: see Joint Regulatory Position Statement of 2 November 2009. There are also issues relating to the Westinghouse AP1000 design, favoured by RWE and E.ON, in particular on design codes and standards and human factors. In the case of both reactor designs, more information has been requested on the resilience to external hazards, such as aircraft impact. In particular, the HSE has indicated that there are some difficulties in respect of establishing a final ‘design reference point’ after which designs and safety cases will not be subject to significant change. Neither design is at present complete and this makes it problematic to obtain sufficient firm information on some aspects, for example the squib pressure release valves on the AP1000, which is a novel design: see HSE/EA GDA progress report 1 July 2009–30 September 2009. The regulators however remain confident that a ‘meaningful’ GDA will be completed in June 2011. The other key issue in respect of safety regulation is the proposed restructuring of the HSE’s Nuclear Directorate. Creation of a new Nuclear Statutory Corporation (NSC) under the auspices of HSE is being considered, as is noted in chapter 4. It now appears that the NSC will be governed by its own predominantly non-executive board, with individual regulatory decisions delegated to the Chief Inspector—which for the first time will become a position formally provided for in legislation. HSE is now working with the Department for Work and Pensions and with DECC on the legislation necessary to create the NSC. It is intended that the changes will be made through a Legislative Reform Order (LRO) under the Legislative and Regulatory Reform Act 2006: a consultation exercise on the issue closed in September 2009. The currently proposed timescale is that a LRO would be made in Spring 2010, with shadow operations within the ND from April 2010 and the creation of the NSC in Autumn 2010. None of this will, of course, change the substance and the standards of regulation in this area; it does, however, mean that the NSC will have greater autonomy and, importantly, will be able to be more flexible on how it pays and manages its staff.

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viii Addendum

Chapter 5: New Build A further piece of the commercial jigsaw for the construction of new nuclear power stations fell into place on 28 October 2009, with the announcement of the sale for £70 million of 190 ha of land at Sellafield by the NDA to a consortium of companies including Scottish & Southern Energy (SSE), Iberdrola of Spain and GdF Suez, of France. The group has announced its intention to build a new station with 3.6 GW capacity, aiming for a start to construction in 2015. The Infrastructure Planning Commission opened for business on 1 October 2009 and is now actively advising promoters of projects and other interested parties on the application process. At a launch event on 22 October 2009 the IPC provided a list of the projects which it anticipates receiving applications for: among the first of these are proposals for new nuclear power stations at Hinkley Point, Sizewell, Oldbury-on-Severn and Wylfa, as well as connection projects by national Grid for Hinkley and Sizewell. The IPC has also started publication of its own Guidance Notes, providing guidance on pre-application stages and on preparation of application documents. The Government’s intention is to ‘switch on’ the new procedures for energy and transport projects from 1 March 2010: progress to this end is set out in the Implementation Route Map published by DCLG in December 2009. A second package of secondary legislation and guidance (dealing with applications forms and procedures, environmental impact assessment, habitats assessment and model clauses for orders) came into force on 1 October 2009; consultation on a third package, dealing with examination procedures, has now closed and these regulations are intended to come into force on 1 March 2010. Draft National Policy Statements covering the energy sector, and including overarching energy policy (EN-1) and nuclear power (EN-6), were published for consultation on 9 November 2009. The Nuclear NPS and its supporting documents are voluminous. It addresses the need for new nuclear capacity, the policy and regulatory framework, the Government’s assessment of the arrangements for the management and disposal of waste from new nuclear power stations, the impacts of such stations and potential ways to mitigate them, and names specific sites that the Government considers to be potentially suitable. The key supporting materials include Appraisals of Sustainability and Habitats Regulations Assessments of the policy statement overall and of the nominated sites individually, a Strategic Siting Assessment, specialist advice on sites from relevant regulators, and a study undertaken of possible alternative sites. According to Planning Magazine (18 December 2009) a number of former members of CoRWM have protested that their recommendations on waste management have been seriously misrepresented in the draft NPS: whether this is in fact the case and whether there will be a legal challenge to the NPS once formally published will remain to be seen in 2010.

Chapter 6: Liability and Insurance It is understood that consultation on implementing the revised Paris Convention in the UK will begin in Spring 2010. A key issue remains the current non-insurability of some of the new heads of nuclear damage. The likely solution appears to be that the UK Government will act as reinsurer to Nuclear Risk Insurers Limited as a temporary expedient until such time as market capacity becomes available. The Government would charge a premium for this, which would be passed on by NRI to the insured parties.

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Addendum ix

Chapter 8: Safeguards and Security This issue has been dominated by increasing fears over the intentions of Iran, following the announcement by Iran in September 2009 of construction of a further enrichment plant at Fordo near Qom, and missile testing undertaken by Iran. Talks aimed at reaching agreement between Iran and the world’s main nuclear powers (involving Iran shipping its stocks of enriched uranium to France and Russia for further processing) broke down in October. Iran remains in breach of five UN resolutions calling for it to cease enrichment of uranium until issues as to potential military applications are resolved. It is believed that Iran has the knowhow to make a nuclear weapon and lacks only the necessary quantities of fissile material. In November 2009 the IAEA Board of Governors passed resolution GOV/2009/82 in which it noted with serious concern that Iran had constructed an enrichment facility at Qom in breach of its obligation to suspend all enrichment-related activities and that Iran’s failure to notify the Agency of the new facility until September 2009 was inconsistent with its obligations under the Subsidiary Arrangements to its Safeguards Agreement and urged Iran to cooperate and to comply with its international obligations in this regard. The aggressively unrepentant response of the Permanent Mission of Iran to the resolution, made on 3 December 2009, has been published as INFCIRC/779. Indeed it was reported in late November that Iran had vowed to construct 10 more nuclear enrichment facilities as a direct response to the IAEA’s censure. It remains to be seen how the UN Security Council will take matters forward in 2010: the US seems likely to press for a package of sanctions to be imposed, and it appears following the EU Summit held in Brussels in December 2009 that this will find support in the EU Council.

Chapter 11: Decommissioning A potential new dimension to decommissioning what have become, in some cases, iconic industrial buildings was highlighted in October 2009 when it was reported that the Twentieth Century Society has applied for the twin towers of the Trawsfynydd nuclear power station to be listed as of historic and architectural interest. They were designed by modernist architect Basil Spence, who also designed Coventry Cathedral. The work of the NDA has continued: in September 2009 the competition to secure a Parent Body Organisation for the Site Licence Company at Dounreay (Dounreay Site Restoration Limited) was launched. The NDA also initiated consultation on a Supply Chain Charter intended to foster good working relations across the supply chain within the NDA estate, dealing with principles on relationships between NDA and suppliers, planning for the procurement process, and applying and demonstrating rigorous safety, security and environmental protection standards. More controversially, in November 2009 The Times published an article entitled ‘Cuts loom over UK’s nuclear clean-up budget’ in which it was suggested that the NDA’s budget was to be reassessed and that big spending cuts were likely, with particular concern expressed over the figure of almost £800 million spent on NDA administration and support costs. The NDA moved very rapidly to respond to these points, confirming that NDA is, along with other agencies, taking part in the Government-wide review to identify options for savings, known as the Public Value Programme. A range of ‘scenarios’ is being considered by the NDA Board, including deferral of some non-essential work, bringing forward work which offers particular value for money, deletion of scope of some work where alternative plans can be formed, increasing income generation from remaining assets, and looking at opportunities for further efficiency savings. This review is due to be completed in February 2010.

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x Addendum

Chapter 12: Radioactive Waste The original intention was to couple the application of the environmental permitting regime (EPR) to radioactive waste regulation with a review of exemptions from authorisation. It now appears that the environmental permitting changes will take effect in advance of completion of the exemption order review, with EPR taking effect possibly as soon as April 2010 and the exemption reforms at some point thereafter. A number of important assessments and decisions have been made on various aspects of radioactive waste management. In September 2009 the NDA’s public consultation on the UK strategy for the Management of Solid Low Level Waste from the Nuclear Industry closed; this will seek to ensure best use is made of remaining national capacity at the Low Level Waste Repository at Drigg and reduce the need for an additional facility in future. According to NDA estimates, even with extra capacity at Drigg (some 700,000 cubic metres subject to planning and regulatory controls) there will be a major shortfall in capacity given the likely amount of waste which will be generated over the next 120 years (some 3 million cubic metres). In respect of reprocessed nuclear fuel, which has accumulated since 1976, the contracts now rest with NDA, and provide the option (which the Government has exercised) for return to the country of origin. NDA announced at the end of September 2009 that it has been advised by Sellafield Limited, the SLC responsible for the Vitrified Residue Returns programme that the infrastructure is now in place for the VRR programme to commence in the 2009/2010 financial year, subject to agreement on detailed timings with the relevant authorities and customers. This will begin a new chapter in the reprocessing saga, which over 10 years will return some 1,850 canisters of vitrified waste to overseas customers and will greatly reduce the amount of highly active waste currently stored in the UK. Another significant announcement was made by the NDA in October 2009, that given recent improvements in the performance of the MOX plant at Sellafield, and positive discussions with customers, the best course of action was the continued operation of the MOX plant in pursuance of completing its current campaign of fuel manufacture. This position was advised to Sellafield Limited as operators of the plant; Nuclear Services (the commercial subsidiary of the NDA) is continuing to explore new commercial arrangements that would make longer term continuation of the plant’s operation acceptable to the NDA. Finally, an assessment which is of great significance to the new build programme was announced by the NDA on 9 November 2009. NDA’s Radioactive Waste Management Directorate issued summary reports on the disposability of higher activity solid radioactive waste and spent fuel generated by the proposed reactors designs (the UK EPR and the AP1000) currently undergoing generic design assessment. In respect of both types of reactor, the NDA has concluded that compared with legacy wastes and spent fuel, no new issues arise that challenge the fundamental disposability of these wastes in a geological disposal facility, given a disposal site with suitable characteristics. The conclusion is strengthened by the similarity of the anticipated wastes with those produced by the existing PWR at Sizewell B. The issue is controversial because Greenpeace has already suggested that wastes from the EPR design are significantly more hazardous than previous reactors because of the concentration of the long-lived isotope Iodine-129. The disposability issue is fundamental because of the Government’s commitment made in the 2008 White Paper on Nuclear Power that before development consents for new nuclear power stations are granted, the Government will need to be satisfied that effective arrangements exist or will exist to manage and dispose of the waste they will produce.

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LIST OF ABBREVIATIONS

Abbreviation In full ACSNII AGR ALARA ALARP AWE BAT BNFL BNG BPEO BPM CEGB CNS COMARE CoRWM DBERR DECC DEFRA DETR DSRL DTI EAEC EIA EPR Euratom GDA HASS HEU HLW HMIP HSC HSE IAEA ICAO ICRP ILW IMO INES INRA

Advisory Committee on the Safety of Nuclear Installations Advanced Gas-Cooled Reactor as low as reasonably achievable as low as reasonably practicable Atomic Weapons Establishment Best Available Techniques British Nuclear Fuels Limited British Nuclear Group Best Practical Environmental Option Best Practicable MeansBSS Basic Safety Standards Central Electricity Generating Board Civil Nuclear Constabulary Committee on Medical Aspects of Radiation in the Environment Committee on Radioactive Waste Management Department for Business, Enterprise and Regulatory Reform Department of Energy and Climate Change Department for the Environment, Food and Rural Affairs Department of the Environment, Transport and the Regions Dounreay Site Restoration Limited Department of Trade and Industry European Atomic Energy Community environmental impact assessment environmental permitting regime European Atomic Energy Community Generic Design Assessment High-Activity Sealed Sources highly enriched uranium High Level Waste Her Majesty’s Inspectorate of Pollution Health and Safety Commission Health and Safety Executive International Atomic Energy Agency International Civil Aviation Organization International Commission on Radiological Protection Intermediate Level Waste International Maritime Organisation International Nuclear Event Scale International Nuclear Regulators Association

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xxii Abbreviations IRCP IRR JRC LLW MAFF MOX ND NDA NEA NII NNC NNL NORM NPS NPT NRI NuSAC OCNS OECD PBO PSR PWR RBMK RIMNET RWMAC SAP SEA SEPA SGHWR SLC SSA START TAG THORP TRANSEC TRCL UKAEA UNAEC UNECE UNSCEAR WENRA

International Commission on Radiological Protection Ionising Radiations Regulations Joint Research Centre Low Level Waste Ministry of Agriculture, Fisheries and Food Mixed Oxide Nuclear Directorate Nuclear Decommissioning Authority Nuclear Energy Agency Nuclear Installations Inspectorate National Nuclear Company National Nuclear Laboratory naturally-occurring radioactive materials National Policy Statement Non-Proliferation Treaty Nuclear Risk Insurers Ltd Nuclear Safety Advisory Committee Office for Civil Nuclear Security Organisation for Economic Co-operation and Development Parent Body Organisation Periodic Safety Reviews pressurised water reactor reactor, high-power, boiling, channel type Radioactive Incident Monitoring Network Radioactive Waste Management Advisory Committee (RWMAC) Safety Assessment Principles Strategic Environmental Assessment Scottish Environment Protection Agency steam generating heavy water reactor Site Licence Company Strategic Siting Assessment Strategic Arms Reduction Treaty Technical Assessment Guide Thermal Oxide Reprocessing Plant Transport Security and Contingencies Directorate The Radiochemical Centre Limited United Kingdom Atomic Energy Authority UN Atomic Energy Commission United Nations Economic Commission for Europe UN Scientific Committee on the Effects of Atomic Radiation Western Nuclear Regulators Association

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TABLE OF CASES

AB and others v Ministry of Defence [2009] EWHC 1225 (QB) .................................228–30 Alberta Wilderness Association v Express Pipelines Ltd 137 DLR (4th) 177 (Can) .........159 Allison v London Underground Ltd [2008] EWCA Civ 71; [2008] ICR 719......................92 Alphacell Ltd v Woodward [1972] AC 824 (HL)................................................................298 Application by Seaport Investments Ltd [2007] NIQB 62 .................................................153 Athanassoglou and others v Switzerland, Appl No 27644/95 [2000] ECHR 159; (2001) 31 EHRR 13 (ECHR)............................................................................................144 Atkinson v Secretary of State for Transport [2006] EWHC 995 (Admin); [2007] Env LR 5 ............................................................................................................................161 Austin Rover Ltd v HM Inspector of Factories [1990] 1 AC 619 (HL) ...............................92 Australia v France 1974 ICJ Rep 253 (ICJ) ..........................................................................404 Balmer-Schafroth and others v Switzerland (1997) 25 EHRR 598 (ECHR) .....................144 Bamfield v Goole and Sheffield Transport Co Ltd [1910] 2 KB 94 (CA) ..........................331 Bard Campaign and David Bliss v Secretary of State for Communities and Local Government [2009] EWHC 308 (Admin) ......................................................................135 Barker v Bromley LBC (Case C-290/03) [2006] ECR I-3949 (ECJ)...................................431 Bedfordshire CC v CEGB, SSEB, UKAEA, BNFL plc [1985] JPL 43 (CA) ......................3781 Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2004] UKPC 6; [2004] Env LR 38 ................................................159 Berkeley v Secretary of State for the Environment (No 1) [2001] 2 AC 603 (HL) ...........431 Berridge Incinerators v Nottinghamshire CC 1987, unreported ...............................415, 416 Binney v Secretary of State for the Environment [1984] JPL 871 ......................................430 Blue Circle Industries plc v Ministry of Defence [1999] 2 Ch 289 (CA) ...................199, 202 BNFL v Greenpeace, 25 March 1996, unreported (CA) .....................................................448 British Airways Board v Taylor [1976] 1 All ER 65 (HL) ...................................................439 British Nuclear Group Sellafield Ltd v Commission (Case T-121/06) [2006] OJ C154/19 (CFI) .............................................................................................................280 C Burley Ltd v Stepney Corp [1947] 1 All ER 507 ..............................................................331 Cadbury Bros Ltd v Sinclair [1934] 2 KB 389 .....................................................................329 Campbell and Fell v UK (1985) 7 EHRR 165 (ECHR) .......................................................144 Chandler v DPP [1964] AC 763 (HL)..................................................................................249 Chernobyl II see European Parliament v Council (Case C-70/88) Cheshire CC v Armstrong’s Transport (Wigan) Ltd [1995] Env LR D21 .........................415 Commission v Belgium (Case C-376/90) [1992] ECR I-6153 (ECJ) .........................238, 246 Commission v Council (Case C-29/99) [2002] ECR I-11221 (ECJ)..................56–59, 68, 79 Commission v France (Case 7/71) [1971] ECR 1003 (ECJ)...............................................275 Commission v France (Case C-177/03) [2004] ECR I-11671 (ECJ)..................................254 Commission v France (Case C-239/03) [2004] ECR I-9325 (ECJ)......................................68 Commission v Ireland (Case C-13/00) [2002] ECR I-2943 (ECJ) .......................................68

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xxiv Table of Cases Commission v Ireland (Case C-459/03) [2006] ECR I-4635 (ECJ) ...................................408 Commission v Spain (Case C-21/96) 9 October 1997 (ECJ ...............................................241 Commission v UK, supported by France (Case C-61/03) [2005] ECR I-2477 (ECJ) .........69 Commission v UK (Case C-65/04) (ECJ)..............................................................................69 Commission v UK (Case C-508/04) [2006] ECR I-3969 (ECJ) .........................................431 Commission v UK (Case C-155/06) (ECJ)..........................................................................361 Community Competences in the Field of Physical Protection (Case 1/78) [1978] ECR 2151 (ECJ) ................................................................................................................282 Corby Group Litigation v Corby DC [2009] EWHC 1944 (TCC).....................................230 Danielsson v Commission (Case T-219/95R) [1995] ECR II-3051 (CFI).........................239 Davies v Winstanley (1930) 144 LT 433 ..............................................................................329 Davis & Docherty v Balfour Kilpatrick Ltd [2002] EWCA Civ 736...................................143 Demirel (Case 12/86) [1987] ECR 3719 (ECJ)......................................................................68 Duke Power Co v Carolina Environmental Study Group 438 US 59 (1978) ....................187 Empresa Nacional de Urânio SA (ENU) v Commission (Joined Cases T-458/93 and T-523/93) [1995] ECR II-2459 (CFI) .................................................................63, 275 Empress Car Co (Abertillery) Ltd v Environment Agency [1999] 2 AC 22 (HL).............298 European Parliament v Council (Case C-62/88) [1990] ECR I-1527 (ECJ) .....................256 European Parliament v Council (Case C-70/88) [1991] ECR I-4529 (ECJ) ...............58, 256 Farrant v Barnes (1862) 11 BCBNS 553 ..............................................................................331 France v Commission (Case C-327/91) [1994] ECR I-3641 (ECJ)......................................58 Friends of the Earth, Re [1988] JPL 93 (CA).........................................................................96 Gallagher v Lynn [1937] AC 863 (HL) ..................................................................................86 Gaumont British Distributors Ltd v Henry [1939] 2 QB 711 ............................................299 Great Northern Railway Co v LEP Transport & Depository Ltd [1922] 2 KB 742 (CA) .331 Greece v Council (Case C-62/88) [1990] ECR I-1527 (ECJ)................................................69 Hillingdon LBC v Cutler [1968] 1 QB 124 (CA) ................................................................328 Hope v British Nuclear Fuels plc [1994] PIQR P171; [1994] Env LR 320.........................196 Huckerby v Elliott [1970] 1 All ER 189 ...............................................................................115 Hutchinson v Newbury Magistrates’ Court [2000] EWHC 61 (QB) ................................265 Industrias Nucleares do Brasil SA, Siemens AG v UBS AG and Texas Utilities Corp (Joined Cases C-123/04 and C-124/04) [2006] ECR I-7861 (ECJ) ..........64–67, 275 Inverhuron & District Ratepayers Association v Canada (Minister of the Environment) [2001] FCA 203 (Can Fed CA)........................................................159, 432 Ionising Radiation Protection, Re see Commission v Belgium (Case C-376/90) Ireland v UK (Final Award, 2 July 2003) (Permanent Ct of Arbitration) .................403, 404 Jacobsson v Sweden (No 2) (2001) 32 EHRR 463 (ECHR)................................................144 James & Son v Smee; Green v Burnett [1955] 1 QB 78 ......................................................298 Johnston v NEI International Combustion Ltd [2007] UKHL 39.....................................194 Kent CC v Queenborough Rolling Mill Co Ltd (1990) 89 LGR 306..........................415, 416 Kernkraftwerke Lippe-Ems GmbH v Commission (Joined Cases T-149/94 and T-181/94) [1997] ECR II-161 (CFI).............................................................63–64, 275 Kernkraftwerke Lippe-Ems GmbH v Commission (Case C-161/97 P) [1999] ECR I-2057 (ECJ) .........................................................................................................63–64 Knox v Boyd [1941] JC 82....................................................................................................298 Legality of the Threat or Use of Nuclear Weapons (advisory opinion) ICJ Reports 1996, 226 (ICJ)..............................................................................................264–65

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Table of Cases xxv Long v Brooke [1980] Crim LR 109.....................................................................................416 Lord Advocate’s Reference No 1 of 2000 [2001] JC 143.....................................................265 Magnohard Ltd v UK Atomic Energy Authority [2004] Env LR 19 (OH)................193, 200 Mallon v Allon [1964] 1 QB 385 ..........................................................................................298 McCleod v Buchanan [1940] 2 All ER 179 ..........................................................................298 McGinley and Egan v UK (1999) 27 EHRR 212 (ECHR) ..................................................228 Medicaments and Related Cases of Goods (No 4), Re [2001] EWCA Civ 1217; [2002] 1 WLR 269.............................................................................................................144 Merlin v British Nuclear Fuels plc [1990] 2 QB 557 ...........................................193, 198, 200 Meston Technical Services Ltd v Warwickshire CC [1995] Env LR D36 ..........................415 Metropolitan Edision Co v PANE 460 US 766 (1983) (US Sup Ct) ..................................158 Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196 (CA)...................................................................................................................................310 MOX Plant Case see Ireland v UK Novartis Grimsby Ltd v Cookson [2007] EWCA Civ 1261................................................197 Nuclear Energy Institute Inc v Environmental Protection Agency 373 F.3d 1251 (DC Cir 2004) (US) ..........................................................................................................375 Nuclear Tests Case see Australia v France Outokumpu Stainless Ltd v Axa Global Risks (UK) Ltd [2007] EWHC 2555 (Comm); [2008] Lloyd’s Rep IR 147 ...............................................................................219 P&O Nedlloyd BV v Arab Metals Co [2006] EWHC 2433 (Comm); [2006] EWCA Civ 1717; [2007] 1 WLR 2288 .....................................................................299, 331 Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 (NSW Env Ct)...................................................................................................................159 R v Associated Octel Ltd [1996] 1 WLR 1543 (HL)..............................................................92 R v Balfour Beatty Civil Engineering Ltd (1999), unreported............................................117 R v Balfour Beatty Rail Infrastructure Services Ltd [2006] EWCA Crim 1586; [2007] 1 Cr App R(S) 65 ..................................................................................................117 R v Banks [1916] 2 KB 621 ...................................................................................................298 R v Boal (Francis) [1992] 1 QB 591 .............................................................................115, 299 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 ....................................92 R v Ceri Davies [1999] 2 Cr App R(S) 356 ..........................................................................117 R v Chargot Ltd (t/a Contract Services) [2008] UKHL 73; [2009] 1 WLR 1.......................92 R v F Howe & Son (Engineers) Ltd [1999] 2 Cr App R(S) 37............................................116 R v Great Western Trains Co Ltd (1999), unreported........................................................117 R v Inspectorate of Pollution, ex p Greenpeace Ltd (No 1) [1994] 4 All ER 321 (CA)............................................................................................................................246 R v Inspectorate of Pollution, ex p Greenpeace Ltd (No 2) [1994] 4 All ER 329......................................................................................................246, 250, 428, 432, 434 R v Mara [1987] 1 WLR 87 (CA) ...........................................................................................92 R v Mersey Docks and Harbour Co (1995) 16 Cr App R(S) 806 .......................................117 R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 (CA)...................................................................................................................................135 R v P and another [2007] EWCA Crim 1937; [2008] ICR 96 ............................................115 R v Pennine Acute Hospitals Trust [2003] EWCA Crim 3436; [2004] 1 All ER 1324 ...................................................................................................................................439 R v Rollco Scre and Rivet Co Ltd [1999] 2 Cr App R(S) 436 .............................................116

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xxvi Table of Cases R v Secretary of State for the Environment, Food and Rural Affairs, ex p Friends of the Earth Ltd and Greenpeace Ltd [2002] Env LR 24 ........................................248, 252 R v Secretary of State for the Environment, ex p Greenpeace Ltd [1994] 4 All ER 352........................................................................................................................246, 429 R v Thames Trains Ltd (2004), unreported.........................................................................117 R (Adlard) v Secretary of State for the Environment [2002] EWCA Civ 735; [2002] 1 WLR 2515...........................................................................................................144 R (Baker) v Bath and North East Somerset DC [2009] EWHC 595 (Admin); [2009] Env LR 27 ..............................................................................................................431 R (Blewett) v Derbyshire CC [2003] EWHC 2775 (Admin); [2004] Env LR 29...............157 R (Bovale Ltd) v Secretary of State for Communities and Local Government [2008] EWHC 2538 (Admin) ..........................................................................................155 R (Burkett) v Hammersmith and Fulham LBC [2002] UKHL 23; [2002] 1 WLR 1593 ...................................................................................................................................145 R (Edwards) v Environment Agency [2008] UKHL 22; [2008] Env LR 34 ...............159, 432 R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311; [2007] Env LR 29 ......................................................................................................134 R (Hart Aggregates Ltd) v Hartlepool BC [2005] EWHC 840 (Admin); [2005] 2 P & CR 31 .......................................................................................................................419 R (Kent) v First Secretary of State [2004] EWHC 2953 (Admin); [2005] Env LR 30..................................................................................................................................161 R (Marchiori) v Environment Agency [2002] EWCA Civ 3 ......................................249, 265 R (OSS Group Ltd) v Environment Agency [2007] EWCA Civ 611; [2008] Env LR 8....................................................................................................................................417 R (Scott) v North Warwickshire BC [2001] EWCA Civ 315; [2001] 2 PLR 59.................155 R (Vetterlein) v Hampshire CC [2001] EWHC Admin 560; [2002] Env LR 198 .............144 Railtrack plc v Smallwood [2001] EWHC 78 (Admin); [2001] ICR 714...........................119 Reay v British Nuclear Fuels plc [1994] 5 Med LR 1 ..........................................................196 Rylands v Fletcher (1868) LR 3 HL 330 (HL) .....................................................................207 S v France, Appl No 13728/88 (1990) 65 D&R 250 ............................................................143 Saarland v Minister for Industry (Case 187/87) [1988] ECR 5013 (ECJ)..............58–59, 410 Southam, ex p Lamb, Re (1881) LR 19 Ch D 169 (CA)......................................................328 Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23 ....................................287 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 (HL)...................................................299 Trusthouse Forte Hotels Ltd v Secretary of State for the Environment (1986) 53 P & CR 293 ...................................................................................................................155 Twyford Parish Council v Secretary of State for the Environment [1992] 1 CMLR 276; [1991] COD 210 ........................................................................................430 Wells (Delena) v Secretary of State for Transport, Local Government and the Regions (Case C-201/02) [2004] ECR I-723 (ECJ).........................................................431 Williams v East India Co (1802) 3 East 192 ........................................................................331 Wotherspoon v HM Advocate [1978] JC 74 .......................................................................115

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TABLE OF NATIONAL LEGISLATION

United Kingdom Statutes Anti-Terrorism, Crime and Security Act 2001....................................................................288 s 47 .....................................................................................................................................288 s 48 .....................................................................................................................................288 s 77 .....................................................................................................................................285 Atomic Energy Act 1946.........................................................................................................76 Atomic Energy Act 1954 .......................................................................................196, 285, 293 s 5(3) ..................................................................................................................................204 Atomic Energy Act 1986.........................................................................................................22 Atomic Energy Authority Act 1954................................................................................10, 423 s 2(2) ....................................................................................................................................10 Atomic Energy Authority Act 1971........................................................................................12 s 1 .........................................................................................................................................12 s 2 .........................................................................................................................................13 Atomic Energy Authority Act 1995........................................................................................22 Atomic Energy Authority (Weapons Group) Act 1973 s 1(1) ....................................................................................................................................24 Atomic Weapons Establishment Act 1991 ............................................................................25 s 1 .........................................................................................................................................25 s 4 .......................................................................................................................................287 Sch 1, para 6 ........................................................................................................................89 Carriage by Air Act 1931 ......................................................................................................208 Carriage by Air Act 1961 ......................................................................................................208 Carriage by Air (Supplementary Provisions) Act 1962.......................................................208 Carriage of Goods by Sea Act 1924 ......................................................................................208 Carriage of Goods by Sea Act 1971 s 6(3)(b).............................................................................................................................208 Coast Protection Act 1949 s 34 .....................................................................................................................................146 Companies Act 1985 ...............................................................................................................25 Congenital Disabilities (Civil Liability) Act 1976 .................................................195–97, 227 s 1 .......................................................................................................................................195 s 3(1) ..................................................................................................................................195 (2) ..................................................................................................................................195 (3) ..................................................................................................................................195 (4) ..........................................................................................................................195, 212 (5) ....................................................................................................................195–96, 212

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xxviii Table of National Legislation s 4(3) ..................................................................................................................................195 (4) ..................................................................................................................................196 Control of Pollution Act 1974..............................................................................................441 s 30 .....................................................................................................................................414 Corporate Manslaughter and Corporate Homicide Act 2007............................................114 s 1(1) ..................................................................................................................................114 (3) ..................................................................................................................................114 Electricity Act 1909 s 2 ...............................................................................................................................101, 128 Electricity Act 1989 .........................................................................................................18, 128 s 36 ...............................................................................................................99–100, 128, 163 s 64(1) ................................................................................................................................138 Energy Act 1981 s 31 .....................................................................................................................................216 Energy Act 1983 s 27(1) ................................................................................................................................213 s 34 .....................................................................................................................................204 s 36 .....................................................................................................................................204 Sch 2...................................................................................................................................204 Energy Act 2004 ..............................................................................................348–50, 351, 353 Pt I......................................................................................................................................348 Chap 3 .........................................................................................................................285 s 3(1) ..................................................................................................................................348 s 4 .......................................................................................................................................348 s 7 .......................................................................................................................................348 s 11 .....................................................................................................................................348 s 13 .....................................................................................................................................348 s 14 .....................................................................................................................................348 s 17(2) ................................................................................................................................348 s 18 .....................................................................................................................................348 (5)................................................................................................................................348 s 20(2) ................................................................................................................................348 s 21 .............................................................................................................................349, 353 (5) ........................................................................................................................349, 355 (6) ........................................................................................................................349, 355 s 22 .....................................................................................................................................349 s 23 .....................................................................................................................................349 s 52 .....................................................................................................................................285 s 56 .....................................................................................................................................285 s 57 .....................................................................................................................................285 s 60 .....................................................................................................................................285 s 74 .....................................................................................................................................432 s 76 .....................................................................................................................................226 s 77 .....................................................................................................................................285 Energy Act 2008 Pt 3, Chap 1 .......................................................................................................................358 s 67(1) ................................................................................................................................358

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Table of Legislation xxix Environment Act 1995..................................................................................................311, 437 Pt I......................................................................................................................................413 s 2(1)(e) .............................................................................................................................295 s 4 .......................................................................................................................................446 ss 4–8..................................................................................................................................295 s 5 .......................................................................................................................................295 s 21(1)(e) ...........................................................................................................................295 ss 31–35..............................................................................................................................295 s 33 .....................................................................................................................................295 s 37 .............................................................................................................................452, 454 (3)................................................................................................................................452 (7)................................................................................................................................452 s 39 .....................................................................................................................................295 s 40 .....................................................................................................................................313 (1)................................................................................................................................313 (8)................................................................................................................................313 s 41 .............................................................................................................................299, 311 (2)................................................................................................................................311 s 42 .....................................................................................................................................311 s 56 .....................................................................................................................................311 s 108 ...................................................................................................................................251 ss 108–10............................................................................................................................313 s 120 ...................................................................................................................................295 Sch 22, para 200 ................................................................................................................295 Environmental Protection Act 1990 ............................................................................295, 437 Pt 1 .....................................................................................................................................441 Pt 2 .....................................................................................................................................441 Pt 2A ..............................................................................................360, 362–64, 365–70, 438 Pt 3 .....................................................................................................................................441 Pt 5 .....................................................................................................................................313 s 28(2) ................................................................................................................................441 s 75 .....................................................................................................................................414 s 78 .....................................................................................................................................441 (9)................................................................................................................................362 s 78A(2) .............................................................................................................................362 (6) .............................................................................................................................362 s 78B(1)..............................................................................................................................365 (1A)...........................................................................................................................365 s 78E(1)..............................................................................................................................366 (4) .............................................................................................................................366 (4A)...........................................................................................................................366 (7) .............................................................................................................................366 s 78F ...........................................................................................................................367, 369 (1A)...................................................................................................................367, 369 (2A)...........................................................................................................................369 (9) .............................................................................................................................368 s 78N ..................................................................................................................................367

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xxx Table of National Legislation (1A)...........................................................................................................................367 (1B) ...........................................................................................................................367 (1C)...........................................................................................................................367 (3)(c).........................................................................................................................367 (d) ........................................................................................................................367 (e).........................................................................................................................367 (f) .........................................................................................................................367 (g).........................................................................................................................367 s 78P...................................................................................................................................367 s 78YB(4C) ........................................................................................................................371 (5) ...........................................................................................................................370 s 78YC........................................................................................................................360, 441 European Communities Act 1972 s 2(1) ..................................................................................................................................244 (2)............................................................................................................................86, 244 s 3(1) ..................................................................................................................................244 Food and Environmental Protection Act 1985 ...................................................................257 Pt II ....................................................................................................................................146 s 1 .........................................................................................................................................35 Foreign Judgments (Reciprocal Enforcement) Act 1933....................................................215 Freedom of Information Act 2000 .......................................................................................314 Health and Safety (Offences) Act 2009................................................................................115 Health and Safety at Work Act 1965 s 3(1) ....................................................................................................................................93 s 3(2) ....................................................................................................................................93 s 4(6) ....................................................................................................................................94 s 3(5) ....................................................................................................................................93 Health and Safety at Work, etc Act 1974 .....................25, 73, 87, 100, 109, 115–18, 253, 329 Pt I......................................................................................................................................207 s 2 .................................................................................................................................91, 118 (1)..................................................................................................................................331 s 3 .................................................................................................................................91, 118 (1)................................................................................................................................. 331 s 11 .....................................................................................................................................123 s 15 .....................................................................................................................................244 s 19 .......................................................................................................................................89 s 20(2) ..................................................................................................................................89 s 21 .....................................................................................................................................118 s 22 .....................................................................................................................................119 s 24 .....................................................................................................................................119 (3) ................................................................................................................................119 s 33(1)(a) ...........................................................................................................................116 (c) ...........................................................................................................................244 (g) ...........................................................................................................................118 (2) ................................................................................................................................119 (2A)..............................................................................................................................118 s 36(1) ................................................................................................................................116

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Table of Legislation xxxi (2) ................................................................................................................................116 s 37 .....................................................................................................................................115 s 38 .....................................................................................................................................116 s 44 .....................................................................................................................................113 (7) ................................................................................................................................113 (8) ................................................................................................................................113 s 47(1)(c) ...........................................................................................................................207 Sch 1.....................................................................................................................................89 Interpretation Act 1978 s 11 .....................................................................................................................................433 s 17(2)(b)...........................................................................................................................303 s 18 .....................................................................................................................................443 s 21 .....................................................................................................................................433 Legislative and Regulatory Reform Act 2006 ........................................................................88 Merchant Shipping Act 1979 s 17 .....................................................................................................................................206 Sch 4, Pt 1 ..........................................................................................................................206 Merchant Shipping Act 1995 Sch 7, Pt 1, para 3(c) .........................................................................................................208 para 3(d).........................................................................................................209 Pt 2, para 4(3).........................................................................................................208 Military Lands Act 1892 .......................................................................................................287 Ministry of Defence Police Act 1987....................................................................................287 Nuclear Explosions (Prohibition and Inspections) Act 1998 s 1 .......................................................................................................................................288 Nuclear Installations Act 1965 ................................................3, 73, 75–76, 91, 117, 146, 167, 188–226, 331, 369, 370, 443, 455–92 s 1 .........................................................................................................83, 86, 89, 203–4, 457 (1) ....................................................................................................................................87 (a)................................................................................................................................79 (b)................................................................................................................................80 (2) ....................................................................................................................................81 (3) ....................................................................................................................................83 ss 1–5..................................................................................................................................188 s 2 ...........................................................................................................83–84, 115, 286, 458 (1A)..................................................................................................................................84 (1B)..................................................................................................................................84 (1D) .................................................................................................................................84 (2) ............................................................................................................................84, 116 (4) ..................................................................................................................................211 s 3 .......................................................................................................................................459 (1A)..................................................................................................................................99 (2) ..................................................................................................................................190 (6) ....................................................................................................................120–21, 357 ss 3–6....................................................................................................................................89 s 4 ...............................................................................................................................422, 460 (1) ..........................................................................................................................105, 112

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xxxii Table of National Legislation (2) ..........................................................................................................................110, 112 (3) ..................................................................................................................................112 (4) ..........................................................................................................................112, 223 (5) ..................................................................................................................................113 (6) ..................................................................................................................113, 117, 118 s 5 .......................................................................................................................................461 (1) ..................................................................................................................................120 (1A)........................................................................................................................120, 357 (2) ..................................................................................................................................120 (3)...........................................................................................105, 120, 190, 204, 217, 355 (4) ..................................................................................................................................120 s 6 .........................................................................................................................86, 212, 463 (1) ..................................................................................................................................122 (2) ..................................................................................................................................122 s 7 ...............................................96, 114, 189–94, 199–201, 203–9, 216, 219, 355, 369, 463 (1) ....................................................................................................................96, 189, 203 (a) ......................................................................................................192, 199, 202, 206 (b)..............................................................................................................192, 202, 206 (2) ..................................................................................................................................189 (a)......................................................................................................................190, 193 (b)..............................................................................................190, 193, 205, 210, 212 (c)................................................................................................................191–92, 212 (3) ..............................................................................................................................203–4 (4) ..................................................................................................................................203 ss 7–9............................................................................................................210, 214–15, 222 ss 7–10........................................................................................205, 207, 211, 214, 225, 369 ss 7–11................................................................................................................195, 208, 212 ss 7–21................................................................................................................................189 s 8 ...........................................................................................................203–7, 214, 369, 465 (b) ..................................................................................................................................204 s 9 ...........................................................................................................100, 204–8, 369, 465 s 10 .........................................................................................204–8, 210, 212, 216, 369, 466 (1)(a)(i) .......................................................................................................................205 (ii) ..............................................................................................................206, 210 (2)(b)...........................................................................................................................210 ss 10–17..............................................................................................................................227 s 11 .....................................................................................................................206, 212, 467 s 12 ...............................................................................................................203, 207–12, 467 (1) ................................................................................................................................210 (b)................................................................................................................208–9, 222 (2) ........................................................................................................................207, 369 (3) ............................................................................................................................207–8 (3A) ...............................................................................................................203, 209–10 (4)(a) ...........................................................................................................................208 (b)...........................................................................................................................208 (c) ...........................................................................................................................208 s 13 .............................................................................................................................209, 468

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Table of Legislation xxxiii (1) ................................................................................................................................210 (2) ....................................................................................................................80, 210–11 (3) ........................................................................................................................204, 211 (4) ................................................................................................................................211 (5) ................................................................................................................................212 (5A) .............................................................................................................................212 (6) ........................................................................................................................195, 212 s 14 .............................................................................................................................213, 470 s 15 .................................................................................................213–15, 219–20, 355, 471 (1) ........................................................................................................................189, 212 (2) ..........................................................................................................................213–14 s 16 .........................................................................................86, 207, 211, 213–15, 221, 471 (1) ................................................................................................................189, 213, 217 (1A) .............................................................................................................................213 (2) ................................................................................................................................214 (a) ...........................................................................................................................208 (3) ..........................................................................................................................214–15 (b)...........................................................................................................................212 (c) ...........................................................................................................................213 (4) ..........................................................................................................................214–15 s 17 .........................................................................................................86, 210, 214–16, 473 (1) ................................................................................................................................215 (2) ................................................................................................................................215 (3) ........................................................................................................................189, 216 (b)...........................................................................................................................216 (4) ................................................................................................................................215 (5) ................................................................................................................................215 (5A) .............................................................................................................................215 (6) ................................................................................................................................216 s 18 .............................................................................................86, 189, 214–16, 222–4, 475 (1) ........................................................................................................................222, 224 (1A) .............................................................................................................................222 (4A) .............................................................................................................................223 (4B)..............................................................................................................................223 s 19 ...........................................................86, 105–6, 116, 214, 216–17, 220–21, 222–4, 477 (1) ................................................................................................................................106 (1A) .............................................................................................................................217 (2) ................................................................................................................................216 (2A) .............................................................................................................................217 (2B)..............................................................................................................................217 (3) ................................................................................................................................220 (4) ................................................................................................................................221 (5) ................................................................................................................106, 116, 216 s 20 ...............................................................................................................86, 221, 226, 479 (1) ................................................................................................................................221 (2) ................................................................................................................................221 (3) ................................................................................................................................221

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xxxiv Table of National Legislation (4) ................................................................................................................................221 s 21 .......................................................................................................................86, 227, 480 (1) ........................................................................................................................214, 224 (3) ................................................................................................................................225 s 22 ...............................................................................................................89, 123, 225, 482 (2) ........................................................................................................................123, 225 (3) ................................................................................................................................225 (5) ................................................................................................................................225 s 23 .......................................................................................................................86, 226, 483 s 24 ...............................................................................................................................89, 484 (3) ..................................................................................................................................88 (b)(iv).......................................................................................................................88 (4) ..................................................................................................................................88 s 24A ......................................................................................................................88–89, 485 s 25 .....................................................................................................................................486 (1) ................................................................................................................................115 (2) ................................................................................................................................116 (3) ................................................................................................................................115 s 25A ..................................................................................................................................487 s 25B...........................................................................................................................222, 487 (2).............................................................................................................................223 s 26 ...............................................................................86, 106, 189, 191, 204, 218, 227, 488 (1) ......................................................................................80–81, 84, 111, 114, 189, 193 (b).............................................................................................................................85 s 28 .....................................................................................................................................227 s 29 .....................................................................................................................................491 Sch 1.............................................................................................................................84, 287 Sch 2.....................................................................................................................................89 Nuclear Installations Act 1969 s 1 .......................................................................................................................203, 209, 211 Nuclear Installations (Amendment) Act 1965 ....................................................178, 183, 188 Nuclear Installations (Licensing and Insurance) Act 1959......................76, 89, 99, 164, 188, 194, 201–2, 212, 223, 293–94, 423 ss 1–3..................................................................................................................................165 s 4 .......................................................................................................................................165 (1) ..................................................................................................................................165 (a)..............................................................................................................165, 189, 192 (b) .............................................................................................................................165 (2) ..................................................................................................................................165 (4) ..........................................................................................................................165, 215 (5) ..........................................................................................................................165, 212 s 5(1) ..........................................................................................................................165, 220 Nuclear Safeguards Act 2000................................................................................................278 Official Secrets Act 1911 s 3 .......................................................................................................................................287 Sch, para 3(1) ....................................................................................................................287 (2) ....................................................................................................................287

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Table of Legislation xxxv Planning Act 2008.............................................................................128, 137–46, 157, 163–64 Pt 2 .....................................................................................................................................138 Pt 5, Chap 2 .......................................................................................................................141 Chap 3 .......................................................................................................................142 Chap 4 .......................................................................................................................142 Pt 8 .....................................................................................................................................146 s 1 .......................................................................................................................................140 s 4 .......................................................................................................................................140 s 5(1) ..................................................................................................................................138 (3) ..................................................................................................................................138 (4) ..................................................................................................................................139 (6) ..................................................................................................................................139 (7) ..................................................................................................................................139 (8) ..................................................................................................................................139 (9) ..................................................................................................................................139 s 6 .......................................................................................................................................140 s 7 .......................................................................................................................................139 (5) ..................................................................................................................................139 s 8 .......................................................................................................................................139 s 9 .......................................................................................................................................139 s 10 .....................................................................................................................................139 s 11 .....................................................................................................................................140 s 13 .....................................................................................................................................140 s 14(1) ................................................................................................................................138 s 15(2) ................................................................................................................................138 s 31 .....................................................................................................................................138 s 37(1) ................................................................................................................................141 (4) ................................................................................................................................141 s 55(2) ................................................................................................................................141 (3) ................................................................................................................................141 ss 56–59..............................................................................................................................142 s 60 .....................................................................................................................................145 s 74(1) ................................................................................................................................142 s 75 .....................................................................................................................................142 s 76 .....................................................................................................................................142 s 86(1) ................................................................................................................................142 s 87(3) ................................................................................................................................142 s 88 .....................................................................................................................................142 s 89 .....................................................................................................................................142 s 90 .....................................................................................................................................142 s 91 .....................................................................................................................................142 s 92 .....................................................................................................................................142 s 93 .....................................................................................................................................142 s 94(4) ................................................................................................................................142 (6) ................................................................................................................................142 (7) ................................................................................................................................143 (8) ................................................................................................................................143

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xxxvi Table of National Legislation s 97(1) ................................................................................................................................143 s 98 .....................................................................................................................................143 s 100 ...................................................................................................................................143 s 101 ...................................................................................................................................143 s 102 ...................................................................................................................................142 (4)(e) .........................................................................................................................142 (5)–(9).......................................................................................................................145 s 104(2) ..............................................................................................................................145 (3) ..............................................................................................................................145 (4) ..............................................................................................................................145 (5) ..............................................................................................................................145 (6) ..............................................................................................................................145 (7) ..............................................................................................................................145 (8) ..............................................................................................................................145 (9) ..............................................................................................................................145 ss 110–13............................................................................................................................141 s 115 ...................................................................................................................................146 s 116 ...................................................................................................................................146 s 117 ...................................................................................................................................146 s 118 ...................................................................................................................................146 s 119 ...................................................................................................................................146 s 122 ...................................................................................................................................146 s 136 ...................................................................................................................................146 s 140 ...................................................................................................................................146 s 148 ...................................................................................................................................146 s 149 ...................................................................................................................................146 s 151(a) ..............................................................................................................................146 s 152 ...................................................................................................................................146 s 154 ...................................................................................................................................146 s 156 ...................................................................................................................................146 s 158 ...................................................................................................................................146 s 174 ...................................................................................................................................146 s 235(1) ..............................................................................................................................138 Sch 1, para 24 ....................................................................................................................140 Sch 4...................................................................................................................................146 Public Health Act 1936 s 294 ...................................................................................................................................437 Radioactive Material (Road Transport) Act 1991.........................................................327–31 s 1(1) ..................................................................................................................................327 (2)..................................................................................................................................327 (3)..................................................................................................................................327 s 2 .........................................................................................................................327–29, 331 s 3 ...............................................................................................................................328, 331 (1)..................................................................................................................................328 (4)..................................................................................................................................328 (5)..................................................................................................................................328 (6)..................................................................................................................................328

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Table of Legislation xxxvii (7) ..................................................................................................................................328 s 4 .................................................................................................................................329–40 s 5 .......................................................................................................................................329 (1)(b) .............................................................................................................................329 (4) ..................................................................................................................................329 (5) ..................................................................................................................................329 s 6 .......................................................................................................................................330 (4) ..................................................................................................................................331 s 8 .......................................................................................................................................327 Radioactive Substances Act 1948 ...........................................................................292–94, 419 s 5 .......................................................................................................................................292 s 6 .......................................................................................................................................292 s 12 .....................................................................................................................................292 Radioactive Substances Act 1960 ....................................114, 246, 289, 293–95, 297–98, 303, 379, 414, 419, 423, 426, 427–28, 434, 437 s 1 .......................................................................................................................................293 (5) ..................................................................................................................................293 s 2(6) ..................................................................................................................................303 s 3 .......................................................................................................................................293 s 6 .......................................................................................................................................293 (1) ..........................................................................................................................433, 434 s 7 .......................................................................................................................................293 s 8(7) ..................................................................................................................................432 s 13(1) ................................................................................................................................117 Radioactive Substances Act 1993...........................3, 85, 99, 106, 114, 117, 246–47, 251, 287, 289, 295–316, 334, 339, 372, 398, 443–45, 446–47 s 1 .......................................................................................................................289, 414, 420 (1) ..................................................................................................................................296 (2) ..........................................................................................................................296, 418 (a) ..............................................................................................................................419 (b)........................................................................................................................418–20 (4) ..................................................................................................................................420 (5) ..........................................................................................................................296, 312 s 2 .................................................................................................289, 296, 414–15, 418, 425 (a) ............................................................................................................................417–18 (b) ............................................................................................................................417–18 s 3 ...............................................................................................................................289, 297 (3) ..................................................................................................................................100 (4) ..................................................................................................................................100 s 4 ...............................................................................................................................295, 413 s 6 .................................................................................................................114, 297–98, 307 (c)...................................................................................................................................308 s 7 ...........................................................................................297, 299, 302, 308–14, 435–36 (1)(c)..............................................................................................................................311 (2) ..................................................................................................................................299 (3) ..................................................................................................................................299 (4) ..................................................................................................................................299

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xxxviii Table of National Legislation (5)..................................................................................................................................299 (6)..................................................................................................................................300 (7)..................................................................................................................................300 (7A) ...............................................................................................................................300 (8)..................................................................................................................................299 (a)..............................................................................................................................299 s 8 .......................................................................................................................................314 (1)..........................................................................................................................114, 302 (2)..................................................................................................................................302 (4)..................................................................................................................................302 (6)..........................................................................................................................303, 312 s 9 ...............................................................................................................................297, 307 (2)..................................................................................................................................307 s 10 .........................................................................................................297, 307–14, 435–36 (3)................................................................................................................................308 (4)................................................................................................................................308 (5)................................................................................................................................308 s 11 .....................................................................................................................................314 (1) ........................................................................................................................308, 312 s 12 .....................................................................................................................................309 (1A) .............................................................................................................................309 s 13 ...........................................247, 289, 413, 418, 420–22, 426, 426, 431–32, 434–35, 442 (1) ..................................................................................................420, 422, 424, 433–35 (2)................................................................................................................................422 (3) ........................................................................................................................421, 424 (4)................................................................................................................................421 (5)................................................................................................................................422 s 14 .........................................................289, 413, 418, 420, 423–25, 426, 432, 435–36, 442 (1)..................................................................................................................420, 423–24 (2)................................................................................................................................421 (3)................................................................................................................................423 (4) ........................................................................................................................415, 420 s 15 .......................................................................................................312, 421, 423–25, 442 (1)................................................................................................................................424 (2)................................................................................................................................424 s 16 ...............................................................................................................247, 426–28, 431 (2)................................................................................................................................427 (4A) .............................................................................................................................427 (5)..........................................................................................................................426–28 (6)................................................................................................................................427 (7) ........................................................................................................................427, 428 (8)(a) ...........................................................................................................................427 (b)...........................................................................................................................427 (10)..............................................................................................................................427 s 16A ..................................................................................................................................434 (5)..............................................................................................................................434 (6)..............................................................................................................................434

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Table of Legislation xxxix (7)..............................................................................................................................434 s 17(1) ................................................................................................................................432 (2) ................................................................................................................................432 (2ZA) ...........................................................................................................................432 (2ZB) ...........................................................................................................................432 (2A) .............................................................................................................................432 (3) ................................................................................................................................432 s 17A ..................................................................................................................................433 s 18 ...............................................................................................................................434–35 (1) ................................................................................................................................435 (3) ................................................................................................................................435 s 19 .......................................................................................................................309–10, 435 (1)(c) ...........................................................................................................................311 s 20 .......................................................................................................................309–10, 435 s 21 .......................................................................................................................310–12, 435 s 22 .......................................................................................................................310–12, 435 (6) ................................................................................................................................311 s 23 .....................................................................................................................306, 312, 436 (4) ................................................................................................................................440 (5) ........................................................................................................................312, 436 s 24 .............................................................................................................................312, 436 (1) ................................................................................................................................429 (2) ................................................................................................................................429 s 25 .......................................................................................................299, 312, 427–28, 436 (1) ................................................................................................................................313 (3A) .............................................................................................................................436 s 26 ...............................................................................................................300, 309–13, 436 (5) ................................................................................................................................436 s 27 ...............................................................................................................300, 308–12, 436 (2) ................................................................................................................................312 (6) ................................................................................................................................312 s 29 .....................................................................................................................................437 (2) ................................................................................................................................437 (3) ................................................................................................................................437 s 30 .....................................................................................................................................437 (3) ................................................................................................................................437 s 30A ..................................................................................................................................307 (1)..............................................................................................................................437 (2)......................................................................................................................307, 437 (4)..............................................................................................................................437 (5)..............................................................................................................................307 s 31 .....................................................................................................................................313 s 32 .....................................................................................................................................307 (1) ................................................................................................................................310 (b) ...........................................................................................................................301 (3) ................................................................................................................................443 ss 32–38 .......................................................................................................................438–39

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xl Table of National Legislation s 33 .....................................................................................................................................309 s 34 .....................................................................................................................................313 s 36 .....................................................................................................................................301 s 37 .............................................................................................................................298, 301 s 38 .....................................................................................................................................301 s 39 .................................................................................................................313–14, 440–41 (2) ........................................................................................................................314, 440 (4)................................................................................................................................314 (5) ........................................................................................................................314, 440 s 40 .....................................................................................................................315, 440, 443 s 42 .............................................................................................................................314, 442 (1) ........................................................................................................................314, 442 (2) ........................................................................................................................314, 442 (3)................................................................................................................................315 (4)................................................................................................................................315 s 46 ...............................................................................................................................442–43 (a) ................................................................................................................................442 (b)................................................................................................................................443 (c) ................................................................................................................................443 s 47 .......................................................................................................................297, 415–17 (1) ..................................................................................................414, 415–16, 420, 427 (3)................................................................................................................................298 (4)................................................................................................................................414 (5) ........................................................................................................................414, 417 Sch 1...................................................................................................................................296 Sch 3...................................................................................................................................315 Road Safety Act 2006 ............................................................................................................328 Scotland Act 1998 Pt II ......................................................................................................................................85 s 29 .......................................................................................................................................85 (3)..................................................................................................................................85 s 30 .......................................................................................................................................85 s 53 .......................................................................................................................................85 s 54(2) ..................................................................................................................................85 (3)..................................................................................................................................85 s 57(1) ..................................................................................................................................86 (2)..................................................................................................................................86 s 58 .......................................................................................................................................86 s 63 .......................................................................................................................................85 s 117 ...................................................................................................................................312 Sch 5.....................................................................................................................................85 Pt 2, Head D, Section D4.........................................................................................163 Statutory Instruments Act 1946 ...........................................................................................146 Terrorism Act 2000...............................................................................................................285 Town and Country Planning Act 1990 s 106 ...................................................................................................................................146 Water Industry Act 1991

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Table of Legislation xli Pt IV, Chap III...................................................................................................................441 Water Resources Act 1991....................................................................................................441 Statutory Instruments Air Navigation (Dangerous Goods) Regulations 2002 (SI 2002 No 2786)........................333 Air Navigation (Restriction of Flying) (Nuclear Installations) Regulations 2007 (SI 2007 No 1929) .........................................................................................................284 Atomic Weapons Establishment (AWE) Aldermaston Byelaws 2007 (SI 2007 No 1066)........................................................................................................................287 Atomic Weapons Establishment (Designation and Appointed Day) Order 1992 (SI 1992 No 2743) ...........................................................................................................25 Carriage of Dangerous Goods Regulations 1996 (SI 1996 No 2095).................................329 Carriage of Dangerous Goods by Rail Regulations 1994 (SI 1994 No 670) ......................332 Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2007 (SI 2007 No 1573) ...........................................................................330 Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009 (SI 2009 No 1348) .............................................................329–30, 333 Pt 2 .....................................................................................................................................330 reg 3(a) ..............................................................................................................................330 reg 5 ...................................................................................................................................330 reg 24(2) ............................................................................................................................330 (4) ............................................................................................................................330 Sch 2...................................................................................................................................330 Civil Jurisdiction (Offshore Activities) Order 1987 (SI 1987 No 2197) ............................443 Criminal Jurisdiction (Offshore Activities) Order 1987 (SI 1987 No 2198) .....................443 Control of Pollution (Special Waste) Regulations 1980 (SI 1980 No 1709) .....................441 Dangerous Substances in Harbour Areas Regulations 1987 (SI 1987 No 37)...................333 Electricity Generating Stations and Overhead Lines (Inquiries Procedure) Rules 1981(SI No 1841) ..................................................................................................101, 128 Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004 No 1633)................................................................................................................147, 153 reg 8 ...................................................................................................................................153 reg 13(3) ............................................................................................................................153 reg 14 .................................................................................................................................153 Environmental Damage (Prevention and Remediation) Regulations 2009 (SI 2009 No 153)..........................................................................................................................186 Environmental Information Regulations 2004 (SI 2004 No 3391)....................................314 Environmental Permitting (England and Wales) Regulations 2007 (SI 2007 No 3538)......................................................................................289, 307, 3–15, 413, 441 Sch 7, para 5 ......................................................................................................................315 Export of Radioactive Substances (Control) Order 2006 (SI 2006 No 1846) ...................280 Export of Radioactive Substances (Control) (Amendment) Order 2006 (SI 2009 No 585)..........................................................................................................................280 Food Protection (Emergency Provisions) (Dounreay Nuclear Establishment) Order 1997 (SI 1997 No 2622).....................................................................................200 Hazardous Waste (England and Wales) Regulations 2005 (SI 2005 No 894)

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xlii Table of National Legislation reg 2(1)(b) .....................................................................................................................441–2 reg 15 .................................................................................................................................442 High-Activity Sealed Radioactive Sources and Orphan Sources Regulations 2005 (SI 2005 No 2686) ............................................................302, 305–7, 309, 435, 437 reg 3 ...................................................................................................................................305 reg 5 ...................................................................................................................................305 reg 6 ...................................................................................................................................305 (2)...............................................................................................................................302 reg 7 ...................................................................................................................................307 reg 14(a) ............................................................................................................................310 (b) ............................................................................................................................310 reg 16 .................................................................................................................................307 Ionising Radiations Regulations 1985 (SI 1985 No 1333) ..........................................244, 247 Ionising Radiations Regulations 1999 (SI 1999 No 3232) .........................100, 108, 110, 119, 244, 255, 331, 334 reg 5(1) ..............................................................................................................................244 reg 6 ...................................................................................................................................244 reg 7 ...........................................................................................................................110, 245 reg 8 ...........................................................................................................................245, 331 reg 9 ...................................................................................................................................245 reg 10 .................................................................................................................................110 reg 11 .................................................................................................................................245 reg 12 .........................................................................................................................109, 245 reg 13 .........................................................................................................................109, 245 reg 14 .........................................................................................................................109, 245 regs 16–19..........................................................................................................................245 reg 17 .................................................................................................................................110 reg 19 .................................................................................................................................331 regs 20–26..........................................................................................................................245 regs 27–33..........................................................................................................................245 Sch 1...................................................................................................................................244 Justification of Practices Involving Ionising Radiation Regulations 2004 (SI 2004 No 248).............................................................................................250–53, 296 Pt 2 .....................................................................................................................................250 Pt 3 .....................................................................................................................................250 Pt 4 .....................................................................................................................................250 Pt 5 .....................................................................................................................................250 Pt 6 .....................................................................................................................................250 Pt 8 .....................................................................................................................................250 reg 2 ...................................................................................................................................250 reg 4(4) ..............................................................................................................................250 reg 5 ...................................................................................................................................250 reg 6 ...................................................................................................................................250 reg 7 ...................................................................................................................................250 reg 8 ...................................................................................................................................250 reg 9 ...................................................................................................................................251 reg 10 .................................................................................................................................251

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Table of Legislation xliii (4) ............................................................................................................................251 reg 16 .................................................................................................................................252 reg 17 .................................................................................................................................253 reg 23 .................................................................................................................................251 Sch 1...................................................................................................................................251 Management of Health and Safety at Work Regulations 1999 (SI 1999 No 3242) .............92 Merchant Shipping (Dangerous Goods and Marine Pollutants) Regulations 1997 (SI 1997 No 2367) .........................................................................................................333 Minister of Technology Order 1969 (SI 1969 No 1498).......................................................84 National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999 No 672) .....312 Art 2 ...................................................................................................................................436 Sch 1...................................................................................................................................436 Nuclear Generating Stations (Security) Regulations 1996 (SI 1996 No 665)....................285 Nuclear Industries Security Regulations 2003 (SI 2003 No 403) ...............................285, 330 Pt 2 .....................................................................................................................................285 Pt 3 .....................................................................................................................................285 Pt 4 .....................................................................................................................................286 reg 2(1) ..............................................................................................................................285 reg 3 ...................................................................................................................................285 reg 4(2) ..............................................................................................................................285 reg 16 .................................................................................................................................286 reg 22 .................................................................................................................................285 Nuclear Industries Security (Amendment) Regulations 2006 (SI 2006 No 2815)............286 Nuclear Installations Regulations 1971 (SI 1971 No 381)......................................81–82, 121 reg 3 ...............................................................................................................................81–82 Nuclear Installations (Applications of Security Provisions) Order 1971 (SI 1971 No 569)....................................................................................................................84, 287 Nuclear Installations (Applications of Security Provisions) Order 1983 (SI 1993 No 687)....................................................................................................................84, 287 Nuclear Installations (Bahamas) Order 1972 (SI 1972 No 121) ........................................227 Nuclear Installations (British Solomon Islands Protectorate) Order 1972 (SI 1972 No 122)..........................................................................................................................227 Nuclear Installations (Cayman Islands) Order 1972 (SI 1972 No 123).............................227 Nuclear Installations (Dangerous Occurrences) Regulations 1965 (SI 1965 No 1824)................................................................................................................123, 225 reg 4 ...................................................................................................................................122 Sch 2...................................................................................................................................122 Nuclear Installations (Excepted Matter) Regulations 1978 (SI 1978 No 1779)..........................................................................................................107, 190–91 Nuclear Installations (Falkland Islands and Dependencies) Order 1972 (SI 1972 No 124)..........................................................................................................................227 Nuclear Installations (Gibraltar) Order 1970 (SI 1970 No 116) ........................................227 Nuclear Installations (Gilbert and Ellice Islands) Order 1972 (SI 1972 No 125)..............227 Nuclear Installations (Guernsey) Order 1978 (SI 1978 No 1528) .....................................227 Nuclear Installations (Increase in Operators’ Limits of Liability) Order 1994 (SI 1994 No 909) ...........................................................................................................212 Nuclear Installations (Insurance Certificate) Regulations 1965 (SI 1965 No 1823) .........225

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xliv Table of National Legislation Nuclear Installations (Isle of Man) Order 1977 (SI 1977 No 429) ....................................227 Nuclear Installations (Jersey) Order 1980 (SI 1980 No 1527)............................................227 Nuclear Installations (Montserrat) Order 1972 (SI 1972 No 127) ....................................227 Nuclear Installations (Prescribed Sites) Regulations 1983 (SI 1983 No 919)....................214 Nuclear Installations (St Helena) Order 1972 (SI 1972 No 128) .......................................227 Nuclear Installations (Virgin Islands) Order 1972 (SI 1973 No 235)................................227 Nuclear Installations Act 1965 (Repeals and Modifications) Regulations 1974 (SI 1974 No 2056) ...................................................................................................89, 115 reg 2(1)(b) ...........................................................................................................................87 Sch 2.....................................................................................................................................87 Nuclear Installations Act 1965 (Repeals and Modifications) Regulations 1990 (SI 1990 No 1918) ...................................................................................................83, 203 Nuclear Reactors (Environmental Impact Assessment for Decommissioning) Regulations 1999 (SI 1999 No 2892) .....................................................................353–54 reg 2(1) ..............................................................................................................................353 reg 6 ...................................................................................................................................354 reg 8(4) ..............................................................................................................................354 reg 13 .................................................................................................................................354 Sch 1...................................................................................................................................354 Nuclear Safeguards (Notification) Regulations 2004 (SI 2004 No 1255) ..........................278 Official Secrets (Prohibited Places) Order 1994 (SI 1994 No 968) ....................................287 Radioactive Contaminated Land (Modification of Enactments) (England) Regulations 2006 (SI 2006 No 1379) ...........................................................................360 reg 3 ...................................................................................................................................360 reg 5(2) ..............................................................................................................................362 (7) ..............................................................................................................................366 (e) ..........................................................................................................................362 reg 7 ...................................................................................................................................365 reg 17 .................................................................................................................................370 (4).............................................................................................................................369 Radioactive Contaminated Land (Modification of Enactments) (England) (Amendment) Regulations 2007 (SI 2007 No 3245) ..................................361, 362, 367 Radioactive Contaminated Land (Modification of Enactments) (England) (Amendment) Regulations 2008 (SI 2008 No 520) ............................................362, 370 Radioactive Contaminated Land (Modification of Enactments) (Wales) Regulations 2006 (SI 2006 No 2988 (W. 277)) ...........................................................360 Radioactive Contaminated Land (Modification of Enactments) (Wales) (Amendment) Regulations 2007 (SI 2007 No 3250) ..........................................361, 369 Radioactive Contaminated Land (Modification of Enactments) (Wales) (Amendment) Regulations 2008 (SI 2008 No 521) ....................................................361 Radioactive Contaminated Land Regulations (Northern Ireland) 2006 (SI 2006 No 345) ...........................................................................................................360 Radioactive Contaminated Land Regulations (Northern Ireland) (Amendment) 2007 (SI 2007 No 3236)...............................................................361, 369 Radioactive Contaminated Land (Scotland) Regulations 2007 (SSI 2007 No 179)..........360 Radioactive Contaminated Land (Scotland) (Amendment) Regulations 2007 (SI 2007 No 3240) .................................................................................................361, 369

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Table of Legislation xlv Radioactive Material (Road Transport) (Definition of Radioactive Material) Order 2002 (SI 2002 No 1092).....................................................................................327 Radioactive Material (Road Transport) (Great Britain) Regulations 1996 (SI 1996 No 1350) .........................................................................................................329 reg 14 .................................................................................................................................331 reg 31(2) ............................................................................................................................331 Radioactive Substances (Appeals) Regulations 1990 (SI 1990 No 2504)...........................312 reg 2 ...................................................................................................................................312 reg 3 ...................................................................................................................................312 reg 4 ...................................................................................................................................312 reg 5 ...................................................................................................................................312 reg 6 ...................................................................................................................................312 reg 7 ...................................................................................................................................312 Radioactive Substances (Electronic Valves) Exemption Order 1967 (SI 1967 No 1797) .................................................................................................303, 308 Radioactive Substances (Emergency Exemption) (England and Wales) Order 2006 (SI 2006 No 3169) .........................................................................................................424 Radioactive Substances (Exhibitions) Exemption Order 1962 (SI 1962 No 2654)...........303 Radioactive Substances (Gaseous Tritium Light Devices) Exemption Order 1985 (SI 1985 No 1047) .........................................................................................................303 Radioactive Substances (Geological Specimens) Exemption Order 1962 (SI 1962 No 2712) .........................................................................................................303 Radioactive Substances (Hospitals) Exemption Order 1990 (SI 1990 No 2512) ......303, 425 Radioactive Substances (Hospitals) Exemption (Northern Ireland) Order 1993 (SR 1993 No 54)............................................................................................................425 Radioactive Substances (Lead) Exemption Order 1962 (SI 1962 No 2649)......................303 Radioactive Substances (Luminous Articles) Exemption Order 1985 (SI 1985 No 1048) .........................................................................................................303 Radioactive Substances (Natural Gas) Exemption Order 2002 (SI 2002 No 1177) .................................................................................................303, 425 Radioactive Substances (Phosphatic Substances, Rare Earths, etc) Exemption Order 1962 (SI 1962 No 2648).....................................................................................303 Radioactive Substances (Precipitated Phosphate) Exemption Order 1963 (SI 1963 No 1836) .........................................................................................................303 Radioactive Substances (Prepared Uranium and Thorium Compounds) Exemption Order 1962 (SI 1962 No 2711)..........................................................303, 424 Radioactive Substances (Prepared Uranium and Thorium Compounds) Exemption (Northern Ireland) Order 1962 (SR & O 1962 No 242) .........................424 Radioactive Substances (Prepared Uranium and Thorium Compounds) Exemption (Scotland) Order 1962 (SI 1962 No 2772) ...............................................424 Radioactive Substances (Records of Convictions) Regulations 1992 (SI 1992 No 1685) .........................................................................................................313 Radioactive Substances (Schools, etc) Exemption Order 1963 (SI 1963 No 1832) .........................................................................................................303 Radioactive Substances (Smoke Detectors) Exemption Order 1980 (SI 1980 No 953) ...........................................................................................................303 Radioactive Substances (Storage in Transit) Exemption Order 1962

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xlvi Table of National Legislation (SI 1962 No 2646) .........................................................................................................303 Radioactive Substances (Substances of Low Activity) Exemption Order 1986 (SI 1986 No 1002) .................................................................................................303, 425 Radioactive Substances (Substances of Low Activity) Exemption (Northern Ireland) Order 1990 (SR 1990 No 115) ...............................................................303, 425 Radioactive Substances (Testing Instruments) (England and Wales) Order 2006 (SI 2006 No 1500) .................................................................................................303, 308 Art 3(3) ..............................................................................................................................303 Art 4(3) ..............................................................................................................................303 Art 6(2) ..............................................................................................................................303 Sch 2...................................................................................................................................303 Sch 3...................................................................................................................................303 Radioactive Substances (Uranium and Thorium) Exemption Order 1962 (SI 1962 No 2710) .........................................................................................................303 Radiation (Emergency Preparedness and Public Information) Regulations 2001 (SI 2001 No 2975) ...........................................................................100, 122, 254–55, 332 reg 3 ...........................................................................................................................122, 254 reg 4 ...................................................................................................................................122 (1) ..............................................................................................................................254 (2) ..............................................................................................................................255 reg 5 ...................................................................................................................................255 reg 6 ...................................................................................................................................122 reg 7 ...................................................................................................................................255 reg 8 ...................................................................................................................................255 (4) ..............................................................................................................................255 reg 9 ...................................................................................................................................255 reg 10 .................................................................................................................................255 reg 13 .................................................................................................................................255 (2).............................................................................................................................371 reg 14 .................................................................................................................................255 reg 16 .................................................................................................................................255 (1)(a)........................................................................................................................255 reg 17 .................................................................................................................................255 reg 19 .................................................................................................................................255 Sch 2...................................................................................................................................122 Schs 2–4 .............................................................................................................................254 Sch 8, Pt I...........................................................................................................................255 Sch 9...................................................................................................................................255 Railways (Accident Investigation and Reporting) Regulations 2005.................................332 Scotland Act 1998 (Transfer of Functions to the Scottish Ministers, etc) Order 1999 (SI 1999 No 1750).....................................................................................................85–86 Art 2 .....................................................................................................................................86 Art 3 .....................................................................................................................................86 Art 4 .....................................................................................................................................86 Sch 1.....................................................................................................................................86 Sch 2.....................................................................................................................................86 Sch 3.....................................................................................................................................86

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Table of Legislation xlvii Scotland Act 1998 (Transfer of Functions to the Scottish Ministers, etc) (No 2) Order 2006 (SI 2006 No 1040) Art 2 ...................................................................................................................................163 Art 3 ...................................................................................................................................163 Art 6 ...................................................................................................................................163 Secretary of State (New Departments) Order 1974 (SI 1974 No 682).................................84 Secretary of State for Trade and Industry Order 1970 (SI 1970 No 1537) ..........................84 Special Waste Regulations 1996 (SI 1996 No 972)..............................................................441 Town and Country Planning (Nirex) Special Development Order 1986 (SI 1986 No 812) ...........................................................................................................381 Transfer of Functions (Energy) Order 1992 (SI 1992 No 1314) ..........................................84 SI 1999 No 2786) Art 2 .....................................................................................................................................84 Art 3(1) ................................................................................................................................84 Art 4 .....................................................................................................................................84 Transfrontier Shipment of Radioactive Waste Regulations 1993 (SI 1993 No 3031).......337 Transfrontier Shipment of Radioactive Waste and Spent Fuel Regulations 2008 (SI 2008 No 3087)...................................................................................................339–40 Pt 2 .....................................................................................................................................339 Pt 3 .....................................................................................................................................340 reg 3 ...................................................................................................................................339 reg 8 ...................................................................................................................................340 reg 9 ...................................................................................................................................340 reg 10 .................................................................................................................................340 reg 11 .................................................................................................................................340 reg 14 .................................................................................................................................340 Sch 1...................................................................................................................................340 Uranium Enrichment Technology (Prohibition on Disclosure) Regulations 2004 (SI 2004 No 1818) .........................................................................................................286

Austria Civil Liability for Damages Caused by Radioactivity Law 1998 ...................................185–86

Canada Nuclear Liability Act 1970 ....................................................................................................186 Nuclear Fuel Act 2002...........................................................................................................374

France Act No 91–1381 of 30 December 1991 ................................................................................374 Planning Act No 2006–739 of 15 June 2006........................................................................374

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xlviii Table of National Legislation Germany Atomic Energy Act 1959.......................................................................................................164

Indonesia Nuclear Energy Act 1997 ......................................................................................................185

Japan Compensation for Nuclear Damage Laws 1961..........................................................164, 185

Switzerland Federal Law on Exploitation of Nuclear Energy for Peaceful Purposes and Protection from Irradiation 1959 ................................................................................164

United States Atomic Energy Act 1946 (McMahon Act).......................................................7, 9, 42, 265–66 s 1 ...........................................................................................................................................9 s 10 .........................................................................................................................................9 Disaster Relief and Emergency Act 1988 .............................................................................187 Energy Policy Act 2005 .........................................................................................................187 National Environmental Policy Act 1969 ...........................................................................158 Nuclear Waste Policy Act 1982 ............................................................................................373 Omnibus Appropriations Act 2009 .......................................................................................48 Price-Anderson Act 1957........................................................................164, 182, 187–88, 332 Radiation Exposure Compensation Act 1990 .....................................................................230 US-India Peaceful Atomic Co-operation Act 2006.............................................................268

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TABLE OF EU AND INTERNATIONAL LEGISLATION

EU Legislation Treaties EC Treaty (1957)...............................................................................................................50, 69 Art 2 .....................................................................................................................................50 Art 10 .............................................................................................................................408–9 Art 95 .................................................................................................................................256 Art 174(1) ............................................................................................................................50 (2)............................................................................................................................50 Art 220 ...............................................................................................................................408 Art 227 ...............................................................................................................................408 Art 232(2) ..........................................................................................................................242 Art 292 .......................................................................................................................408, 409 Art 305(2) ............................................................................................................................69 European Atomic Energy Community Treaty (Euratom) (1957) ..................................................................................50–70, 185, 236–37, 272, 280 Title I ...................................................................................................................................52 Title II ..........................................................................................................................53, 280 Title III.................................................................................................................................52 Title IV.................................................................................................................................52 Title V ..................................................................................................................................52 Chap I ............................................................................................................................53–54 Chap II...........................................................................................................................54–55 Section III................................................................................................................55 Chap III .................................................................................................................55–59, 238 Chap IV ...................................................................................................................51, 59–61 Chap V.................................................................................................................................62 Chap VI .................................................................................................62–66, 272, 274, 275 Section II .................................................................................................................62 Section III..............................................................................................................275 Chap VII ................................................................................................................65–66, 273 Chap VIII.................................................................................................................62, 66–67 Chap IX .........................................................................................................................67–68 Chap X.................................................................................................................................68 Art 1 .....................................................................................................................................52 Art 2 .....................................................................................................................................52 (b) ...............................................................................................................57, 238, 336 (d) ...................................................................................................62, 64–65, 272, 275 (e)..............................................................................................................................272

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l Table of EU and International Legislation Art 3 .....................................................................................................................................52 Art 4 .....................................................................................................................................53 Art 7 .....................................................................................................................................53 Art 8 .......................................................................................................................53–54, 239 Art 9 ...............................................................................................................................51, 53 (2)................................................................................................................................53 Art 10 ...................................................................................................................................53 Art 12 ...................................................................................................................................55 Art 14 ...................................................................................................................................55 Art 15 ...................................................................................................................................55 Art 16 ...................................................................................................................................55 Art 17 ...................................................................................................................................55 Arts 18–23 ...........................................................................................................................55 Art 28 ...................................................................................................................................55 Art 30 .....................................................................................................55, 58, 238, 247, 256 (2) ..............................................................................................................................57 Arts 30–32......................................................................................................................57, 59 Arts 30–39 .....................................................................................................................57–58 Art 31 ...........................................................................................................238–39, 243, 256 Art 32 ...................................................................................................................................57 Art 33 ...........................................................................................................................55, 238 Art 34 ...............................................................................................................56, 69, 238–39 Art 35 .......................................................................................................56, 69, 238–39, 253 Art 36 ...................................................................................................................56, 238, 253 Art 37 ...............................................................................................56, 69, 238, 409–10, 454 Art 38 ...........................................................................................................................56, 239 Art 39 ...........................................................................................................................56, 239 Art 40 ...................................................................................................................................59 Art 41 ...................................................................................................................................60 Arts 41–43 ...........................................................................................................................61 Art 42 ...................................................................................................................................60 Art 43 ...................................................................................................................................60 Art 45 ...................................................................................................................................62 Arts 46–49 ...........................................................................................................................62 Art 52 ...................................................................................................................................64 (1) ..............................................................................................................................62 (b) .........................................................................................................................62 (2)(a) .........................................................................................................................62 Arts 52–76 ...........................................................................................................................58 Arts 53–54 ...........................................................................................................................62 Art 57 ...................................................................................................................................62 Art 60 ...................................................................................................................................62 Art 62(2) ......................................................................................................................62, 275 Art 64 ...................................................................................................................................63 Art 66 ...................................................................................................................................63 Art 67 ...................................................................................................................................62 Art 72 ...................................................................................................................................62

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Table of EU and International Legislation li Art 73 .............................................................................................................................63, 65 Art 74 ...................................................................................................................................63 Art 75 .....................................................................................................................63–66, 275 Art 77 .................................................................................................................................273 Arts 77–85 ...........................................................................................................................58 Art 79 .................................................................................................................................273 Art 82 ...........................................................................................................................279–80 Art 83 .................................................................................................................................280 Art 84 .................................................................................................................................272 Art 86 .............................................................................................................................63, 66 Art 87 .......................................................................................................................61, 63, 67 Art 124 .................................................................................................................................50 Art 126 .................................................................................................................................50 Art 135 .................................................................................................................................59 Art 141 ...............................................................................................................................239 Art 142 ...............................................................................................................................239 Art 192 .................................................................................................................................52 Art 197 .........................................................................................................................52, 272 (1) ............................................................................................................................66 Art 198 .................................................................................................................................53 Arts 199–201 .......................................................................................................................53 Art 203 .................................................................................................................................57 Art 206 .................................................................................................................................53 Annex II...............................................................................................................................60 Annex IV .............................................................................................................................67 European Coal and Steel Community Treaty (1951) .....................................................50, 70 Lisbon Treaty ..........................................................................................................................70 Protocol No 2 ......................................................................................................................70 Merger Treaty (1965)..............................................................................................................50 Art 10 ...................................................................................................................................50 Art 19 ...................................................................................................................................50 Treaty of Rome see EC Treaty Regulations Reg (Euratom) 3134/74 [1974] OJ L333................................................................................63 Reg (Euratom) 3954/87 [1987] OJ L371/11 ............................................................58, 256–57 Reg (Euratom) 3955/87 [1988] OJ L30/40 ..........................................................................256 Reg (Euratom) 944/89 [1989] OJ L101/17 ..........................................................................256 Reg (EEC) 2219/89 [1989] OJ L211/4..................................................................................256 Reg (Euratom) 770/90 [1990] OJ L83/78 ............................................................................256 Reg (Euratom) 1493/93 [1993] OJ L148/1 ............................................................336, 338–39 Art 1 ...................................................................................................................................338 Art 3 ...................................................................................................................................339 Art 4 ...................................................................................................................................339 Annex I ..............................................................................................................................339 Reg (EC) 1609/2000 [2000] OJ L185/27..............................................................................256 Reg (Euratom) 302/2005 [2005] OJ L54/1 ............................................................273, 278–80

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Page lii

lii Table of EU and International Legislation recital (2) ...........................................................................................................................273 Chap III .............................................................................................................................273 Chap IV .......................................................................................................................273–74 Chap VI .............................................................................................................................274 Art 3 ...........................................................................................................................273, 278 Art 5 ...................................................................................................................................279 Art 6 ...................................................................................................................................273 Arts 7–9 .............................................................................................................................279 Art 10 .................................................................................................................................279 Art 12 .................................................................................................................................279 Art 13 .................................................................................................................................279 Art 14 .................................................................................................................................279 Art 15 .................................................................................................................................279 Art 20 .........................................................................................................................274, 279 Art 22 .........................................................................................................................274, 279 Art 31 .........................................................................................................................274, 279 Art 32 .................................................................................................................................279 Art 34 .................................................................................................................................279 (3) ............................................................................................................................274 Art 37 .................................................................................................................................274 Annex IX............................................................................................................................274 Reg (Euratom) 1908/2006 [2006] OJ L440............................................................................53 Reg (Euratom) 300/2007 [2007] OJ L81/1 ............................................................................71 Directives Dir 59/221/Euratom (Basic Standards) ...............................................................................239 Dir 80/836/Euratom [1980] OJ L246/1 .......................................................................240, 246 Dir 84/466/Euratom [1984] OJ L265/1 ...............................................................................241 Dir 84/467/Euratom [1984] OJ L265/4 ...............................................................................240 Dir 84/631/EEC [1984] OJ L326/31.....................................................................................336 Dir 85/337/EEC (EIA) [1985] OJ L175/40 ................................79, 157–62, 346, 408, 430–32 Art 1(2) ..............................................................................................................................431 Art 3 ...................................................................................................................................157 Arts 3–6 .............................................................................................................................157 Art 5 ...................................................................................................................................160 (1) ..............................................................................................................................160 (3) ..............................................................................................................................160 Art 7 ...................................................................................................................................157 Annex I ..............................................................................................................................430 Annex II.....................................................................................................................157, 430 para 13.................................................................................................................431 Annex III ...................................................................................................................157, 354 Annex IV ...........................................................................................................................160 para 1...................................................................................................................160 para 3...................................................................................................................160 para 4...................................................................................................................160 para 5...................................................................................................................160

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Table of EU and International Legislation liii para 7...................................................................................................................160 Dir 87/170/Euratom [1987] OJ L68/33 ...............................................................................410 Dir 87/530/Euratom [1987] OJ L189/42 .............................................................................410 Dir 88/378/EEC [1988] OJ L187/1.......................................................................................291 Dir 89/391/EEC [1989] OJ L183/1.......................................................................................242 Dir 89/618/Euratom [1989] OJ L357/31................................................................69, 243, 254 Title IX, Section 1..............................................................................................................330 Art 2(2) ..............................................................................................................................254 Art 5 ...................................................................................................................................329 Dir 90/313/EEC [1990] OJ L158/56.....................................................................................408 Dir 90/641/Euratom [1990] OJ L349/21 .......................................................................242–43 Dir 92/3/Euratom [1992] OJ L35/24 .............................................................................336–39 Art 13 .................................................................................................................................336 Art 14 .................................................................................................................................336 Dir 92/43/EEC (Habitats) [1992] OJ L206/7.........................................................155–56, 354 Art 6(3) ..............................................................................................................................156 (4)........................................................................................................................155–56 Dir 92/537/Euratom [1992] OJ L344...................................................................................410 Dir 93/75 [1993] OJ L247/19................................................................................................408 Dir 94/55/EC [1994] OJ L319/7 ...................................................................................324, 326 Dir 80/336/EEC.............................................................................................................240, 334 Art 4 ...................................................................................................................................240 (a)..............................................................................................................................334 (b)..............................................................................................................................334 Dir 96/29/Euratom (BSS) [1996] OJ L159/1 ......................57, 79, 240–44, 246–51, 254, 256, 291, 312, 312, 329, 336–38, 360–70 Title IV...............................................................................................................................240 Title IX...............................................................................................................................360 Title X ................................................................................................................................361 Art 2(1)(a) .........................................................................................................................240 (2)..............................................................................................................................240 (3)..............................................................................................................................240 (4)..............................................................................................................................240 Art 3 ...................................................................................................................................241 (1)......................................................................................................................238, 240 (2)..............................................................................................................................240 (a)..................................................................................................................306, 337 (b) .........................................................................................................................337 Art 5 ...........................................................................................................................241, 254 Art 6 .....................................................................................................241–42, 247, 250, 254 (1)......................................................................................................................241, 248 (2)..............................................................................................................................241 (3)(a).........................................................................................................................241 (4)..............................................................................................................................241 (5)..............................................................................................................................241 Art 8 ...................................................................................................................................241 Art 9 ...................................................................................................................................363

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liv Table of EU and International Legislation (1)..............................................................................................................................241 Art 10 .................................................................................................................................242 Art 11 .................................................................................................................................242 Art 12 .................................................................................................................................242 Art 13 .........................................................................................................................247, 363 (1) ............................................................................................................................242 (3)(a) .......................................................................................................................363 (b) .......................................................................................................................363 Art 14 .................................................................................................................................242 Art 15 .........................................................................................................................242, 365 Art 16 .........................................................................................................................242, 366 Art 17(a) ............................................................................................................................242 Arts 17–22 .........................................................................................................................242 Arts 24–37 .........................................................................................................................242 Art 42 .................................................................................................................................242 Art 43 .................................................................................................................................242 Art 44 .................................................................................................................................242 Art 45 .................................................................................................................................242 Art 48 ...................................................................................................................243, 360–61 (2) ....................................................................................................................363, 366 Art 49 .................................................................................................................................243 Art 50(1) ............................................................................................................................243 (2) ....................................................................................................................243, 363 (4) ............................................................................................................................243 Art 51 .................................................................................................................................243 Art 53 .....................................................................................................242–43, 360–61, 369 Annex I ......................................................................................................................241, 254 Annex II.....................................................................................................................242, 254 Annex III ...........................................................................................................................242 Dir 96/49/EC [1996] OJ L235/25 .........................................................................324, 326, 332 Dir 96/61/EEC (IPPC) [1996] OJ L257/26 ..........................................................................315 Art 2 ...................................................................................................................................449 (1)..............................................................................................................................315 Dir 96/92/EC [1996] OJ L27/20 ...........................................................................................346 Dir 97/43/Euratom [1997] OJ L180/22 .......................................................................241, 243 Dir 2001/42/EC (SEA) [2001] OJ L197/30 ..................................................................147, 153 Art 2(a) ..............................................................................................................................140 Art 3(2)(a) .........................................................................................................................140 Art 5 ...................................................................................................................................147 (1)..............................................................................................................................155 (4)..............................................................................................................................148 Art 6(2) ..............................................................................................................................153 (4) ..............................................................................................................................153 Art 7 ...................................................................................................................................154 Art 8 ...................................................................................................................................153 Art 9(1)(b).........................................................................................................................155 Annex I, para (h)...............................................................................................................155

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Table of EU and International Legislation lv Dir 2001/95/EC [2002] OJ L11/4 .........................................................................................291 Dir 2003/54/EC [2003] OJ L176/37 .......................................................................................74 Art 6 .....................................................................................................................................74 (2)................................................................................................................................74 Dir 2003/122/Euratom (HASS) [2003] OJ L346/57........................240, 243, 304–7, 312, 317 Art 3(2) ..............................................................................................................................306 Art 5 ...................................................................................................................................306 Art 6 ...................................................................................................................................306 Annex I ..............................................................................................................................305 Dir 2004/35/EC [2004] OJ L143/56 .....................................................................................186 recital (10) .........................................................................................................................186 recital (11) .........................................................................................................................186 Art 2 ...................................................................................................................................186 Art 3(2)(b).........................................................................................................................186 Art 4(4) ..............................................................................................................................186 Annex III ...........................................................................................................................186 Annex V.............................................................................................................................186 Dir 2006/12/EC (Waste) [2006] OJ L114/9.........................................................................414 Art 2 ...................................................................................................................................442 (1)(b)(i) ....................................................................................................................414 Dir 2006/117/Euratom [2006] OJ L337/21 ...................................................................336–40 recital (3) ...........................................................................................................................338 recital (7) .....................................................................................................................337–38 recital (8) ...........................................................................................................................338 recital (15) .........................................................................................................................338 Chap 2................................................................................................................................338 Chap 3................................................................................................................................338 Art 2 ...................................................................................................................................337 Arts 2–4 .............................................................................................................................337 Art 3 ...................................................................................................................................337 Art 4 ...................................................................................................................................337 Art 5(15) ............................................................................................................................337 (16)............................................................................................................................337 Art 9(3) ..............................................................................................................................338 Art 16 .................................................................................................................................338 Art 18 .................................................................................................................................338 Art 21 .................................................................................................................................338 Art 22(1) ............................................................................................................................337 Dir 2007/530/Euratom [2007] OJ L195/44 ...........................................................................71 Dir 2009/71/Euratom (Nuclear Safety) [2009] OJ L172/18 ...........................................72–74 Art 1 .....................................................................................................................................72 Art 2 .....................................................................................................................................73 Art 3(1) ................................................................................................................................73 (2)................................................................................................................................73 Art 4 .....................................................................................................................................73 Art 5 .....................................................................................................................................73 Art 6 .....................................................................................................................................73

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lvi Table of EU and International Legislation Art 7 .....................................................................................................................................73 Art 8 .....................................................................................................................................73 Art 9 .....................................................................................................................................73 Decisions Dec 75/406/Euratom [1975] OJ L178/28.............................................................................410 Dec 77/270/Euratom [1977] OJ L88/9...................................................................................61 Dec 87/600/Euratom [1987] OJ L371/76.............................................................................254 Dec 90/212/Euratom [1990] OJ L112/26...............................................................................61 Dec 94/179/Euratom [1994] OJ L84/41.................................................................................61 Dec 1999/819/Euratom [1999] OJ L318 ................................................................................79 Dec 2006/626/Euratom [2006] OJ L255/5...........................................................................280 Dec 2006/970/Euratom [2006] OJ L400 ................................................................................54 Dec 2006/977/Euratom [2006] OJ L400 ................................................................................54 Dec 2007/530/Euratom [2007] OJ L195/44...........................................................................59 Dec 2008/114/Euratom [2008] OJ L41/15.....................................................................62, 275 Dec 2008/312/Euratom [2008] OJ L107 ......................................................................338, 340 International Treaties, Agreements and Conventions Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998)...........................................................................134, 140, 154–55, 429–30 Art 6 ...........................................................................................................................144, 154 (2)..............................................................................................................................154 (3)..............................................................................................................................154 (4)..............................................................................................................................154 (5)..............................................................................................................................154 (6)..............................................................................................................................154 (7)......................................................................................................................155, 430 Art 7 ...................................................................................................................................154 Art 9 ...................................................................................................................................402 (2)..............................................................................................................................403 Annex I ..............................................................................................................................154 Africa a Nuclear Free Zone Treaty (1995) ...........................................................................260 Agreement for Co-operation between Euratom and the USA ...........................................169 Almelo Treaty (1970)..............................................................................................................10 Annex II.............................................................................................................................286 Anti-Ballistic Missile Treaty (1972) .....................................................................................261 Antarctic Treaty (1959) ........................................................................................................259 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989) ................................................................................335 Art 1(3) ..............................................................................................................................335 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968)..........................................................................168, 216 Brussels Supplementary Convention on Third Party Liability in the Field of Nuclear Energy (1963)......................................167, 172, 176–78, 190, 222–23, 332, 356

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Table of EU and International Legislation lvii Art 2 ...................................................................................................................................176 (a)(i)..........................................................................................................................182 Art 3 ...................................................................................................................................177 (c) ..............................................................................................................................177 (d)..............................................................................................................................177 Art 12 .................................................................................................................................178 Art 13 .................................................................................................................................176 Art 15 .................................................................................................................................176 Art 19 .................................................................................................................................176 Art 20(c) ............................................................................................................................178 Additional Protocol (1964) ..............................................................................................176 Protocol (1982) .................................................................................................................176 Protocol (2004) .................................................................................................................176 Chicago Convention on International Civil Aviation (1944) ............................................325 Annex 18............................................................................................................................325 Comprehensive Nuclear Test Ban Treaty (1996)........................................................259, 260 Art IV.................................................................................................................................260 Annex 2..............................................................................................................................260 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (1986) ...........................................................................................................44 Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material (1971) .....................................................................................................183, 186 Art 1 ...................................................................................................................................183 Art 2 ...................................................................................................................................183 Art 3 ...................................................................................................................................183 Convention on the Contract for the International Carriage of Goods by Road (1956) ............................................................................................................................208 Convention on Early Notification of Nuclear Accidents (1986)..................................44, 253 Art 1 ...................................................................................................................................253 Art 3 ...................................................................................................................................253 Convention on the High Seas (1958) Art 6(1) ................................................................................................................................80 Convention concerning International Carriage by Rail (COTIF) (1980) .........................326 Convention on the Liability of Operators of Nuclear Ships (1962)...................................182 Art II ..................................................................................................................................182 Art III.................................................................................................................................182 Art V ..................................................................................................................................182 Art X.3 ...............................................................................................................................182 Art XVII.............................................................................................................................183 Convention on Limitation of Liability for Maritime Claims (1976) Art 3(c) ..............................................................................................................................206 (d)..............................................................................................................................206 Convention on Nuclear Safety (1994) ...........................................44–45, 76–79, 237, 504–13 Chap 2..................................................................................................................................77 Art 1 .............................................................................................................................77, 504 Art 2 ...................................................................................................................................505 Art 3 ...................................................................................................................................505

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lviii Table of EU and International Legislation Art 4 .............................................................................................................................77, 505 Art 5 .............................................................................................................................77, 505 Art 6 .............................................................................................................................77, 505 Art 7 .............................................................................................................................77, 506 Art 8 .......................................................................................................................77, 88, 506 (2)................................................................................................................................77 Art 9 .......................................................................................................................78, 91, 506 Art 10 .....................................................................................................................78, 91, 506 Art 11 .................................................................................................................................506 (1)...............................................................................................................................78 (2)...............................................................................................................................78 Art 12 ...........................................................................................................................78, 507 Art 13 ...........................................................................................................................78, 507 Art 14 ...........................................................................................................................78, 507 Art 15 ...................................................................................................................78, 237, 507 Art 16 ...........................................................................................................................78, 507 Art 17 ...................................................................................................................78, 162, 508 Art 18 ...........................................................................................................................78, 508 Art 19 ...........................................................................................................................78, 508 Art 20 .................................................................................................................................509 Art 21 .................................................................................................................................509 Art 22 .................................................................................................................................509 Art 23 .................................................................................................................................509 Art 24 .................................................................................................................................510 Art 25 .................................................................................................................................510 Art 26 .................................................................................................................................510 Art 27 .................................................................................................................................510 Art 28 .................................................................................................................................511 Art 29 .................................................................................................................................511 Art 30 .................................................................................................................................511 Art 31 .................................................................................................................................512 Art 32 .................................................................................................................................512 Art 33 .................................................................................................................................512 Art 34 .................................................................................................................................513 Art 35 .................................................................................................................................513 Convention on the Physical Protection of Nuclear Material (1980) ...................282–83, 286 Art 2A ................................................................................................................................283 (3).............................................................................................................................283 Art 3 ...................................................................................................................................283 Annex I ..............................................................................................................................283 Convention for the Protection of the Marine Environment for the North East Atlantic (OSPAR) (1992) .............................................................................403–4, 406–7 Art 1(a) ..............................................................................................................................407 (e) ..............................................................................................................................407 (g) ..............................................................................................................................407 (k)..............................................................................................................................407 Art 3 ...................................................................................................................................407

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Table of EU and International Legislation lix Art 4 ...................................................................................................................................406 (1)(b).........................................................................................................................403 Art 5 ...................................................................................................................................407 Art 31 .................................................................................................................................403 Annex I ..............................................................................................................................406 Art 1(1) .................................................................................................................407 (3).................................................................................................................407 (4).................................................................................................................407 Art 2(1) .................................................................................................................407 Annex II, Art 3(1) .............................................................................................................406 Annex III ...........................................................................................................................407 Convention on Safety of Lives at Sea (1974) Chap VII ............................................................................................................................324 Convention on Supplementary Compensation for Nuclear Damage (1997) ................................................................................................167, 180–81, 186–87 Art II.2 ...............................................................................................................................182 Art III.2(a) .........................................................................................................................180 Art IV.................................................................................................................................180 Art IV.1(c) .........................................................................................................................180 Art V ..................................................................................................................................180 Art V.1(a) ..........................................................................................................................180 (c) ..........................................................................................................................180 Art XI .................................................................................................................................181 Art XI.1(b).........................................................................................................................180 Art XIII ..............................................................................................................................181 Art XVIII.1 ........................................................................................................................181 Annex, Art 2 ......................................................................................................................181 Art 6.1 ...................................................................................................................181 Art 6.2 ...................................................................................................................181 Convention for the Suppression of Acts of Nuclear Terrorism (2005) .............................283 Art 2 ...................................................................................................................................283 Art 8 ...................................................................................................................................283 Art 18 .................................................................................................................................283 European Agreement concerning the International Carriage of Dangerous Goods by Road (1957)..........................................................................................323, 325 European Agreement concerning the International Carriage of Dangerous Goods by Inland Waterways (2000) ................................................................................323, 326 European Convention on Human Rights (1950) Art 2 ...................................................................................................................................143 Art 6 .............................................................................................................................143–43 Art 8 ...................................................................................................................................143 Art 10 .................................................................................................................................287 Art 11 .................................................................................................................................287 First Protocol, Art 1 ..........................................................................................................143 Exploration and Use of Outer Space Treaty (1967)............................................................260 International Atomic Energy Authority Statute (1956)........................................................42 Art II ............................................................................................................................43, 166

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lx Table of EU and International Legislation Art III.................................................................................................................................236 Art III.A ...............................................................................................................................43 Art III.A(1) ..........................................................................................................................43 (2) ..........................................................................................................................43 (6) ..........................................................................................................................44 Art III.B ...............................................................................................................................43 Art V.D ................................................................................................................................43 Art VI...................................................................................................................................43 Art VIF.................................................................................................................................43 Art XVI ................................................................................................................................43 Joint Convention on Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (1997) ...............................................44, 237, 320, 335, 337, 338, 373–74, 400–3 recital (ii) ...........................................................................................................................401 Chap 2................................................................................................................................401 Chap 3................................................................................................................................401 Chap 4................................................................................................................................401 Art 1(ii)..............................................................................................................................374 Art 2(i)...............................................................................................................................401 Art 3(3) ..............................................................................................................................401 Art 5 ...................................................................................................................................401 Art 11 .................................................................................................................................375 (vi) ...........................................................................................................................375 (vii) ..........................................................................................................................375 Art 12 .................................................................................................................................401 (ii) ............................................................................................................................401 Arts 13–16 .........................................................................................................................401 Art 17 .................................................................................................................................343 Art 22(iii)...........................................................................................................................401 Art 24(1) ............................................................................................................................237 Art 26 .................................................................................................................................343 Art 27 .................................................................................................................................335 (1) ............................................................................................................................335 (2) ............................................................................................................................335 (3) ............................................................................................................................335 Art 30 .................................................................................................................................401 Joint Protocol relating to Paris and Vienna Conventions (1988) ........................168–69, 174 Art III(1)............................................................................................................................168 (2)............................................................................................................................168 (3)............................................................................................................................168 Limited Test Ban Treaty (1963) ...........................................................................................259 London Dumping Convention (1972) ....................................................379, 381, 402, 404–7 Art III(1)(a).......................................................................................................................404 Art IV(1)(a).......................................................................................................................404 Annex I, para 6 ..................................................................................................................403 Annex II.............................................................................................................................403 London Protocol (1996)...................................................................................................406

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Table of EU and International Legislation lxi Art 1.4.1.3..................................................................................406 Art 1.7........................................................................................406 Annex 1 .....................................................................................406 Mannheim Treaty (1868) .....................................................................................................326 Non-Proliferation of Nuclear Weapons Treaty (1968) ..............................................264, 272 Art I....................................................................................................................................266 Art II ..................................................................................................................................266 Art III.................................................................................................................................266 (1)............................................................................................................................271 Art IV.................................................................................................................................266 Art VI.............................................................................................................................266–7 Nuclear Energy Agency Statute (1957) Art 1.b..................................................................................................................................46 Art 2 .....................................................................................................................................46 Art 3 .....................................................................................................................................46 Art 8 .....................................................................................................................................46 Art 11 .................................................................................................................................237 Paris Convention for the Prevention of Pollution from Land-Based Sources (1974) ........................................................................................................................406–7 Paris Convention on Third Party Liability in the Field of Nuclear Energy (1960)........................................167–76, 178–84, 189, 190, 191, 192, 199, 202, 203, 204, 205–6, 214, 216, 220, 222, 226, 332, 355, 356, 368–70, 514–34 preamble............................................................................................................................169 Art 1 ...................................................................................................................................515 (a)(i) ..................................................................................................................177, 190 (ii).........................................................................................................................174 (iii)........................................................................................................................189 (iv)........................................................................................................................189 (vii).......................................................................................................................175 Art 2 ...........................................................................................................172, 174, 210, 517 Art 3 ...................................................................................................................................518 (a) ........................................................................................................170–71, 175, 370 (b)..............................................................................................................................171 (c) ......................................................................................................................170, 189 Art 4 ...........................................................................................................................171, 519 (a) ..............................................................................................................................171 (i)...........................................................................................................................206 (ii)..........................................................................................................................206 (b)..............................................................................................................................171 (iv).........................................................................................................................210 Art 5 ...................................................................................................................................520 (c) ..............................................................................................................................192 Art 6 ...........................................................................................................................171, 521 (b)..............................................................................................................................208 (d)..............................................................................................................................211 (e) ......................................................................................................................172, 211 (f)...............................................................................................................172, 203, 209

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lxii Table of EU and International Legislation Art 7 .....................................................................................................................172–74, 522 (b)..............................................................................................................................174 (d)..............................................................................................................................181 (e) ..............................................................................................................................181 Art 8 ...........................................................................................................................172, 524 (a) ..............................................................................................................................213 (i)...........................................................................................................................174 (b)......................................................................................................................173, 213 Art 9 ...........................................................................................................................211, 525 Art 10 .................................................................................................................173, 216, 525 (a)....................................................................................................................176, 221 (b)....................................................................................................................173, 222 (c)............................................................................................................................174 Art 11 .................................................................................................................................526 Art 12 .........................................................................................................................173, 526 Art 13 .................................................................................................................................526 (a)............................................................................................................................173 (b) ...........................................................................................................................173 (c)............................................................................................................................173 (d) ...........................................................................................................................173 (e)............................................................................................................................173 Art 14 .................................................................................................................................528 Art 15 .................................................................................................................................528 (a)............................................................................................................................172 Art 16 .................................................................................................................................528 Art 16bis ............................................................................................................................529 Art 17 .................................................................................................................................529 Art 18 .................................................................................................................................529 Art 19 .................................................................................................................................530 (b) ...........................................................................................................................169 Art 20 .................................................................................................................................530 Art 21 .................................................................................................................................530 (c)............................................................................................................................174 Art 22 .................................................................................................................................530 Art 23 .................................................................................................................................531 Art 24 .................................................................................................................................531 Annex ..........................................................................................................................533–34 Protocol (1982) .................................................................................................................172 Protocol (2004) .............................................169–70, 172–75, 177, 178, 220, 226, 355, 370 Art II(c)......................................................................................................174 Prohibition of the Emplacement of Nuclear Weapons on the Sea-bed, Ocean-floor and Subsoil Treaty (1971) ............................................................................................260 Prohibition of Nuclear Weapons in Latin America and the Caribbean (1967) ................260 South Pacific Nuclear Free Zone Treaty Treaty (1985) ......................................................260 Southeast Asia Nuclear Weapon-free Zone Treaty (1995).................................................260 Strategic Arms Limitation Treaty (SALT II) (1979) ...........................................................260 Strategic Arms Reduction Treaty (START I) (1991) ....................................................261–63

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Table of EU and International Legislation lxiii Strategic Arms Reduction Treaty (START II) (1993)...................................................261–63 Strategic Arms Reductions Treaty (SORT) (2004) .............................................................261 UN Convention on the Law of the Sea (UNCLOS) (1982)....................................324, 407–8 Pt XII .................................................................................................................................407 Pt XV .................................................................................................................................407 Art 17 .................................................................................................................................324 Art 22 .................................................................................................................................324 Art 23 .................................................................................................................................324 Art 123 ...............................................................................................................................408 Arts 192–194 .....................................................................................................................408 Art 197 ...............................................................................................................................408 Art 206 ...............................................................................................................................408 Art 207 ...............................................................................................................................408 Art 211 ...............................................................................................................................408 Art 213 ...............................................................................................................................408 Art 217 ...............................................................................................................................408 Art 282 ...............................................................................................................................408 Universal Postal Convention (1979)............................................................................323, 327 Art 121 ...............................................................................................................................327 Vienna Convention on Civil Liability for Nuclear Damage (1963) ...................................................................................35, 44, 167–69, 176–84, 186, 191, 193, 198, 199, 216, 221, 355 preamble............................................................................................................................182 Art 1(k)(ii).................................................................................................................198, 201 (l)...............................................................................................................................190 Art IA .................................................................................................................................179 Art IB .................................................................................................................................182 Art IV(1)............................................................................................................................179 (2)............................................................................................................................212 (3)............................................................................................................................211 Art V ..........................................................................................................................180, 182 Art V(1) .............................................................................................................................179 Art VI.................................................................................................................................179 (1)............................................................................................................................213 (2)............................................................................................................................213 Art VII ...............................................................................................................................216 (1)...........................................................................................................................221 (4)...........................................................................................................................222 Art IX(2)(a) .......................................................................................................................211 Art XIA ..............................................................................................................................180 Protocol (1997) .................................................................................................................181 Protocol (2003) .................................................................................................................180 Vienna Convention on the Law of Treaties (1969) Art 30 .................................................................................................................................181 Art 31 .................................................................................................................................405

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1 Introduction ATTITUDES TO RADIOACTIVITY There are few subjects in the field of environmental pollution to which people react so emotionally as they do to radioactivity. Royal Commission on Environmental Pollution, Sixth Report, ‘Nuclear Power and the Environment’, (Cmnd 6618 1976) para 5.

It is over 30 years since the Royal Commission on Environmental Pollution under the chairmanship of Sir Brian Flowers published its seminal report on radiological hazards, at a time when the fortunes of the technology appeared to be on the wane. The Royal Commission noted that over the previous few years there had been signs of increasing anxiety in many countries about projected growth in nuclear power and the environmental risks that this might imply for the future. The early years of the development of civil nuclear technology in the 1950s and 60s had been marked by a public enthusiasm for new technology and the promise of cheap power, together with a general faith in science as a force for good. By the 1970s that faith was eroding and the environmental movement was gaining ground. Nuclear power was an obvious target for the growing green movement, epitomised by the 1975 yellow and red smiling sun logo—‘Nuclear Power? No Thanks’.1 The immediately following years provided little comfort to diminish the fears of the public as to the potential harm they perceived might be caused to them, their children and the environment, by ionising radiation. There were two serious nuclear accidents, at Three Mile Island, Pennsylvania in March 1974, and at Chernobyl near Kiev in April 1986. However, the memory of such incidents fades over time, and in the early years of the twenty-first century it may be that radioactivity has been replaced in the minds of the media and the public by global warming as the paradigm catastrophic environmental threat. The operation of the nuclear industry has, in the main, proceeded routinely and without major public concern in many countries for the last three decades, producing a significant proportion of the world’s energy.2 Whilst there are still very strong objections to the use of nuclear power, which have led some states to turn their backs on the continuation or expansion of a nuclear power programme, the political imperative of reducing greenhouse gas emissions, coupled 1 ‘Nuclear power’s history has been to be over-praised in its youth . . . and damned in its middle age.’ Donald N Zillman, ‘The Role of Law in the Future of Nuclear Power’ in Zillman et al (eds), Beyond the Carbon Economy: Energy Law in Transition (Oxford, Oxford University Press, 2008) 319. 2 Nuclear power provides about 15% of the world’s electricity, almost 24% in OECD countries, and 34% in the EU: see www.world-nuclear.org/info/inf16.html. See also Nuclear Industry Association, Nuclear Energy, Past, Present and Future available at www.niak.org. In the UK the figure is currently around 13%.

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2 Introduction with concerns over energy security, have led to a revival of interest in the development of new nuclear power facilities in Britain and elsewhere. Such a renaissance could, however, all too easily be curtailed by the occurrence of another serious nuclear accident. The maintenance of high levels of safety is therefore essential to the public confidence and democratic support necessary for an expanded nuclear programme.3 This subject is addressed in chapter four. It was clear to the Royal Commission in 1976 that one reason for the emotional reaction to radioactivity was its association with the purely destructive use of nuclear energy in the bombs which killed so many at Hiroshima and Nagasaki. As explained below, the development of nuclear reactors to generate energy from nuclear power was inextricably linked with, and indeed stemmed from, the drive to create an atomic bomb during the Second World War. The nature of potential adverse effects of ionising radiation adds a further layer of unease to the public perception: the fear of unseen forces that can deleteriously affect cells, promote birth defects and cause cancers (perhaps many years later) creates understandable fears in people’s minds. Radioactive substances may cause harm to living organisms if they are ingested or inhaled, or if they enter the body through a break in the skin. However, certain types of radiation—gamma radiation for example—can easily pass through matter, living or otherwise. Neutron radiation can penetrate matter to a considerable depth before being absorbed. Radiation may have the property of being ionising, a process whereby electrons are dislodged from atoms, creating positively charged atoms or molecules (ions) in the matter through which it passes. When ionising radiation passes through material it causes atomic and molecular structural changes releasing energy; the effect will depend upon how much energy is released into a given amount of material. Where the material in question comprises living cells, the disruptive effect may have serious consequences. These may occur to somatic cells, affecting the living organism itself, or to reproductive cells, potentially affecting offspring or descendants. Somatic effects may include damage to the digestive or central nervous systems, damage to skin, cataracts on the eyes, cancers such as leukaemia, or loss of fertility. Small exposures of reproductive cells to radiation may give rise to congenital problems, including birth defects or delayed cancers in the offspring. The question of liability for nuclear accidents and the insurance coverage of such events is dealt with in chapter six. There is also the environmental dimension to be considered. Nuclear power involves the creation of waste products of varying degrees of radioactivity, some of which will still present hazards thousands of years on. A further disturbing dimension, which resonates in the twenty-first century, but which the Royal Commission foresaw in the 1970s, is the possibility of the use of nuclear materials in acts of terrorism or of such acts being directed against nuclear facilities. Direct attacks on nuclear power stations may be guarded against; perhaps a greater threat is now the possibility of terrorist groups obtaining sufficient fissile material to construct a crude but effective weapon. The Royal Commission noted that the threat to explode such a weapon would constitute nuclear blackmail, and were ‘by no means convinced’ that the British government had realised the full implications of the issue.4 In a world which has been subject to the terrorist outrages and threats which have marked the first few years of this century, those implications are now all too obvious and frightening. 3

See Zillman, ‘The Role of Law in the Future of Nuclear Power’ (see n 1 above). Royal Commission on Environmental Pollution, 6th Report, Nuclear Power and the Environment Cmnd 6618 (1976) para 325 4

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Measurement and Radiological Protection 3 The safeguarding of radioactive material from illicit military or terrorist use is addressed in chapter eight. Few subjects are as capable as radioactivity is of generating lurid headlines. Yet radioactivity has enormously useful—indeed now essential—applications. As well as the generation of electricity from nuclear reactors, the medical and industrial uses of radioactive substances are of enormous benefit to society. It is therefore vital to have in place legal controls in which the public can have full confidence in regulatory controls to safeguard them against the risks which they fear, and to avoid serious, long-term or irreversible environmental consequences. These provisions are covered in chapter nine. Legislation on the safe use, transport and disposal of radioactive materials is a major focus of nuclear lawyers. This includes a number of aspects: safety regulation, securing and safeguarding fissile material from illicit use, the long-term management of waste products and spent fuel, and the establishment of systems to provide compensation in the event of a nuclear accident. In the UK, control over the keeping and use of radioactive substances and the accumulation, discharge or disposal of radioactive waste is provided by the Radioactive Substances Act 1993. The installation and operation of nuclear reactors and certain other types of nuclear apparatus are subject to licensing under the Nuclear Installations Act 1965. The same Act provides a system of compensation for injury and damage caused by nuclear occurrences at licensed sites. Both these major Acts are the subject of detailed commentary in this book. However, it may be helpful, in order to put that legislation into context, to consider in this first chapter, the historical circumstances of the development of nuclear power. Chapter two looks at the international dimension in outline, and chapter three at the role of the European Community.

MEASUREMENT AND RADIOLOGICAL PROTECTION The hazards of radiation may be measured in various ways according to the purpose of measurement and the requirements of various branches of science—resulting in a confusing variety of units which has been described as ‘une belle salade radioactive’. One method of measurement is simply the level of emitted radioactivity. The standard unit of measurement is the becquerel (Bq), defined as one emission of a particle (one transformation) per second. Another unit (now obsolete) is the curie, which is 37,000 million (37 billion) transformations per second, the radioactivity of one gram of radium. Such measures do not indicate the impact of the radioactivity, simply the amount. Other units may be used to describe the effects of radioactivity on living cells. One measure is the amount of radiation absorbed by the cells, that is the amount of energy deposited in relation to the amount of matter. This unit is the gray (Gy) which corresponds to the amount of radiation which will cause 1 kg of matter to absorb one joule of energy. The gray superseded as an international unit the rad (radiation absorbed dose), which equates to one-hundredth of a gray. This measure does not take account of the differing responses of cells and tissues to different forms of radiation. Alpha particles and neutrons will have a more disruptive effect on cells for the same amount of energy discharged; they are more ‘biologically effective’. The current unit for this purpose is the sievert (Sv), which replaced the rem in 1977. Doses for occupational purposes will often be expressed in millisieverts (mSv), that is one-thousandth of a sievert. The rem (Roentgen equivalent man) was introduced in 1954 by the International Commission on

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4 Introduction Radiological Protection (ICRP) to allow for the differing responses to exposure. To give some indication of the nature of the unit, a dose of 4 Sv over the whole body is likely to kill 50 per cent of adult recipients; the background, naturally-occurring, radiation to which people are typically exposed is 2 mSv per year. A dose of between 10 and 50 Sv will cause failure of the gastro-intestinal tract, extensive internal bleeding, and death within a few days. The adverse effects of radiation will also depend upon which part of the body is exposed. Very high doses of radiation can kill cells, but lower doses can prevent a cell dividing, or cause it to divide abnormally. The tissues that are most susceptible to such damage are those containing a high proportion of dividing cells; examples are bone marrow and intestinal, reproductive and fetal tissues. Another risk is the accumulation of radioactivity in bone structures; all inhabitants of the planet have small amounts of radioactive material in their skeletons as a result of fall out from past atmospheric atomic tests. The issue of radiological safety is discussed in detail in chapter seven of this book. Some radioactive substances are also extremely toxic, irrespective of their other hazardous properties. In its 1976 Report on ‘Nuclear Power and the Environment’,5 the Royal Commission on Environmental Pollution noted that an individual dose of ‘only a few milligrams’ of plutonium would be sufficient, if inhaled, to cause massive fibrosis of the lungs, and death within a few years (paragraph 322); it was the risk of this appallingly dangerous material falling into terrorist hands which led the Royal Commission to question the security measures necessary in a ‘plutonium economy’, and their potential repercussions for civil liberties. The issue of security of radioactive materials is dealt with in chapter eight.

EXPLORING THE ATOM It is salutary to compare the brief time span during which mankind has begun to understand the various possibilities of the atom, with the enormous timescales over which radioactive waste products will present hazards. The half-life of radioisotopes such as plutonium, americium and neptunium means that they could remain hazardous for ‘tens or hundreds of thousands of years’ (paragraph 384 of the Royal Commission Report). By contrast, it is still only a little over 100 years since the German physicist Wilhelm Röntgen discovered in November 1895 a new and strange radiation (X-rays)6 emitted from a cathode-ray tube. Forty years later in 1935, Lord Ernest Rutherford, the pre-eminent Cambridge atomic physicist, was reported in The Times, under the heading ‘The Neutron. Novel Transformations’, as having concluded that the ‘transformation of atoms . . . was a very poor and inefficient way of producing energy, and anyone who looked for a source of power in the transformation of the atoms was talking moonshine’.7 Within a decade this statement had been proven entirely wrong, such was the pace of atomic technology. Following Röntgen’s research on X-rays there was a flurry of scientific discovery. In 1897, the director of the Cavendish Laboratory in Cambridge, JJ Thomson, used the cathode-ray tube to demonstrate the existence of the electron, and verify the particulate theory of matter. In the meantime, the French physicist Henri Becquerel had, by experiments with uranium salt and photographic paper, observed the phenomenon of naturally occurring 5 6 7

Ibid. The name X-rays was conferred by Röntgen following the mathematical designation of X as an unknown. Quoted in Richard Rhodes, The Making of the Atomic Bomb (London, Penguin, 1986) 4.

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Exploring the Atom 5 radioactivity. Marie and Pierre Curie, working in their draughty attic laboratory, isolated the radioactive elements, polonium and radium, from the uranium ore, pitchblende. It was Rutherford who identified two different types of radiation, alpha and beta particles (the first being readily absorbed, the latter of a more penetrative character). A third type, high energy gamma radiation, was later discovered by the French scientist, PV Villard. Rutherford, working with Frederick Soddy, a young chemist, also observed the spontaneous transmutation of the natural radioactive element, thorium, into the non-radioactive elemental gas, argon. They thereby concluded that each different radioactive element had a characteristic half-life which governed its rate of decay or transformation into another element, or variant of the same element. Soddy coined the term ‘isotope’ to describe such variants. It was also discovered that such ‘radioactive change’ set free energy on a grand scale, although, at this time, the potential destructive power of such energy was the subject only of speculation by science fiction writers such as HG Wells. More immediately, attention focused on the medical applications of X-rays and radium; medicines containing radium were prescribed and ‘radium spas’ became popular in some parts of Europe. Research was continued by a number of exceptionally gifted young physicists during the 1920s—German universities, such as Göttingen, were particular centres of excellence in this regard8 together with Niels Bohr’s Institute for Theoretical Physics in Copenhagen. These were the so-called ‘beautiful years’ of research in the field of nuclear physics.9 Many key scientists such as Max Born, Leo Szilard and Enrico Fermi moved to London, Copenhagen or the US with the onset of antiSemitism in Nazi Germany and Fascist Italy, and in due course were to make a vital contribution to the development of the atomic bomb for the Allies.10 In 1932 James Chadwick, working in the Cavendish Laboratory at Cambridge, showed by experiments that the collision of alpha particles with the rare metal beryllium would release massive particles, which Chadwick named neutrons. Scientists in many countries began further experiments in bombarding various materials with neutrons, including uranium. Among them were Otto Hahn and Fritz Strassman, who in December 1938 conducted a chemical experiment (‘radium-barium-mesothorium-fractionation’) which split the uranium atom into lighter elements.11 Other important scientists were Hans Halban and Lew Kowarski who worked in the team led by Frédéric Joliot-Curie at the Collège de Paris. By 1939 they had established the possibility of nuclear chain reactions and nuclear energy production. In order to sustain a chain reaction, the released neutrons required to be slowed down or moderated. The use of deuterium, in the form of heavy water, as a moderator, allowed unenriched natural uranium to be used as the fuel source. The isotope deuterium had been discovered in 1931 8 Such universities and technical colleges were the powerhouse of German industrial technical advances in the chemical and engineering fields, which industries propelled Germany into world leadership and were ultimately suborned into the cause of militaristic Nazism: see Diarmud Jeffreys, Hell’s Cartel: IG Farben and the making of Hitler’s war machine (London, Bloomsbury, 2008). It is fortunate for history that atomic development did not form part of that infrastructure, though it is certainly the case that by the onset of World War II Germany was ahead of the US in the development of nuclear weapons: see RE Powaski, March to Armageddon: the United States and the nuclear arms race (New York, Oxford University Press, 1987). Strikingly, the main leaders in the field in pre-war Germany were Jewish and moved their research abroad as the anti-Semitic nature of Hitler’s regime became apparent. 9 See Robert Jungk, Brighter Than a Thousand Suns: A Personal History of the Atomic Scientists (San Diego, Harcourt Brace Jovanovich, 1958) 10 John Newhouse, The Nuclear Age: From Hiroshima to Star Wars (London, Michael Joseph, 1989) ch 1, ‘The Rivals’. 11 Hahn was suspected after the war of having worked on the Nazi nuclear energy project and was for a period interned near Cambridge. In fact he did not work on the programme and was a consistent opponent of the Nazi regime.

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6 Introduction and isolated as pure heavy water by an electrolysis process in 1934. The same year Norsk Hydro built the world’s first commercial heavy water plant at Tinn in Norway. With the threat of the Second World War, Norway agreed to loan its stocks of heavy water to the Collège de Paris, and it was secretly flown to France.12 In May 1940, when the Germans occupied Paris, Halban and Kowarski escaped to England, taking with them the supply of heavy water, a gramme of radium and their research papers. They continued their work at Cambridge. The degree to which that work had advanced has only recently been revealed, when papers sent by James Chadwick to the Royal Society for safe keeping were opened in 2007; they included an inventory of the various components needed to make a nuclear reactor or ‘boiler’, and described the process of producing plutonium, from uranium. They also forecast the reliance of a future nuclear industry on uranium.13 Those who discovered radioactivity were not long in realising that it had potentially harmful properties. First of all, radiation can burn. Becquerel suffered such a burn through carrying a vial of radium in his pocket. In 1903, Ernest Rutherford visited Marie and Pierre Curie in Paris; in their garden they demonstrated the brilliant luminosity created by radium, causing zinc sulphide to fluoresce. The resulting light was bright enough to show Rutherford Pierre Curie’s hands, ‘in a very inflamed and painful state due to exposure to radium rays’.14 Radium burns were also an unfortunate by-product of the early medical treatments with the substance. Next to emerge were the delayed adverse effects of exposure to radiation. One early example was the case of women employed in watch factories, making watches with dials made luminous by zinc oxide and radium. Through repeated licking of the brushes to achieve a fine point, a large proportion of the women suffered bleeding gums and anaemia, and later bone cancer. Another example was provided by the miners of uranium in mines such as the former silver mine at Joachimsthal, who were prone to Bergkranhheit, a form of lung cancer identified in the l930s as being caused by inadequate ventilation in the mines. This awareness of the dangers seemed to cause no great public concern at the time—as one commentator has written: ‘It was as if the controversy over radiation had an even longer latency period than the disease’.15

THE FIRST NUCLEAR REACTOR Enrico Fermi16 in particular was a vital figure in nuclear research. It was he who was responsible, in November 1942, for the construction of the world’s first nuclear reactor, assembled 12 The Norsk Hydro plant fell into German hands. It was seriously damaged and heavy water stocks were destroyed by Norwegian commandoes and local resistance in 1943, in Operation Gunnerside, possibly the most successful act of sabotage in the war. The plant was also the target of numerous Allied bombing raids, prompting an unsuccessful attempt to remove heavy water to Germany, which was thwarted by the sinking of the ferry carrying the material on Lake Tinnsjø. 13 royalsociety.org/news.asp?year=&id=6687. 14 Rhodes, (see n 7 above) 45. 15 Walter C Patterson, Nuclear Power, 2nd edn(London, Penguin, 1983) 105. 16 1901–1954. Born in Rome, Fermi is generally recognised as one of the most brilliant scientists of the 20th century. He won the Nobel Prize for Physics in 1938 for his work on neutron irradiation and his related discovery of nuclear reactions brought about by slow neutrons. In the early 1930s, as Professor in Atomic Physics at the University of Rome, he and his team had developed work on slow neutrons which was vital in paving the way for nuclear reactor science. Shortly after receiving the Nobel Prize, Fermi left Italy for the USA, mainly because of Mussolini’s anti-Semitic laws which were a threat to Fermi’s wife Laura, who was Jewish. He continued his work at Columbia University in New York and later at the University of Chicago.

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The Bomb 7 in a doubles squash court at Stagg Field, a sports-stand at Chicago University.17 The ‘pile’, as it was known, was constructed by teams of men working in shifts over 17 days, stacking layers of graphite and uranium on a wooden frame, with control rods consisting of cadmium sheet nailed to 13-foot wooden strips which had to be inserted and removed by hand. On 2 December 1942 the last control rod was painstakingly removed by six-inch increments, allowing a self-sustaining nuclear reaction to take place for 4.5 minutes. One description of this gigantic step in the development of nuclear power highlights the relationship between the new technology and legal responsibilities in an interesting way:18 For once Compton [Compton, the Nobel prize-winning experimental physicist who was a major coordinator of the atomic bomb project] made a quick decision; with control seemingly assured, he allowed Fermi to build CP-l [Pile Number One] in the west stands. He chose not to inform the President of the University of Chicago, Robert Maynard Hutchins, reasoning that he should not ask a lawyer to judge a matter of nuclear physics. ‘The only answer he could have given would have been—no. And this answer would have been wrong. So I assumed the responsibility myself.’ The word meltdown had not yet entered the reactor engineer’s vocabulary—Fermi was only then inventing that specialty—but that is what Compton was risking, a small Chernobyl in the midst of a crowded city, except that Fermi was, as he knew, a formidably competent engineer.

THE BOMB Fermi’s experiment was a vital stage in the Allied project to create the atomic bomb, and it was later in December 1942 that President FD Roosevelt authorised the ‘Manhattan Project’ which involved full-scale plants to produce enriched plutonium (near Hanford, Washington) and enriched uranium (Oak Ridge, Tennessee), as well as the huge research laboratories at Los Alamos, New Mexico. As is well known the project reached its culmination in the dropping of the uranium bomb ‘Little Boy’ on Hiroshima on 6 August 1945, which resulted in 200,000 deaths by 1950, either immediately, or from radiation-induced illness. ‘Fat Man’, a plutonium bomb, was dropped on Nagasaki on 9 August 1945, causing an ultimate total of 140,000 deaths. Under the Atomic Energy Act of 1946, also called the McMahon Act, control over research and production passed from the direct control of the US military to the independent, civilian controlled, Atomic Energy Commission. In the immediate post-war period, however, weapons production remained the priority, and gained added impetus after the Soviet Union tested its first atomic bomb in 1949. Between 1945 and 1953 President Harry S Truman, who had no knowledge whatsoever of the secret atomic project when he became President in 1945, instituted a massively increased programme, creating nine new facilities. The environmental legacy of this programme was dismal. It has been described as a ‘criminal contamination of the environment’, generating massive quantities of radioactive and hazardous wastes, routinely disposed of by dispersion into the environment, by leakage from tanks, or by burial, causing very extensive pollution

17 The money for the experiment—the first state funding for atomic energy—was provided by the Federal Government of Roosevelt, who had been alarmed by letters sent by Albert Einstein, warning of Hitler’s plans to try to develop an atom bomb. The location of the Pile in a squash court led to some confusion on the part of Russian intelligence, which reported that the experiment had been conducted in a converted pumpkin field. 18 Rhodes, (see n 7 above) 432–3.

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8 Introduction of aquifers over hundreds of square miles by radioactive isotopes.19 By and large these activities happened unregulated, and without any enforcement of such law as was applicable: an exception was the raid and investigation by the FBI and Environmental Protection Agency on the Rocky Flats plutonium production facility near Denver, in 1988, which led ultimately to the successful prosecution of the contractor operating the site, the Rockwell Corporation.20

DEVELOPMENT IN CANADA Canada has played, and continues to play, an important role in the nuclear world. It is the largest producer or uranium, in particular from its mines in northern Saskatchewan, accounting for over 20 per cent of world output in 2008.21 This activity dates back to the radium and pitchblende ore prospecting activities of the Eldorado Mining and Refining company in the Northwest Territories in the early 1930s and the enormous expanasion of mining which occurred in the post-war ‘uranium rush’ of 1946. Canadian uranium production is expected to increase significantly after 2011 as a number of new mines come into operation. In the early 1990s, the Saskatchewan government actively considered phasing out uranium mining in the province, a policy which was reversed after a joint FederalSaskatchewan study panel on health, safety, environment and socio-economic impact found that the jobs provided by the industry would be hard to replace and that the environmental impact of mining could be adequately controlled. Canada was a forerunner in developing medical and industrial isotopes, and remains the largest producer of widelyused isotopes such as Cobalt-60 and Molybdenum-90. During World War II a joint British-Canadian laboratory was set up in Montreal, under the control of the National Research Council of Canada, to develop a design for a heavy water nuclear reactor. A further test reactor, the Zero Energy Experimental Pile (ZEEP) was constructed at the Chalk River Nuclear Laboratories at Ontario. For some years the NRX nuclear research reactor at Chalk River, which came into operation in 1947, was the most powerful in the world, generating not electricity but neutrons which were used to produce radioisotopes. It also experienced one of the world’s first nuclear accidents in 1952 when there was a power surge and partial loss of coolant resulting in a partial meltdown and major damage to the reactor core.22 Further work at Chalk River was continued by Atomic Energy of Canada Limited (AECL), a Crown corporation formed in 1952 with the role of developing peaceful uses of nuclear energy. AECL developed its own successful technology, the Canada Deuterium Uranium (CANDU) design, using heavy water as the moderator. The first commercial CANDU reactor, Pickering A1, began operation in 1971, and together with the three other units at Pickering which came online by 1973 constituted the most powerful nuclear facility in the world in its day. 19 See David Kauzlarich and Ronald C Kramer, Crimes of the American Nuclear State—at Home and Abroad (Boston, Northeastern University Press, 1998) 107–11. 20 Ibid, 110. 21 www.world-nuclear.org/info/inf49.html?ekmensel=c580fa7b_702_736_318_8. 22 The incident in fact served to advance the knowledge of nuclear safety and provided an impetus to improved standards, eg, the need for reliable and fast shut-down systems, the need for trip mechanisms on rates of change in power, the importance of written and thoroughly-reviewed operational and experimental procedures, and the importance of human error factors.

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Post-war Development in the UK 9

POST-WAR DEVELOPMENT IN THE UK The position in the UK may be compared with that in the US. There are many parallels although, fortunately, these do not include in the UK environmental damage on the massive scale that occurred in the US. In the US the Atomic Energy Act of 1946 (the McMahon Act) imposed a strict ban on the sharing of nuclear technology with other states, including Britain, despite the fact that Britain had supplied personnel and know-how to the US Manhattan project to produce the atom bomb, and in ignorance of the secret Quebec and Hyde Park Agreements struck by Churchill and Roosevelt during World War II as to collaboration on nuclear programmes in peacetime.23 With the horrors of the Blitz still fresh in mind, a British bomb was seen as the only way of deterring a future atomic bomb attack on British cities. From 1946, the UK Government under Attlee began to fund research into atomic energy, although provision of information to Parliament on this expenditure was restricted by being concealed in Ministry of Supply vote figures. From 1946 to 1954, the responsibility for nuclear matters lay with the Ministry of Supply, an administrative relic of the Second World War. The Atomic Energy Act 1946 placed a general duty on the Minister of Supply ‘to promote and control the development of atomic energy’ (section 1) and he was given wide powers to do so, including compulsory acquisition. By section 10, the Minister of Supply was enabled to make orders prohibiting the use of uranium, thorium, plutonium, neptunium and any other prescribed substances, for the production or use of atomic energy, or for research into such matters. No orders were in fact ever made under the section. During the period until 1954, the Ministry developed nuclear energy for military purposes. It oversaw the establishment of the Atomic Energy Research Establishment at Harwell, and production facilities for plutonium and uranium at Windscale and Springfields. It also commenced the Calder Hall project, an installation which produced weapons-grade plutonium, with electricity as a by-product. Research into the design of the bomb and its method of detonation proceeded at Fort Halstead in Kent, and later at Aldermaston in Berkshire. By 1953 the first usable nuclear weapons—the huge ‘Blue Danube’ which were 20 feet long and five feet across—were in service at RAF Wittering in Rutland and moves were already afoot to authorise production of the vastly more deadly hydrogen bomb: marking what Churchill in his final speech to the House of Commons as Prime Minister, on 1 March 1955 called, ‘the hideous epoch in which we have to dwell’.24 A weapons programme required a reliable supply of weapons-grade enriched uranium. This was supplied by the gaseous diffusion plant at Capenhurst, which was originally the site of a Royal Ordnance factory, 25 miles from Risley in Cheshire. The construction of an enrichment plant was authorised by the Government in 1946, and the Capenhurst facility made its initial start up in February 1952. However, it was not until 1953 that it produced low enriched uranium, and 1954 before it produced highly enriched uranium. The production of highly-enriched uranium increased during the 1950s to supply the hydrogen-bomb programme,25 and continued until the end of 1961, after which the plant converted to 23

See Peter Hennessy, Having It So Good: Britain in the Fifties (London, Penguin Books, 2007) 144. Ibid, 312. Work began at Aldermaston in 1954 to develop a British thermonuclear fusion bomb, leading to the first tests in 1957–58, and ultimately to Britain being given access to US know-how and material under the 1958 Mutual Defence Agreement, whereby UK-produced plutonium was exchanged for US tritium and highly-enriched uranium over the period 1960–79 under so-called ‘Barter’ arrangements. 24 25

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10 Introduction low-enriched uranium production for civil reactor use. The original gaseous diffusion plant was dismantled in 1982, and a new gas centrifuge plant was built, called Capenhurst A3. Since 1993 Capenhurst has been operated under IAEA safeguards as a civilian fuel enrichment plant, by Urenco UK Limited.26

CREATION OF THE UK ATOMIC ENERGY AUTHORITY Following representations to Government that a new entity was needed to take responsibility for nuclear energy, a committee of inquiry was set up, the outcome being the creation of the United Kingdom Atomic Energy Authority (UKAEA) by the Atomic Energy Authority Act 1954. This Act constituted the Authority which, like its US counterpart, had very broad powers and was singularly unconstrained by Parliamentary or other controls, except in respect of weapons production or the searching for, or working of, minerals in the UK. The powers of the Authority under subsection 2(2) were as follows: (a) to produce, use and dispose of atomic energy and carry out research into any matters connected therewith; (b) to manufacture or otherwise produce, buy or otherwise acquire, store and transport any articles which in the opinion of the Authority are, or are likely to be, required for, or in connection with, the production or use of atomic energy or such research as aforesaid, and to dispose of any articles manufactured, produced, bought or acquired by them; (c) to manufacture or otherwise produce, buy or otherwise acquire, treat, store, transport and dispose of any radioactive substances; (d) to do all such things (including the erection of buildings, and the execution of works and the searching for and working of minerals) as appear to the Authority necessary or expedient for the exercise of the foregoing powers; (e) to make arrangements with universities and other institutions or persons for the conduct of research into matters concerned with atomic energy or radioactive substances and, with the approval of the Lord President of the Council and the Treasury, to make grants or loans to universities and other institutions or persons engaged in the production or use of atomic energy or radioactive substances or in research into matters connected with atomic energy or radioactive substances; and (f ) to distribute information relating to, and educate and train persons in matters connected with, atomic energy or radioactive substances.

The unique position of the Agency has been described in the following terms:27 The UKAEA was unlike any other agency in Britain. Its financial and administrative powers were substantial; its control by Parliament was limited and tenuous. It was financed by a direct ‘vote’ of public funds, under conditions that offered little opportunity for MPs to find out what would be 26 See www.urenco.com. URENCO was founded in 1971 following the entering into force of the Treaty of Almelo signed by the governments of Germany, the Netherlands and the UK and was incorporated as an English company in 1971. The Almelo Treaty establishes the fundamental principles for the supervision of URENCO’s enrichment operations. A Joint Committee, comprising representatives of the governments of the signatory countries, exercises this role but has no role in the day-to-day operations of the company. The Joint Committee considers all questions concerning IAEA and Euratom safeguards, as well as issues connected with changes in URENCO’s ownership and transfers of technology. 27 Walter C Patterson, Going Critical (London, Paladin, 1985) 4–5.

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Civil Nuclear Power: The Early Years 11 done with the money voted, either before or after it was spent. The very first estimate of the annual budget of the UKAEA put the sum likely to be required from Parliament at £53 million, at 1954 prices—a staggering sum to be found within an economy still trying to right itself after a devastating war.28

CIVIL NUCLEAR POWER: THE EARLY YEARS The original focus of the UK Atomic Energy Agency was intended to be weapons, but it has been described as; ‘Over the years . . . the Adam from whose ribs a number of different organisations have been created’.29 A number of these organisations related to the civil applications of nuclear energy. Shortly after the end of the war, the possibilities of civil applications of nuclear energy were being explored in Canada and in France. The first research reactor in the UK, at Harwell, began operating in 1949, and the two Windscale ‘Piles’ began their production of plutonium in 1950 and 1951. These facilities were not intended to produce electricity, but rather the raw material for nuclear weapons.30 However, it was decided that the next generation of plutonium-producing reactors should be capable of producing electricity, leading to the construction of such prototype facilities (which were still also military in purpose and predominantly so in their early years of operation) at Calder Hall near Windscale (opened by the Queen in 1956, shut down in 2003)31 and Chapelcross in Dumfries and Galloway (opened in 1959, also shut down in 2003). One of the Agency’s first acts in respect of civil nuclear power was to assist in the formulation of a White Paper published in 1955, A Programme of Nuclear Power.32 The White Paper, with the benefit of hindsight, appears wonderfully optimistic about the future of nuclear energy, describing it as ‘the energy of the future’ (paragraph 1) and suggesting that a large nuclear power station might take as much as ‘five or more years to complete, including finding the site, designing the station and building it’ (paragraph 3). The programme proposed by the White Paper was for a number of nuclear power stations, generating 1,500 to 2,000 megawatts, to be ordered by 1965. These power stations were to be of the Magnox design used at Calder Hall—so called because of the magnesium alloy used to clad the uranium fuel-rods. Five consortia were set up, each led by a major manufacturer of heavy electrical plant, to construct the power stations. Contracts for the first Magnox power stations went to various of these consortia: Berkeley, Gloucestershire and Bradwell, Essex to be constructed for the Central Electricity Authority (later the Central Electricity Generating Board CEGB); and Hunterston, Scotland for the South of Scotland Electricity Board (SSEB). The Suez crisis of 1956 added considerable impetus to the nuclear programme.

28 It is hard to overestimate the importance of the nuclear issue in the minds of British Prime Ministers in the post war decades of the 1940s and 50s: see eg, Peter Hennessy, ‘The H-Bomb and the Search for Peace’ ch 7 in Having It So Good (see n 23 above)) . As Hennessy points out, a place among the world nuclear powers and the willingness of the US to share its nuclear secrets with the UK carried a very large ‘entrance fee’ which the country could ill afford: ibid, 580–82. 29 Cmnd 6618. 30 Windscale had previously been a World War II Royal Ordnance factory, producing TNT. 31 Whilst Calder Hall was the first nuclear power station in the world to produce electricity in commercial quantities, its dual function was demoted by its UKAEA code-name ‘PIPPA’ (Pressurised Pile Producing Power and Plutonium). 32 Cmnd 9389 (1955).

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12 Introduction However, as in the US, the economics of nuclear power remained dubious when compared with increasingly efficient fossil-fuel power stations. Lack of orders led to a gradual consolidation among the five consortia, ultimately into two: The Nuclear Power Group (TNPG), and British Nuclear Design and Construction (BNDC). Nine commercial Magnox stations,33 each generally comprising a pair of reactors of around 200 megawatt capacity each, were built in all by the CEGB and SSEB—the last at Wylfa in Anglesey being much larger with 2 x 600 megawatt capacity—but the limitations of the design in terms of efficiency34 and the cost of materials meant that attention turned to new designs. A commercial competition for new designs followed the 1964 White Paper, The Second Nuclear Power Programme, leading to the selection of the Advanced Gas-Cooled Reactor (AGR) design,35 Orders were placed for a number of AGR stations during the late 1960s, and the OPEC oil embargo and oil price crisis of the early 1970s added to the desire for new capacity. Ultimately, AGRs were built at seven sites.36 However, this was a troubled period of delayed projects, serious technical problems, and financial difficulties for the participants of some consortia. Whilst the AGR design offered very high efficiency, each pair was of a unique design, giving rise to a lack of standardisation and to operational problems: as Sir Arthur Hawkins, a former Chairman of the CEGB is said to have remarked, ‘The scientists never allowed their babies to grow up’.37 The other type of reactor built in the UK during the 1970s was the sodium-cooled fast breeder reactor, designed to produce more fissile material than it consumes, hence breeding fuel. The UKAEA also constructed and operated two such reactors at Dounreay Nuclear Power Development Establishment in Caithness. The first, the Dounreay Fast Reactor, became operational in 1959 and was shut down in 1977. The second, the Prototype Fast Reactor, became operational in 1974 and closed when the research programme was cancelled in 1994. Both supplied power to the National Grid. In 1971, the AEA was split into three parts by the Atomic Energy Authority Act 1971. Part of the Authority’s undertaking was transferred to British Nuclear Fuels Limited (BNFL) (section 1) which took over all fuel-service activities, namely uranium processing at Springfields, fuel enrichment at Capenhurst, and fuel reprocessing and plutonium manu33 These were (excluding the UKAEA Magnox prototypes at Calder Hall and Chapelcross): Berkeley (1962, shut down 1989); Bradwell (1962, shut down 2002), Hunterston A (1964, shut down 1989), Hinkley Point A (1965, shut down 1999), Trawsfynnydd (1965, shut down 1991), Dungeness A (1966, shut down 2006), Sizewell A (1966, shut down 2006), Oldbury (1968, planned for shut-down in 2010) and Wylfa (planned for shut-down in 2010). 34 A problem was that the design of the Magnox stations evolved over time, leading to higher maintenance costs because of lack of standardisation. The early versions had steel pressure vessels, whereas later units (Oldbury and Wylfa) were of reinforced concrete and operated at higher pressures. The lack of any standard plant design was in part due to the fact that no single British construction company at the time was large enough to undertake multiplant construction. The on-line refuelling equipment which was perceived as an advantage of the Magnox design also proved less reliable than expected. A further problem emerged after the 1957 Windscale fire. Research undertaken into reactor instability after that incident led to the practice of deliberate introduction of trace quantities of methane into the reactor, to reduce radiation induced damage to the core. This, however, in turn had the effect of corroding the steel reinforcement in the core, leading to need for substantial derating of the plants by 20% of their capacity. 35 A prototype AGR was built at Windscale in 1962 and operated until its shut-down in 1981. (The ‘golf-ball’ structure of the AGR is, along with the Pile chimneys, one of the iconic buildings of the Windscale site). AGR stations used an enriched ceramic fuel rather than natural uranium metal, which was intended to increase efficiency, reducing the amount of fuel required and waste generated per unit of electricity. 36 These were: Hinkley Point B (1976, due to close 2016), Hunterson B (1976, due to close 2016), Dungeness B (1983, due to close 2018); Hartlepool (1983, due to close 2014); Heysham 1 (1983, due to close 2014), Heysham 2 (1988, due to close 2023) and Torness (1988, due to close 2023). 37 Ian Jackson, Nukenomics: the Commercialisation of Britain’s Nuclear Industry (Kent, Nuclear Engineering International Special Publications, 2008) 8.

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The Pressurised Water Reactor Stations 13 facture at Windscale. The activities included, as had those of the Authority, the provision of weapons-grade plutonium for defence purposes. Section 2 of the 1971 Act transferred another part of the Authority’s undertaking to The Radiochemical Centre Limited (TRCL), which manufactured and sold radioisotopes for use in industry and medicine and which was subsequently privatised as Amersham International plc. The shares of both BNFL and TRCL were held by the Authority. The third aspect of the Authority’s work, the manufacture of nuclear weapons at Aldermaston, Berkshire, passed to the Ministry of Defence. The two remaining commercial consortia for nuclear power station construction, TNPG and BNDC, were amalgamated in 1973, somewhat against their will. The National Nuclear Company (NNC) was created, with a minority Government shareholding; NNC in turn held all the shares in the Nuclear Power Company (NPC), which shared out construction and design activities. Fifteen per cent of shares in NNC were held by the Authority, 35 per cent by British Nuclear Associates (a group of seven companies which had been involved in the old consortia) and 50 per cent by General Electric Company (GEC). These shareholdings were subsequently adjusted, GEC reducing its stake. The 1970s were a difficult time generally for nuclear power in the UK. There was the hard-hitting Royal Commission Report (the ‘Flowers Report’) in 1976, then problems with the construction of AGRs, and subsequently the abandonment in 1978, after much effort and expenditure, of the proposed steam generating heavy water reactor (SGHWR). An indication of the lack of activity is provided by the fact that Heysham B AGR, when the contract between the CEGB and NNC was signed in 1981, represented the first contract for a new station that NNC had received since it had been set up in 1974, and the first order for a nuclear power station by the CEGB since 1970.

THE PRESSURISED WATER REACTOR STATIONS A new chapter for nuclear power in Britain began in 1983 with the proposal to construct a pressurised water reactor (PWR) at Sizewell B in Suffolk.38 Consent was given following a mammoth public inquiry of extremely wide-ranging scope, a decision which probably prevented the break up of the UK nuclear plant design industry.39 The PWR design used for Sizewell B followed that adopted in the US and in France, and involved collaboration between the CEGB and the US Westinghouse Corporation. The proposal was approved40 and the station is still operating. Further proposals followed, and consent was granted for a further nuclear power station at Hinkley Point C.41 Subsequently, Nuclear Electric applied for a site licence for Sizewell C, a twin-reactor near-replica version of Sizewell B. However, in December 1995, it was announced that Nuclear Electric would not be proceeding with 38 The Magnox and AGR technologies had relied on gas as the cooling agent, whereas the predominant technology in the world is cooling by water. Two Magnox stations were constructed elsewhere, in Japan at Tokai Mura and Italy at Latina, both now decommissioned. Otherwise, however, the UK was isolated from the mainstream approach of using pressurised water reactors (PWR) or boiling water reactors (BWR). PWRs were originally designed in the USA for use in propelling submarines, and have advantages over BWR in terms of their stability in that power output naturally decreases as the temperature rises, in contrast to the boiling water RBMK design used at Chernobyl. 39 O’Riordan, Kemp and Purdue, Sizewell B—An Anatomy of the Inquiry (London, MacMillan Press, 1988) 19. 40 See, The Sizewell B Public Inquiries—A Report by Sir Frank Layfield QC (London, HMSO, 1987). 41 See, The Hinkley Point Public Inquiries—A Report by Michael Barnes QC (London, HMSO, 1990).

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14 Introduction either Sizewell C or Hinkley Point C. The reason advanced was that the future of UK energy prices was not sufficiently certain for the investment to take place in the short term, and that the priority should be to concentrate on privatisation of the industry in 1996. The Sizewell C project would have cost about £3 billion, and Hinkley Point C about £1.9 billion; some commentators suggested that the real concern was the possible reaction of the City to such investment, coupled with overcapacity in the electricity market. Some analysts expected British Energy (the holding company of Nuclear Electric and Scottish Nuclear) to diversify into cheaper gas-fired generation plant after privatisation.

NUCLEAR REPROCESSING AND FUEL SERVICES During the operation of a reactor, the fissile content of the nuclear fuel changes. Such fuel is irradiated and at some stage must be replaced so that a chain reaction can be maintained. The effective life of nuclear fuel in a reactor depends upon the reactor type, the nature of the fuel and the cladding material. Irradiated fuel, removed from a nuclear reactor, is intensely radioactive and capable of generating high temperatures. All irradiated fuel is cooled prior to reprocessing, some of it in water-filled ponds. Following either treatment the irradiated fuel is in a state in which it may be reprocessed. It consists of a mixture of unused uranium, plutonium and other elements formed by transmutation and fission products. The original object of the first reactors at Windscale was to produce plutonium for nuclear weapons, and methods were developed for it to be extracted chemically from irradiated fuel. The extraction of plutonium is still an important reason for reprocessing nuclear fuel; however, there are other reasons, such as the recovery of uranium for recycling, and to facilitate management of the waste by reducing its volume. The design of the fuel for the earliest generation of UK Magnox reactors meant that the magnesium alloy cladding was chemically reactive and required reprocessing rather than indefinite storage. The reprocessing itself involves relatively simple chemical processes, but these are complicated by the radioactive nature of the materials, and by the precautions necessary to avoid a state of criticality or uncontrolled reaction. The reprocessing facilities at Windscale were expanded significantly during the l960s to accommodate the needs of fuel reprocessing for the Magnox reactors.42 Additionally, the Atomic Energy Authority as operator was beginning to provide a variety of fuel services, that is fuel manufacture and uranium enrichment and reprocessing, to a number of foreign customers. In 1965, the fuel service activities of the AEA moved onto a commercial basis, with separate accounts and a ‘trading fund’. Together with the AEA’s small reprocessing plant at Dounreay in Northern Scotland, Windscale took fuel for reprocessing from such countries as Japan, Italy, Canada, Denmark and Germany. On the break-up of the AEA in 1971, BNFL took over the fuel service operations of the Authority at Windscale,43 together with the uranium and fuel manufacturing plant at Springfields, Lancashire, the centrifuge enrichment plant at Capenhurst, Cheshire and the Calder Hall and Chapelcross reactors which served the dual purpose of producing weapons 42 This was the so called ‘Purex’ process of plutonium uranium extraction, using tributyl phosphate as an agent, and producing uranium, plutonium and fission product output streams. 43 The site was originally known as the Windscale and Calder Works, but was renamed Sellafield in 1981 as part of a major reorganisation of the site.

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Nuclear Reprocessing and Fuel Services 15 materials and generating power. BNFL was a limited company wholly owned by the British Government, and became a public limited company in 1984. During the first half of the 1970s, potentially serious difficulties caused the long-term shutdown of some of the reprocessing facilities, leading to a worrying accumulation of spent fuel awaiting reprocessing.44 At the same time, attention was turning to the reprocessing needs of fuel from the newer AGR stations; this fuel was made of ceramic uranium dioxide which is more durable than uranium metal. Additionally, AGR fuel could be irradiated for a longer time and so could become more radioactive than an equivalent mass of Magnox fuel. BNFL began to formulate plans for an oxide reprocessing plant to service those UK power stations using oxide fuel, and also Japanese and other overseas nuclear power stations. This led to the coining of the term ‘radioactive dustbin’ by Friends of the Earth, and later in the same year the lurid article and headline in the Daily Mirror of 21 October 1975: ‘Plan to Make Britain World’s Nuclear Dustbin’. At the opposite extreme of the spectrum of academic reputability, the 1976 Sixth Report of the Royal Commission on Environmental Pollution, ‘Nuclear Power and the Environment’,45 voiced serious doubts as to the dangers and civil liberties implications of the creation and transport of plutonium. BNFL’s application for the construction of these new processing facilities at Sellafield was considered by the local planning authority, Cumbria County Council, in 1976; by November, the planning committee of the Council announced that they were minded to approve the application subject to suitable planning conditions. It appeared at first that the Secretary of State for the Environment, Peter Shore, would not call in the application for his own determination; however, he announced his intention to do so on 22 December 1976. The inquiry into the Thermal Oxide Reprocessing Plant (THORP) was held in 1977, chaired by the High Court judge, Sir Roger Parker, and is generally known as ‘The Windscale Inquiry’. The Inquiry was given wide terms of reference and examined policy matters of safety, national interest, and nuclear proliferation. The Report of the Inquiry was published in 1978.46 The Report supported the construction of THORP and dismissed the various objections with little discussion. A novel procedure was developed to deal with the Report’s findings. The Secretary of State announced that he would formally reject the application, though he found the Report completely persuasive; there would then be a Parliamentary debate on the Report, following which he would lay before Parliament a Special Development Order authorising construction, which would in turn be debated. Ultimately, the matter was voted on in division, and in both votes the proposal was approved, though with significant numbers of votes against, from across the political spectrum. The THORP project, approved in 1978, was intended to be in operation by the late 1980s, an assumption which proved to be wholly optimistic. Two particular matters gave rise to concern about its ultimate viability—one was the possibility of long-term dry storage of oxide fuel as an alternative management strategy, the other was an increase in the supply of uranium from new mines, leading to a drop in price. Detailed planning permission was eventually applied for and obtained by BNFL in 1983, and construction work began. The project was subject to further legal controversy at the stage of authorisation for the discharge of radioactive wastes as liquid and gaseous effluents from the reprocessing plant, with challenges to the relevant decisions brought by Greenpeace in judicial review actions. 44 45 46

Patterson, (see n 27 above) 102–3. Cmnd 6618. The Windscale Inquiry—A Report by Sir Roger Parker (London, HMSO, 1978).

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16 Introduction These proceedings, and the legal issues raised, are discussed in detail in the context of justification of practices elsewhere in this book. The plant finally went into operation in August 1997, but has not had a happy history. In May 2005 it was announced that the plant had suffered a large leak of 83,000 litres of the radioactive nitric acid solution used to dissolve the used fuel rods, which had gone undetected since August 2004 and had escaped into the secondary containment.47 The incident was classed as Tier 3 (Serious Incident) on the International Nuclear Event Scale. The operator, British Nuclear Group Sellafield plc, was fined £500,00048 and the plant was closed until after the Nuclear Installations Inspectorate gave consent in January 2007 allowing it to restart.49 A further development was the Mixed Oxide (MOX) plant, built to accommodate the wishes of many customers to have the plutonium which is separated from spent fuel during reprocessing returned in a form usable as fuel. MOX fuel is a blend of plutonium and natural or depleted uranium, which can be used as an alternative to conventional fuel, and provides a means of utilising weapons grade plutonium from former military uses. The MOX plant was also the subject of legal controversy, with justification not being achieved until 2001, some four years after the plant’s completion. Output since the MOX plant began operating has been disappointing: figures presented to Parliament in 2009 showed that it had produced only 6.3 tonnes of fuel in seven years of operation, having cost £637 million to build and commission and £626 million in operating costs50—a situation described by Geoffrey Lean in The Independent as ‘one of the most comprehensive and catastrophic failures in British industrial history’.51 Other important facilities at Sellafield are the Windscale Vitrification Plant (WVP), opened in 1991, which seals high-level radioactive waste in solid glass, and the Enhanced Actinide Removal Plant (EARP), which was opened in 1994 and which removes radioactive components from liquid effluent before its discharge to sea. The site is no stranger to controversy and sensational incidents. The 1957 fire in Windscale Pile Number 1, which almost had catastrophic effects is described later in this chapter. The large leak at the THORP plant in 2004–05 is referred to above. There have been recurrent complaints from Ireland and Norway about radioactive contamination of the Irish Sea and wider marine environment by discharges from the site, which are covered in chapter twelve. In 1983 there was adverse media coverage after closure of extensive areas of beach near the plant following after discovery of elevated levels of radioactivity; Greenpeace protestors monitored radioactivity levels in the sea water and, having discovered what they claimed to be a slick of contamination, attempted to block discharge pipes from the site. As a result of the Yorkshire Television documentary, ‘Windscale: The Nuclear Laundry’ shown on 1 November 198352 there was considerable further public

47

See ENDS report 365, June 2005, 10–11. Passing sentence, Openshaw J described the lack of detection for a period of eight months as a ‘a serious failing deserving of condemnation’: see the transcript of his sentencing remarks of 16 October 2006 available at www.greenpeace.org.uk/MultimediaFiles/Live/FullReport/8066.pdf. He also referred to Sellafield, by reason of its ‘huge scale, its nature and its complexity’ as ‘the most significant and potentially the most hazardous nuclear site in this country’ and to ‘the unique dangers presented by nuclear material’. 49 See www.hse.gov.uk/nuclear/thorp.htm; Report of the Investigation into the leak of Dissolver product Liquor at THORP, Sellafield available at hse.gov.uk/nuclear/thorpreport.pdf. 50 Daily Telegraph, 7 April 2009; Hansard HC Written Questions, col 1368W (2 April 2009). 51 9 March 2008. 52 The film investigated past and present reprocessing operations and suggested an unexplained level of cancer in children the nearby village of Seascale. The associated litigation with Mr Merlin, a local resident, over alleged contamination of his property is dealt with in ch 6. 48

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Radioactive Waste Management 17 concern.53 In 1999 there was an investigation by the Nuclear Installations Inspectorate into falsification of quality assurance data in relation to the small-scale MOX Demonstration Facility, which led to compensation having to be paid to a Japanese customer, and to BNFL having to take back a shipment of MOX fuel from Japan (as well as the subsequent resignation of BNFL’s Chief Executive).54 In 2005, it was reported that over 29kg of plutonium was unaccounted for at the Sellafield reprocessing plant, though this was explained as a paper, rather than a real, discrepancy. In 2007, there was litigation between British Nuclear Group (BNG) and its German utility customers who challenged the ability of BNG to pass through expenses for repairs and storage fees incurred in consequence of the 2005 leak mentioned above.55 Perhaps most bizarrely, 2007 saw the commencement of an inquiry chaired by Michael Redfern QC into the removal of tissue, including bones and body parts, from the bodies of some 65 deceased nuclear employees between 1962 and 1991, in some cases it appeared without permission of their relatives.

RADIOACTIVE WASTE MANAGEMENT A key legacy of the use of nuclear or radioactive material is the generation of radioactive waste. The identity of the elements in this waste will determine the half-life of the various components and, because some radionuclides have a very long half-life, provision for isolation of some radionuclides for unimaginable lengths of time needs to be incorporated in any effective waste management programme. At present, the process by which isolation can be achieved most effectively has yet to be successfully demonstrated in practice, but the industry believes that options exist and research on those options continues. The issue of radioactive waste management is, of course, a highly emotive one. The Royal Commission on Environmental Pollution, in its Sixth Report in 1976,56 was firmly of the view that there should be no commitment to a large programme of nuclear fission power until it had been demonstrated beyond reasonable doubt that a method existed to ensure the safe containment of long-lived, highly radioactive waste for the indefinite future (paragraph 33). That remains a live issue as expansion of the nuclear power programme is currently being considered in the UK. The legal and policy issues relating to radioactive waste disposal are dealt with in detail in chapter twelve. Various financial arrangements have been tried to establish funds for decommissioning in respect of the legacy of the past nuclear programme, but what is clear is that for new plant there will be a requirement for detailed and costed plans for decommissioning, waste management and disposal before construction can begin.

53 The film led to the setting up of a Committee of Enquiry under Sir Douglas Black, a former President of the Royal College of Physicians, and in turn to the creation of COMARE (the Committee on Medical Aspects of Radiation in the Environment) which is discussed further in ch 7. See Malcolm C Grimston, ‘Leukaemia and Nuclear Establishments: Fifteen Years of Research’ in (eds) Jeffery Lewins and Martin Becker, Advances in Nuclear Science Technology, Vol 26 (New York, Kluwer Academic/Plenum Publishers, 1999). 54 ENDS Report 301, February 2000. 55 See ‘Germans’ writ clouds BNG privatisation’ (The Guardian, 19 January 2007). 56 Cmnd 6618 (1976).

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18 Introduction

PRIVATISATION OF THE NUCLEAR ENERGY INDUSTRY The Government’s intention to privatise the electricity supply industry in the UK was announced in the 1988 White Paper, Privatising Electricity.57 The original intention was for nuclear power stations to be privatised along with the fossil fuel stations. This decision was taken against the background of the Government’s view that the existing nuclear stations should continue to operate in the interests of diversity of supply and reduction of polluting emissions. Furthermore, the cost of continued generation was low compared with the high ‘back end’ costs, including the cost of spent fuel reprocessing, radioactive waste management and disposal, and decommissioning. However, it soon became apparent that potential investors in a privatised nuclear industry were seriously concerned on various counts, including the ‘back end’ costs referred to above, the relatively poor performance of some AGR stations, and the costs of financing the number of new PWR power stations which at that time were proposed. A report of the National Audit Office in June 1993 drew attention to the high costs of decommissioning old nuclear power stations and other facilities (estimated at some £18 billion), and cast doubt on the adequacy of financial provision being made. Advice to the Government was that potential investors would be unwilling to take on the risks associated with those issues in the absence of unprecedented guarantees and underwriting by the Government. The Government’s judgment was that the provision of such guarantees would not be in the interests of taxpayers, and in November 1989 it was announced that the Government would retain all UK nuclear power stations within the public sector, in a decision described at the time by some commentators as a ‘humiliating withdrawal’.58 The nuclear power stations operated by the CEGB were accordingly vested in a new company, Nuclear Electric, and the SSEB stations were vested in Scottish Nuclear. Following this setback, arrangements were put in place to secure the short-term position of the existing nuclear power stations. In England and Wales, this took the form of the non-fossil fuel obligation (NFFO), orders made under the Electricity Act 1989 by the Secretary of State requiring public electricity suppliers to contract for specified amounts of generating capacity from non-fossil fuel sources, including nuclear power.59 Regional electricity companies (RECs) fulfilled this obligation by contracting with Nuclear Electric for all its capacity and output to 1998. The additional costs incurred by the RECs in meeting this obligation (which was later applied not only to nuclear power but also to various renewable sources) was reimbursed through the fossil fuel levy, charged as a fixed percentage of the value of electricity produced and sold in England and Wales. In relation to Scotland, these arrangements took the form of the Nuclear Energy Agreement (NEA) between Scottish Nuclear and the two Scottish public electricity supply companies; by this agreement, Scottish Nuclear was required to sell all its output to Scottish Power and Hydro-Electric, who were required to take that output. The NEA covers the period up to the year 2005. Both Nuclear Electric and Scottish Nuclear were underwritten by the Government, by way of arrangements in respect of funds required to meet their nuclear liabilities as they fall due, and which these companies would not otherwise have been able to provide. 57

Cm 322 (1988). The Independent, 10 November 1989. 59 See John Surrey (ed) The British Electricity Experiment: Privatisation, the Record, the Issues, the Lessons (London, Earthscan Publications, 1996) 143–5. 58

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Privatisation 19 The Government accepted the view of the industry that it would not be practicable to privatise the nine old Magnox stations, essentially because they would not generate enough cash over their remaining lifetime to meet the accrued liabilities for spent fuel reprocessing, nuclear waste disposal, and decommissioning. The Government’s intention had been to transfer full responsibility for the Magnox stations and their associated liabilities to BNFL, in order to benefit from vertical integration within BNFL’s existing Magnox fuel cycle activities. However, BNFL made it clear to the Government that it would not take the Magnox stations without proper financial provision for decommissioning and other liabilities; the Government therefore reorganised the Magnox stations into a stand-alone company, Magnox Electric, to remain state-owned at least for the time being. The liabilities of Magnox Electric were estimated at some £8 billion. The intention was that after privatisation of the nuclear industry the Magnox stations would be transferred to BNFL, subject to agreement on financial arrangements. By contrast, the Government believed that privatisation of the AGR and PWR stations was viable, and would bring significant benefits to the nuclear industry, taxpayers and electricity consumers. The intended way forward was to create and then privatise a single holding company with Nuclear Electric and Scottish Nuclear as wholly-owned subsidiaries. It was subsequently announced that the holding company’s name would be British Energy plc, with headquarters in Edinburgh. Doubt as to whether the sale would in fact take the form of a flotation emerged in February 1996, when it was revealed that the Government had been in discussion with the US nuclear operator, Duke Power, as to a possible trade-sale of the assets. However, privatisation was in fact taken forward in 1996. The many significant concerns about the industry on issues such as the condition of existing plants (even having removed the older Magnox plants from the equation), reprocessing and long-term fuel management and decommissioning costs, meant that this was always going to be a problematic privatisation. The offer prospectus for British Energy was published on 26 June 1996, indicating an unprecedented wide range of values for the company, from £1.26 to £1.96 billion—reflecting the pricing difficulties involved and contrasting with the £2.6 billion which the Government had in 1995 anticipated that the privatisation would raise. Both the main and pathfinder prospectuses referred to the possibility of economic performance being affected by tighter regulation. The general perception of investment advisers was that the company would be a good investment in the short-term, but with somewhat uncertain long-term prospects. The long-term uncertainty related to the absence of any plans for expansion of the nuclear power industry and the forthcoming costs of decommissioning. In the medium-term the outlook for electricity prices, and their implications for profitability, were also regarded as important. There appeared to be greater interest amongst private investors in the offer than within the financial institutions. Closing of the public offer on 10 July 1996 coincided with the shutdown by British Energy, for safety reasons, of Hinkley Point B and Hunterston B reactors to check for weld cracks, an irony not lost on the press, and one prompting a Stock Exchange investigation as to whether any announcement was necessary. A few days later it was suggested that difficulties had also been encountered with leaks in fuel pins at the Sizewell B reactor. By 15 July, shares were priced at 203p, valuing the company at £1.4 billion, less than half the cost of building Sizewell B. The value of shares fell sharply in trading on their first day, described by the Financial Times (16 July 1996) as ‘the worst debut by a newly privatised company in nearly a decade’. British Energy subsequently confirmed the

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20 Introduction safety of the reactors at Hinkley Point B and Hunterston B, following which the share price improved somewhat. The unfortunate episode however served to illustrate the volatility of share prices in the industry in response to output and safety issues. The extraordinary story of British Energy plc following privatisation, culminating in the board’s announcement in September 2002 that the company had run out of cash and faced insolvency, has been related in detail elsewhere.60 The Government provided emergency funding to the tune of £450 million, the company’s finances were restructured with creditors’ claims converted into equity, and the company re-listed on the Stock Exchange following approval of the restructuring by the High Court in Scotland. To an extent the matter is history, but it provides important lessons on the causes of failure, such as the approach to funding future decommissioning costs, which will need to be addressed in any programme for an expanded and privately-owned civil nuclear industry. Despite efforts by Government at the time to reassure investors that the Government saw a long-term and essential role for nuclear power generation,61 it was also extremely damaging in affecting the confidence of the markets for investment in the nuclear field, given the very heavy losses incurred by shareholders in the original company. Shares in British Energy fell to 5p a share in December 2002, whilst following re-listing they rose to £7.60 on the back of high electricity prices. In September 2008, British Energy accepted a £12.5 billion takeover bid from Electricité de France (EDF). The attraction for EDF was not the existing power stations owned by British Energy, but the sites which it owns where new plants could be built. The bid was fully endorsed by the UK Government, as owner of around 35 per cent of the equity, on the basis that it provides the best chance for the construction of new plant. However, there were serious issues of competition arising from the control of the total nuclear energy generation capacity by one company which is also an energy supply company. The terms of approval of the European Commission for the takeover, given in December 2008, included the sale by EDF to competitors of land for potential new plant at either Dungeness or Heysham, plus the sale of two fossil-fuel power stations. The takeover was completed in January 2009.

PRIVATISATION AND NUCLEAR LIABILITIES Privatisation of nuclear power generation raised the issue of long-term nuclear liabilities in relation to the AGR and PWR power stations, estimated at about £6 billion at that time. The Government’s expressed aim was to ensure that privatised companies will meet these, and all other obligations, in full. So long as nuclear generation remained in public ownership the creation of a segregated fund to meet nuclear liabilities would provide no additional assurance. However, the licensing of private sector nuclear operators raised starkly the question of assured availability of funds to meet long-term liabilities. The Government’s view was that adequate assurance in this respect could be achieved by means of creating segregated funds, and that the detailed implications of such an approach should be considered 60 See the excellent account in Simon Taylor, Privatisation and Financial Collapse in the Nuclear Industry: the origins and causes of the British Energy Crisis of 2002 (London, Routledge, 2007). 61 See the statement by Energy Minister Brian Wilson reported in The Times, 26 August 2002.

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Privatisation and Nuclear Liabilities 21 as privatisation progressed. The Government indicated in evidence to the Commons Select Committee on Trade and Industry in November 1995 that a funding company would be created, owned by an independent trust, operated by actuaries, and working under contract with the privatised nuclear companies. Money provided by the nuclear companies was to be invested by the trust company, subject to actuarial advice and used to cover the decommissioning costs of the nuclear power stations then owned by British Energy. The fund would not, however, cover the cost of reprocessing accumulated spent fuel, or the longterm management of nuclear waste. The Government subsequently announced that the fund, named the Nuclear Generation Decommissioning Fund, would be set up as from 31 March 1996. In March 1996, it was announced that British Energy would contribute a lump sum of £225 million into the fund, topped up by payments of £15 million a year for the next 30 years. Subsequently, in responding to the Commons Select Committee Report, in May 1996, these figures were revised to an initial contribution of £232 million and an annual contribution of £16 million over 40 years. The fund was vested in The Nuclear Trust, a public trust under Scottish law,62 established by a trust deed between the Secretary of State, British Energy and the five trustees. Its obligations were set out in the Nuclear Decommissioning Agreement of 29 March 1996. When British Energy had to be restructured following its near financial collapse, this Agreement was replaced by a Contribution Agreement and Nuclear Liabilities Funding Agreement of 14 January 2005. the fund was renamed the Nuclear Liabilities Fund. As well as the previous quarterly contributions, the Fund received £275 million in guaranteed bonds issued by British Energy, and a contractual entitlement to 65 per cent of the company’s annual free cashflow (approximately 30 per cent of this was later converted into British Energy shares which the fund sold to raise a further £2.34 billion). After British Energy’s acquisition by EDF, the fund’s remaining interest in the company was sold in January 2009, to raise a further £4.42 billion. The fund then totaled £8.3 billion to be invested to cover the long term decommissioning costs of the eight nuclear stations owned by British Energy. The funding of nuclear liabilities generally is a broader question which is addressed elsewhere in this book, particularly in the context of new nuclear power stations in chapter five and decommissioning in chapter eleven. One of the consequences of nuclear privatisation was the need for the Government to retain responsibility for the cost of dealing with the Magnox reactor sites, then nearing the end of their operational lives. On privatisation in 1996, these sites were retained in public ownership within Magnox Electric, which in 1998 was merged into BNFL as British Nuclear Fuels plc Magnox Generation. Upon the creation of the Nuclear Decommissioning Authority (NDA) in 2005, the NDA took over responsibility for dealing with the Magnox sites. The sites are operated by Magnox Electric on behalf of the NDA. The topic of decommissioning is more fully explored in chapter eleven.

62 Effectively meaning it cannot be wound up until its objects have been realised, except by the authority of the Scottish courts. The objects are: ‘to protect and preserve for the benefit of the nation the environment of the United Kingdom, by being a member . . . of a company . . . whose purpose is to receive and hold monies, investments and other assets . . . for decommissioning . . . the nuclear power stations of British Energy’.

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22 Introduction

THE ATOMIC ENERGY AUTHORITY Whilst the AEA was, as explained above, initially involved in designing and operating nuclear facilities, it became clear during the 1960s that the research undertaken for nuclear purposes could have potentially lucrative non-nuclear applications. From 1965, the AEA was authorised to embark upon non-nuclear research and development, on a commercial basis. With the decline in orders for new nuclear power stations which has occurred since the 1960s, greater emphasis has had to be placed on developing the AEA’s non-nuclear business. The Atomic Energy Act 1986 put the AEA onto a trading-fund basis, so that its research functions were no longer funded by the taxpayer, but were expected to raise all income from commercial trading. In May 1992, the AEA was subject to a report by the Monopolies and Mergers Commission,63 which considered in detail the structure, organisation and activities of the Authority and concluded that the Authority’s commercial business activities rested uneasily in the private sector and should be removed from it so far as was practicable. By 1995, the AEA employed about 7,000 employees based at six main sites in the UK—the largest at Harwell in Oxfordshire—and, after its reorganisation in 1993, was structured into three operating divisions: (1) Commercial—(known as AEA Technology) which comprised all the AEA’s commercial activities; (2) Government—which was responsible for decommissioning the AEA’s former sites and for managing AEA’s liabilities and which held the nuclear site licences relating to AEA nuclear facilities, the relevant sites being mainly the experimental nuclear reactors at Harwell, Dounreay, Winfrith and Windscale; and (3) Services—dealing with facilities management services. The Atomic Energy Authority Act 1995 made provision for the privatisation of AEA Technology. A transfer scheme under the powers provided by the Act was made by the AEA on 7 March 1996, transferring the relevant assets to a publicly-owned company, AEA Technology plc, pursuant to a direction by the Secretary of State. The company was duly privatised and has since divested itself of nuclear related aspects of its business, and now focuses on energy and environmental consultancy as its core business.64 The Government was at great pains to emphasise that these new arrangements did not involve any transfer of nuclear liabilities from the public sector. However, the Government was committed to increasing competition for decommissioning and radioactive waste management operations work (rejoicing in the acronym DRAWMOPS). This involved putting work out to tender, the intention being not only to achieve value for money, but also to transfer some risk to the private sector.65 UKAEA’s remaining public role is now the decommissioning of the facilities formerly used for the UK’s nuclear research programme, and the operation of UK and Euratom fusion power research facilities at Culham, Oxfordshire. It went through a major restructuring in April 2008, with the creation of a wholly-owned subsidiary trading as UKAEA and focusing on nuclear decommissioning and environmental restoration in the UK and internationally. Operations and decom63

‘UK Atomic Energy Authority: A Report on the Service Provided by the Authority’, Cm 1947 (1992). AEA technology sold the bulk of its nuclear consulting business to Serco Assurance in 2001, and its nuclear engineering and science businesses respectively to RWE Nukem and Nexia Solutions in 2003. It has been noted that AEA Technology’s commercial decision to exit from the nuclear business because of concerns as to poor growth prospects and low profit margins came as a shock to the Government, and may have contributed to the decision to create the NDA: see Jackson, (see n 37 above) 11. 65 See, Hansard HC Standing Committee D, First Sitting, col 26 (23 March 1995). 64

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BNFL’s Break-up 23 missioning at Dounreay and Sellafield are undertaken by Dounreay Site Restoration Limited (DSRL) and Sellafield Limited respectively. Further, in February 2009 another company, Research Sites Restoration Limited (RSRL) was formed to undertake continued decommissioning programmes at the Harwell and Winfrith sites.

BNFL’S BREAK-UP BNFL has played a hugely important part, as already described, in the development of fuel production and management in the UK. As already explained, it was created in February 1971 from what was the production division of the UKAEA, and became a public limited company, wholly owned by the Government, in 1984. Since 1971 it controlled the main part of the UK’s nuclear cycle capacity and was at the centre of the numerous legal controversies expounded in this book. It has operated, at various points, some 18 nuclear sites in the UK, the main one of course being Sellafield. The company expanded significantly during the 1990s, establishing a subsidiary BNFL Inc (later renamed BNG America) to operate in the US decommissioning market, acquiring in 1999 Westinghouse Electric Company and in 2000 the nuclear systems business of ABB. After 2004 it became essentially a two-business company: Fuel Manufacture and Reactor Services operated through Westinghouse and other activities through British Nuclear Group.66 This followed the 2005 reorganisation of the company to rename it British Nuclear Group Sellafield Limited, with a new holding company taking the British Nuclear Fuels plc name. The reorganisation coincided with the creation of the NDA on 1 April 2005 and the transfer of BNFL’s sites to the NDA. BNFL’s prime role in that respect would in future be as a contractor to the NDA for remediation, decommissioning, clean-up and reprocessing operations and MOX fuel fabrication, waste management and effluent treatment. BNG America was subsequently sold in 2006 to the Salt Lake City based corporation EnergySolutions and Westinghouse Electric Company was sold to Toshiba Corporation in the same year.67 These developments have marked the break-up of BNFL as a group entity. Its research and development arm was relaunched as Nuclear Sciences and Technology Services, which then became Nexia Solutions, now the National Nuclear Laboratory, created in 2008.68 In March 2006 the intention was announced to sell its British Nuclear Group arm, to be sold on a piecemeal basis rather than as a going concern. Businesses sold in this way have included Project Services, a specialist consulting business dealing with nuclear decommissioning and clean-up, which was sold to VT Group in 2008, the Magnox Reactor Site Management business which was sold to EnergySolutions in 2007, and BNG’s one-third stake in AWE Management Limited (the management company of the Atomic Weapons Establishment) sold to the Jacobs Engineering Group of Pasadena, California, in December 2008. That effectively leaves

66 See the useful summary in World Nuclear Association, Nuclear Power in the UK available at www.worldnuclear.org/info/inf84.html. 67 The sale of Westinghouse attracted keen competition, with bids from Toshiba, Mitsubishi, and Korean company Doosan Heavy Industries, as well as US corporations General Electric and Shaw. The prospect of cutting edge US nuclear technology passing to a non-US owner was reported as causing serious concern among US politicians, with a reference to the US Treasury Committee on Foreign Investment in the United States (CFIUS) which reviewed and approved the sale: see The Independent, 8 December 2005 (‘Westinghouse nuclear auction set to raise $2.6 billion’). 68 See www.nnl.co.uk.

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24 Introduction Sellafield Limited, which had been spun off from BNG and held the contract with the NDA to operate and clean up the back-end fuel operations at Sellafield and Capenhurst. These services are of course still of immense importance, including as they do the operation of the THORP and Magnox reprocessing facilities and the MOX plant. However, there was no guarantee that BNFL would retain that contract. In July 2008 the NDA selected Nuclear Management Partners Limited (a consortium of URS Corporation’s Washington Division, AMEC and Areva NC) to manage these facilities. The shares in Sellafield Limited as the licence holder were accordingly transferred from BNFL to Nuclear Management Partners Limited. In 2007 Sellafield Limited had set up International Nuclear Services Limited (INS), jointly owned with the NDA, to manage existing spent fuel manufacturing contracts and associated transportation. In 2008 the NDA fully took control over INS as its commercial and transport arm. Accordingly, events have proven correct the statement of BNFL’s chairman Gordon Campbell when he said in December 2005 that BNFL would no longer exist in five years’ time if the relevant sales went as planned.69

WEAPONS PRODUCTION The UK nuclear weapons programme was formally initiated in January 1947. In 1950 nuclear weapons design work moved to the AWRE at Aldermaston in Berkshire, and a trials range was established at Foulness in Essex, a former artillery range. Weapons design and production were originally the responsibility of the Ministry of Supply, and later the Weapons Group of the UKAEA. When the UKAEA was reorganised in 1971, its Weapons Group was transferred to the Secretary of State for Defence by the Atomic Energy Authority (Weapons Group) Act 1973. Subsection 1(1) of that Act provided that the Weapons Group would cease to form part of the Authority and that, from the appointed day, it should be for the Secretary of State (and not the Authority, except under contract to the Secretary of State, or by his direction, or with his approval) to carry on any activities which before that day were activities of the Group, and involved working on explosive nuclear devices. The appointed day for this purpose was 1 April 1973.70 In 1987, AWRE was renamed the Atomic Weapons Establishment (AWE). Its activities were carried out at Aldermaston (research and development, fissile material storage, and component manufacture),71 Burghfield (weapon assembly and non-fissile component manufacture),72 Foulness (non-nuclear trials),73 and Cardiff (depleted uranium and beryl69

Daily Telegraph, 6 December 2005. SI 1973 No 463. 71 The facility at Aldermaston covers 880 acres. Area A, known as the Citadel, occupies the north side of the site and includes the plutonium manufacture and pit fabrication facilities. The A1 original plutonium manufacturing buildings which opened in the 1950s became badly contaminated in 1978 and were closed. They were reopened in 1982 to manufacture the Chevaline warheads, and went on to produce the first Trident warheads. The replacement facility, the A90 complex, began construction in 1983 and went into operation in 1991 and now produces Trident plutonium components. 72 The 265 acre facility at Burghfield, 5 miles southwest of Aldermaston, was established in 1954 as the final assembly plant for nuclear weapons. Many of the non-nuclear components of nuclear weapons are manufactured there, including electronic components, casing and component packaging materials. 73 Foulness is a 2,000 acre test range located on Foulness Island on the north side of the Thames estuary near Shoeburyness. High explosive tests were conducted at the range, for weapons development and safety research, and to simulate nuclear weapon blast effects. 70

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Weapons Production 25 lium component manufacture).74 Following the Government’s decision to consider contracting out the management of these establishments, the Atomic Weapons Establishment Act 1991 made provision for designated activities to be carried out under contract. Section 1 of the 1991 Act allows the Secretary of State to designate activities and premises for the purposes of the Act. Any activities may be designated if they are connected with the development, production, or maintenance of nuclear devices, or with research into such devices and their effect. The Act then applies if the Secretary of State makes arrangements: (1) for a company formed under the Companies Act 1985 to carry on designated activities at the premises under contracts with him; and (2) for that or another company to become the employer of employees from the undertaking, and to acquire rights in respect of the premises. Designation of the four establishments was effected by the Atomic Weapons Establishment (Designation and Appointed Day) Order 1992,75 giving 31 March 1993 as the appointed day for the purpose of determining the relevant employees. The new arrangements took effect at the establishments on 1 April 1993. A new company, AWE plc,76 became the employer of the relevant employees, and a contract for management of the establishments was awarded to a consortium, Hunting-BRAE.77 Shortly thereafter, the Health and Safety Executive announced its intention to carry out a comprehensive review of health and safety management systems and standards of risk control at all four establishments.78 This review resulted in a partially critical report published in October 1994.79 The review was described by the Director General of the HSE as one of the most comprehensive exercises the HSE had ever conducted. Whilst not criticising the new management, the HSE found that they had taken over long-standing problems in terms of inadequate safety systems, records, equipment, and emergency procedures. Some 65 deficiencies were identified, requiring rectification within a year; 19 required immediate action. The HSE issued a prohibition notice under its general powers in the Health and Safety at Work, etc Act 1974, thereby preventing operations in the part of the plant where enriched uranium was machined; conditions there, the HSE found, could present the danger of a runaway nuclear chain reaction. The HSE also strongly recommended that immunity from nuclear site licensing requirements should be removed so as to allow for effective control. In 1997 there was a successful health and safety prosecution and a £22,000 fine after an incident involving the inhalation of plutonium by two employees during a glove box dismantling, and in 1999 Hunting-BRAE was prosecuted and fined £17,500 for safety breaches involving discharge of tritium to the Aldermaston stream and for recklessly making false and misleading statements in its application for a discharge consent.80 In 1999 Hunting-BRAE’s contract came to an end. The current arrangements are that the contract for management of the Aldermaston and Burghfield AWE sites was awarded in April 2000 to AWE Management Limited, a joint venture between Serco Group plc,

74 The facility was located at Llanishen, 3 miles north of Cardiff. Essential parts of nuclear weapons, and beryllium/U-238 tampers for fission primaries were manufactured there, as well as servicing and disassembly of nuclear weapon components. 75 SI 1992 No 2743. 76 For further detail, see www.awe.co.uk. 77 Hansard, HC vol 183, col 183. 78 HSE News Bulletin—E75:93 (May 1993). 79 The Management of Health and Safety at Atomic Weapons Establishment Premises—Review by the HSE (Sudbury, HSE Books, 1994). 80 ENDS Report 299, December 1999.

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26 Introduction Lockheed Martin UK Limited and Jacobs Engineering Group (previously BNFL).81 This contract was extended in 2003 and now runs until 2025. AWE plc employs the workforce and holds the relevant licences and authorisations. The Ministry of Defence holds a golden share in AWE plc and retains ownership of the sites and facilities.82 The main functions of AWE are to maintain the current Trident nuclear deterrent, to maintain the capability to design new weapons systems, and to continue the process of dismantling and disposing of redundant warheads. AWE Cardiff was closed in 1997. The undiscounted costs of nuclear liabilities for the decommissioning, clean-up and associated waste management at the two AWE Berkshire sites was stated at £3.39 billion by the Secretary of State for Defence in 2006.83

THE FUTURE OF NUCLEAR POWER At the time of electricity privatisation, the long-term future of nuclear power in the UK was uncertain. The Government decided, therefore, to impose a moratorium on further new nuclear construction in the public sector at least until 1994, pending review of the prospects for nuclear power. Existing nuclear power stations were to continue to operate, as described above, and the construction of existing projects was to be completed. The Government published the conclusions of its nuclear review in a White Paper in May 1995 entitled ‘The Prospects of Nuclear Power in the UK’.84 This involved consideration, with the help of a number of professional advisers, of the feasibility of privatisation of the nuclear generating companies, the prospects for introducing private sector finance for the nuclear industry, the most appropriate way of managing nuclear liabilities, and the strength of the case for new nuclear construction. The Government’s policy towards nuclear power, as expressed in the 1995 White Paper, was essentially non-interventionist. Its aim was to secure diverse and sustainable supplies of energy at competitive prices; an aim best achieved, in the Government’s view, through the operation of open, competitive markets. The Government therefore proposed to leave the market to take decisions about the relative merits of new electricity generating projects; The Government’s position, expressed at paragraph 3.43 of the White Paper, was summed up as saying that nuclear power plays a key role in meeting the UK’s energy needs and should continue to do so, ‘provided it maintains its current high standards of safety and is competitive’. On the issue of competitiveness, Chapter 4 of the White Paper considered the commercial case for new nuclear power stations. The test adopted by the Government was that a new nuclear power station may only be considered genuinely commercial if it is capable of attracting investment on the same terms as comparable projects in the private sector (the current comparable projects being gas-fired combined cycle gas turbine (CCGT) power stations). On the basis of information provided by the nuclear industry, the Government concluded that the best economic case for a nuclear power station in the short term would be 81 Some concern was voiced by opposition politicians in 2008 when BNFL sold its stake in AWE Management to California-based Jacobs Engineering, as to US based companies having majority control: see The Guardian, 20 December 2008. 82 See further www.aweml.com. 83 Hansard, col 779W (24 July 2006). 84 Cm 2860 (1995).

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The Future of Nuclear Power 27 a twin PWR at Sizewell C, and that in current market conditions and at current prices for gas, it was unlikely that such a project would provide a rate of return competitive with a CCGT station. The Government emphasised in the 1995 White Paper that this was simply ‘a snapshot of the position at this particular point in time’ and that various factors could change that balance. On strategic environmental issues, the Government’s conclusion was that new nuclear stations were not required in the near future on emissions abatement grounds. Coming to this conclusion, the Government took account of existing nuclear power stations which play a significant role in helping to meet the UK’s current commitments regarding the limitation of carbon dioxide emissions. It also recognised that there could be problems in meeting such targets if existing nuclear power stations were not replaced by other generating facilities which do not emit carbon dioxide when they reached the end of their working lives. In the intervening decade since 1995 the political balance has swung in favour of the nuclear option. For one thing, of the 19 reactor units in the UK generating one fifth of its electricity, all but one (Sizewell B) will have closed by 2023. This raises the alarming prospect of a serious gap in energy supply. It is striking that so much of the UK’s capacity now rests on an obsolete and much criticised technology (AGR) with reactors built during the 1970s and 80s, which can be expected to have increasingly difficult technical problems as they reach the end of their operational lives. The UK typically imports 3 per cent of its electricity from French nuclear power stations via the Interconnexion France Angleterre, the 45km sub-sea interconnector installed in 1986, but clearly cannot rely on such imports.85 Carbon-based energy supply and delivery look increasingly precarious and vulnerable to political threats.86 Nuclear power offers a potential means to allay those fears and to make significant progress towards carbon emissions reduction targets, thereby hitting two of the most obvious energy policy problems facing modern politicians: security of supply and climate change. It is not the only solution, nor is it risk-free,87 but it increasingly appears an attractive option politically, and one which may be acceptable to the public. In that sense, it may be true, as has been said, that ‘nuclear needs climate change more than climate change needs nuclear’.88 In any event, the political climate in the UK has moved markedly in favour of significant expansion of nuclear generating capacity, as described 85 In a curious reversal of the normal position, it was reported in July 2009 that France was having to import electricity from the UK because of a rise in the temperature of cooling water abstracted from rivers for its nuclear stations, caused by a heatwave, restrictions on the temperature of water discharged back to the rivers, and maintenance issues with some plant: see The Times, 3 July 2009. 86 Notably in the case of gas supplies, the concern that flows of Russian gas through the Ukraine to Europe may be disrupted by the inability of the Ukraine to pay the relevant charges, as occurred in January 2009 (though it may be noted that the UK does not itself import Russian gas). The International Energy Agency regards this as a serious continuing threat: see IEA, Natural Gas Market Review 2009 (July 2009). There are also concerns about oil supplies in terms of the impact of recessionary factors on supply-side investment: see IEA, Medium-Term Oil Market Report 2009 (June 2009). 87 See Nuclear Energy Agency, Risks and Benefits of Nuclear Energy (NEA No 6242, OECD, 2007). The risks are not only of a technical and safety nature, but include financial risk, in that, as has been said, investment in nuclear technology uniquely captures governments in a lengthy cycle of expenditure that once started, will take a century to exit, and with capital costs funded by private sector bank loans that are sensitive to interest rates over periods as long as 60 years: see Jackson, (see n 37 above) 3. 88 Cited in David Elliott (ed), Nuclear or Not? Does Nuclear Power Have a Place in a Sustainable Energy Future? (Basingstoke, Palgrave Macmillan, 2007) 4. The book generally provides a thoughtful and balanced contribution to the debate on the respective roles of nuclear power and renewable energy sources. See also the 2006 report of the Sustainable Development Commission, ‘The Role of Nuclear Power in a Low Carbon Economy’ (London, March 2006) which expresses concern about a large-scale nuclear programme diverting funding away from what it regards as more sustainable technologies available at www.sd-commission.org.uk.

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28 Introduction further in chapter five. Just how far it has shifted can be seen from the Cabinet Office publication, The Road to 2010: Addressing the Nuclear Question in the Twenty-First Century, published in July 2009.89 Whilst aimed principally at the UK’s strategy in respect of the 2010 Nuclear Non-Proliferation Treaty, it leaves the reader in no doubt as to the Government’s views on the benefits of nuclear power:90 Nuclear power is a proven technology which generates low carbon electricity. It is affordable, dependable, safe, and capable of increasing diversity of energy supply . . . Nuclear power is therefore an essential part of any global solution to the related and serious challenges of climate change and energy security. Combating climate change, the single greatest threat to humanity this century, requires a much greater role for low carbon fuels in the global energy supply than before. Rising global energy demand, which is forecast to increase by more than 40 per cent by 2030, means that secure, sustainable energy supplies will be key to global security and prosperity in the century ahead. Nuclear energy is therefore vital to the challenges of sustaining global growth, and tackling poverty . . . That is why the United Kingdom Government believes not only that there is a recognised right for all sovereign states to the peaceful use of nuclear power, but that it is necessary to expand access to civil nuclear energy.

This enthusiasm for nuclear technology, almost certainly unparalleled since the heady days of the 1950s, has manifested itself in various ways in practical and commercial terms. There has been strong commercial interest in new nuclear projects from foreign companies, with the acquisition of British Energy by EDF, the announcement of proposals for new nuclear plant by the German energy companies RWE and E.ON, owners respectively of the former privatised electricity companies National Power and PowerGen,91 and the joint venture between GDF-Suez and Spanish utility company Iberdrola (owner of Scottish Power) to build at least two new reactors).92 One important issue is the need for connections to the grid, which requires significant upgrading to accommodate not only proposed new nuclear plant but offshore renewable generation.93 British Energy has entered into transmission connection agreements with National Grid for possible new nuclear plants at Sizewell (Suffolk), Dungeness (Kent), Bradwell (Essex) and Hinkley (Somerset). Another issue is land acquisition, bearing in mind that the sites are likely to be those on or in proximity to existing nuclear licensed sites.94 In Spring 2009, the NDA held a successful on-line auction of sites for potential new reactors at Wylfa (Anglesey), Oldbury (Gloucestershire) and Bradwell (Essex), with a joint venture between the German Utilities E.ON UK and RWE Npower acquiring Wylfa and Oldbury, and EDF Energy purchasing land at Bradwell.95 The £387 million proceeds will be used by NDA to fund ongoing decommissioning. The E.ON/RWE joint venture is committed to developing at least 6 gigawatts of new nuclear capacity, and EDF to 6.4 gigawatts, which to put the figures in context, exceeds the current contribution of nuclear power of around 11 gigawatts to the UK national grid.96 Centrica, 89

Cm 7675. See www.cabinetoffice.gov.uk/ media/224864/roadto2010.pdf. Paras 1.1–1.3. 91 See, eg, ‘E.ON nails nuclear colours to the mast’ (Daily Telegraph, 24 April 2008). 92 See ‘GDF-Suez and Iberdrola join race to build reactors on nuclear sites sold by Britain’ (The Times, 5 February 2009). 93 See the report of the Electricity Networks Strategy Group, Our Electricity Network: a Vision for 2020 (March 2009) available at www.ensg.gov.uk/index.php?article=126. 94 The issue of siting is considered more fully in ch 5. 95 Other bidders included a joint venture comprising Iberdrola (owner of Scottish Power), GdF Suez and Scottish & Southern Energy. 96 Nuclear Industry Association, Nuclear Industry Link No 24 (April/May/June 2009) available at www.niauk.org. 90

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The Future of Nuclear Power 29 owner of British Gas, has aligned itself with EDF, following its acquisition in May 2009 of a 20 per cent stake in British Energy, owned by EDF. A further issue is the services, material, plant and equipment necessary for the design and construction process. The prospective new nuclear generators will therefore be embarking on procurement processes, and the first stage of this is the holding of various UK Supplier Forums.97 Potential suppliers of the reactors are engaged in a generic design assessment process with the safety regulator (described more fully in chapter four) in respect of their reactor types, which will take some three to four years and cost up to £10 million. The leading players are now Westinghouse with its AP1000 design, which is supported by E.ON and British Energy, and Areva with its EPR design, supported in the GDA process by EDF. Both Westinghouse and Areva have entered into agreements with major suppliers of equipment and services. These include some British companies: Westinghouse has memoranda of understanding or other arrangements with BAE systems, Rolls Royce, Doosan Babcock and Sheffield Forgemasters, and Areva has a dual partnership arrangement with Balfour Beatty and Rolls Royce. Commercial partnering and alliancing arrangements have always been popular in the nuclear industry, often under framework agreements as a means of reducing costs, sharing risks (to the extent permissible under nuclear safety and liability law) and reducing the scope for disputes. Another potentially important aspect of a nuclear renaissance is the creation of the National Nuclear Laboratory (NNL) which was launched by the Secretary of State for Business, Enterprise and Regulatory Reform on 23 July 2008. There has been concern for some years over the declining skills base in the UK to service the nuclear sector,98 and the NNL is intended to address that problem. Its model is a Government owned, contractor-operated body, fully funded by customer fees. The Government’s interest allows it to protect the intellectual capability of the NNL. The initial contractors appointed in April 2009 to run it are a consortium of Serco, Battelle and Manchester University (SBM), who will collaborate with various academic and commercial partners. The range of services provided include those in support of the nuclear decommissioning programme and the ongoing operation of current nuclear power plants. How far the nuclear renaissance goes beyond replacement of current capacity is open to debate, but a figure of 35 to 40 per cent of electricity from nuclear beyond 2030 has been canvassed as possible and potentially desirable99 (the figure for France is well over 70 per cent, and for a number of East European states around or over 50 per cent). This would require around 30 gigawatts of capacity. In any event the timing to replace nuclear capacity which will be lost over the next decade will be extremely tight, and there have been stark warnings from energy experts and the CBI as to the disastrous consequences of a significant gap in capacity.100 The UK is not alone in Europe or in the world in facing these issues. France has long been a leading European proponent of nuclear power, with 59 working nuclear reactors. EDF is constructing a new ‘third generation’ European Pressurised reactor (EPR) at Flamanville, Normandy, intended as a prototype for up to 40 others of similar design. The French Government has also announced the inception of the design process for a prototype fourth generation, sodium-cooled fast reactor, with a target date of 2035–40 for 97

See eg, newnuclearopportunities.edfenergy.com/index.html. See the detailed discussion in Jackson, (see n 37 above) 18–21. 99 See Malcolm Wicks MP (Special Representative of the Prime Minister), Energy Security: A National Challenge in a Changing World (August 2009) available at www.decc.gov.uk/en/content/cms/news/pn090/pn090.aspx. 100 See The Times, 16 April 2009: ‘All-clear for nuclear plants “too late to plug gap” ’. 98

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30 Introduction industrial deployment. Italy was an early leader in nuclear technology, but shut down its existing reactors pursuant to a referendum held after the Chernobyl disaster in 1986. However, it now plans to build new EPR reactors, pursuant to a co-operation agreement signed with France in 2009 and the Italian Government envisages a total of 8 to 10 such reactors. Sweden, with 10 working reactors, has announced that it intends to lift the ban on building new reactors which was imposed after a referendum in 1980. Switzerland announced in 2007 that its existing five reactors would be replaced with new ones after a referendum in 2003 reversed a moratorium imposed in 1990. Eastern European states have in large part remained committed to nuclear power, as a legacy of Soviet control, and indeed the Ukraine plans as many as 11 new reactors by 2030 as it seeks to reduce its dependence on Russia for energy supplies. Romania, Hungary, the Czech Republic and Slovakia also have ambitious plans for new reactors over the next decade. Russia itself has taken steps to amalgamate its civilian nuclear assets into a vertically integrated single company—Atomenergoprom—which is intended to bolster the country’s position in international markets;101 and Federal laws issued in 2007 underpin a programme for the construction of up to 26 new nuclear power plants on a privately-financed basis. It has also been reported as planning to build a new fleet of floating and submersible nuclear power stations to be used in exploiting Arctic oil and gas reserves.102 There are some exceptions to the enthusiasm for new build: countries such as Spain and Germany still for the time being retain their 1980s moratoria on new nuclear build and Belgium is implementing a law passed in 2003 requiring phase out of the country’s existing reactors by 2025. Elsewhere in the world there is much more enthusiasm. Canada has played a very important role in the history of nuclear power and currently derives around 15 per cent of its electricity from that source, much more in certain provinces such as Ontario. It has plans to build several new reactors in the next decade.103 Japan as another long-time leader in nuclear technology, remains committed to nuclear power, despite the scare it suffered in July 2007, when its Kashiwazaki-Kariwa nuclear power station (the world’s largest by electrical power rating) was forced to close for two years, following an earthquake which shook the plant beyond its design basis and which led to international calls for a full examination by the operator, Tepco (Tokyo Electric Power Company).104 Japan plans to increase the 30 per cent of its energy generated from nuclear power to 40 per cent by 2017, having selected Mitsubishi Heavy Industries as the core company to develop a new generation of fast breeder reactors, as a ‘basic national technology’.105 Such plans are dwarfed by those of China, which plans a massive expansion of nuclear capacity to meet its growing energy needs, particularly in the rapidly developing coastal regions which are remote from the country’s coalfields. A sixfold increase in capacity, including some of the world’s most advanced reactors is planned by 2020, with a further three or fourfold increase to 2040.106 101

See The Times, 11 December 2007: ‘Russia forms state nuclear giant to compete with overseas rivals’. See The Observer, 3 May 2009: ‘Russia to build floating Arctic nuclear stations’. 103 www.world-nuclear.org/info/inf49a_Nuclear_Power_in_Canada.html?ekmensel=c580fa7b_702_736_ 25401_7. 104 See The Times, 19 July 2007: ‘Nuclear crisis in Japan as scientists reveal quake threat to power plants.’ Somewhat ironically, in 2005 a group of residents had made a claim in the Tokyo High Court that a licence to build a new reactor on the site should be revoked on the basis that a seismic fault ran under the site: the High Court rejected the claim, holding that what the residents thought was an active fault ‘did not even amount to a fault and could not cause a quake’. 105 www.world-nuclear.org/info/inf79.html. 106 See the very detailed summary provided by the World Nuclear Organisation at world-nuclear.org/info/ inf63.html. 102

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Accidents 31 This has prompted strong commercial interest from US, Canadian, French and Russian companies. Independent reports have suggested that by 2050 China may have built between 200 and 300 new reactors, not much less than the generating capacity of all current nuclear plants in the world.107 Whilst the world’s nuclear markets now represent a tactical battlefield for the relatively small number of major trans-national corporations, often acting in alliances, such investments are not problem free. Currently credit markets are tight, and matters such as lack of clarity on future power prices can represent an impediment to financing. Another possible problem is lack of capacity among specialist steel producers able to manufacture large reactor components, such as Japan Steel Works, which has been said to have currently an effective global monopoly.108

ACCIDENTS As previously noted, the one event that would surely set back, if not completely destroy, the current public appetite for new nuclear power stations is a serious nuclear accident somewhere in the world. The issue of reactor safety was addressed by the Royal Commission in Chapter 6 of its Sixth Report in 1976. It noted that an accident leading to an uncontrolled release of radioactive material could have highly unpredictable consequences depending on a number of factors, including the substances released, and the wind direction at the time. The most serious concern, the Royal Commission noted, centred on two issues: first whether in the event of a potentially dangerous situation developing, the reactor could be shut down quickly; and secondly whether the residual decay from the fission products could then be removed:109 If the safeguards provided to cover these contingencies were to fail, the temperature might rise to values at which the fuel would melt and interactions involving the molten fuel within the core could develop pressures that would be sufficient to rupture the containment, so allowing a release of the gaseous and more volatile fission products.

To date worldwide, there have been four really serious nuclear accidents,110 although only one involved the worst scenario outlined by the Royal Commission in the extract set out above and not all were fully recognised in terms of their seriousness at the time they occurred. These were the Windscale fire in the UK, Kyshtym in the former Soviet Union, Three Mile Island in the US, and Chernobyl, also in the former Soviet Union. Each is briefly described below.

107

See The Wall Street Journal, 30 May 2007, ‘China’s nuclear ambitions generate optimism, concern.’ See The Times, 17 March 2008: ‘Nuclear plants face threat of capacity crisis at steel mill.’ 109 Cmnd 6618 para 262. 110 These are of course not the only accidents at nuclear facilities to have occurred since the 1950s. Less serious but significant accidents have occurred, for example, at Chalk River, Ontario (1952 and 1958), Vinãa, Yugoslavia (1958), Santa Susann Filed Laboratory, California (1958), Soviet Icebreaker Lenin (1966–67), Chapelcross, UK (1967), Lucens, Switzerland (1969), Jaslovské Bohunice, Czechoslovakia (1977), Buenos Aires, Argentina (1983), Tomsk, Russia (1993), Tokia-Mura, Japan (1999). See David Mosey, Reactor Accidents: Institutional Failure in the Nuclear Industry, 2nd edn (Nuclear Engineering Special Publications, 2006). 108

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32 Introduction

Windscale The two reactors (or ‘Piles‘) were constructed after the Second World War in a disused ordnance factory at Windscale on the Cumbrian Coast and were intended, like the corresponding installations in the US, France and the Soviet Union, for the production of weapons grade plutonium. They were fuelled by natural uranium, clad in aluminium and positioned in horizontal channels in a core of graphite. They were cooled by air, blown through cooling channels by powerful fans, and discharged into the air through a 126 metre stack. A serious (potentially catastrophic) fire occurred in Number 1 Pile in October 1957.111 The fire resulted from the decision of the engineer to boost power during the course of a routine operation known as a ‘Wigner release’. During this operation the uranium thermocouples recording heat were not at the hottest part of the core, which was hotter than the engineer realised. The boost of energy led to the ignition of the graphite within the reactor. By the time the fire was detected, two days later, the fuel rods were red-hot and could not be removed. There was a real risk that the heat could have affected the integrity of the concrete shielding and that there could have been what was at the time called ‘thermal runaway’. An unsuccessful attempt was made to extinguish the fire with carbon dioxide and eventually, in the early hours of 11 October, a decision was made to call in the emergency services. Fire hoses were coupled to fuel channels and by this means the fire was brought under control, and finally extinguished. This, in itself, was an extremely risky course of action, given the possibility of an oxidising and explosive reaction between the water and the molten metal which could have caused widespread and disastrous contamination of the Lake District. It became clear that the fire had released a cloud of radioisotopes, some of which had been discharged from the stack.112 Studies at the time113 identified iodine 131 among these; this was hazardous because of its high activity and its potential involvement in the functioning of the thyroid gland. Milk produced over a 500 square kilometre area (about 2 million litres) was poured away; farmers were paid about £60,000 in compensation. The No 1 Pile was written off, and No 2 Pile was closed while further investigations were carried out. It became clear that it would be prohibitively expensive to modify No 2 Pile to reduce the risk of a recurrence of the fire; both reactors were therefore sealed with concrete. Many details of the incident’s seriousness were suppressed at the time, because of concern that they might if known affect collaboration with the USA on nuclear weapons.114

111 See generally, Lorna Arnold, Windscale 1957: Anatomy of a Nuclear Accident, 3rd edn (London, Palgrave MacMillan, 2007) 112 The 400 foot stacks incorporated massive filters set at the very top, and incorporated late in the construction process at the insistence of Sir John Cockcroft. They were widely regarded as unnecessary and were known as ‘Cockcroft’s folly’, but in fact they almost certainly prevented catastrophic airborne contamination occurring. 113 For example, ‘Accident at Windscale No. 1 Pile’ Cmnd 302 (1957). 114 The scathing report into the incident, produced by atomic scientist Sir William Penney, was published only in an expurgated version as part of a White Paper (Cmnd 302, November 1957) with an introduction written by Prime Minister Sir Harold Macmillan himself, suggesting that the incident could not possibly recur in the new reactors which were then just coming forward at Calder Hall and Chapelcross. Full details and documents of the investigation were released only in 2007.

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Accidents 33

Kyshtym On 29 September 1957, just before the Windscale fire, a serious radioactive contamination incident occurred at Mayak, a nuclear fuel reprocessing plant in the town of Ozyorsk (also known as Chelyabinsk) in the Southern Urals, one of the main industrial areas of the Soviet Union.115 These were then secret military locations, not marked on maps, and the incident became referred to after the nearest known town, Kyshtym. The facility was constructed rapidly to fulfill the need for weapons-grade plutonium and uranium for the Soviet arms race and environmental and safety precautions were woefully inadequate. Failure of a cooling system in one of the storage tanks containing liquid radioactive waste led to a rise in temperature and a non-nuclear explosion, throwing the 160-ton concrete lid of the tank into the air and allowing the escape of a radioactive cloud. This contaminated an 800 square kilometre area with elements including Caesium-137 and Strontium-90. The victims of the plume were not notified and were only evacuated a week later, by which time many had already suffered serious exposure. It has been estimated that direct exposure led to at least 200 deaths from cancer. Contaminated soil was excavated and stockpiled, and the Soviet Government in 1968 designated the affected area as the ‘East-Ural Nature Reserve’, prohibiting unauthorised access. Until 1990, when documents were declassified, the nature and effects of the incident could only be pieced together from empirical research on the effects of radioactivity on plants and animals in the affected region, and from Freedom of Information interrogation of contemporary US intelligence files. Indeed, the first official Government acknowledgment of the accident was only given in 1988. Despite this shroud of secrecy, it is now thought that the incident was of the same order of seriousness as the Chernobyl accident116 and indeed has been called ‘Chernobyl’s secret older brother’.

Three Mile Island The accident of March 1979, at the Three Mile Island (TMI) power station at Harrisburg, Pennsylvania, was both extremely serious and costly. It attracted particular attention in the UK in the context of the public inquiry as to the construction of a PWR at Sizewell in Suffolk. The episode provides an all too graphic demonstration of the uncertainty and panic which may attend a serious nuclear incident. The initial problem was a failure of pumps providing feed-water to the steam generators of the reactor. This led to the turbine being automatically shut down, which in turn resulted in an increase in both temperature and pressure within the primary cooling water of the reactor. A relief valve was opened automatically to reduce the pressure, but remained open undetected when it should have closed, thereby causing coolant to be lost. Within two minutes, the reactor pressure fell so as to trigger emergency high pressure pumps providing cooling water. However, the operators, in the belief that the water level in the reactor was rising too fast, switched off this flow. The coolant began to boil and the level fell below the top of the reactor core; the temperature of the exposed fuel rods soared and began to melt, resulting in a chemical reaction which 115 See Philip R Pryde, Environmental Management in the Soviet Union (Cambridge, Cambridge University Press, 1991) 99–100; John Massey Stewart (ed), The Soviet Environment: problems, policies and politics (Cambridge, Cambridge University Press, 1992) 229–30. 116 New Scientist, 23 December 1989.

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34 Introduction produced a bubble of the potentially explosive gas, hydrogen. Meanwhile, the water which was escaping through the open relief valve overflowed the tank into which it was meant to drain. Sealing discs were ruptured, and 600,000 gallons of coolant water, contaminated by radioactivity from the damaged fuel, flooded the reactor sump and the basement of the building. Radioactive fission products entered the ventilation system and were released as gas into the atmosphere. The relief valve was eventually identified as open and was shut immediately. Concern then focused on whether the hydrogen formed inside the reactor vessel might explode, breaking the containment building. In fact, a smaller explosion had already occurred within the reactor, a fact that was only discovered later. While experts from the Nuclear Regulatory Commission agonised over this risk, the Governor of Pennsylvania took the decision to recommend the evacuation of children and pregnant women within a five mile radius of TMI. In fact, a far greater number, approximately 11,000 people, left their homes. Whilst the feared explosion never happened, the costs of the accident at TMI were enormous. Operations to assess the damage, clean up the huge quantities of contaminated water, purging radioactive gas, and defuel the reactor, took many years. It was not possible to view the reactor core, even through a remote control camera, for three years, at which time the entire core was found to be damaged, even reduced to rubble in some parts. Tests confirmed that temperatures had exceeded 2,800°C during the incident, and that fuel had in fact melted. The recovery operation was estimated to cost $1,000 million; material damage to the reactor was estimated at $200 million. Two US nuclear pools provided cover, subject to a limit of $300 million, which was fully expended. The pools also provided thirdparty insurance; claims under a class action for loss of earnings and business interruption were settled in 1981 for approximately $20 million, and a fund of $5 million was set aside to provide long-term medical surveillance for local inhabitants and their children. Further claims were made for psychological harm and for expenses incurred by municipalities. The total claims to be met from liability insurance were estimated to be around $50 million. A class action suit was filed against Metropolitan Edison Company as operator on behalf of all residents and businesses within 25 miles of the plant. By 1996, about $56 million had been expended in settlements and legal expenses. Some 2,100 claims were pending in 1996 for punitive damages. The litigation went to the Supreme Court and through various district and appeals courts, before finally in 1996 the lawsuit was dismissed and summary judgement granted to the defendant by the district court on the basis that various test claimants had been exposed to radiation from the incident but that the evidence on causation was not adequate to go to trial. The accident also had wider repercussions, representing a substantial setback for the nuclear industry in the USand in Sweden, and encouraging the concerns of the powerful anti-nuclear lobby in Germany.

Chernobyl The accident at Unit 4 of the Chernobyl RBMK power station117 near Kiev in the Ukraine, in April 1986, eclipsed all previous accidents in terms of severity. The nuclear plant was massively damaged, many deaths resulted, and there was serious environmental damage 117 RBMK is the acroym for ‘reactor, high-power, boiling, channel type’. The RBMK reactors involved were very large, 1000 MW units consisting of graphite blocks with channels for the fuel rods and cooling water.

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Accidents 35 caused by fallout, affecting not only the local population, but also having serious consequences in other countries. The accident resulted from an experiment undertaken to test for arrangements on external power failure; this involved reducing reactor power to about 25 per cent of normal. Contrary to operating rules, this was maintained for 24 hours, leading to dangerous instability in the reactor because of its inherent design. When the power increased rapidly as a result, the engineers did not (as they should have) shut the reactor down, but rather attempted to bring the power down rapidly. This caused a phenomenon called ‘xenon poisoning’ to the reactor system, which made control difficult. Coolant flow to the reactor became insufficient, resulting in the reactor becoming super-critical. The dramatic result was a 100-fold increase over normal operating power, which occurred within 4 seconds. The phenomenal energy released ruptured the fuel elements, which led to an interaction of molten fuel and coolant, causing massive steam explosions, blowing the huge lid off the reactor vessel and destroying the cooling circuits. A further explosion projected burning molten nuclear fuel to a great height. Secondary fires then caused radionuclides to be released for up to the next 10 days.118 A major and heroic operation succeeded ultimately in bringing the fires under control, and stopping the nuclear reaction within the red-hot core. This resulted in 31 immediate deaths from radiation exposure, and 203 casualties. The work involved helicopters dropping 800 tons of dolomite, 40 tons of boron carbide, 1,800 tons of clay, and 2,400 tons of lead into the core, and local miners digging, largely unprotected, beneath the reactor to strengthen foundations and prevent collapse. The population of the nearest town, Pripyat, and a number of other villages were evacuated, a total of 135,000 people. It impossible to say accurately what the health consequences of exposure have been and will be, but fatalities from all types of cancer due to the incident have been predicted at 1,000. A massive relief and decontamination operation followed, together with the construction of new settlements to house the evacuees, the removal of contaminated soil and vegetation, and the creation of a 30km controlled zone around the reactor. Unit 4 was sealed with clay, sand, boron, lead and dolomite, with concrete reinforcement, and is now effectively entombed in a ‘sarcophagus’. The initial estimated cost to the Soviet economy was £2,000 million; this is now estimated at nearer £8,000 million. The power station was state-owned and uninsured, and since the Soviet Union was not a party to the Vienna Convention on Liability for Nuclear Damage, there was no clear mechanism for third-party claims. Many other countries were affected by the radioactive cloud resulting from the incident. These included Poland, Germany, Italy, France and Greece. The UK was less seriously affected, but sales of lamb and other produce from affected areas were subject to restriction for some years by orders under section 1 of the Food and Environment Protection Act 1985. Foreign claimants, not compensated by their own Governments, faced the difficult prospect of claims against the Soviet government under private international law. Since the accident, western Governments, including in the UK, have funded safety upgrading measures at various former Soviet, and East European reactors. A fund, initiated by the G7 Group of countries and managed by the European Bank for Reconstruction and Development (EBRD) was created to finance urgent safety improvements, concentrating on the older 118 See The Chernobyl Accident and Its Consequences, 2nd edn (London, UKAEA, HMSO, 1988); for a gripping narrative account putting the matter in its wider historical context, see Richard Rhodes, Arsenals of Folly: The Making of the Nuclear Arms Race (London, Simon & Schuster, 2008) 1–26. See also Peter Gould, Fire in the Rain: The Democratic Consequences of Chernobyl (Oxford, Polity Press, 1990).

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36 Introduction RBMK-Chernobyl type, and VVER Model 230 PWR reactors, which were perceived as presenting the greatest risks. In December 1995, a Memorandum of Understanding was signed between the G7 countries and the Ukraine on a comprehensive programme of measures designed to close the remaining parts of the Chernobyl plant by the year 2000, with some $500 million in grant assistance, and $1.8 billion in projected investments by the international financial institutions.

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2 International Aspects INTRODUCTION As will have become clear from chapter one, nuclear technology has never, from its inception, been a respecter of national boundaries. The risks arising from nuclear installations do not affect simply the state which chooses to make use of that technology, but may have serious or indeed catastrophic consequences for other countries. A further dimension is, unfortunately, the risk of non-peaceful uses of nuclear technology, whether by states or by terrorist groups, if such technology is not carefully controlled and safeguarded. To these problems can be added the inter-generational aspect of dealing responsibly and safely with waste materials which will present very grave hazards for timescales best described as geological. It is therefore not surprising that strong efforts have and are being made to provide international control regimes to mitigate those risks:1 International law is capable of moderating these ultra-hazardous risks by assuring stronger regulation, more effective multilateral oversight, and enhanced provision for liability and compensation in cases of transboundary damage. Such a policy entails limitations on the freedom of states to conduct hazardous activities within their own territory which they have sometimes been reluctant to endorse, but it represents a price which may have to be paid if nuclear energy is to remain internationally acceptable.

The relevant substantive international law on matters such as regulation of nuclear installations, radiological protection, liability and insurance, transport, waste management and non-proliferation is described in the remainder of this book in the relevant specific chapters. This chapter attempts to provide an overview of the international institutions and regimes concerned with atomic energy and the use of radioactive materials.

INTERNATIONAL COMMISSION ON RADIOLOGICAL PROTECTION The International Commission on Radiological Protection (ICRP) represented the first step towards international cooperation at the scientific level. It was originally established in 1928 as the International X-ray and Radium Protection Committee, comprising a group of eminent scientists chosen by the International Congress of Radiology and was restructured and renamed in 1950. It is not a part of any intergovernmental organisation, and is accountable 1 Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment, 3rd edn (Oxford, Oxford University Press, 2009) 488.

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38 International Aspects to the world’s professional bio-radiologists, meeting in Congress. It is an independent registered charity, with an office based in Ottawa, Ontario.2 Its publications and recommendations are used as an authoritative basis for protection standards, though their status is really that of opinion of eminent experts, based on conclusions from available scientific fact. Its recommendations only become effective through adoption as national law, which may first involve their adoption by one or more of the international agencies referred to below. Since 1958, the ICRP has promulgated defined doses to members of the public which should not be exceeded, founded on the principle that any dose, however small, is regarded as harmful to some degree; all doses should, therefore, be kept as low as is reasonably achievable. The system recommended by the ICRP is based on the general principles of justification (no practice involving exposures to radiation should be adopted unless it produces sufficient benefit to the exposed individuals, or to society to offset the radiation detriment it causes), optimisation of protection (in relation to any particular source of exposure, the magnitude of individual doses, the number of persons exposed and the likelihood of exposure should all be kept as low as reasonably achievable) and individual dose and risk limits (exposure of individuals resulting from a combination of all relevant practices should be subject to dose limits aimed at ensuring that no individual is exposed to radiation risks that are judged unacceptable in any normal circumstances). These aspects of the ICRP’s work are discussed in more detail in chapter seven dealing with radiological protection.

THE UN SCIENTIFIC COMMITTEE ON THE EFFECTS OF ATOMIC RADIATION The UN Scientific Committee on the Effects of Atomic Radiation (UNSCEAR) was set up by the General Assembly in 1955, and is the primary scientific review body on a global basis.3 The mandate, under UN Resolution 913(X) of 3 December 1955 is to receive and assemble in appropriate and useful form reports on observed levels of ionising radiation and radioactivity in the environment and reports on scientific observations and experiments relevant to the effects of such radiation on man and the environment and to recommend uniform standards with respect to procedures for sample collection and instrumentation. The assessment of the benefits or economics of radiation technology, or setting policy on protection, are outside its remit. It currently comprises scientists from 21 countries. It meets annually, and reports on the effects of radiation from different sources and on the scientific evidence of their effects. UNSCEAR’s work programme is approved by the UN General Assembly, typically over a four to five year period. The UNSCEAR Secretariat, based in Vienna and functionally linked to the UN Environmental Programme, collates relevant data by way of questionnaires to Member States 4 and engages specialists to analyse the data and review scientific literature. UNSCEAR has only issued 16 major publications since its inception, but these have been highly influential milestones in the development of international knowledge and policy. For example, the two reports submitted in 1958 and 1962 on levels of radiation following nuclear tests, provided the 2

See www.icrp.org. See www.unscear.org. 4 These cover four main areas: medical radiation usage; occupation radiation exposures; natural radiation sources; and releases from nuclear power plants, contaminated sites and fuel reprocessing plants. 3

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The International Atomic Energy Agency 39 scientific grounds on which the Partial Test Ban Treaty on prohibition of nuclear weapon testing in the atmosphere (see further chapter eight) was negotiated and signed in 1963. Other important work has included the topic of medical diagnostic and therapeutic exposures, ongoing evaluation of evidence on radiation-induced health effects from studies of atom bomb survivors in Japan, and assessment of radiation exposures and health effects from the 1986 Chernobyl accident. These reports have in many cases provided the scientific basis used by the ICRP in developing its recommendations and in turn in formulating international standards. Its 2001 Report addressed the issue of the hereditary effects of radiation and its 2006 two-volume Report, Effects of Ionising Radiation, provides detailed epidemiological evaluation of cancer and non-cancer diseases following radiation exposure. As part of the activities in 2006 to mark the fiftieth anniversary of the first session of UNSCEAR, Japan sponsored work to make available electronically all UNSCEAR reports dating back to 1958, which is an important resource.5

THE INTERNATIONAL ATOMIC ENERGY AGENCY The International Atomic Energy Agency (IAEA) grew out of President Eisenhower’s famous speech of 1953 to the UN, ‘Atoms for Peace’, and was founded in 1957 as a UN Agency to promote the peaceful uses of atomic energy. It is worth reflecting on the history which underlay the formation of the IAEA, which was ‘the product of compromise following failure to agree on US proposals for international management of all nuclear power by an international body’.6 At the end of World War II the US had the monopoly on nuclear weapons, a monopoly which it was clear would sooner or later be challenged, with potentially disastrous consequences for the world. The very first resolution of the UN General Assembly,7 passed in London on 24 January 1946, was to establish the UN Atomic Energy Commission (UNAEC) ‘to deal with the problems raised by the discovery of atomic energy and other related matters’.8 It was charged to proceed ‘with the utmost dispatch’ and to make specific proposals for extending between all nations the exchange of basic scientific information for peaceful ends, for control of atomic energy to the extent necessary to ensure its use only for peaceful purposes, for the elimination from national armaments of atomic weapons, and for effective safeguards by way of inspection and other means to protect complying states against the hazards of violation and evasion. The US appointed a committee led by the Secretary of State, Dean Acheson, and David Lilienthal, Chairman of the Tennessee Valley Authority, to consider the policy quandaries presented by nuclear weapons. Their report was presented to the State Department in March 1946 under the title, The International Control of Atomic Energy, generally known as the Acheson-Lilienthal Report.9 The authors were pessimistic about the prospects for controlling nuclear weapons 5

www.unscear.org/unscear/en/publications.html. Birnie, Boyle and Redgwell, (see n 1 above) 493. 7 The second resolution was on rules of procedure concerning languages; the third was on the extradition and punishment of war criminals. 8 The establishment of the Commission had been discussed in a meeting on 15 November 1945 between President Truman, Prime Minister Attlee, and the Prime Minister of Canada, Mackenzie King, and endorsed at a meeting of the Foreign Ministers of the US, Soviet Union and Britain (Byrnes, Molotov and Bevin) in Moscow on 27 December 1945. 9 Text available at www.learnworld.com/ZNW/LWText.Acheson-Lilienthal.html#toc. 6

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40 International Aspects proliferation through inspection: ‘a system of inspection superimposed on an otherwise uncontrolled exploitation of atomic energy by national governments will not be an adequate safeguard’. As it was put at the start of Chapter III of the report: To ‘outlaw’ atomic energy in all of its forms and enforce such a prohibition by an army of inspectors roaming the earth would overwhelm the capacity and the endurance of men, and provide no security.

The proposed solution involved a distinction between ‘safe’ uses of radioactivity (which did not present the possibility of contributing to nuclear weapons) and the ‘dangerous’10 activities which should not be left in the hands of sovereign states, but rather entrusted to international institutions: It has become clear to us that if the element of rivalry between nations were removed by assignment of the intrinsically dangerous phases of the development of atomic energy to an international organization responsible to all peoples, a reliable prospect would be afforded for a system of security.

The report put forward its proposal in memorable language: The program we propose will undoubtedly arouse skepticism when it is first considered. It did among us, but thought and discussion have converted us. It may seem too idealistic. It seems time we endeavor to bring some of our expressed ideals unto being. It may seem too radical, too advanced, too much beyond human experience. All these terms apply with peculiar fitness to the atomic bomb. In considering the plan, as inevitable doubts arise as to its acceptability, one should ask oneself ‘What are the alternatives?’ We have, and we find no tolerable answer . . . The proposal contemplates an internationa1 agency conducting all intrinsically dangerous operations in the nuclear field, with individual nations and their citizens free to conduct, under license and a minimum of inspection, all non-dangerous, or safe, operations . . . The proposal contemplates an international agency with exclusive jurisdiction to conduct all intrinsically dangerous operations in the field. This means all activities relating to raw materials, the construction and operation of production plants, and the conduct of research in explosives. The large field of non-dangerous and relatively non-dangerous activities would be left in national hands. These would consist of all activities in the field of research (except on explosives) and the construction and operation of nondangerous power-producing piles. National activities in these fields would be subject to moderate controls by the international agency, exercised through licensing, rules and regulations, collaboration on design, and the like. The international agency would also maintain inspection facilities to assure that illicit operations were not occurring, primarily in the exploitation of raw materials. It would be a further function of the Atomic Development Authority continually to reexamine the boundary between dangerous and non-dangerous activities. For it must be recognized that although the field is subject to reasonable division, the dividing line is not sharp and may shift from time to time in either direction . . . The development agency itself would be truly international in character. Its staff would be recruited on an international basis. Its functions would be such as to attract a calibre of personnel comparable to our own activities in raw materials during the war and our own primary production and experimental work. It would be set up as one of the subsidiary 10 The issue of distinguishing between ‘safe’ and ‘dangerous’ activities was discussed in Chapter V of the report. ‘Dangerous’ activities were the production of nuclear raw materials and the production of fissionable materials. ‘Safe’ activities included obvious matters such as the medical use of radioisotopes, but also more controversially the use of smaller reactors for nuclear power production. The summary of the report stated: ‘If an international agency is given responsibility for the dangerous activities, leaving the non-dangerous open to nations and their citizens and if the international agency is given and carries forward affirmative development responsibility, furthering among other things the beneficial uses of atomic energy and enabling itself to comprehend and therefore detect the misuse of atomic energy, there is good prospect of security.’ History has shown that no such watertight division between ‘safe’ and ‘dangerous’ activities can be drawn in terms of halting nuclear proliferation: see further ch 8.

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The International Atomic Energy Agency 41 agencies of the United Nations, but it would have to be created by a convention or charter establishing its policies, functions, and authority in comprehensive terms.

President Truman appointed Bernard Baruch, a successful financier and elder statesman who had advised US Presidents on economic policy during, and between, both World Wars (and who coined the term ‘Cold War’) to present US proposals based on the AchesonLilienthal Report to the UN Commission. This became known as ‘the Baruch Plan’ and was presented in a speech on 14 June 1946.11 Baruch’s speech contains many dramatic and memorable cadences, for example his Biblical-sounding opening, ‘We are here to make a choice between the quick and the dead’ and his conclusion quoting Lincoln’s 1862 message to Congress: ‘We shall nobly save, or meanly lose, the last best hope of earth’. The proposals were, however, doomed. Baruch put forward the creation of an International Atomic Development Authority, that manufacture of atomic bombs should stop and existing bombs be disposed of, and that the Authority should be in full possession of know-how for the production of atomic energy. The problem was that as Baruch put it, ‘the matter of punishment lies at the heart of our present security system’. The proposal was that there should be penalties fixed for nations which violated the prohibition on possession of an atomic bomb, for illegal possession or separation of atomic material suitable for such use, or for the creation or operation of ‘dangerous projects’ in the absence of a licence granted by the international control body. Particularly controversial was the proposal that none of the five great powers—USA, USSR, UK, France, and China—would be able to escape such punishment by exercise of their normal veto. The Soviet Union was developing its own nuclear armaments, was deeply distrustful of the western powers, and demanded that the US give up its own nascent nuclear arsenal as a pre-condition of any international agreement. The debate was not constructive and ultimately the Soviet Union abstained from the vote taken on the Plan on 31 December 1946, effectively marking the onset of the Cold War and the accompanying nuclear arms race. The UNAEC was adjourned indefinitely in 1949. Ironically, by the time President Eisenhower gave his ‘Atoms for Peace’ address in 1953, with its expressed purpose of moving ‘out of the dark chamber of horrors into the light’, the chamber was becoming increasingly and rapidly well stocked with new horrors. The USSR had tested its first atomic bomb (in November 1949, to the surprise of the Americans, who had thought it would take 20 years’ work to arrive at that stage), the US had responded by accelerating its programme to build the ‘Super’ or hydrogen bomb, and the US military was equipping itself with nuclear weapons adopted for use not only in bombs, but in depth charges, torpedoes, mines, artillery, even bazookas.12 David Lilienthal, by then head of the USAEC, wrote despairingly, ‘More and better bombs. Where this will lead . . . is difficult to see.’13 Eisenhower’s speech, which he had shown to Churchill in draft and which the British Prime Minister had warmly approved, avoided the pitfalls of the Baruch Plan in calling for a hard inspection regime and sanctions, but had the objective of nuclear disarmament and the establishment of an international agency which would impound, store and protect a bank of uranium and fissile materials contributed by the nuclear powers. How Eisenhower’s proposals led to the foundation of the IAEA has been explained in detail in 11

The text of the speech is available at www.atomicarchive.com/Docs/Deterrence/BaruchPlan.shtml. See Joseph Cirincone, Bomb Scare: The History and Future of Nuclear Weapons (New York, Columbia University Press, 2007) 21, 25. 13 Ibid, 21. 12

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42 International Aspects the comprehensive history of the first 40 years of the IAEA by David Fischer.14 In 1954 the UN General Assembly adopted resolution 810A(IX) that set in motion the process leading to establishment of the IAEA. It should be noted that the years during which the IAEA’s statute was being negotiated, 1954–56, marked the beginning of a period of significant activity in concluding bilateral agreements on sharing nuclear technology. Following the amendment in 1954 of the McMahon Act it became possible to share and disseminate US nuclear know-how. The US and USSR began to compete in providing research reactors and fuel as a means of gaining allies and extending influence. The first bilateral agreement for such co-operation was between the US and Turkey in 1955 and by the end of the 1950s, America had entered into similar agreement with 42 countries. The form of agreement favoured by the US included safeguard provisions aimed at preventing diversion to nonpeaceful uses, but provided for this function to be transferred to the IAEA in due course. Soviet agreements did not provide for safeguards, but required recipients to pledge to use material and technology for peaceful purposes only and to return spent fuel to the USSR. The perceived benefits to the superpowers of such bilateral arrangements inevitably coloured attitudes to a multilateral system as proposed by Eisenhower. Soviet reactions to the proposals were initially unfavourable. This led to reconsideration of the concept of an agency which would take custody of fissile material to one which would act as a clearing house for nuclear transactions.15 However, in 1955 the Soviet Union agreed to join in negotiations with the eight nations group (Australia, Belgium, Canada, France, Portugal, South Africa, the USA, and UK) which was considering a draft statute. Also in 1955 there was held a highly successful scientific conference in Geneva of over 1,500 scientists, which considered the potential uses of nuclear power and which did much to dispel some of the secrecy and mistrust that had developed. There was an optimistic impetus towards national collaboration for the benefit of mankind, with statements such as by Admiral Lewis Strauss (Chairman of the USAEC) that the next generation would enjoy ‘electrical energy too cheap to meter’ and by Winston Churchill that atomic energy would be ‘a perennial fountain of world prosperity’.16 The co-operation of the USSR, which had indicated its willingness to make available 50kg of uranium-235 to the proposed bank as a token of its good faith, meant that an Agency with a role in holding stock of material which would over time could grow and reduce the nuclear arms capability of individual states had become at least a possibility. However, this was not to be the case; nor would the IAEA to any significant extent become a clearing house for transactions in nuclear material. The reason was the tendency towards favouring bilateral arrangements, as described above: In the late 1950s, one of the chief reasons was that members of Congress preferred to supply direct to partners in bilateral agreements and thus bypass the IAEA and apply US safeguards to the transaction. Through such bilateral arrangements Congress could determine who would receive US nuclear material and make sure that it did not end up in hands that many members of Congress distrusted, such as those of the Soviet Union and its allies.17

As negotiations on the IAEA statute developed so the group of nations involved expanded to include Brazil, Czechoslovakia and India. Key negotiating issues which had to be resolved were the form of safeguards to be applied, and the composition of the IAEA Board of 14 David Fischer, IAEA; The First 40 Years (Austria, IAEA, 1997) available at www-pub.iaea.org/MTCD/ publications/PDF/Pub1032_web.pdf. 15 Ibid, 30. 16 Ibid, 32. 17 Ibid, 34.

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The International Atomic Energy Agency 43 Governors. Acceptable compromises were found, and the IAEA was ultimately established at the New York Conference in September 1956 at which the Statute was approved, 82 states taking part. It is important to note that while the UN provided the venue and facilities, the Conference was an ad hoc meeting of the states concerned and not the UN. The relationship between the IAEA and UN was controversial—the Western countries generally wanted as much autonomy from the UN as possible to avoid political complications with issues then on the UN agenda, whereas the USSR and developing countries generally wanted greater dependence on the UN institutions, the USSR so that it could use its veto on the Security Council if the Agency was perceived as becoming anti-Soviet in its stance. The ultimate position was that the IAEA would conduct its activities ‘in accordance with the purposes and principles of the United Nations to promote peace and international cooperation, and in conformity with policies of the United Nations furthering the establishment of safeguarded worldwide disarmament and in conformity with any international agreements entered into pursuant to such policies’ and would submit annual reports on its activities to the UN.18 A co-operation agreement was signed between the IAEA and UN in 1957, giving the IAEA virtually exclusive worldwide competence in respect of peaceful uses of nuclear energy and complete autonomy in undertaking its tasks.19 Another notable feature of the IAEA is the unusual concentration of power in the hands of the IAEA Board of Governors, rather than the General Conference of Member States. The Board, composed of members still essentially designated according to the compromise formula in Article VI which was originally proposed by India in the 1950s, has authority to carry out the functions of the Agency, subject to certain responsibilities to the General Conference,20 the functions of which are set out in Article V.D. The founding statute of the IAEA sets out various functions at Article III.A in relation to the peaceful uses of atomic energy. These include: assisting research; encouraging the exchange of expertise; fostering the exchange of information; encouraging the training of scientists and experts; and establishing and administering safeguards to avoid the diversion of nuclear matter to non-peaceful ends. Its sixth authorised function is to establish and adopt standards of safety for protection of health, and minimisation of danger to life and property. No explicit mention is made of what has become one of the main functions of the IAEA, namely providing technical assistance or technical co-operation to developing countries. This is however implicit both in the general Article II objective of accelerating and enlarging ‘the contribution of atomic energy to peace, health and prosperity throughout the world’ and in the reference in Article III.A.2 to having ‘due consideration for the needs of the under-developed areas of the world’. By way of a vestigial indication of the originally envisaged purpose of the Agency, Article III.A.1 gives it power to act as an intermediary between members for the supply of materials, equipment or facilities, if requested to do so. Disputes concerning the interpretation or application of the IAEA Statute are to be referred to the International Court of Justice, and the General Conference and Board of Governors have separate powers to request the ICJ to give an advisory opinion, subject to authorization from the UN General Assembly.

18

IAEA Statute, Arts III.B and XVI. See the article by Sheel Kanty Sharma, ‘The IAEA and the UN Family: Networks of nuclear co-operation’ (IAEA Bulletin, 3/1995) which helpfully describes the range of co-operative frameworks between the IAEA and UN and other bodies available at www.iaea.org/Publications/Magazines/Bulletin/Bull373/37305381015.pdf. 20 Art VIF. 19

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44 International Aspects

THE IAEA’S ROLE The role of the IAEA has evolved significantly since the 1950s in response to changing concerns as to safety, security and regulation of nuclear facilities. In treaty terms it is the custodian of a number of important instruments, which are discussed in detail in the relevant chapters below. These notably include the Convention on Nuclear Safety (1994), the Conventions on Early Notification of Nuclear Accidents and on Assistance in the Case of a Nuclear Accident or Radiological Emergency (1986), the Joint Convention on Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (1997) and the Vienna Convention on Civil Liability for Nuclear Damage (1963). There are three main pillars to the IAEA’s work: (1) safeguards and verification; (2) safety and security; and (3) science and technology.21 Taking first safeguards and security, the IAEA’s legal powers derive from the UN NonProliferation Treaty and related regional agreements, as discussed in chapter eight, under which state parties to the Treaty are subject to inspection and verification by the IAEA. The position on safety and security is somewhat less clear-cut legally. Article III.A.6 of its Statute authorises the IAEA to establish or adopt standards of safety for the protection of health and the minimisation of danger to life and property. The IAEA publishes numerous materials on all aspects of safety and radiological protection, generally based upon ICRP recommendations.22 These materials can take the form of regulations, rules, requirements, codes of practice and guides, and will therefore vary in how prescriptively they are written. They are discussed as relevant in terms of their substantive content in the chapters which follow, on matters such as nuclear safety, radiological protection, waste management and transport. The IAEA organises its standards into three types: Safety Fundamentals, Safety Requirements and Safety Guides. The Safety Fundamentals provide general statements of principle, the Requirements are detailed regulatory standards, and the Guides are recommendations as to practical means of meeting those requirements. There is now a single safety standard on Fundamental Safety Principles (SF-1) published in November 2006, which provides the conceptual basis for the entire safety standards programme.23 This contains 10 safety principles dealing with responsibility for safety, role of government, leadership and management for safety, justification, optimisation, limitation of risks to individuals, protection of present and future generations, prevention of accidents, emergency preparedness and response, and protective actions to reduce existing or unregulated radiation risks. Publications in the Safety Standards series are numbered according to five main application areas: safety of nuclear facilities, radiation protection and safety of radioactive sources, safe management of radioactive waste, safe transport of radioactive material, and general safety (cross-cutting themes). Each area will have at least one Safety Requirement publication, and in many cases more than one, published with a prefix of the subject and ‘R’ (for Requirements) followed by the number (for example GS-R for general safety, TS-R for transport safety, and so on). Safety Guides are numbered according to their related Safety 21

www.iaea.org/OurWork/index.html. A full summary of the status of all IAEA Standards (130 as at January 2009) can be found at www-ns.iaea.org/ downloads/standards/status.pdf. 23 See www-ns.iaea.org/standards/documents/default.asp?sub=100. 22

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The IAEA’s Role 45 Requirements, so that the Guides which supplement Requirement WS-R-1 would be WSG-1.1, 1.2, and so on. As well as thematic areas, the Standards can be grouped in terms of facilities and activities (for example, design of nuclear power plants, operation of nuclear power plants, research reactors, fuel cycle facilities and waste treatment and disposal facilities). As well as the safety standards issued by IAEA, the International Nuclear Safety Advisory Group of experts (INSAG) produces a number of Safety Reports, such as on safety culture,24 and on nuclear safety infrastructure,25 which are issued under the authority of the Director General of the IAEA. There are also some important cross-cutting pieces of technical guidance on other areas than safety, such as on nuclear security.26 The IAEA’s formal powers to impose or require particular standards to be met apply only in cases where the Agency supplies materials or facilities to a state. However, the IAEA’s standards in practice contribute significantly to the regulation of nuclear risks at national level, despite the fact that they are not adopted by the IAEA’s General Conference but rather by its Board. Importantly, the standards may gain legal force by being referred to in Conventions, such as the Nuclear Safety and Joint Conventions, and may be relevant in determining how obligations under such instruments are to be implemented.27 In terms of the third limb of science and technology, the IAEA is involved in many activities such as technical co-operation, training, research and development and advice, utilising radiation for the benefit of developing countries. Such activity is not confined to the field of nuclear power; it includes applications of radiation in areas such as plant breeding and pest control. Apart from in the areas of safeguards and verification, the IAEA lacks general powers of inspection of nuclear facilities. The only compulsory powers arise under assistance agreements with states. However, the Agency can and does provide inspections and reviews of safety practices at installations, where requested to do so, and such services are helpful to governments in providing objective assessment of the safety of installations. What the Agency cannot do if it finds unsafe practices is to enforce closure or modification of a plant. It can only recommend, but nevertheless its recommendations will carry substantial weight and will bring international pressure to bear for improvements. In 1982, the Agency instituted the Operational Safety Review Team (OSART) programme, under which international teams of experts conduct three-week in-depth reviews of operational safety performance at individual nuclear power plants, acting at the request of the government of the host country. Each OSART mission is conducted by a team of experts from several countries with extensive experience in some aspect of nuclear power plant operation. The programme therefore provides an opportunity for mutual assistance through the dissemination of information on the best international practices. The first OSART mission was conducted at the Ko-Ri nuclear power plant in the Republic of Korea in August 1983. Since then, missions have been completed at numerous facilities worldwide. Whilst there are now obligations stemming from the 1994 Convention on Nuclear Safety as to the safe operation of plants, and reporting obligations, the fact remains that the IAEA ‘has no general power of compulsory inspection, and no power to close down a nuclear installation, however unsafe’.28 24

Safety Series No 75-INSAG-4, Safety Culture (1991). INSAG-22, Nuclear Safety Infrastructure for a National Nuclear Power Programme supported by the IAEA Fundamental Safety Principles (STI/PUB/1350 (2009)). 26 IAEA Nuclear Security Series, Technical Guidance 7, Nuclear Security Culture (STI/PUB/1347 (2009)). 27 See the discussion of IAEA standards as ‘soft law’ in Birnie, Boyle and Redgwell, (see n 1 above) 495–7. 28 Ibid, 499. 25

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46 International Aspects

THE NUCLEAR ENERGY AGENCY The Nuclear Energy Agency (NEA), created in 1956, is a regional grouping, broadly comprising a number of European States, together with Australia, Canada, Japan, Korea and the USA. It was established within the framework of the OECD and is one of its specialised agencies. It was formerly known as the European Nuclear Energy Agency until accession by Japan as the first non-European member state in 1972. As in the case of the IAEA, the NEA has the general purpose of furthering the development of peaceful uses of nuclear energy including the applications of ionizing radiations.29 The NEA’s tasks are carried out, under the authority of the Council, by its Steering Committee (Articles 2 and 3). Its objects, set out in Article 8, include contribution by the responsible national authorities to promotion of the protection of workers and the public, and of the preservation of the environment, as well as the promotion of the relative safety of nuclear installations. The NEA, like the OECD, bases its standards and principles on ICRP recommendations. Another object is contribution to promoting a system of third-party liability and insurance with respect to nuclear damage; this contribution takes the form of the Paris and Brussels Supplementary Conventions. Article 6 requires the establishment of security control with a view to ensuring that the operation of joint undertakings and the materials made available by the Agency or under its supervision are used solely for peaceful purposes. The NEA has its own stable of publications on nuclear safety, radiological protection, and radioactive waste management, as well as general nuclear science.30 It operates in many areas. These include safety, assisting member countries in ensuring high standards of safety in the use of nuclear energy, by supporting the development of effective and efficient regulation and oversight of nuclear installations, and by helping to maintain and advance the scientific and technological knowledge base. For example, the NEA has been invited to perform the Technical Secretariat functions for the Multinational Design Evaluation Programme (MDEP), a multinational initiative taken by national safety authorities to develop innovative approaches to leverage the resources and knowledge of the national regulatory authorities who will be tasked with the review of new reactor power plant designs. In the area of waste management, the NEA aims to assist member countries in the management of radioactive waste and materials, focusing on the development of strategies for the safe, sustainable and broadly acceptable management of all types of radioactive waste, in particular long-lived waste and spent fuel. It has a number of important working groups, for example the Forum on Stakeholder Confidence (FSC), which facilitates the sharing of experience in addressing the societal dimension of radioactive waste management and explores means of ensuring an effective dialogue with the public with a view to strengthening confidence in the decision-making processes, a Regulator’s Forum and a Working Party on dismantling and decommissioning. It is also concerned with the development and harmonisation of nuclear law, having a Standing Nuclear Law Committee, and produces a number of important surveys and publications on nuclear law,31 as well as a regular Nuclear Law Bulletin,32 and as running the International School in Nuclear Law with the University of Montpellier 1. 29 30 31 32

www.nea.fr. See NEA Statute, Article 1.b. www.nea.fr/html/pub/catalog.html. See, eg, OECD Baseline Survey, Environmental Radiological Protection in the Law (NEA No 6172, 2007). www.nea.fr.html/pub/ret.cgi?div=LEG.

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The Global Nuclear Energy Partnership 47

THE GLOBAL NUCLEAR ENERGY PARTNERSHIP A more recent, and controversial, entrant on the international nuclear scene is the Global Nuclear Energy Partnership (GNEP).33 This began as a US proposal, announced in 2006 as part of President Bush’s Advanced Energy Initiative, for an international partnership to promote the use of nuclear energy and improve the nuclear fuel cycle so as to reduce the risk of proliferation and more effectively manage waste while guaranteeing access to fuel supplies. On the US Department of Energy website,34 the background to the partnership is described as follows: The Global Nuclear Energy Partnership, or GNEP, is an initiative that offers a responsible framework for both international and domestic use of nuclear power to reduce the risks associated with nuclear proliferation and the impacts associated with waste disposal. GNEP responds to renewed and growing worldwide interest to utilize nuclear energy as a source of low-carbon, baseload electricity to support the growing demand for energy. The global growth of nuclear power is well underway, as illustrated by the rapid pace of nuclear plant construction in India, Russia and China . . . Understanding that the clean, safe, secure expansion of nuclear power is a global challenge requiring global cooperation is central to the GNEP vision. Internationally, GNEP comprises a partnership of countries with a common vision: to expand nuclear energy safely and peacefully. To accomplish this, the United States and its GNEP partners are working toward establishing international structures intended to prevent the uncontrolled spread of nuclear technologies and materials.

The GNEP’s Statement of Principles, signed by 16 states35 on 16 September 2007, indicated that the co-operation envisaged would be pursued with the following objectives: expanding nuclear power in a sustainable and safe manner; developing, in conjunction with the IAEA, enhanced nuclear safeguards; establishing international supply frameworks to provide reliable and cost-effective fuel services, thus creating a viable alternative to acquisition of sensitive fuel cycle technologies; development and in due course deployment of advanced and more proliferation-resistant reactors; and demonstration of advanced technologies for recycling spent fuel, with a long-term goal of ceasing separation of plutonium and helping to reduce nuclear waste. The overall vision is for a global network of nuclear fuel cycle facilities under IAEA control or supervision. The goals for the US also include the construction of a new generation of nuclear power plants in the USA (given that no new plant has been ordered there for 25 years) and the reduction of US dependence on imported fossil fuels.36 The US has established cooperative arrangements and action plans for collaboration under the initiative, including agreement between France, Japan and the US to research and develop sodium-fast cooled reactors. The Partnership operates through an Executive Committee and a Steering Group. There are two working groups dealing with nuclear infrastructure development and reliable nuclear fuel services. The principles underlying the GNEP can be seen to echo the earlier US attempts to foster the spread of nuclear technology on a benevolent basis, as discussed earlier in this chapter. However, there have also been serious doubts and criticisms. Its division between 33

www.gneppartnership.org. www.nucleargov 35 Australia, Bulgaria, China, France, Ghana, Hungary, Japan, Jordan, Kazakhstan, Lithuania, Poland, Romania, Russia, Slovenia, Ukraine and the USA. Since then further countries have joined, namely: Armenia, Canada, Estonia, Italy, Korea, Morocco, Oman, Senegal and the UK. The IAEA and Euratom are permanent nongovernmental observers and there are a significant number of observer countries. 36 www.world-nuclear.org/info/inf117_gnep.html. 34

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48 International Aspects nations with fuel enrichment and reprocessing facilities, and those which would simply be users of materials, has aroused concern as to exploitation and uncompetitive conduct, political pressures brought to bear by states having those facilities, and future tensions between ‘haves’ and ‘have-nots’, and it has been suggested that the initiative might well be scaled back, if not altogether abolished, by President Obama.37 Essentially, reprocessing is viewed both as a means of reducing proliferation by reducing the accumulation of separated plutonium: two significant elements in the strategy are new reprocessing technologies which separate all transuranic elements together, rather than plutonium on its own, and advanced recycling reactors to consume these elements while generating power.38 A further important strategic issue for the US is addressed by GNEP, namely the efficiency of the nuclear fuel cycle. The current US system operates a ‘once through’ fuel cycle, which uses only part of the potential energy in the fuel, leaving relatively large quantities of waste requiring long-term storage and disposal. Development of more efficient fuel reprocessing technologies would assist the US on the increasingly pressing problem of waste management. However, more recent indications are that the future of the GNEP looks uncertain. In 2007, a panel of the US Academy of Science stated that the commercial-scale reprocessing facilities envisaged by GNEP would not be economically viable, and in June 2009 it was announced that the Department of Energy has decided to cancel the GNEP programmatic environmental impact statement because it was no longer pursuing the domestic commercial reprocessing which had been one of the main goals of the domestic GNEP programme.39 The Omnibus Appropriations Act of 2009 however still provides $145 million funding for research and development on proliferation-resistant fuel cycles and waste management strategies.

GENERATION IV INTERNATIONAL FORUM The Generation IV International Forum (GIF)40 was founded by charter in July 2001 and is an international task force seeking to develop six new reactor technologies for use between 2020 and 2030.41 It was the result of a series of meetings convened by the US Department of Energy to discuss international collaboration in the field. It has 13 member countries42 and Euratom is also a member. The Charter provides for the participation of the IAEA and NEA as observers, and the NEA acts as the Technical Secretariat. The six concept reactor types were selected in 2002 on the basis of being clean, safe, resistant to diversion of material for weapons purposes, and secure from terrorist attack and range in size from 150 to 1500 megawatts. In February 2005 five of the participants (Canada, France, Japan, the UK and the US (though the UK has not ratified the Framework Agreement)) signed an agreement to take forward the research and development on the six technologies and agreed to undertake joint research and exchange technical information. 37 See Centre for International Governance Innovation, GNEP Watch, No 11, November/December 2008 available at www.cigionline.org/publications/2008/12/gnep-watch. 38 www.world-nuclear.org/info/inf117_gnep.html. 39 www.world-nuclear-news.org/NP-DoE_cancels_GNEP_EIS-2906095.html. 40 www.gen-4.org. 41 See www.world-nuclear.org/info/inf77.html. 42 These are Argentina, Brazil, Canada, China, France, Japan, Russia, South Africa, South Korea, Switzerland, the UK and the USA. Of these, Argentina, Brazil and the UK have signed the Charter but are not parties to the Framework Agreement, and are known as ‘inactive members’. Russia is working on the necessary approvals for its accession to the Framework Agreement.

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3 Euratom INTRODUCTION The European Atomic Energy Community (Euratom),1 unlike the IAEA and NEA, has power to set and enforce binding radiation protection standards. Euratom was created by Treaty to assist the development of a civil nuclear industry in Europe, and to ‘ensure for Europe a place in the energy revolution’.2 It is ‘part and parcel of Europe’s economic, scientific and political development, which aims to steer nuclear energy into civil uses’.3 In 1957, when Euratom was created, atomic power was considered the means by which national differences in economic growth could be minimised, and the gap between domestic energy supplies and increasing demand for energy within Member States could be reduced. The creation of the Community was also intended to promote development of the peaceful uses of atomic energy through co-operation, given that the resources of individual Member States might be insufficient in this respect. The political and economic imperatives of the time have been described as follows:4 Joint European action on the nuclear front was an attractive prospect in the mid-1950s as it would reduce dependence on Middle East oil and American coal. Gas and oil extraction in the Sahara had not begun and North Sea natural gas off Holland had yet to be discovered. Nuclear power seemed to be the fuel of the future. Western Europe appeared short of energy resources at this time, a fact demonstrated vividly by the Arab oil embargo in the wake of the 1956 Suez crisis. The peaceful use of atomic energy became a matter of high priority with the cutting off of Europe’s oil supplies. Collective co-operation in atomic energy made sense as the Six could pool their technical expertise and knowledge, and use Belgian uranium in the Congo, with Germany sharing the cost of building separators and reactors.

It is probably the case that the Euratom Commission, whilst having similar powers to the EEC Commission, made much less adept use of those powers during the 1960s to promote integration.5 Illness forced the resignation of its first president, Louis Armand, in its first year. Further delays over recruitment and establishing priorities meant that by the time it really began operating in 1960, concerns over coal and oil shortages had eased, and national 1

See www.euratom.com. Dr Linda Spedding, ‘Euratom’ (1989) 29 Law Society Gazette 23, available at www.lawgazette.co.uk/news/ euratom. 3 Fabrizio Nocera, The Legal Regime of Nuclear Energy: A Comprehensive Guide to International and European Union Law (Antwerp, Oxford, Intersentia, 2005) 43. 4 Martin J Dedman, The Origins and Development of the European Union 1945–95 (London, New York, Routledge, 1996) 98. 5 See Stephen George and Ian Bache, Politics in the European Union (Oxford, Oxford University Press, 2001) 83–4 2

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50 Euratom positions and interests had become embedded. France was less enthusiastic about Euratom than it had been, and there were a series of clashes between the Commission and de Gaulle’s government over inspection of French plutonium facilities and the Commission’s proposal for funding joint reactor development research with the US. Euratom must also be seen within the context of the development of the other European Communities; its creation followed the conclusion of the European Coal and Steel Community Treaty in 1951, and coincided with the creation of the European Economic Community by the Treaty of Rome in March 1957.6 The three Treaties were supplemented in 1965 by the Merger Treaty which brought together the Councils of the three Communities and established a single Commission for the European Communities.7 Whilst each Treaty therefore contains different objectives, the three Treaties should be considered as a whole. Accordingly, in so far as measures under the Euratom Treaty are concerned with environmental protection, it is to be expected that they would be approached and interpreted in the light of the general objectives relevant to that area: preserving, protecting and improving the quality of the environment, protecting human health, and the prudent and rational utilisation of natural resources.8 Further, the general underlying principles of precaution, preventive action, rectification of damage at source and that the polluter should pay, will all be relevant.9 One of the tasks of the European Union is to achieve ‘balanced and sustainable development’10. The concept of sustainable development incorporates the imperative that the ability of future generations to meet their own needs should not be compromised, which has particular significance for matters such as the generation and disposal of very long-lived radioactive wastes, though how this translates into any meaningful legal consequences is a difficult question.11 What the Euratom Treaty does not do is to lay down any general policy on the use of nuclear energy, but rather certain conditions as to its use. This is not altogether surprising, since a number of EU Member States have never used nuclear energy and indeed are hostile to it,12 or have ceased or are phasing out its use since the inception of Euratom.13 On the other hand, the expansion of the EU to include many central and east European states has brought within Euratom countries which are relatively, and in some cases heavily, reliant on nuclear energy using former Soviet reactor technology. After Chernobyl, some European governments were keen to emphasise the perceived shortcomings in design safety in the Soviet reactors, as compared with western designs. In fact the more significant differences probably lay in safety culture, at least so far as the second generation VVER reactors were concerned.14 As part of accession negotiations, states such as Bulgaria, Lithuania and Slovakia 6 Indeed, at the time, founding fathers of the Community such as Jean Monnet and Henri Spaak were much more positive about the creation of Euratom than of the common market itself: see Dedman, (n 4 above) 99 7 Art 126 Euratom, which dealt with the original Commission, was replaced by the provisions of Article 19 of the Merger Treaty and replaced by Article 10 of that Treaty. The tasks of the Commission remain as set out in Article 124 Euratom. The original Commission consisted of five members and from its establishment until its replacement had three Presidents, all French (Louis Armand, Étienne Armand and Pierre Chatenet). 8 EC Treaty, Art 174(1). 9 EC Treaty, Art 174(2). 10 EC Treaty, Art 2. 11 See, eg, Dr Ludwig Krämer, EC Treaty and Environmental Law, 2nd edn (London, Sweet & Maxwell, 1995) para 2.34. 12 For example, Austria, Ireland and Luxembourg. 13 For example, Italy which closed its three operating reactors and ceased construction of a fourth after a 1987 referendum, and Belgium and Germany which have imposed legislative moratoria on new plants. 14 Germany on reunification in 1989 inherited six second and third generation VVER reactors which were under construction or had just commenced operation in former East Germany; although these could have been adapted at acceptable cost to meet western requirements they were abandoned because no investors could be found who were willing to take on the regulatory risk of the re-licensing process under German law.

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The Euratom Treaty 51 agreed to close a number of old Soviet designed reactors, such as the VVER-440 and the Chernobyl-design RBMK units. However, these countries and others such as the Czech Republic are planning and undertaking a major expansion of their nuclear capacity, either using updated Russian technology or western designs, or as in the case of the Czech Republic at its Temelin site, combining Russian VVER-1000 reactors with fuel, instrumentation and control systems provided by Westinghouse. Much to the consternation of its European neighbours, as a consequence of the state of emergency brought about in January 2009 by the disruption of Russian gas supplies, Slovakia appeared to be intending to restart the second V-440 reactor at its Bohunice V-1 nuclear plant, built in 1972, which had been closed at the end of 2008 in accordance with the Accession treaty, a proposal which led to the Commission threatening infraction proceedings.15 The plant, according to the Austrian Green Party, was one of the three most dangerous nuclear facilities in Europe, and resumption of operation would have been a source of danger to Austria, and more widely.16 In the event, gas supplies were restored, the state of emergency cancelled on 23 January 2009, and the plans for startup were not pursued. As the Commission pointed out in its 2007 Communication commemorating 50 years of Euratom,17 the results of the activities conducted under its auspices can be regarded as highly positive. It has enabled the Community to carry out important activities in a strategic sector, and has made significant advances in the fields of research, health protection, safeguarding the peaceful use of nuclear materials, and in international relations. Since the Treaty entered into force in 1957, the political, economic and technological context in which its provisions are applied has continually evolved. This explains why some provisions, for example on the European Supply Agency (see Chapter 4 of the Treaty) and on the establishment of a Community nuclear university (Article 9), have not been implemented in the manner that was foreseen in the early days. Compared with the other EU treaties, Euratom has been subject to remarkably little amendment. This may indicate that in fact many of the provisions were ahead of their time, and indeed they did anticipate and inspire the development of areas of Community law such as joint research and technical development, inspection and surveillance, external relations and environmental impact assessment. The continuation and probable expansion of nuclear power within an enlarged Community, together with the maintenance of a technological lead in the field, present new and evolving challenges for the Euratom institutions and Member States. One step towards meeting those challenges is the historic adoption in June 2009 of a framework directive on nuclear safety. That directive and the general future of Euratom are considered later in the chapter, but first we consider the content of the Treaty and the current work of the institutions.

THE EURATOM TREATY The Treaty establishing the European Atomic Energy Community was signed in Rome on 25 March 1957 (the same date as the Treaty establishing the European Economic 15 The negotiations over the closure had been acrimonious in any event. The Bohunice reactors had been the subject of considerable upgrading programmes with input from western firms, and had been inspected favourably by an IAEA mission in 2000. The Slovakian government regarded the EU’s demands for closure as excessive, and as increasing Slovakia’s energy costs and dependency on imported energy. 16 The Times, 12 January 2009. 17 COM (2007)124 final, 20 March 2007.

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52 Euratom Community). Essentially what was envisaged was a common market in nuclear materials, providing equal access to stocks of uranium 233. The pooling of stocks of material within a common institution would also have the desirable effect of curtailing the non-peaceful uses of such material, and in that sense has something in common with the discussions during the 1940s and 50s at wider international level discussed in chapter two, though as will be seen it was not the intention of the Euratom Treaty to govern or restrict national military nuclear programmes.18 After a commendably brief preamble, Title I of the Treaty deals with the tasks of the Community. Article 1 provides that it shall be the task of the Community to contribute to the raising of the standard of living in Member States, and to the development of relations with other countries, by creating the conditions necessary for the speedy establishment and growth of nuclear industries. In order to perform this task Article 2 requires the Community to undertake a number of sub-tasks, as provided by the Treaty. These are to: (a) promote research and ensure the dissemination of technical information; (b) establish uniform safety standards to protect the health of workers and the general public and ensure they are applied; (c) facilitate investment and ensure, particularly by encouraging ventures on the part of undertakings, the establishment of the basic installations necessary for the development of nuclear energy in the Community; (d) ensure that all users in the Community receive a regular and equitable supply of ores and nuclear fuels; (e) make certain, by appropriate supervision, that nuclear materials are not diverted to purposes other than those for which they are intended; (f) exercise the right of ownership conferred in respect of special fissile materials; (g) ensure wide commercial outlets and access to the best technical facilities by the creation of a common market in specialised materials and equipment, by the free movement of capital investment in the field of nuclear energy, and by freedom of employment for specialists within the Community; and (h) establish with other countries and international organisations such relations as will foster progress in the peaceful uses of nuclear energy. Under Article 3, the tasks entrusted to the Community are to be carried out by the European Parliament (assisted by the Economic and Social Committee acting in an advisory capacity), the Council, the Commission, and the Court of Justice. Title III, heavily amended by the Treaty on European Union, contains the detailed provisions dealing with these institutions and Title IV, also amended, deals with financial provisions. Title V contains a number of important general provisions, which include the usual principle of cooperation by Member States to take appropriate measures to ensure fulfillment of the Treaty obligations, to facilitate the achievement of the Community’s tasks, and to abstain from any measure that could jeopardise the attainment of the Treaty’s objectives (Article 192). Article 197 contains definitions of terms such as ‘special fissile materials’, enriched 18 In particular, under De Gaulle, the creation of an independent French nuclear deterrent, ‘la force de frappe’ was a central tenet of French foreign policy at the time of the creation of Euratom. Interestingly, there is evidence to suggest that concerns over nuclear weapons policy also played a significant part in the French veto of UK accession to the Community in 1963: both De Gaulle and Harold Macmillan had the idea of Anglo-French collaboration in nuclear defence research, with massive potential costs savings, but both were too proud to broach the issue, and then during the Brussels entry negotiations, the UK signed the Polaris deal with the US at Nassau, which closed off any such possibility of benefit for France. See Dedman, (n 4 above) 115.

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The Euratom Treaty 53 uranium, ‘source materials’ and ‘ores’. Article 198 provides that, within limited specific exceptions, the Treaty shall apply to the European territories of Member States and to nonEuropean territories under their jurisdiction. The Commission is charged with the important task in this field of establishing and maintaining appropriate relations and forms of co-operation with the international institutions, that is organs of the UN such as the IAEA, the Council of Europe and the OECD (Articles 199– to 201). The Community is empowered to conclude agreements with states or international organisations by Article 206, as amended by the Treaty on European Union, by the Council acting unanimously after consulting the European Parliament. The real meat of Euratom lies in Title II, which deals with the encouragement of progress in the field of nuclear energy. The following chapters are relevant and are discussed below in turn: Chapter 1: Promotion of research Chapter 2: Dissemination of information Chapter 3: Health and safety Chapter 4: Investment Chapter 5: Joint undertakings Chapter 6: Supplies Chapter 7: Safeguards Chapter 8: Property ownership Chapter 9: The nuclear common market Chapter 10: External relations

Chapter I: Promotion of Research Article 4 makes the Commission responsible for promoting and facilitating nuclear research in the Member States and for complementing it by carrying out a Community research and training programme. By Article 7, it is the responsibility of the Commission to promote and facilitate nuclear research in the Member States, and to complement it by carrying out a Community research and training programme. Article 8 required the Commission to establish a Joint Nuclear Research Centre, in order to ensure that the research programmes and other tasks assigned to it by the Commission were carried out. Article 9 empowered the Commission, after obtaining the opinion of the Economic and Social Committee, and within the framework of the Joint Nuclear Research Centre, to set up schools for the training of specialists, particularly in the field of prospecting for minerals, the production of high-purity nuclear materials, the processing of irradiated fuels, nuclear engineering, health and safety and the production and use of radioisotopes. It also provided by Article 9(2) for the establishment of an institution of university status. By Article 10, parts of the Community research programme may be contracted out to Member States, persons or undertakings, third countries, international organisations, or nationals of third countries.19 With the more ambitious aspects of establishing specialist training schools and a university to pursue research on a Community-wide basis, collaboration in research is an important part of Euratom’s activities, reflecting the critical role of the nuclear industry in providing one-third of the electricity generated in the Community. The Joint Research Centre (JRC), 19 See Council Regulation (Euratom) No 1908/2006 of 19 December 2006 laying down rules for the participation of undertakings, research, centres and universities in actions under the Seventh Framework Programme of the European Atomic Energy Community and for the dissemination of research results (2007 to 2011) ([2006] OJ L440).

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54 Euratom established by Article 8 of the Euratom Treaty, has developed from a purely nuclear research institution to cover other fields important to policy making, such as life sciences, energy, security and consumer protection, but nuclear research, safety and waste management remain as components of its work programmes.20 The JRC is formally a Directorate-General of the Commission. Its main headquarters are in Ispra, Italy, but it operates facilities at other European locations, including the 45 megawatt high flux research reactor at Petten in the Netherlands. The Community is currently into the Seventh Framework Programme for nuclear research and training activities, which runs from 2007 to 2011, with a budget of EUR 2,751 million.21 The programme is divided into two main areas: the Euratom Specific Programme and the ongoing activities of the JRC. The Specific Programme covers the three areas of nuclear fusion energy, nuclear fission energy and radiation protection. In terms of future developments in technology, the fusion research programme is the most important, and accounts for the great majority (almost EUR 2,000 million) of the current budget. Of particular significance is the ITER22 programme, an international project using magnetic confinement fusion technology,23 which builds on the work done with earlier experimental devices, including the Joint European Torus set up in 1978, but on a much larger scale,24 and which offers the promise of environmentally benign and inexhaustible electricity if successful. The programme is designed to last some 30 years, at a cost of around US$ 9.3 billion, and site preparation is in progress at the chosen location of Cadarache in Provence-Alpes-Côted’Azur, France (selected in 2005 in preference to Rokkasho in Japan). The participants as well as Euratom are China, India, Japan, South Korea, the Soviet Union and US.25 In November 2006 a formal agreement to build the reactor was signed, and in October 2007 the ITER Joint Implementation Agreement entered into force and the ITER Organisation came into existence. ITER will run in parallel with the International Fusion Materials Irradiation Facility (IFMIF) to develop and test the materials to be used in fusion plants, and eventually there will be a demonstration plant, DEMO, which would generate fusion energy for commercial use. This is, of course, a hugely ambitious undertaking, which has aroused opposition from many anti-nuclear groups. The formidable technical challenges presented have been summed up by one physicist as follows: “We say that we will put the sun into a box. The idea is pretty. The problem is, we don’t know how to make the box.”

Chapter II: Dissemination of Information The emphasis on research and the development of a healthy nuclear industry also underlies Chapter II of the Treaty. This deals with the dissemination of information and the exchange 20

See ec.europa.eu/dgs/jrc. See Council Decision 2006/970/Euratom of 18 December 2006 concerning the Seventh Framework Programme (2007 to 2011) (OJ L400, 30 December 2006) and Council Decision 2006/977/Euratom of 19 December 2006 concerning the Specific Programme to be carried out by means of direct actions by the Joint Research Centre ([2006] OJ L400) available at europa.eu/legislation_summaries/energy/nuclear_energy/i23032_ en.htm. 22 Originally the acronym for International Thermonuclear Experimental Reactor, a title which was dropped in view of the sensitivities attaching the term ‘thermonuclear’, with its militaristic overtones. ‘Iter’ also means ‘journey’, ‘direction’ or ‘way’ in Latin. 23 Full details are available on the ITER website at www.iter.org. 24 ITER is designed to produce approximately 500MW of fusion power sustained for up to 1,000 seconds, as compared with the JET peak of 16MW for less than a second. 25 It is proposed that Brazil will also be involved through an agreement with Portugal, as a Euratom member. Canada was a member, but pulled out due to lack of Federal Government funding. 21

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The Euratom Treaty 55 of research results, allowing Member States and undertakings to obtain non-exclusive licences in relation to patent rights owned by the Community (Article 12). The Commission is required to endeavour to secure the exchange of relevant information by amicable agreement (Articles 14 and 15). Article 16 requires Member States to ask applicants for domestic patents which relate to specifically nuclear subjects, and to agree that the contents of the application be communicated to the Commission. Ultimately if the applicant does not agree, the Member State nevertheless has to make the communication to the Commission. Article 17 makes provision for the granting of non-exclusive licences after arbitration or under compulsory powers.26 Together, these provisions represent a remarkable incursion into normal rights of intellectual property, in the interests of the development of nuclear energy in the Community. Where material communicated to the Commission is improperly used or comes into unauthorised hands, the Community is obliged to make good the damage suffered by the party concerned (Article 28). Section III of Chapter II contains important provisions for the security of information which the Commission acquires as a result of carrying out its research programme, the disclosure of which is liable to harm the defence interests of one or more Member States. Security regulations must be adopted laying down security gradings and security measures to be applied to such information, and the normal provisions on communication of such information apply in modified form.

Chapter III: Health and Safety By contrast with the provisions on research and information mentioned above, the provisions of the Treaty dealing with Health and Safety (Chapter III) are relatively brief. They are, however, extremely important in the development of Community laws and standards on radiological protection, and are discussed in more detail in the relevant chapters later in this book.27 The Council has adopted numerous directives under the Treaty to provide basic standards. The key regulations and directives include measures relating to waste movement, notification of accidents, emergency procedures, and maximum permitted levels of radioactive contamination in foodstuffs following nuclear accidents or radiological emergencies. However, the most important measure relates to basic standards generally. In brief, Article 30 requires basic standards to be laid down within the Community for the protection of the health of workers and the general public against the dangers arising from ionising radiations. In this context, the expression ‘basic standards’ is defined to mean the maximum permissible doses compatible with adequate safety, maximum permissible levels of exposure and contamination, and the fundamental principles governing the health surveillance of workers. By Article 33, Member States are required to lay down the appropriate provisions, whether by legislation, regulation or administrative action, to ensure compliance with the basic standards as established, and to take the necessary measures with regard to teaching, education and vocational training. A significant feature of the Treaty from the outset has been concern as to the environmental effects of radioactivity. In some respects it was a pioneering European instrument in this regard. Examples of the provisions in Chapter III which foreshadow later preventive, precautionary and transboundary 26 The relevant powers and procedures, including payment of compensation to the proprietor of the relevant patents are dealt with by Arts 18–23. 27 See in particular chs 7 and 11.

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56 Euratom approaches in EC environmental law are Article 34 on ‘particularly dangerous experiments’; Articles 35 and 36 on continuous monitoring by Member States of radioactivity levels in air, soil and water,28 and on communication of information on such checks to the Commission; the requirement under Article 37 for Member States to provide general data to the Commission relating to any plan for the disposal of radioactive waste; and Article 38 which requires the Commission to make recommendations to Member States with regard to the level of radioactivity in the air, water and soil. The task of collecting the information and documentation generated under these provisions falls to the health and safety documentation and study section set up within the framework of the Joint Nuclear Research Centre: see Article 39.

Radiological protection versus nuclear safety Chapter III of Health and Safety makes no express reference to the technological safety of nuclear installations as distinct from radiological protection. Nevertheless, the two issues must be regarded as closely connected, and no clear borderline can be drawn between them. As Advocate General Jacobs pointed out in his Opinion in Commission v Council:29 [I]n the 1950s the disciplines of ‘nuclear safety’ and ‘radiation protection’ were still largely separate: the former focused exclusively on the technological safety of nuclear installations and the latter on maximum exposure and dose limits for workers and the population as a whole. Today there is by contrast a significant overlap between nuclear safety and radiation protection: nuclear safety has not only a technological but also a radiation protection component and radiation protection seeks to limit exposures according to the ALARA principle through increased control over sources of radiation such as nuclear installations.

In that case the Advocate General noted30 that whereas the authors of the Spaak Report31 which preceded the creation of the Atomic Energy Community, being aware that workers and the public had to be protected against the dangers of ionizing radiation, had envisaged control of the safety of nuclear installations by the institutions of the Community, the authors of the Treaty actually gave the Community more limited powers. The Advocate General understood from this that the authors of the Treaty did not wish to grant the Community far-reaching powers as regards ‘nuclear safety’ (as understood in 1957) and that they intended the Community to act mainly in the field of ‘radiation protection’ (also as understood in 1957). He then went on at paragraphs 138 to 141 and 144 to 150 to consider what should be the implications of that historical choice in a passage which is worth setting out in full for the quality and thoroughness of the analysis: 138. On the one hand, I consider that despite the subsequent developments of the disciplines of nuclear safety and radiation protection outlined above the basic decision of the authors of the Treaty must be respected. The Member States clearly wished to retain technological control over the installations on their territories. As Community law stands, they therefore possess in my view exclusive (or virtually exclusive) competence over the technological aspects of nuclear safety as it is understood today. In that regard it is significant that the Community has never adopted legisla28 It may also be noted that the Commission is given the right of access to such facilities and to verify their operation and efficiency: Art 35. 29 Case C-29/99 Commission v Council para 132. The case is discussed further below in the context of the international relations of the Community. 30 Para 134. 31 Rapport des Chefs de Délégations aux Ministres des Affaires Etrangères, Brussels, 21 April 1956.

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The Euratom Treaty 57 tion on the technological aspects of nuclear safety and that the main Community instruments in that field are two non-binding Council resolutions. It should however be borne in mind that externally, notably in Central and Eastern Europe and the New Independent States, the Community undertakes many activities which concern the technological side of nuclear safety and which are based where necessary on Article 203 of the Treaty. 139. On the other hand I consider that the Community shares certain—albeit limited—competences with the Member States as regards the radiation protection aspects of nuclear safety. That follows in my view from an interpretation of Articles 30 to 39 of the Treaty which takes account of: —the objectives of those provisions; —the possibility to ‘revise’ and ‘supplement’ the basic standards under Article 32 of the Treaty; —the evolution over time of the scientific and international legal background of those Articles; —the practice in their application; and —the Court’s case-law. 140. As regards, first, the objectives of the Treaty provisions, the preamble to the Treaty states rather broadly that the Member States are anxious to create the conditions of ‘safety’ which are ‘necessary’ to ‘eliminate’ hazards to the life and health of the public. Under Article 2(b) of the Treaty the Community must not only ‘establish uniform safety standards’, but also ‘ensure that they are applied’. It will be noted that the Treaty refers repeatedly to ‘safety’ and attaches central importance to the effective implementation, application and enforcement of the corresponding provisions. The protection of the health of the public has thus always been an important preoccupation of the Treaty despite the fact that the dangers of nuclear installations were without doubt less real to the negotiators and to the general public when the Euratom Treaty was drawn up. 141. Second, under Article 32 of the Treaty the basic standards may be not only ‘revised’, but also ‘supplemented’. The authors of the Treaty thus wanted to ensure that the Community would be able not only to modify its health and safety policy but also to extend its scope. ... 144. Third, it follows in my view from the evolution of the scientific and international background that the definition of ‘basic standards’ in Article 30(2) of the Treaty cannot be relied on for the determination of the current scope of Articles 30 to 32 of the Treaty. As I have already pointed out, when the Treaty was drafted, radiation protection experts still assumed that exposure to radiation below certain dose limits would not have any harmful health effects at all. It was therefore understandable for the authors of the Treaty to define basic standards in Article 30(2) of the Treaty as ‘maximum permissible doses’ or as ‘maximum permissible levels of exposure’. 145. Today, however, it is clear that the stochastic effects of radiation can only be limited if radiation exposure is optimised and kept as low as reasonably achievable. The ICRP therefore focuses mainly on ‘optimisation of exposure’. Where the wording of a provision of the Treaty necessarily reflects the state of scientific knowledge at a given time and where that knowledge evolves, it would in my view be wrong to attach too much importance to that wording. The Council and the Commission were therefore wholly justified in following and incorporating the evolution of scientific knowledge in the field of radiation protection when they revised and supplemented the basic standards over the years. 146. Fourth, the concordant and consistent practice of the Member States (mainly via the Council) and of the institutions of the Community (mainly the Commission and the Council) as reflected in the legislation listed above and in particular in the Basic Standards Directive demonstrates a consensus that the Community has competence as regards the radiation protection aspects of nuclear safety.

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58 Euratom 147. It is true that in the context of the EC Treaty the Court has held that mere practice cannot override Treaty provisions.32 What is in issue in the present case is however the interpretation of the Euratom Treaty and there are in my view good reasons for the Court to interpret Articles 30 to 39 of that Treaty in the light of subsequent practice and in particular of the Basic Standards Directive. 148. Interpretation in the light of subsequent practice is a common feature of the interpretation both of international treaties and of national constitutions. An interpretation in the light of subsequent practice is particularly legitimate and appropriate where the provisions in question were drafted long ago, where they have not been amended since and where there is a common and consistent practice of all actors entitled to interpret, apply or modify the rules in question. 149. It must be recalled that the Euratom Treaty was drafted more than 40 years ago at a time when knowledge about and the economic prospects of nuclear energy were very different from today. It must also be borne in mind that despite that different political, economic and scientific context the substantive rules of the Treaty have not been modified. It is not only the chapter on Health and Safety but also several other parts of the Euratom Treaty such as the chapters concerning ‘supplies’ (Articles 52 to 76) or ‘safeguards’ (Articles 77 to 85) which cannot be properly interpreted or understood without an analysis of the practice in their application. 150. Finally, the proposition that Articles 30 et seq. of the Treaty should be interpreted broadly is also confirmed by the Court’s case-law. In Saarland v Minister for Industry, which concerned the nuclear power plant at Cattenom in France, the Court ruled that those provisions formed ‘a coherent whole conferring upon the Commission powers of some considerable scope in order to protect the population and the environment against the risks of nuclear contamination.’33 In Parliament v Council, which concerned Council Regulation (Euratom) No 3954/87 on maximum permitted levels of radioactive contamination of foodstuffs and of feedingstuffs following a nuclear accident, the Court refused to accept the restrictive interpretation suggested by the Parliament and held that the purpose of Articles 30 et seq. of the Treaty was ‘to ensure the consistent and effective protection’ of the health of the public against the dangers arising from radiations, ‘whatever their source and whatever the categories of persons exposed to such radiations’.34

Having regard to these factors, the Advocate General concluded that the Community had competence in the areas of emergency preparedness,35 but not in the area of the operational safety of nuclear installations, where Member States retained exclusive competence.36 The Community, according to the Advocate General, had certain limited competence on the siting of nuclear installations, since such siting had to be chosen on the basis of both technological safety factors and also radiation protection factors (such as proximity to populations).37 The European Court took a broader and less intellectually rigorous approach to Community competence, holding that 38 it is not appropriate, in order to define the Community’s competences, to draw an artificial distinction between the protection of the health of the general public and the safety of sources of ionising radiation. 32 33 34 35 36 37 38

Case C-327/91 France v Commission [1994] ECR I-3641, para 36. Case C-187/87 Saarland v Minister for Industry [1988] ECR 5013. Case C-70/88 Parliament v Council [1991] ECR 4529, para 14. See para 184 of Opinion. See paras 193, 195. Paras 198–200. Para 82.

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The Euratom Treaty 59 On that basis in respect of the construction and operation of nuclear installations, the Court held, contrary to the approach of Advocate General Jacobs, that the Community did have competence, though its reasoning is, with respect, somewhat less persuasive than that of the Advocate General. At paragraph 89 the Court said: Even though the Euratom Treaty does not grant the Community competence to authorise the construction or operation of nuclear installations, under Articles 30 to 32 of the Euratom Treaty the Community possesses legislative competence to establish, for the purpose of health protection, an authorisation system which must be applied by the Member States. Such a legislative act constitutes a measure supplementing the basic standards referred to in that article.

The Court was no doubt influenced by the fact that the Treaty had not been amended to keep pace with more modern approaches to integrating nuclear safety and radiological safety and was anxious to avoid any gap in the oversight which the Commission could provide as to ‘developments in the nuclear power industry throughout the territory of the Community’39 The ability to address the issue of construction and operation of nuclear installations at Community level can be expected to assume increasing importance in view of the accession to the Community of new Member States with existing nuclear power plant, and the likelihood of a wave of new nuclear build within Europe in the next decade. This can be seen in the proposal for a Directive setting up a Community framework for nuclear safety, published in 2008,40 which aims at re-starting the process of establishing a common EU framework on nuclear safety.41 The Commission views the initiative as particularly appropriate in view of the renewed interest in nuclear power expressed by a number of Member States, in terms of numerous life extensions of existing plants and the construction of new plants.42 The issue of Community standards is discussed further in chapter four dealing with safety. Another manifestation of the Community’s keen interest in this field is the establishment by Commission Decision 2007/530/Euratom43 of the European High Level Group on Nuclear Safety and Waste Management.44 The High Level Group’s role, either at its own initiative or at the request of the Commission, is to advise and assist the Commission in progressively developing common understanding and eventually additional European rules in the fields of the safety of nuclear installations and the safety management of spent fuel and radioactive waste. It is composed of 27 national representatives with competence in these fields.

Chapter IV: Investment The Euratom Treaty confers on the Community a number of powers with the objective of encouraging investment in the nuclear sector. In order to stimulate action by persons and undertakings and to facilitate co-ordinated development of investment in the nuclear field, Article 40 requires the Commission to publish periodically illustrative programmes 39

See Case 187/87 Saarland [1988] ECR 5013, paras 12 and 13. COM (2008) 790/3. 41 It updates and replaces the proposal for a directive setting out basic obligations and general principles on the safety of nuclear installations included in the initial Nuclear Safety Package in 2003: see COM 2003/32 final and COM (2004) 526 final. 42 See Explanatory Memorandum, s 1.1, p 2. 43 [2007] OJ L195/44. 44 The High Level Group is established under the authority of Article 135 of Euratom, which allows the Commission to establish any study groups necessary to the performance of its tasks. 40

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60 Euratom indicating nuclear energy production targets and all the types of investment required for their attainment. These programmes are known as PINCs. The fifth of these was adopted on 10 January 200745 as part of an overall package of measures on energy policy in Europe aimed at strengthening supply and competitiveness within the sector and at combating climate change.46 The programme noted that nuclear power stations currently generate approximately one third of the electricity and 15 per cent of the energy consumed in the EU and that nuclear energy is one of the largest sources of carbon dioxide free energy in Europe, the EU being the highest nuclear energy generator in the world. The programme discusses the future of the technology in the EU in the following terms: The future of nuclear energy in the EU depends primarily on its economic merits, its capacity to deliver cost-efficient and reliable electricity to help meet the Lisbon goals, its contribution to the shared energy policy objectives, its safety, its environmental impact and its social acceptability.47

The programme summarises the development and investment prospects in the various countries that currently use nuclear power.48 It points out that cost and investment risk are important issues when considering construction of nuclear reactors, with a new plant costing between €2 billion and 3.5 billion, depending on capacity, and up to four times as much as an equivalent combined cycle gas turbine (CCGT) plant. A key question is whether nuclear energy requires policy intervention support in order to be economically competitive, especially as liberalised energy markets cannot guarantee stability of electricity prices over the investment timescales concerned. Generally, new plants are being built without subsidies, indicating that nuclear energy is increasingly being seen as competitive, and which itself marks a change from past practice in a number of European countries. The economic risks of a nuclear plant are linked to the major initial capital investment, and require quasi-faultless operation during the first 15 to 20 years to pay back the initial investment. Decommissioning and waste disposal are factors that present further financial risks at the other end of the plant’s life-cycle. It is for Member States to decide whether to use nuclear energy or not. What is clear is that the Community considers safety to be the paramount consideration in that decision, and that it also considers itself to have a key role in ensuring that the nuclear industry develops in a safe and secure manner. Article 41 of the Treaty requires that those engaged in the industrial activities relevant to the nuclear fuel cycle mentioned in Annex II of the Treaty should communicate to the Commission investment projects relating to new installations and also to replacements or conversions which fulfil certain criteria. Such notification must be given not later than three months before the first contracts with suppliers are concluded or, if the work is to be carried out from the undertaking’s own resources, three months before work begins (Article 42). The Commission shall discuss with the persons or undertakings all aspects of investment projects which relate to the objectives of the Treaty (Article 43). More than 200 plans have been submitted to the Commission: these include replacement and upgrades of existing plant, and notable new projects such as the new uranium centrifuge enrichment plant (Georges Besse II) at Tricastin, the new nuclear power plants at Flamanville in France and Olkiluoto in Finland, and a vitrified high-active waste (VEK) plant in Karlsruhe in 45 Communication from the Commission to the Council and European Parliament, Nuclear Illustrative Programme COM (2006) 844 final. 46 A European Strategy for Sustainable, Competitive and Secure Energy COM (2006) 105, 8 March 2006. 47 Para 2.3. 48 Para 3.3 and Annex II.

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The Euratom Treaty 61 Germany. Any new nuclear power plants to be constructed in the UK will have to be similarly notified. In respect of the Olkiluoto project, which was financed by private sources, the Article 41–43 procedure did not give rise to any objection by the Commission, though an export credit guarantee which was awarded for part of the project has led to an Article 87 procedure to determine whether the guarantee constitutes a State Aid, and if so whether it is compatible with the Common Market. In 1977 the Council introduced Euratom loans, ‘for the purpose of contributing to the financing of nuclear power stations’.49 This facility was originally restricted to power plants within the Community. The original aggregate ceiling for such loans was originally set at 500 million ECU, but has been increased by successive Decisions and since 1990 has stood at EUR 4,000 million.50 Some 87 loans were granted between 1977 and 1994, to projects in Belgium, France, Germany, Italy and the UK, which have now been repaid. For example, a loan of EUR 108.9 million was awarded to the THORP reprocessing facility in the UK in 1986. In 1994, in view of the lack of new projects within the Community, the scope of the lending instrument was extended to allow loans to be contracted to finance projects to improve the safety and efficiency of nuclear power stations of specified non-member countries.51 For such projects to be eligible, they must: —relate to nuclear power stations or installations in the nuclear fuel cycle which are in service, or under construction, or to the dismantling of installations where modification cannot be justified in technical or economic terms; —have received all the necessary authorisation at national level and in particular the approval of the safety authorities; and —have received a favourable opinion from the Commission in technical and economic terms. The rationale for this extension of scope was in part the programme for assisting reform in the eastern European states, in part the potential repercussions of safety failures of nuclear plants in such states for Europe as a whole, and the urgent need for a coherent strategy for closure and dismantling of the least reliable stations. There was also a commercial aspect. The recitals to the Decision noted that, following the slowdown in the nuclear energy sector and the changes in nuclear energy policy by some Member States, there would not be a strong demand for the remaining finance from nuclear energy projects in the Community over the next few years. Eastern Europe represents an important market for Western companies providing goods and services to the nuclear sector. Since 1994, loans have been given to projects in Bulgaria, Romania and Ukraine; some of these countries have, of course, since become Members of the Community. The programme has been subject to severe criticism by some environmental groups as promoting nuclear energy interests by supporting the Western nuclear industry and facilitating new nuclear build,52 for example, the proposal for a new nuclear power plant at Belene, Bulgaria, the Cernavoda-2 power reactor in Romania and the Ukranian reactor units at Rovno and Khlmelnitski plants.53 49

Council Decision 77/270/Euratom, 29 March 1977. Council Decision 90/212/Euratom, 30 April 1990. See Proposal for a Decision COM (2002) 457 final (6 November 2002) which proposed a further increase by EUR 2,000 million. 51 Council Decision 94/179/Euratom, 21 March 1994. The countries were Armenia, Bulgaria, Czech Republic, Hungary, Lithuania, Romania, Russian Federation, Slovak Republic Slovenia and Ukraine. 52 See Euratom Loans—A Subsidy too Far at www.eu-energy.com/Euratom.html. 53 See euronuclear.org/library/public/enews/ebulletinspring2004. 50

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62 Euratom

Chapter V: Joint undertakings The Euratom Treaty introduced the concept of ‘joint undertakings’, undertakings with their own legal personality designed to carry out specific projects of fundamental importance to the development of the nuclear industry within the Community.54 Such undertakings are to be the subject of prior inquiry by the Commission and are established by Council decision.55 Some eight joint undertakings were set up between 1961 and 1978, for example, the construction and operation of the Joint European Torus, already referred to. A joint undertaking will also provide the basis for European participation in the ITER project, discussed above.

Chapter VI: Supplies The Community is responsible for ensuring that all users receive regular and equitable supplies of ores and nuclear fuels (Article 2(d)). This is to be ensured by means of a common supply policy on the principle of equal access to sources of supply (Article 52(1)). Practices designed to secure a privileged position for certain users are prohibited (Article 52(2)(a)). The Treaty established the European Supply Agency56 with a right of option on ores, source materials and special fissile materials produced in the territories of Member States, and an exclusive right to conclude contracts relating to such materials coming from inside the Community or outside; the Agency may not discriminate between users on the grounds of the use which they intend to make of supplies requested unless such use is unlawful or contrary to conditions imposed by suppliers from outside the Community.57 The Agency falls under the supervision of the Commission, but has its own legal personality, financial autonomy and statutes.58 An important power lies in the rights of option which it can exercise over ownership, use and consumption of special fissile materials owned by the Community under Chapter VIII, and over the acquisition of rights of ownership in all other cases (Article 57). Section II of Chapter VI deals with the detail of this option, and includes obligations both on potential users of materials and on producers to notify the Commission of, respectively, the supplies they require and the offers they are able to make. The Agency is obliged to meet all orders unless prevented from doing so by legal or material obstacles. The Agency may exercise its right of option in order to meet demand from users within the Community, to store such materials for future use,59 or to export materials outside the Community with the authority of the Commission. Prices are to be determined as a result of balancing supply against demand.60 The other key power is the exclusive right to enter into agreements or contracts whose principal aim is the supply of ores, source materials or 54

Art 45. Arts 46–9. 56 See the website of the Agency at ec.europa.eu/euratom. 57 Art 52(1)(b). 58 Arts 53–4. The original statutes date back to 1958 (OJ 27 of 6 December 1958) and were amended to reflect subsequent accessions by new Member States. They are now consolidated: Council Decision 2008/114/Euratom of 12 February 2008 establishing Statutes for the Euratom Supply Agency ([2008] OJ L41/15). 59 Art 72 empowers the Agency to build up both normal commercial and emergency stocks. By Art 62(2) materials may be stored by leaving them in the possession of the producer. 60 Arts 60, 67. See also rules of the Supply Agency of 5 May 1960 determining the manner in which demand is to be balanced against the supply or ores, source materials and special fissile materials ([1960] OJ P32); Regulation of the Supply Agency amending the rules of 5 May 1960 ([1975] OJ L193). 55

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The Euratom Treaty 63 special fissile material coming from outside the Community (Article 64). This applies to all supply contracts, including sales and purchases of materials, exchanges, and loans which involve the delivery of products falling within the province of the Agency. In order to be valid under Community law, such contracts must be approved by the Commission.61 The provisions of the chapter do not, however, apply to commitments relating to ‘the processing, conversion or shaping of ores, source materials or special fissile materials’ and entered into in cases where the original material is to return to the original person or undertaking after having been processed, converted or shaped.62 Such arrangements do, however, have to be notified to the Agency, which may in limited circumstances prevent them if the processing and so on would take place outside the Community and it appears that the conversion or shaping of the material cannot be carried out efficiently and safely and without the loss of material to the detriment of the Community. It is open to users to apply to the Commission for the grant of a time-limited right to conclude direct contracts with suppliers outside the Community, on the basis that the Agency is not in a position to deliver supplies within a reasonable time, or that it can only do so at excessively high prices (Article 66). In practice, under the Agency’s rules, the process is that users are allowed to negotiate freely with the producer of their choice, following which the supply contracts are submitted to the Agency and are deemed to be concluded by the Agency if no objection is notified by the Agency within eight days. In the case of special fissile materials, the user cannot acquire ownership, but only rights of use and consumption: such materials are the property of the Community under Article 86, but users have the right of use and consumption under Article 87 of such materials as properly come into their possession, subject to obligations on safeguards and on health and safety. The Agency supports Community companies in negotiations with bodies in third countries and publishes reference data. It has, for example, expressed concern about the capacity for enrichment services from the period of 2013 onwards to meet forecast needs of European utilities.63 The powers of the Agency and the considerable discretion which it enjoys in the use of those powers have been considered by the European Court on a number of occasions.64 In particular, in the Kernkraftwerke case65 (Court of Justice, First Chamber) KLE, the operator of a nuclear power station in Lower Saxony, concluded a contract with BNFL for the supply of uranium hexafluoride, the contract being silent as to the place of origin of the uranium. It transpired that the origin would be from the Commonwealth of Independent States (CIS), probably Russia. The Agency objected on the basis of its policy that supplies from the CIS should be confined to 20–25 per cent of the individual user’s needs and that the contract would make KLE too dependent on uranium from the CIS. The Court held that the Court of First Instance had not erred in law by holding that the Agency had the investigative power to require the parties to communicate to it the origin of the uranium, 61 Art 73. Contracts relating to small quantities of materials for research exempted under Art 74 are simply required to be notified to the Agency: see Regulation (Euratom) No 3134/74 of 12 December 1974 amending Commission Regulation No 17/66 of 29 November 1966 exempting the transfer of small quantities of ores, source materials and special fissile materials from the rules of the chapter on supplies ([1974] OJ L333). 62 Art 75. 63 Euratom Supply Agency, ‘Survey of enrichment requirements and capacity and their contractual coverage’ (D(2007) ESA/PGZS, 8 April 2008. 64 Joined Cases T-458/93 and T-523/93 Empresa Nacional de Urânio SA (ENU) v Commission [1995] ECR-II 2459; Joined Cases T-149/94 and T-181/94 Kernkraftwerke Lippe-Ems GmbH v Commission [1997] ECR-II 161; Case C-161/97 P Kernkraftwerke Lippe-Ems GmbH v Commission [1999] ECR I-2057. 65 Case C-161/97 P Kernkraftwerke Lippe-Ems GmbH v Commission [1999] ECR I-2057.

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64 Euratom that there was no basis for an argument of misuse of powers by the Agency, or that the Agency had wrongly assumed the power to determine the common supply policy: 96. In particular . . . it would not be consistent with the aims of the Treaty to limit the Agency’s power to take decisions in situations where it is unaware of the origin of the supplies or, as in the present case, it has legitimate reasons to suppose that the origin of the products is liable to affect the reliability of supplies for the Member States of the Community. Moreover, the request for additional information cannot be equated with an amendment to the contract, since its purpose was to enable the Agency to complete its documentation by adding an essential item of information on the origin of the materials to be delivered, which the parties had already agreed upon, at least implicitly. 97. Furthermore, the Court of First Instance was likewise entitled to hold, in paragraph 90 of the contested judgment, that where decisions concerning economic and commercial policy and nuclear policy are involved, warranting an assessment of complex economic circumstances, the Agency has a broad discretion and judicial review must be confined to identifying any manifest error of assessment or misuse of powers.

The requirements of reliability and security of supply were regarded by the Court as flowing directly from the principle of the regular and equitable supply of all Community users under Article 2(d).66 It appeared from the contested judgment that to continue importing nuclear materials from the CIS could have jeopardised the requirement of a regular supply, which was a finding of fact not subject to review by the Court of Justice. The Court of First Instance had given sufficient reasons why the condition as to origin imposed by the Agency was lawful having regard to the principle of proportionality, citing the need to acknowledge that the Agency has the power to object to imports of uranium where they affect geographical diversification of sources of supply. The most thorough and important recent consideration of the purposes underlying the provisions of Chapter VI occurs in the decision of the Grand Chamber in Joined Cases C-123/04 and C-124/04.67 The case concerned commercially complex facts which ultimately turned on a dispute over title to cylinders of enriched uranium, and whether passage of title was affected by failure to obtain prior consent from the Commission for the conclusion of the relevant contracts, or whether the requirement of consent was inapplicable because the arrangements fell within Article 75. The question of whether nuclear materials enriched within the Community fell within Article 75 (and hence outside the ambit of the Euratom rules on ownership) or within Article 52 (in which case they would fall entirely under the control of the Community) was described by Advocate General Poiares Maduro in his Opinion as a ‘difficult and important’ question which had for too long given rise to disagreement in institutional circles.68 The uncertainty arose from the fact that the Treaty does not deal expressly with the classification of enrichment activities, probably because at the time it was drafted, the activity had not been developed on a commercial scale.69 The Court held that the terms ‘processing’, ‘conversion’ and ‘shaping’ in Article 75 were generic terms which encompass the enrichment of uranium. Such a process, involving the enrichment in the Community of uranium from a third State (Brazil) which was to be returned to 66

Judgement, para 110. Industrias Nucleares do Brasil SA, Siemens AG v UBS AG (C-123/04) and Texas Utilities Corporation (C-124/04) 12 September 2006. 68 Opinion, para 2. 69 Ibid, para 43. 67

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The Euratom Treaty 65 that State, was inherently neutral as regards the supply of uranium to users established in the Community, and did not affect the issue of regular and equitable supplies of ores and nuclear fuels within the Community under Article 2(d).70 It was also held that a transaction could fall within the terms of Article 75 even though the material to be returned after processing could not be said to be identical to the material supplied, and even though the terms of the contract might involve the undertaking which carried out the process acquiring title to the uranium and having to transfer title back to the other contracting party on completion of processing.71 The principle of fungibility, by which nuclear raw materials are deemed to be interchangeable, was accepted as part of international practice and as being recognised in the external relations of the Community. The cardinal principle of ensuring the supply of uranium to users within the Community would not be affected by the application of that principle where the material returned was commensurate in terms of quality and quantity to that supplied. Finally, it was held that Article 73 did not apply to agreements concerning enriched uranium stored within the Community where all parties to the agreement are nationals of third States. As the Advocate General pointed out in his Opinion, the opposing viewpoints of the Commission and of the commercial companies represented diametrically opposed concepts of the role and scope of influence of the Community in commercial operations: 45. It must be admitted that both interpretations are soundly based. No doubt they defend divergent interests. To tell the truth, they reflect two opposing concepts of the management of nuclear materials in the Community. For one, it is in the overriding interest of the Community that such materials be entrusted to a ‘common public authority’ holding powers conferred by public law. No production of dangerous materials and no large-scale commercial operation should escape its supervision, control and participation. According to this concept, the considerations of the Community’s nuclear independence and security appear decisive. For the other viewpoint, beside the power relations characterising the management of nuclear materials in the Community, there are also commercial relations that are outside its control. No doubt the Community, as an external authority supervising the operation, may intervene in relations between a foreign customer and a Community undertaking with a view to the enrichment of source materials, but the Community is not entitled to be a party to the operation. According to this concept, civil and commercial considerations must be given priority.

The Court sided with the arguments of the commercial reprocessors, on the basis that the security of supply and equal access for Community users of nuclear materials were not directly at stake in activities of the kind under consideration and, importantly, that the application of Article 75, whilst disapplying market control by the Community, does not exclude the safeguards provisions of Chapter VII over the nuclear materials present on Community territory.72 The approach of applying Article 75 therefore was not seen as creating a risk to safety of persons or the environment. It should be noted, however, that the Advocate General strongly rejected at paragraphs 50 to 52 of his Opinion any argument that the controls of Chapter VI could be disapplied simply on the basis of commercial inconvenience or disadvantage: 50. The reason for this is neither economic nor political. Just as it appeared ‘advantageous’ to provide for a system of ownership of the special fissile materials to be supplied to the Community by 70 71 72

Judgement, paras 39 and 40. Judgment, paras 53–6. Opinion, paras 56 and 57.

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66 Euratom American producers,73 certain parties to the dispute suggest that it is now advantageous not to impose such a system in the legal and economic relationships maintained by the European enrichment industries with foreign customers. A burden of that kind would be likely to impede third-country undertakings wishing to trade with Community enrichment undertakings and to put the latter at a disadvantage compared with their world competitors. 51. This argument is not admissible. Considerations of that kind cannot prevail over respect for rights justified by overriding reasons of public interest, if it were shown that they should be applied. In any case, as the Commission pointed out at the hearing, it has not been shown in practice that compliance with the obligations imposed by the EAEC Treaty rules of supply and ownership is an excessive burden for operators in this sector. 52. In my view, if the exceptional arrangements provided for by Article 75 EA are to be found applicable to enrichment operations, that is by virtue of the letter and the general scheme of the EAEC Treaty.

Chapter VII: Safeguards Chapter VII deals with ensuring that ores, source materials and special fissile materials present within the territories of Member States are not diverted from their declared intended uses, that is, to weapons-related uses. These provisions, which are unfortunately of ever-greater importance, are considered in chapter eight below.

Chapter VIII: Ownership By Article 86, special fissile materials as defined in Article 197(1)74 are the property of the Community. The Agency keeps a ‘Special Fissile Materials Financial Account’ under Article 89, which shows values credited or debited to the Community or to Member States, persons or undertakings, depending on whether the materials are left in the possession or put at the disposal of the relevant person, undertaking of State, or are produced or imported by them and become the property of the Community. The rationale for these provisions, and their implications, were summarised by Advocate General Poiares Maduro at paragraphs 80 to 83 of his Opinion in Joined Cases C-123/04 and C-124/04:75 80. It is important to know the developments which led to this system of ownership. The distinction, enshrined by Article 86 EA, between legal ownership and the economic elements of that right is the product of a compromise. The negotiators of the Euratom Treaty had started from the system existing in the United States, where special fissile materials are the property of the Federal Government. This public ownership was instituted in order to ensure effective control of the use 73 Analysing the drafting history of the EAEC Treaty, S Neri and H Sperl report that, according to the promoters of a Community right of ownership of fissile materials, ‘provision should therefore be made for a similar system [to that in force in the US, consisting in establishing a public right of ownership of such materials] if we wish to do business with them on advantageous terms and, in particular, bring the Americans to accept Euratom’s control, instead of theirs, of the fissile materials which they would supply to the Community’ (Traité instituant la Communauté Européenne de L’énergie Atomique. Travaux préparatoires, déclarations interprétatives des six Gouvernements, documents Parlementaires, Cour de Justice des Communautés Européennes, (Luxembourg, 1962) 251, fn 4). 74 That is plutonium-239, uranium-233, uranium enriched in uranium-235 or uranium-233. 75 Industrias Nucleares do Brasil SA, Siemens AG v UBS AG (C-123/04) and Texas Utilities Corporation (C-124/04) 12 September 2006.

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The Euratom Treaty 67 of materials regarded as dangerous on American territory. The transposition of this system into a Community context had been envisaged with the aim of facilitating relations with the United States in the nuclear field. However, the project offended those who saw public ownership as contrary to the principles of a liberal economy. In this way it was recognised in principle that the Community had a right of ownership that was dépatrimonialisé. This compromise is an original solution.76 The Community is recognised as having the legal title to special fissile materials which gives rise to rights and obligations. The holders of special fissile materials have the ‘economic ownership’ thereof. They have all rights to make effective use of the materials. The Community, however, retains sovereign control of them. As the Court stated in ruling 1/78, ‘the system of property ownership defined by the Treaty signifies that, whatever the use to which nuclear materials are put, the Community remains the exclusive holder of the rights which form the essential content of the right of property’. 81. Such a concept has consequences for the distribution of the rights of holders and the designation of the relevant legal systems in this field. The Community’s right of ownership is essentially a power of supervision, of keeping accounts and control of special fissile materials produced in or imported into the Community. However, by virtue of Article 87 EA, the holders of the materials concerned have an unlimited right to manage and administer them for the purposes of their own interests. It follows that, in principle, the rights and obligations arising from commitments entered into by holders with third parties are not affected by the Community’s right of ownership. Furthermore, such commitments are not intended to be governed by Community law; they are primarily governed by national law. Therefore the EAEC Treaty does not prevent dispositions by holders of fissile materials for purposes of economic exploitation from being subject to the property law of the Member State in which those materials are located. 82. However, in this field the scope of the relevant national law is necessarily limited. It can only be applied subject to the proviso that it does not interfere with the Community’s powers in the management and control of nuclear materials. Although the holders of such materials must be recognised as having a right of enjoyment and of disposal, the fact remains that ‘in the final analysis, the Community retains the right to dispose of special fissile materials.’77 83. In my view, this reservation has two consequences. First, such materials cannot be transferred without the Community having the possibility of exercising its control. Secondly, the Community must be recognised as having the right to object to such transfers. Therefore it does not appear to be possible for the title to such materials to be transferred under national rules granting creditors of holders of fissile materials a lien on the holders’ assets. Accordingly the EAEC Treaty opposes dispositions which would allow the acquisition of fissile materials by the mere effect of a pledge or loan security. Materials acquired in this way cannot be considered as having ‘properly’ come into the possession of the holder within the meaning of Article 87 EA. That, it seems to me, must be the practical consequence of recognising a right of ownership for the Community.

Chapter IX: The Nuclear Common Market Chapter IX creates a common market in the goods and products specified in the Lists forming Annex IV of the Treaty. Member States are required to abolish customs duties and equivalent charges and all quantitative restrictions on imports and exports, and to set up a 76 This is the explanation given for the temptation of legal theorists to compare this institution with ancient concepts. G Vedel sees in it ‘certain aspects of the Roman-law commodat’, while P Böhm seeks a parallel with the division of ‘dominium directum’ and ‘dominium utile’ (‘Ownership of Nuclear Materials in Euratom’, (1962) American Journal of Comparative Law, 1267). 77 Ruling 1/78, para 27 (emphasis added).

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68 Euratom common customs tariff. All restrictions based on nationality on the rights of nationals of any Member State to take skilled employment in the field of nuclear energy are to be abolished, subject to limitations resulting from the basic requirements of public policy, public security or public health. No restrictions based on nationality may be applied to natural or legal persons, whether public or private, where they desire to participate in the construction of nuclear installations of a scientific or technical nature in the Community. Member States must take all measures necessary to facilitate the conclusion of insurance contracts covering nuclear risk.

Chapter X: External Relations Chapter X contains important provisions on the external relations of the Community, which may, within the limits of its powers and jurisdiction, enter into obligations by concluding agreements or contracts with third States, international organisations or third State nationals. It is, of course, the issue of the Community becoming a party to international conventions, such as those of the IAEA, which is the matter of prime importance. It raises the issue of what areas fall within the competence of the Community, and as already discussed, the European Court has taken a liberal approach in that regard so far as the protection of the health and safety of the public are concerned. Thus, in Case C-29/9978 the Court, in the context of the Community’s accession to the Convention on Nuclear Safety, held that assessment and verification of safety, emergency preparedness, siting, design, construction and operation of nuclear power stations were all within the competence of the Community. In many respect the developments in the Community’s external relations reflect changes in the application of the Euratom Treaty as a whole, expanding into areas of innovation, nuclear safety and security, radiation protection and non-proliferation. Co-operation agreements have been signed with many third countries, both in North America and Eastern Europe, and at international level the Community has committed itself to becoming a party to the main international agreements in the nuclear field. It maintains close collaborative ties with the relevant specialised agencies of the UN, OECD and Council of Europe, and in particular the IAEA. One factor which should not be overlooked is the legal effect of accession by the Community to international treaties, in that in ensuring compliance with commitments arising from an agreement concluded by the Community institutions and within the Community’s competence, the Member States fulfil within the Community system, an obligation in relation to the Community, which has assumed responsibility for the due performance of the agreement.79 This gives the treaty, even if not incorporated into domestic law, a legal status within the Member State which it might otherwise lack.

78

Case C-29/99 Commission v Council, 10 December 2002. Case 12/86 Demirel [1987] ECR 3719, paras 9 and 11; Case C-13/00 Commission v Ireland [2002] ECR I-2943, paras 14 and 15; Case 239/03 Commission v France, paras 25 and 26. 79

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Military Uses of Nuclear Energy 69

INAPPLICABILITY OF EURATOM TO MILITARY USES OF NUCLEAR ENERGY In Case C-61/03 Commission v UK, supported by France 80 the Court of Justice (Grand Chamber) held that the Treaty is not applicable to uses of nuclear energy for military purposes and that, accordingly, the Commission is not justified in relying on Article 37 in order to require Member States to provide it with information on the disposal of radioactive waste from military installations. Thus the UK was not in breach of Article 37 in failing to provide the Commission with general data relating to the plan for the disposal of radioactive waste associated with the decommissioning of the Jason reactor, a reactor with a maximum thermal output of 10 kilowatts, which had been operated by the Ministry of Defence at Royal Naval College, Greenwich, from 1962 to 1996 and used to train personnel and for research in support of the nuclear propulsion programme for the nuclear submarines of the Royal Navy. The Court noted at paragraph 36 of the judgment, that the application to military installations, activities and research programmes, of provisions on health and safety, such as in Articles 34, 35 and 37, might be such as to compromise essential national defence interests of the Member States. Consequently, as the UK and France had argued, the absence in the Treaty of any derogation laying down the detailed rules according to which the Member States would be authorised to rely on and protect those essential interests led to the conclusion that activities falling within the military sphere are outside the scope of that Treaty. This conclusion, in the Court’s view, did not by any means reduce the vital importance of the objective of protecting the health of the public and the environment against the dangers related to the use of nuclear energy, including for military purposes. In so far as the Euratom Treaty does not provide the Community with a specific instrument in order to pursue that objective, the Court regarded it as possible that appropriate measures may be adopted on the basis of the relevant provisions of the EC Treaty.81 The decision was followed, despite attempts by the Commission to distinguish it, in Case C-65/04 Commission v UK, in which it was alleged that the UK had failed to give the public likely to be affected information on emergency arrangements relating to repair work being undertaken on the nuclear powered submarine Tireless in Gibraltar harbour. It was clear to the Court that the use of nuclear energy for military purposes falls outside the scope of all of the provisions of the Euratom Treaty, not just some of them, and that as secondary legislation Directive 89/618/Euratom on informing the general public about measures to be taken in the event of a radiological emergency could not extend to military activities.

CONTROVERSY OVER EURATOM The Euratom Treaty has remained largely unreformed since its signature in 1957. Within its particular field of competence it is insulated from the mainstream European constitution—Article 305(2) of the European Treaty provides that its provisions shall not derogate from the Euratom Treaty. In a number of respects Euratom may be said to be ripe for 80 81

Case C-61/03 Commission v UK, supported by France [2005] ECR-I 2477. See Case C-62/88 Greece v Council [1990] ECR I-1527.

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70 Euratom reform.82 In recent years the Treaty has attracted significant criticism from environmental groups on a number of grounds: that it is essentially a pro-nuclear organisation; that it is outdated in that policies regarding nuclear power now diverge substantially between Member States; that it has a dual remit of both regulating and promoting nuclear energy; and that it is undemocratic in that the European Parliament is almost entirely excluded from the decision-making process. Environmental groups such as Greenpeace, Friends of the Earth and the Green Party have called for Euratom to be substantially reformed, or indeed scrapped altogether.83 As it was put in one paper: The Euratom Treaty is a political oddity. Although public opinion is largely opposed to the expansion of nuclear energy, and despite the fact that several Member States have phased out nuclear power or have begun to do so, the EU-25 continue to be members of a Community whose main objective is the ‘speedy establishment and growth of nuclear industries.’ Having existed for nearly half a century, the treaty appears to have been largely forgotten about by politicians and citizens alike—but not by the nuclear industry and nuclear scientists.84

With the expiry of the European Coal and Steel Community Treaty in July 2002, attention turned to Euratom as the last stand-alone treaty outside the EC Treaty. Following the Laeken Summit in December 2001, work was put in hand to draft a new Constitution for Europe, Euratom being among the four constitutional treaties for consideration. Three major proposals for reform came forward:85 the so-called ‘Penelope Paper’ drafted by the Commission and proposing the retention of a rationalised and slimmed-down instrument on the Peaceful Uses of Nuclear Energy; the Praesidium Proposal, which did not favour substantial reform and envisaged the continued independent existence of Euratom as an annex to the new Constitutional Treaty; and the Nagy Proposal86 calling for the abolition of the special economic zone created by Euratom and effectively of the Treaty, whilst preserving EU competence in the areas of nuclear security and nuclear safety. Effectively it was the Praesidium Proposal which was adopted—the Euratom Treaty continues to have effect as primary legislation governing the sphere of civil nuclear energy in the enlarged Community. The Treaty of Lisbon, amending the Treaty on European Union and the Treaty establishing the European Community, deals with the Euratom Treaty in Protocol No 2. The recitals recall the necessity that the provisions of the Euratom Treaty should continue to have full legal effect, and amend it by way only of adaptation to the new Treaty’s rules in the institutional and financial fields. The work of the Euratom Community continued through these debates. A particular focus which has provided the Community with a raison d’être has been nuclear safety. Until 2000 there had been no substantial attempt to create common Community-wide safety rules. Member States had different legal regimes, different reactor types and different 82 See Christiane Trüe, ‘The Euratom Community Treaty’s prospects at the start of the new millennium’ (2006) 1(3) International Journal Nuclear Law, 247–60. 83 See, eg, Greens/European Free Alliance in the European Parliament, The Future of the Euratom Treaty in the Framework of a New European Convention, 21 March 2003 available at www.greens-efa.org/cms/topics/ dokbin/102/120936.pdf. 84 Friends of the Earth Europe/World Information Service on Energy, Will the New EU Constitution Promote Nuclear Energy? May 2005 available at www.foeeurope.org/publications/2005/euratom_and_constitution_ may2005.pdf. 85 See further, Nuria Prieto Serrano, Wakening the Serpent: Reflections on the possible modification of the Euratom Treaty (2006) 1(1) International Journal of Nuclear Law, 11. 86 Contribution by Ms Marie Nagy, Ms Renée Wagner and Mr Neil MacCormick, alternate members of the Convention: CONV 563/03 CONTRIB 250, 18 February 2003.

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Controversy over Euratom 71 approaches to regulation. Nonetheless, since the 1970s there had grown up a form of non binding acquis based on common fundamental principles. The Laeken Summit resulted in a declaration committing the Council to maintaining a high level of nuclear safety in the European Union. In November 2002 the Commission issued its Communication, Nuclear Safety in the European Union,87 which stressed the significance of the forthcoming inclusion of new member states from Central and Eastern Europe, raising new issues on nuclear safety, and concluded that the lack of a Community frame of reference for safety in nuclear installation made it desirable to develop Community legislation.88 This has now occurred, with adoption in June 2009 of a Directive establishing a Community framework for nuclear safety. Another step towards harmonisation at the European level of rules on nuclear safety was the establishment in 2007 of the High Level Group, also known as the European Nuclear Safety Regulators Group (ENSREG), comprising heads of the national competent authorities, to advise and assist the Commission in progressively developing common understanding and eventually additional European rules in the fields of the safety of nuclear installations and management of spent fuel and radioactive waste.89 Also important is the issue of co-operation with non-EU member countries, in order to promote nuclear safety. Whilst the issue may be of less pressing importance given the accession of many East European nuclear power states to the Community, this is still an area where the Euratom Community still has a substantial contribution to make in ensuring high standards of safety at the international level, as is reflected in the ongoing funding programme for 2007 to 2013.90 A further factor to be addressed when considering the future of Euratom is the important role of the Community is ensuring that the public are properly informed and engaged in the ongoing debate. The importance of this topic is not to be underestimated. In February 2007 the European Commission published Europeans and Nuclear Safety, a report based on a survey commissioned by Directorate-General Transport and Energy (DG-TREN) From the survey it seems clear that public attitudes to nuclear energy vary depending on whether the country concerned has nuclear power stations or not, and that reluctance to support nuclear energy is usually based on the dangers it is perceived to present. The vast majority of Europeans feel inadequately informed about and unfamiliar with the issue of nuclear safety, but there appears to be support for the EU as a mediator of information exchange between nuclear safety experts and as a guardian of harmonised nuclear safety legislation.91 The overall assessment may therefore be that whilst the nuclear industry has not developed on the co-ordinated and dirigiste basis envisaged by Spaak and the other founders of the Euratom Community, Europe has a mature nuclear industry and a relatively high dependence on nuclear power to meet its energy needs. There is no realistic way in which the role of nuclear power can be expected to contract or diminish in importance as a component of energy supply in Europe, given the increasing unattractiveness of 87

COM (2002) 605 final. Other areas of concern were uncertainty as to the financial means to ensure safe decommissioning of plants at the end of their lives, the lack of safe solutions to the management of nuclear waste, and the lack of a framework for trade in nuclear materials between new member states and Russia. 89 2007/530/Euratom, [2007] OJ L195/44. 90 Regulation (Euratom) No 300/2007 of 19 February 2007 establishing an Instrument for Nuclear Safety Cooperation. 91 Views however appear to be equally split on whether the EU or Member States should determine their own legislation. 88

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72 Euratom long-term reliance on fossil fuels. Safety assurance, public transparency and solutions to the issue of waste management will be fundamental in the coming years to the continued viability and growth of the nuclear power sector. The Euratom Community should be seen as providing the opportunity to maintain, reinforce and continually improve the necessarily stringent standards in this regard, in conjunction with the wider international organisations.

THE NUCLEAR SAFETY DIRECTIVE The adoption of the framework Directive on the safety of nuclear installations marks an important new chapter in the development of the activities of the Community. On 30 January 2003 the Commission adopted two proposals for Directives dealing with the safety of nuclear facilities and the management of spent fuel and waste.92 The UK government was lukewarm about these proposals, suggesting that it saw no real benefit in introducing a regional layer of regulation below the international framework of the IAEA Convention on Nuclear Safety and IAEA safety Standards.93 The initiatives found support in the European Parliament, and amended proposals were presented by the Commission in September 2004.94 However, whilst a majority of Member States supported the proposals, there was not the qualified majority necessary to adopt the measures. The proposals were then taken forward by the Council on a consensus basis as an Action Plan on Nuclear Safety and Radioactive Waste (the so-called ‘Nuclear Package’), which was adopted by the Council in December 2004. The Council re-established its ad hoc Working Party on Nuclear Safety (WPNS) for this purpose, and sub-groups were formed dealing respectively with nuclear safety, safety of spent fuel and radioactive waste management. The groups issued a final report to the Council in December 2006. The topic of nuclear safety will clearly continue to be a vital role for Euratom, both in terms of new nuclear plants and in the controversial areas of decommissioning and waste management. In 2008 the Commission produced a fresh proposal for a Directive setting up a Community framework for nuclear safety.95 The Explanatory Memorandum made the point that continuous improvement of the safety of nuclear installations is a pre-requisite for the acceptance of nuclear energy, a technology which has the potential to contribute very significantly to EU energy supply security and to limitation of carbon dioxide emissions. Legislation at EU level on common standards of nuclear safety seems likely. There was strong support at the European Nuclear Energy Forum, established in 2007, at its 2008 meetings in Prague and Bratislava for the adoption of such legislation, based on ‘common fundamental safety principles for nuclear installations’. The Directive was adopted by the Council on 25 June 2009.96 It is of a framework nature, the objectives being to establish a Community framework in order to maintain and promote the continuous improvement of nuclear safety and its regulation, and to ensure that Member States provide for appropriate national arrangements for a high level of nuclear safety (Article 1). It applies to any civilian nuclear installation operating under a licence 92

COM (2003) 32 final. DTI, Nuclear Safety Directive, Consultation Document (2003). 94 COM (2004) 526 final. 95 COM (2008) 790/3. 96 Council Directive 2009/71/Euratom establishing a Community Framework for the nuclear safety of nuclear installations. 93

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The Nuclear Safety Directive 73 granted under the jurisdiction of a Member State, at all stages covered by the licence, and does not prevent member states from taking more stringent safety measures (Article 2). ‘Nuclear installation’ is defined to mean: (a) an enrichment plant, nuclear fuel fabrication plant, nuclear power plant, reprocessing plant, research reactor facility, or spent fuel storage facility; and (b) storage facilities for radioactive waste that are on the same site and are directly related to nuclear installations listed under point (a). A national framework must be established dealing with responsibility and the framework for the safety of nuclear installations (Article 3(1)), establishing responsibilities for the adoption of national nuclear safety requirements, the provision of a system of licensing and prohibition of operation of nuclear installations without a licence, the provision of a system of nuclear safety supervision, and enforcement actions, including suspension of operation and modification or revocation of a licence. Further, the national framework must be maintained and improved when appropriate, taking into account operating experience, insights gained from safety analyses, development of technology, and results of safety research, when available and appropriate (Article 3(2)). Member States must establish and maintain a competent regulatory authority in the field of nuclear safety, and must ensure that it is functionally separate from any other body or organisation concerned with the promotion or utilisation of nuclear energy, in order to ensure effective independence from undue influence in its decision-making (Article 5). Such bodies must have the legal powers and human and financial resources necessary to fulfil their obligations, with due priority to safety. Member States must ensure that prime responsibility for nuclear safety of a nuclear installation rests with the licence holder and cannot be delegated, and that licence holders are required regularly to assess and verify, and continuously improve, so far as reasonably achievable, the nuclear safety of their installations, in a systematic and verifiable manner (Article 6). The system must also ensure that licence holders establish and implement management systems that give due priority to nuclear safety and that are regularly verified by the competent authority, and that licence holders provide for and maintain adequate financial and human resources. Arrangements must be made for education and training by all parties for their responsible staff in order to maintain and further develop expertise and skills in nuclear safety (Article 7). Information on nuclear safety regulation must be made available to the public and to workers, provided that this does not jeopardise other recognised interests such as security (Article 8). There is a triennial reporting obligation to the Commission and a requirement for periodic self-assessment and peer review of the national framework every 10 years (Article 9). The national legislation and arrangements in the UK described in chapter four should be well able in principle to accommodate the requirements of the framework directive. If the Nuclear Directorate (ND) is placed onto an entirely independent footing as a self-standing body, as is proposed, that will further assist. The national nuclear safety requirements required by Article 4 will in practice stem in part from the provisions on licensing under the Nuclear Installations Act, in part from powers of regulation under the Health and Safety at Work, etc. Act, in part from nuclear site licence conditions, and in part from guidance promulgated by the ND and its successor body. Article 4 allows for the determination on how safety requirements are adopted and through which instrument they are applied to rest with the competence of Member States. The Directive’s requirements as to continuous

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74 Euratom improvement will, however, present an ongoing challenge and impetus to improved standards of regulation and safety performance.

INTERNAL MARKET RULES ON GENERATION The common rules on the internal market for electricity within the European Community are laid down in Directive 2003/54/EC. This stresses the paramount importance of nondiscriminatory access to the network for transmission and distribution. Article 6 requires Member States to adopt an authorisation procedure for the construction of new generating capacity which is conducted in accordance with objective, transparent and nondiscriminatory criteria. These principles apply equally to nuclear power stations as to other generating plant. Under Article 6(2) criteria must be laid down for the construction of generating capacity which may relate to a number of listed factors including safety and security of the electricity system, protection of public health and safety, protection of the environment, land use and siting, use of public ground, energy efficiency and characteristics of the applicant such as technical, economic and financial capabilities. It follows that these criteria should be explicit, objective and non-discriminatory.

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4 Licensing This chapter deals with the important topic of licensing the operation of nuclear reactors and other nuclear plant. Related aspects of regulation which are dealt with in other chapters are safeguards and security in relation to fissile material,1 the decommissioning of former installations,2 and the management of waste resulting from operation and decommissioning.3 After two decades of uncertainty as to the future of nuclear power in the UK it now appears that the construction of new nuclear reactors is in prospect, and the issue of new nuclear build is dealt with in chapter five.

BACKGROUND TO LICENSING The requirements for the licensing of nuclear reactors and other installations are contained in the Nuclear Installations Act 1965, which consolidated and replaced the requirements of the Nuclear Installations (Licensing and Insurance) Act 1959, and the Nuclear Installations (Amendment) Act 1965. The licensing system was instituted in the context of a rapid growth in civil nuclear power both within the state-owned electricity sector and within private industry, as is described in chapter one. The urgency for legislation appears from the comments of the Minister of Power (Lord Mills) on the Second Reading of the Bill which became the 1959 Act: As is well known to your lordships, several nuclear power stations are under construction for the Electricity Boards and others are at the planning stage. One research reactor in private industry— that of Associated Electrical Industries Limited, at Aldermaston—has just begun to operate. Though the Atomic Energy Authority are acting as the consultants for each of these projects and are advising the owners about the requirements of safety, it is nevertheless in the interests of all that the ultimate liabilities and obligations of the owners should be defined without delay.4

Part of this process was the provision of a licensing system: At the present time, any person can operate a nuclear reactor without a licence, apart from the ordinary patent licence for construction, from the Atomic Energy Authority. The whole purpose of this Bill is to institute licences for safety reasons, and to enable the Minister to set up an organisation to ensure that proper conditions are laid down and followed.5 1 2 3 4 5

Ch 8. Ch 11. Ch 12. Hansard HL vol 212 col 503. Hansard HL vol 212 col 1004.

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76 Licensing Moving the Second Reading of the Bill in the Commons, the Paymaster-General (Mr Reginald Maudling) also stressed the lack of adequate controls; neither the town and country planning system nor the theoretical possibility of control under existing atomic energy legislation were in the Minister’s words ‘adequate to give the kind of regular and definite assurance needed that reactors are constructed and operate in accordance with the highest standards of safety’.6 The legislation which preceded the 1965 Act, the Atomic Energy Act 1946, had been passed at a time when no one anticipated a civil nuclear programme for the generation of electricity, and was described by Sir Ian Horobin, Parliamentary Secretary to the Minister of Power, as ‘merely an Act to regularise things which had been going on under great secrecy as part of the war effort’.7 It contained, for example, no power to vary licences or to exercise licensing powers where an installation was closed down. The Nuclear Installations (Licensing and Insurance) Act 1959 rectified that lack of control by instituting a requirement for the licensing of sites of nuclear installations; this system remains essentially unchanged under the 1965 Act. Safety, of course, remains at the heart of the licensing system, which has developed within a remarkably stable legislative framework, and has shown itself resilient and adaptable in dealing with the major changes in the structure of the nuclear industry since 1965. The succinct mission statement of the Nuclear Directorate of Health and Safety Executive (HSE) retains this essential focus on safety: ‘To protect people and society from the hazards of the nuclear industry’.8

INTERNATIONAL LAW The UK’s domestic legislation on nuclear site licensing pre-dated the development of the current international regime on nuclear safety. The key instrument at the international level is the IAEA Convention on Nuclear Safety,9 which now is an important influence on the UK licensing system.10 The Convention was drafted in a series of expert meetings held during 1992 to 1994, and adopted in Vienna on 17 June 1994. The UK deposited its instrument of ratification of the Convention on 17 January 1996, and the Convention entered into force on 24 October 1996. By 2007, it had 60 contracting parties, which included all countries with operating nuclear power plants. The requirements of the Convention are to a considerable extent based on the principles contained in IAEA’s Safety Fundamentals Document, The Safety of Nuclear Installations, and include matters of siting, design, construction, operation, resourcing, regulatory bodies, safety assessment, and emergency preparedness. The IAEA’s website describes the Convention as ‘an incentive’, stressing the role of peer pressure rather than legal sanction in raising standards of safety: It is not designed to ensure fulfillment of obligations by Parties through control and sanction but is based on their common interest to achieve higher levels of safety which will be developed and promoted through regular meetings of the Parties. The Convention obliges parties to submit 6 7 8 9 10

Hansard HL vol 599 col 862. Hansard HL vol 599 col 929. HSE, ‘Health and safety in the Nuclear industry’ www.hse.gov.uk/nuclear. IAEA, ‘Convention on Nuclear Safety’ www-ns.iaea.org/conventions/nuclear-safety.htm. The role of the IAEA generally is considered in ch 2.

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International Law 77 reports on the implementation of their obligations for peer review through regular meetings of the Parties to be held at the IAEA. This mechanism is the main innovative and dynamic element of the Convention.

The UK takes this reporting obligation, imposed by Article 5 of the Convention, very seriously. Copies of the reports submitted for review are available on the HSE website. The UK’s Fourth National Report on Compliance (September 2007) is a comprehensive document, running to 197 pages, which addresses compliance issues, article by article of the Convention. For the reader wishing to understand the practical detail of nuclear regulation in the UK it represents an invaluable source of information. The objectives of the Convention are threefold (Article 1): i.

to achieve and maintain a high level of nuclear safety worldwide through the enhancement of national measures and international co-operation including, where appropriate, safety related technical co-operation; ii. to establish and maintain effective defences in nuclear installations against potential radiological hazards in order to protect individuals, society and the environment from harmful effects of ionizing radiation from such installations; iii. to prevent accidents with radiological consequences and to mitigate such consequences should they occur.

It applies to ‘the safety of nuclear installations’, which are defined in such a way as to be limited to nuclear power plant and ancillary operations on the same site, rather than any broader category of nuclear installations: [F]or each Contracting Party any land-based civil nuclear power plant under its jurisdiction including such storage, handling and treatment facilities for radioactive materials as are on the same site and are directly related to the operation of the nuclear power plant. Such a plant ceases to be a nuclear installation when all nuclear fuel elements have been removed permanently from the reactor core and have been stored safely in accordance with approved procedures, and a decommissioning programme has been agreed to by the regulatory body.

Chapter 2 of the Convention contains the obligations of the Parties, which can be summarised as follows. How these obligations are met in practice in the UK is discussed in the context of the nuclear installations licensing regime later in this Chapter. Article 4: each Contracting Party shall take the necessary legislative, regulatory and administrative measures and other steps necessary for implementing the obligations. Article 5: submission for review of a report on the measures taken to implement each of the obligations of the Convention. Article 6: review of the safety of existing installations, ensuring that all reasonably practicable measures to upgrade safety, and implementing plans to shut down installations as soon as practically possible where such upgrading cannot be achieved. Article 7: establishment of a legislative and regulatory framework to govern the safety of installations, including a system of licensing, regulatory inspection and assessment, and enforcement. Article 8: establishment or designation of a regulatory body, ‘provided with adequate authority, competence and financial and human resources to fulfil its assigned responsibilities’. By Article 8(2) the Contracting Party must take the appropriate steps ‘to ensure an

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78 Licensing effective separation between the functions of the regulatory body and those of any other body organization concerned with the promotion or utilization of nuclear energy’. Article 9: ensuring that prime responsibility for safety of an installation rests with the holder of the licence and taking appropriate steps to ensure that each such licence holder meets its responsibility. Article 10: taking the appropriate steps to ensure that all organizations engaged in activities directly related to installations establish policies that give due priority to nuclear safety. Article 11(1): taking the appropriate steps to ensure that adequate financial resources are available to support the safety of each installation throughout its life. Article 11(2): taking the appropriate steps to ensure that sufficient numbers of qualified staff with appropriate education, training and retraining are available for all safety-related activities in and for each installation, throughout its life. Article 12: taking the appropriate steps to ensure that the capabilities and limitations of human performance are taken into account throughout the life of a nuclear installation. Article 13: taking appropriate steps to ensure that quality assurance programmes are established and implemented with a view to providing confidence that specified requirements for all activities important to nuclear safety are satisfied throughout the life of a nuclear installation. Article 14: taking appropriate steps to ensure that: (i) comprehensive and systematic safety assessments are carried out before the construction and commissioning of an installation and throughout its life, and that such assessments are subsequently updated and as necessary reviewed; and (ii) that verification is carried out by analysis, surveillance, testing and inspection, to ensure that the physical state and operation of the installation continue to be in accordance with its design, applicable national safety requirements, and operational limits and conditions. Article 15: taking the appropriate steps to ensure that radiation exposure to workers and the public caused by an installation are kept as low as reasonably achievable (ALARA) and that no individual is exposed to radiation doses which exceed prescribed national dose limits. Article 16: appropriate steps in relation to emergency preparedness to ensure that there are on-site and off-site emergency plans, the provision of appropriate information to competent authorities and relevant members of the public for emergency planning and response, and the preparation and testing of emergency plans in the case of Contracting Parties which may be affected by emergencies at installations outside their territory. Article 17: establishment and implementation of procedures for evaluating site-related factors likely to affect the safety of an installation, evaluating the likely safety impact of proposed installations, re-evaluating such factors as necessary, and for consulting other Contracting Parties in the vicinity which are likely to be affected by an installation. Article 18: taking appropriate steps to ensure that design and construction of installations provides for several reliable levels and methods of protection (defence in depth) against the release of radioactive materials, that the technologies incorporated are proven by experience or qualified by testing or analysis, and that the design allows for reliable, safe and

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European Community Requirements 79 easily manageable operation, ‘with specific consideration of human factors and the manmachine interface’. Article 19: taking the appropriate steps to ensure that: (i) the initial authorization to operate an installation is based upon an appropriate safety analysis and commissioning programme demonstrating compliance with design and safety requirements; (ii) operational limits and conditions derived from such analysis, tests and operational experience are defined and revised as necessary; (iii) operation, maintenance, inspection and testing of an installation are conducted in accordance with approved procedures; and (iv) procedures are established for responding to anticipated operational occurrences and accidents.

EUROPEAN COMMUNITY REQUIREMENTS The Euratom legal regime has not until recently included any general requirements equivalent to the IAEA Convention on Nuclear Safety,11 although this has changed with the adoption in 2009 of a Directive laying down basic obligations and general principles on the safety of nuclear installations.12 The Basic Safety Standards Directive 96/29/Euratom13 establishes basic standards for health protection for workers and the general public which are of importance in the licensing of installations. The three main aspects of the Directive which feed through into regulation of nuclear installations are: (i) the justification principle, whereby the relevant activity resulting in exposure must be justified in advance by the advantages that would be achieved from the activity; (ii) the optimisation principle that all exposure is to be kept as low as reasonably achievable; and (iii) the setting of dose limits for exposure to individuals. These aspects are considered in this chapter, and elsewhere in the work, as they impact on UK law and practice. In addition, the EC Directive on environmental impact assessment, 85/337/EEC as amended, lays down important requirements for environmental information, consultation and assessment in relation to the construction of new nuclear installations and the decommissioning of existing installations.14

LICENSING OF NUCLEAR REACTORS By subsection 1(1)(a) of the 1965 Act, no person shall use any site for the purpose of installation or operating any nuclear reactor (other than one comprised in a means of transport, whether by land, water or air) unless a licence to do so (a nuclear site licence) has been granted by the HSE and is for the time being in force.

11 The Euratom regime is discussed generally at ch 3. Commission Decision 1999/819/Euratom of 16 November 1999 approved accession of the Community to the Convention on Nuclear Safety ([1999] OJ L318, 20). For discussion of Case C-29/99 Commission v Council and the legal issues relating to Community competence in this area, see ch 3. 12 See ch 3. 13 See ch 7. 14 See chs 5 and 11.

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80 Licensing ‘Nuclear reactor’ is defined by subsection 26(1) to mean: any plant (including any machinery, equipment or appliance, whether affixed to land or not) designed or adapted for the production of atomic energy by a fission process in which a controlled chain reaction can be maintained without an additional source of neutrons.

The original form of words in the Bill referred to a plant ‘designed or adapted for the production of atomic energy by a maintained and controlled fission process’. This wording originated from the Atomic Energy Authority and was designed to cover nuclear reactors.15 However, at the House of Lords stage of the Bill, Lord Shackleton proposed an amendment to exclude sub-critical reactors (that is those where the output of neutrons cannot be large enough to produce a super-critical self-sustaining reaction) such as those used in universities for research purposes.16 The Government undertook to consider this issue, and brought forward an amendment introducing the requirement that the chain reaction be capable of being maintained without an additional source of neutrons.17 Subject to this qualification, it is clear that the Government intended all reactors to be licensed, no matter how small, whether in a university department or anywhere else.18 Reactors comprised within any means of transport are excluded, for example, nuclear powered ships or submarines. Part of the reason behind this appears to have been that the Government did not want to legislate for ships of foreign flags outside British territorial waters, as this would be contrary to the view of international law as embodied in Article 6(1) of the Convention on the High Seas, adopted at Geneva in April 1958. This states that a ship on the high seas should be subject to the exclusive jurisdiction of the State of its flag; and that ‘it shall not be within the unilateral power of one Government to legislate for ships upon the high seas’.19 It is also clear that the use of the word ‘site’ effectively excludes both ships and aircraft.20 This view appears to be reflected in the context of liability by the distinction drawn at subsection 13(2) of the 1965 Act between injury and damage incurred on vessels registered in the UK and other vessels.

LICENSING OF OTHER INSTALLATIONS As well as for the use of a site for installing or operating a nuclear reactor, a nuclear site licence is required by subsection 1(1)(b) of the 1965 Act for other installations of such a class or description as may be prescribed, being an installation designed or adapted for: (a) the production or use of atomic energy; or (b) the carrying out of any process which is preparatory or ancillary to the production or use of atomic energy and which involves or is capable of causing the emission of ionising radiations; or (c) the storage, processing, or disposal of nuclear fuel or of bulk quantities of other radioactive matter, being matter which has been produced or irradiated in the course of production or use of nuclear fuel. 15 16 17 18 19 20

Hansard HL vol 213 col 334. Hansard HL vol 213 col 331. Hansard HL vol 217 col 924. Hansard HL vol 599 col 933. Hansard HC vol 599 col 930. Ibid.

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Prescribed Installations 81 Together with nuclear reactors, such installations are termed ‘nuclear installations’ (subsection 26(1)). The ability to prescribe such classes of installation provides a means by which ancillary processes may be controlled, in particular the storage and processing of nuclear fuel or of bulk quantities of associated radioactive matter. The term ‘bulk quantities’ is not defined. The purpose of this provision was stated to be to enable the [Act] to be applied, as the progress of the nuclear industry may require, to any installation other than a reactor which presents a comparable public hazard. The provision as originally drafted would have enabled the [Act] to be applied to some installations which, although used for processes ancillary to the production of atomic energy, nevertheless present no hazard; for example, installations where graphite blocks for reactor moderators or beryllium cans for containing fuel elements are made. The same considerations apply to places for the treatment, storage or disposal of radioisotopes in small quantities or of the less radioactive types. This Amendment is intended to define more precisely the types of potentially dangerous installation to which the Bill may be extended by regulations.21

PRESCRIBED INSTALLATIONS The regulations which prescribe such classes of installations may also exempt, or make provision for exempting, certain installations (subsection 1(2)). This power may not be used, however, to exempt ‘relevant installations’, that is those subject to an international agreement to which the U K is a party dealing with third-party liability in the field of nuclear energy (subsections1(2) and 26(1)). The current regulations are the Nuclear Installations Regulations 1971.22 Regulation 3 prescribes for licensing purposes, installations of any of the following descriptions: (1) any installation designed or adapted for the carrying out of any process involved in the manufacture from— (a) enriched uranium (meaning uranium enriched so as to contain more than 0.72 per cent of isotope 235), (b) plutonium, (c) any alloy, chemical compound, mixture or combination containing enriched uranium, (d) any alloy, chemical compound, mixture or combination containing plutonium, of fuel elements to be used for the production of atomic energy; (2) any installation designed or adapted for the carrying out of any process (not being a process carried out solely for the purposes of chemical or isotopic assay or metallographic investigation) involved in— (a) the production from: (i) enriched uranium, (ii) any alloy, chemical compound, mixture or combination containing enriched uranium, of any alloy, chemical compound, mixture or combination containing enriched uranium; (b) the production from: (i) plutonium, 21 22

Hansard HL vol 217 col 925. SI 1971 No 381.

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82 Licensing (ii) any alloy, chemical compound, mixture or combination containing plutonium, of any alloy, chemical compound, mixture or combination containing plutonium, (c) the production, from any alloy, chemical compound, mixture or combination containing enriched uranium, of enriched uranium, (d) the production, from any alloy, chemical compound, mixture or combination containing plutonium, of plutonium; (3) any installation designed or adapted for the incorporation of— (a) enriched uranium, (b) any alloy, chemical compound, mixture or combination containing enriched uranium, (c) plutonium, (d) any alloy, chemical compound, mixture or combination containing plutonium, in any device designed to form part of a nuclear assembly or designed for irradiation in a nuclear reactor other than a device designed solely for the purpose of measuring neutron flux; (4) any installation comprising a nuclear assembly designed or adapted for the production of neutrons and containing— (a) enriched uranium, (b) any alloy, chemical compound, mixture or combination containing enriched uranium, (c) plutonium, (d) any alloy, chemical compound, mixture or combination containing plutonium, and in which a controlled chain reaction can be maintained with an additional source of neutrons; (5) any installation designed or adapted for the processing of irradiated nuclear fuel other than processing carried out solely for the purpose of chemical or isotopic assay or metallographic investigation of such nuclear fuel; (6) any installation designed or adapted for storage of— (a) fuel elements referred to in paragraph (1) of this regulation, (b) irradiated nuclear fuel, (c) bulk quantities of any other radioactive matter which has been produced or irradiated in the course of the production or use of nuclear fuel, other than storage incidental to carriage and in the case of irradiated nuclear fuel other than storage incidental to any of the excepted purposes referred to in paragraph (5); (7) any installation designed or adapted for— (a) any treatment of irradiated matter which involves the extraction therefrom of plutonium or uranium, (b) any treatment of uranium whether enriched or not such as to increase the proportion of isotope 235 contained therein; (8) any installation designed or adapted for the carrying on of any process involved in the production from nuclear matter, not being excepted matter, of isotopes prepared for use for industrial, chemical, agricultural, medical or scientific purposes.

From this list it will be appreciated that activities such as the production of nuclear fuel elements, chemical processes involving enriched uranium, the processing of nuclear fuel, the production of isotopes for various purposes and installations for the storage of fuel elements and irradiated nuclear fuel are all prescribed. What is not presently covered is any facility for the final disposal of nuclear waste, such as deep geological repository. Nor are decommissioning activities expressly covered.

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Licensing: Section 2 Permits 83

LICENSING: THE POSITION OF THE ATOMIC ENERGY AUTHORITY Originally, the UKAEA was exempted from the licensing requirement under section 1 of the 1965 Act. The reason was that most of the knowledge of experimental reactors which existed in 1959 was located within the Authority. On that basis, it seemed to the Government ‘rather pointless to subject them to this statutory licensing system’.23 Another justification for this initial exemption was that the work of the Authority was mainly experimental, and that to subject it to licensing would entail enormous demands on the inspectorate in terms of familiarity with the experimental work in progress: The inspectors would . . . have to be as expert in advanced research as the scientists of the Authority itself—a requirement which the Government considers to be unnecessary, if not impracticable.24

However, the exemption was removed as from 31 October 1990 by the Nuclear Installations Act 1965 (Repeal and Modifications) Regulations 1990,25 which repealed the words in section 1, ‘other than the Authority’.

OFFENCE OF INSTALLATION OR OPERATION WITHOUT LICENCE Contravention of the prohibition on using a site for the purpose of installing or operating a nuclear installation without a nuclear site licence is an offence (subsection1(3)). The issue of offences is discussed below.

OPERATIONS REQUIRING A SECTION 2 PERMIT Additional to the requirements for a nuclear site licence as described above, section 2 of the 1965 Act applies to prohibit certain activities except under, and in accordance with, a permit in writing granted by the UKAEA, or by a government department. The section applies to the use of a site by any person other than the Authority for: (a) any treatment of irradiated matter involving the extraction of plutonium or uranium; or (b) any treatment of uranium so as to increase the proportion of isotope 235 contained therein.

Both of these were essential processes for the production of the atom bomb. Plutonium production reactors were designed for nuclear weapons purposes; those in the UK were built at the site of a disused ordnance factory on the Cumbrian coast, renamed Windscale.26 Increasing the proportion of isotope 235 is known as ‘enrichment’; this is a complex and difficult process which was carried out at the Capenhurst gaseous diffusion plant in Cheshire. The provision was inserted to ‘ensure Government control over the extraction of 23 24 25 26

Hansard HC vol 599 col 964. Hansard HL vol 212 col 508. SI 1990 No 1918. See further, ch 1.

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84 Licensing plutonium and other dangerous fissile materials which might be used as components for nuclear weapons’.27 Unless the permit under section 2 is granted by the Minister, it will not authorise the use of a site other than for the purposes of research and development (subsection (1A)). By subsection (1B), where a permit granted by the Minister to a body corporate authorises use of a site for purposes other than research and development, the Minister may, by order, direct that the provisions of Schedule 1 to the Act shall have effect in relation to the body corporate. Schedule 1 contains various provisions relating to security, for example restricting rights of entry and requiring compliance with directions given by the Minister for the purpose of safeguarding information. The only orders made applying the Schedule to date apply to British Nuclear Fuels Ltd (relating to the use of the Capenhurst and Windscale sites)28 and to Urenco (Capenhurst) Ltd (relating to the enrichment of uranium at Capenhurst).29 Any permit given under section 2, whether by the Authority, the Minister, or by any other government department, may at any time be revoked by that body, or may be surrendered by the person to whom it was granted (subsection 2(1D)). Contravention of section 2 is an offence (subsection 2(2)).

MINISTERIAL RESPONSIBILITY The 1965 Act refers in various sections to ‘the Minister’ as having functions and responsibilities. Subsection 26(1) defined this term to mean: (a) in the application of the Act to England and Wales, the Minister of Power and (b) in relation to Scotland, the Secretary of State for Scotland. In 1969 the Ministry of Power was dissolved, and the relevant functions transferred to the Minister of Technology.30 The functions were in turn passed to the Secretary of State for Trade and Industry,31 then to the Secretary of State for Energy,32 before being transferred back in 1992 to the Secretary of State for Trade and Industry.33 As from 15 November 1999, under the Transfer of Functions (Nuclear Installations) Order, the functions expressed in the 1965 Act to be exercisable by the Minister (that is those exercised by the Secretary of State for Trade and Industry and the Secretary of State for Scotland) were transferred to the Secretary of State together with all connected property, rights and liabilities.34 Similarly, where the term ‘prescribed’ is used in the 1965 Act, this means prescribed in regulations made by the Secretary of State.35 The effect, in line with constitutional practice generally, is that the functions become legally exercisable by any of Her Majesty’s Principal Secretaries of State, though the intention was that they be exercised by the Secretary of State for Trade and Industry. In June 2007, the Secretary of State for

27 28 29 30 31 32 33 34 35

Hansard HL vol 217 col 926. Nuclear Installations (Application of Security Provisions) Order 1971 (SI 1971 No 569). Nuclear Installations (Application of Security Provisions) Order 1993 (SI 1993 No 687). The Minister of Technology Order 1969 (SI 1969 No 1498). The Secretary of State for Trade and Industry Order 1970 (SI 1970 No 1537). The Secretary of State (New Departments) Order 1974 (SI 1974 No 682). The Transfer of Functions (Energy) Order 1992 (SI 1992 No 1314). SI 1999 No 2786, Arts 2 and 4. Section 26(1) as amended by SI 1999 No 2786, Art 3(1).

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Licensing: Scotland 85 Trade and Industry and his eponymous Department were replaced by the Secretary of State and Department for Business, Enterprise and Regulatory Reform which included energy within its remit. Then in October 2008, energy was placed within a new Department of Energy and Climate Change (DECC) which now is accountable to Parliament for safety at nuclear power stations and other licensed nuclear sites in the UK.36

SCOTLAND As originally drafted, section 26(1)(b) provided that the Minister, in relation to Scotland meant the Secretary of State for Scotland. Thus the relevant functions as regards nuclear installations located in Scotland were exercised by the Secretary of State for Scotland as part of the UK Government. Under the arrangements for constitutional reform of government in Scotland, Part II of the Scotland Act 1998 established the Scottish Executive as the new administrative branch of Government for Scotland, led by the First Minister. Section 53 of the Scotland Act provided for functions conferred on a Minister of the Crown by previous enactments, so far as exercisable within a devolved competence, to be exercised instead by the Scottish Ministers, which would include the Ministerial functions under the 1965 Act. However, neither the Scottish Executive nor the Scottish Parliament enjoys unrestricted competence in the field of nuclear energy. By section 54(2) and (3) of the Scotland Act it is outside the devolved competence of Scottish Ministers to make any provision by subordinate legislation which would be outside the legislative competence of the Scottish Parliament if included in an Act of that Parliament, or to exercise a function in a way that would be outside the legislative competence of the Scottish Parliament. Thus the areas on which it is competent for the Scottish Parliament to legislate—that is devolved matters but not reserved matters—are the areas within which Scottish Ministers can exercise their powers, including the making of delegated legislation.37 The legislative competence of the Scottish Parliament excludes provisions relating to ‘reserved matters’ (section 29). By section 30 and Schedule 5, reserved matters include: Nuclear energy and nuclear installations, including— (a) nuclear safety, security and safeguards, and (b) liability for nuclear occurrences.38

The subject matter of the Radioactive Substances Act 1993 does not fall within this heading of reserved matters. Accordingly there is an important distinction between competence relating to nuclear installations and related safety matters and issues of disposal of radioactive waste under the Radioactive Substances Act. In considering whether a provision (or presumably the exercise of an executive function) ‘relates to’ a reserved matter, this question is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances (section 29(3)). The fact that Scottish legislation or executive action in an unreserved area (for example, radioactive waste management or pollution control generally) may have an effect on nuclear installations, 36 37 38

See www.decc.gov.uk. See the commentary on s 54 in Current Law Statutes, 46–73 (CMJ Himsworth and Prof CR Munro). Schedule 5, Part II, Head D—Energy, Section D4.

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86 Licensing does not in itself mean that the action relates to a reserved matter. The issue may be one of ‘the true nature and character’ of the action, or its ‘pith and substance’.39 However, the provisions of the Scotland Act do not tell the whole story. Section 63 provided power to transfer additional functions from Ministers of the Crown to Scottish Ministers. Accordingly, more detailed provision on the transfer of functions to Scotland was made by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) Order 1999.40 As from 1 July 1999 the functions specified in Schedule 1 to the Order became exercisable in or as regards Scotland by the Scottish Ministers (Article 2). These included a number of functions under the 1965 Act, namely the issue of permits under section 2, the maintenance of lists of licensed sites under section 6, certification in matters of jurisdiction under section 17, the approval (with the consent of the Treasury) of special cover for liability under section and other functions on insurance cover under section 19, the receipt of information relating to licensee’s cover under section 20, and registration under section 23 of particulars in connection with certain occurrences which may give rise to liability. Other functions specified in Schedule 2 of the 1999 Order are exercisable, in so far as they are exercisable in or as regards Scotland, by the Scottish Ministers concurrently with the Secretary of State (Article 3). No functions under the Nuclear Installations Act fall into this category. Other functions, which are conferred on the Secretary of State by Schedule 3, in so far as they are exercisable in or as regards Scotland, are subject to requirements of agreement or consultation with Scottish Ministers (Article 4). These include a number of potentially important functions under the Nuclear Installations Act which are exercisable only after consultation with Scottish Ministers: namely the prescription and exemption of installations under section 1, the increase of maximum liability amounts for satisfaction of claims under section 16, the increase of general cover for compensation from Parliamentary funds under sections 18 and 21, and prescription of the detail of, or exemption from the definitions of ‘excepted matter’ and ‘nuclear matter’ in section 26. As well as the specific restriction of competence in relation to nuclear energy, it is important to note that the exclusive competence of Scottish Ministers is qualified in respect of matters which may affect compliance with the UK’s obligations under international law or EC law. By section 57(1) of the Scotland Act, despite the transfer to Scottish Ministers of functions in relation to observing and implementing obligations under Community law, functions of Ministers of the Crown continue to be exercisable as regards Scotland for the purpose of implementing obligations under Community law under section 2(2) of the European Communities Act 1972. By section 57(2) members of the Scottish Executive have no power to make subordinate legislation, or do any other act, which is incompatible with Community law. The Secretary of State also retains reserve powers of direction against action by the Scottish Executive which he has reasonable grounds to believe would be incompatible with any international obligations (section 58). The question of Scottish legislative and executive competence in the field of nuclear energy is not without importance. On 9 October 2007 the Scottish Ministers announced their rejection of new nuclear power stations in Scotland as dangerous and unnecessary, in favour of clean renewable technologies.41 39 See Gallagher v Lynn [1937] AC 863 at 870 and the discussion at House of Lords Committee Stage on the Bill, Hansard HL vol 592 col 818 and the commentary on s 29(3) in Current Law Statutes, 46–183 (CMJ Himsworth and Prof CR Munro). 40 SI 1999 No 1750. 41 The Scottish Government, ‘Ministers say no to new nuclear power’ www.scotland.gov.uk/News/Releases/ 2007/10/09140338.

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Licensing: The Role of the HSE 87

THE ROLE OF THE HEALTH AND SAFETY EXECUTIVE IN LICENSING Nuclear site licences are granted by the H SE (section 1(1)). The references to the H SE were inserted into the Act by the Nuclear Installations Act 1965 (Repeals and Modifications) Regulations 1974, regulation 2(1)(b) and Schedule 2.42 The HSE is constituted and governed by the Health and Safety at Work, etc Act 1974, and is an independent public corporate body with statutory duties to enforce health and safety legislation.43 The HSE was formerly the executive arm of the Health and Safety Commission (HSC), to which it reported. However, in 2008 the HSE and HSC effectively merged,44 and the HSE is now governed by a nine-member Executive Board (appointed by the Secretary of State for Work and Pensions following consultation with various representative groups) and a 12-member Senior Management Team comprising Directors of Divisions, Chief Executives and the Senior Legal Advisor. The HSE reports to the Secretary of State for Work and Pensions, though it can advise other Secretaries of State on matters concerning their functions, and in that capacity advises the Secretary of State for Energy and Climate Change on nuclear safety policy matters relating to nuclear sites and the Secretary of State for Defence on defencerelated nuclear safety matters. The HSE derives from a long and distinctive culture of engineering expertise, as developed within the Engineering Branch of the factory inspectorate since the 1920s, with inspectors having a detailed understanding of the activities in question and their risks.45 The Nuclear Directorate (ND) of the HSE currently has responsibility for nuclear safety matters. Since April 2007 its responsibilities have also included those of the Office for Civil Nuclear Security (OCNS) and the UK Nuclear Safeguards Office. As at 2009, it employed some 250 staff and was organised into six Divisions (Civil Nuclear Power Regulation, Nuclear Chemical and Research Site Regulation (including UK Safeguards Office), Defence Nuclear Facilities Regulation, Nuclear Research Strategy and Business Systems, OCNS, and Nuclear Reactor Generic Design Assessment). In June 2009 a consultation was launched on proposals for restructuring of the ND,46 which would involve the creation of a new sector-specific independent regulator, a statutory corporation. The proposed new regulator would assume a number of responsibilities still lying outside the remit of the current ND, in particular the Radioactive Materials Transport team and the Transport Security and Contingencies Directorate, both currently within the Department for Transport. The reforms are intended to provide greater accountability and transparency, and also to create a more conducive framework for recruiting inspectors of the calibre required to meet the need for the high levels of regulatory expertise demanded in the area. The review by Dr Tim Stone of the UK nuclear regulatory framework undertaken for the Government in 2008 found that the ND was significantly under-resourced for its predicted future workload, partly because of difficulties in recruiting new staff and partly 42

SI 1974 No 2056. www.hse.gov.uk. 44 See the consultation document, A Stronger Voice for Health and Safety (2007, CD210) at www.hse.gov.uk/ consult/condocs/cd210.htm. 45 See Eddie Crooks, The Factory Inspectors: a legacy of the Industrial Revolution (Stroud, Tempus Publishing, 2005). 46 Department for Work and Pensions, Department of Energy and Climate Change, A Consultation on the Restructuring of the Health and Safety Executive’s Nuclear Directorate (June 2009) available at www. decc.gov.uk/ en/content/cms/consultations/hse_restruct/hse_restruct.aspx. 43

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88 Licensing because of the age profile of the current senior and highly experienced inspectors, many of whom were nearing retirement.47 Dr Stone’s review included among its recommendations the importance of ensuring that the nuclear regulator is structured so as to give it the financial and organisational flexibility required to meet its business needs on a sustainable basis.48 What is envisaged is a small, public sector body, not staffed by civil servants, with around 240 technical specialists, with its own separate legal personality and operating independently from government. Unlike the HSE, it would not be discharging its functions on behalf of the Crown. The fact that inspectors would not be civil servants would give the new body freedom to set its remuneration conditions more competitively in the context of an increasingly global and competitive nuclear skills market. The proposed reforms could be implemented by way of a legislative reform order under the Legislative and Regulatory Reform Act 2006. As previously indicated, Article 8 of the Nuclear Safety Convention requires the HSE as a regulatory body to be adequately resourced and effectively separated from other bodies or organisations concerned with the promotion or utilisation of nuclear energy. The fact that the HSE is sponsored by the Department of Work and Pensions which, unlike the Department of Energy and Climate Change has no policy role in promoting nuclear energy, helps to ensure the necessary independence. The HSE is also independent of the Gas and Electricity Markets Authority (GEMA) which is the commercial and economic regulator for the electricity and gas industries. There is a Memorandum of Understanding between GEMA and the HSE, and GEMA is under a duty to consult the HSE on all electricity safety issues (which would include nuclear generation) and to take account of any advice offered by the HSE on that subject. The proposed reforms to the ND, discussed above, would assist in demonstrating the necessary legal independence. The other aspect of Article 8 is adequate financial and other resources. The ND generally reassesses the resources it will require on a five-yearly basis, producing a Strategic Plan which sets down its goals for that period.49 Subsection 24(3) of the Nuclear Installations Act provides a power of cost recovery, whereby the Secretary of State may, with the agreement of the Treasury, require a licensee to repay to the Secretary of State such part of the sums paid by the Secretary of State for remuneration of inspectors and other expenses as appears to be attributable to the nuclear installations in respect of which the site licences have been granted.50 This can include costs in respect of pensions (subsection 24(4)) and sums in respect of the use of premises belonging to the Crown (subsection 24(3)(b)(iv)). The ND also enjoys powers of cost recovery under section 24A and currently recovers almost 98 per cent of its costs from industry in this way.51 It is envisaged that the new body to replace the ND will to a similarly large extent fund itself by use of these powers, and indeed the costs to be recovered can be anticipated to rise, to reflect the higher running costs of an independent body and the likely higher remuneration to be paid to inspectors.

47 See also The Times, 22 July 2008 ‘Britain’s drive for new nuclear power plants threatened by skills shortage’, suggesting that such problems were regarded within Government as a ‘key concern’. 48 Nuclear Regulatory Review (December 2008) available at www.berr.gov.uk/files/file49848.pdf. 49 HSE, ‘Programme of work’ available at www.hse.gov.uk/nuclear/programme.htm. 50 In respect of expenses incurred by the Scottish Administration, such sums are to be repaid to the Scottish Ministers (see words in subs (3) inserted by SI 1999 No 1820, Art 4 and Sch 2, Pt I, para 38(1), (4)). 51 See ‘Cost Recovery for Nuclear Installation Activities—A Guide’ (HSE) which sets out the methodology for calculating charges and the relevant administrative and financial arrangements available at www.hse.gov.uk/charging/ nuclear/guide0708.htm.

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Licensing: The Role of the HSE 89 The regulatory and enforcement work of the ND depends critically on its inspectors. The Nuclear Installations Inspectorate (NII) was formed in April 1960 under the Nuclear Installations (Licensing and Insurance) Act 1959. It was originally accountable to the Ministry of Power, but in January 1975, was incorporated within the newly formed HSE, where it is now part of the ND, and the day to day exercise of the HSE’s licensing functions are delegated to it. Section 24 of the Nuclear Installations Act52 makes provision for the appointment of inspectors by the Secretary of State. Under that section, the Secretary of State may appoint inspectors for the purpose of assisting him in the execution of the provisions of the Act, other than those mentioned in Schedule 1 to the Health and Safety at Work, etc. Act 1974. These provisions of the 1965 Act which are mentioned in Schedule 1 are sections 1, 3–6, 22, 24A and Schedule 2 (that is the main nuclear licensing provisions). It follows that appointment of inspectors for licensing purposes is by the HSE under the Health and Safety at Work, etc Act section 19, rather than by the Secretary of State under the 1965 Act. Section 24 is perhaps therefore of only limited importance,53 but any inspectors appointed under it may, for the purpose of assisting the Secretary of State, exercise the powers set out in subsection 20(2) of the Health and Safety at Work, etc Act 1974 as are specified in their instrument of appointment (subsection (2)). They will have the same range of powers available as those appointed under the 1974 Act. Nuclear installations inspectors are appointed by a written instrument which will set out the powers they are entitled to exercise. They are recruited at a high level of experience, which means that most will have been working in industry, probably the nuclear industry, for 10 years or more. Under the proposed changes to the constitution of the ND, inspectors would no longer be appointed by the Secretary of State or the HSE, but by the new body to carry out its relevant statutory functions. As they would no longer be discharging these functions on behalf of the Crown, inspectors would no longer benefit from Crown immunity, but a similar form of immunity will no doubt be applied as part of the implementing legislation. An increasingly important area is that of technical support. Historically, the ND has not used external technical support organisations but rather has relied on the internal expertise and experience of its own staff, including those of the general HSE Laboratory, though some purchasing of external services has occurred intermittently through one-off consultancy contracts or by way of framework agreements. Taking account of a recommendation of the IAEA’s regulatory review service in 2006, ND has concluded that it needs to have access to scientific and technical support on a wider basis (as is the case for regulators in other countries) and proposes to develop further arrangements for commissioning external support.54 In terms of nuclear research capability, with the demise of the Department of Energy in 1989, that Department’s functions on nuclear safety research were undertaken by the HSE, initially through programmes placed with the UKAEA (later AEA Technology) and increasingly with other contractors on a competitive basis. In 1994 responsibility passed from the HSE generally to the ND, and more of the research work came to be commissioned by licence-holders, through the Industry Management Committee acting in conjunction with the ND, which provided direction for the programme and negotiated with licensees over its technical content, monitored by the Nuclear Safety Advisory Committee 52 As substituted for England, Wales and Scotland by the Nuclear Installations Act 1965 (Repeals and Modifications) Regulations 1974 (subsequently amended by the Energy Act 1989, s 6). 53 The section does however apply in modified form to the use by contactors of ‘designated premises’ within the meaning of the Atomic Weapons Establishment Act 1991 (see Schedule to that Act, para 6). 54 See UK Fourth National Report on Compliance with the Convention on Nuclear Safety Obligations (2007) paras 8.27–8.30 and Annex 10.

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90 Licensing of the HSE.55 In 1990 the DTI issued Guidelines setting the primary and supporting objectives for the nuclear safety research programme, at a high level. The costs of research, and of its management, are recovered from licensees under section 24A of the Nuclear Installations Act in proportions which reasonably reflect the costs of the research and the scale on which the licensee undertakes, or intends to undertake, the activities to which the research relates. International requirements and good practice guidance from the IAEA also include the provision of a means whereby research and development work is undertaken in important areas of safety and in radioactive waste disposal.56 Areas of research on safety include matters such as plant life management, chemical processes, nuclear science, plant modelling, control and instrumentation, external and internal hazards, probablistic safety analysis, and human factors. Current challenges include the continued safety of ageing plant, economic factors which may discourage licensees from funding research which they perceive may have no commercial benefit, the maintenance of capability in a rapidly changing nuclear industry, and the ever-present issue of the unique UK technologies of Magnox and AGR, on which capability is largely unavailable elsewhere. Reduction in industry research programmes is a feature which is common to several mature industries, including petroleum, chemicals, coal and steel. The 2003 Lambert Review of Business and University Collaboration57 says that the breaking up of the former utilities and quasi-monopolies has led to many large companies closing their central research laboratories, and to a greater extent using universities for research. Nuclear Safety Directorate (NSD) and the nuclear site licensees have agreed a strategy for Essential Research Capability support for those facilities or centres of expertise which are considered essential for the continued safe operation of nuclear power plant, which involves an annual review to reassess continued need and viability.

THE NUCLEAR SAFETY ADVISORY COMMITTEE The HSC appoints a number of advisory committees to provide it with advice in relevant specialist areas. These committees have included the Nuclear Safety Advisory Committee (NuSAC), which was preceded by the Advisory Committee on the Safety of Nuclear Installations (ACSNII). It consisted of an independent chair and up to 20 members, 12 of whom were independent, four nominated by the TUC and four by the CBI, all with relevant expertise in the fields of the nuclear industry and safety regulation. Its terms of reference were to advise the HSC on matters which are referred to it or which it considered require attention regarding nuclear safety policy and its implementation at nuclear installations, and the adequacy and balance of HSC’s nuclear safety research programme. NuSAC’s term of office expired on 31 October 2008 and the HSE is still deciding what arrangements to make for a successor body Further details on NuSAC and its previous work, and copies of its meeting papers, are available on the HSE website.58 55

See www.hse.gov.uk/research/nuclear/coordinated.htm. See GS-R-1 on legal and government infrastructure; NSR-1 on design of nuclear power plants; INSAG-12 on basic safety principles for nuclear power plants; INSAG-16 on maintaining knowledge, training and infrastructure for research and development in nuclear safety. 57 ‘Lambert Review of Business-University Collaboration: Final Report’ (December 2003) available at www.hm-treasury.gov.uk/lambert_review_business_university_collab.htm. 58 HSE, ‘Nuclear Safety Advisory Committee’ available at www.hse.gov.uk/aboutus/meetings/iacs/nusac. 56

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Licensing: Health and Safety Duties 91

LIAISON WITH OTHER BODIES AND AGENCIES Needless to say, the ND does not work in isolation. As already stated, an important part of its work is to offer advice, through the HSC and HSE, to relevant Secretaries of State and to the Gas and Electricity Markets Authority. On matters of radioactive waste management, it works closely with the regulators under the Radioactive Substances Act 1993, the Environment Agency and Scottish Environment Protection Agency (SEPA) and with the Department for the Environment, Food and Rural Affairs (DEFRA) and Scottish Ministers as their sponsoring departments. It also liaises with the Ministry of Health, the Health Protection Agency, and the Food Standards Agency. Concordats or memoranda of understanding are in place to reflect these relationships. In particular, these is a general Memorandum of Understanding on effective regulatory co-ordination between the HSE and Environment Agency,59 which covers working arrangements, enforcement, incident and emergency response, provision of technical standards and guidance, and disclosure of information. There is a further memorandum in relation to the regulation of radioactive substances at non-nuclear sites, that is those not licensed under the 1965 Act. At the international level, the HSE has a number of bi-lateral arrangements with regulatory bodies in other countries, to facilitate the interchange of information on nuclear safety. It also contributes to the work of the IAEA, the OECD’s Nuclear Energy Agency, the Western Nuclear Regulators Association (WENRA) and the International Nuclear Regulators Association (INRA). WENRA’s terms of reference are to promote the exchange of experience and to develop a common approach to nuclear safety and regulation, particularly within the EU. The work of WENRA is particularly significant in that the members of WENRA are committed by 2010 to improve and harmonise their regulatory systems using as a minimum a series of agreed safety reference levels setting common standards.60

HEALTH AND SAFETY DUTIES GENERALLY Before moving on to the specifics of nuclear site licences, it should be noted that the operator of a nuclear installation will be subject to the general duties and requirements of health and safety law. Under Articles 9 and 10 respectively of the Convention on Nuclear Safety, the UK as a contracting party is required to ensure that the prime responsibility for the safety of the nuclear installation rests with the licence holder, and that all organizations engaged in activities directly related to nuclear installations establish policies that give due priority to nuclear safety. The general duties imposed by sections 2 and 3 of the Health and Safety at Work, etc. Act are consistent with such an approach. Section 2 places a duty on every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees, whereas section 3 makes it the duty of every employer to conduct his undertaking in a such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are 59 Memorandum of Understanding between the Environment Agency and the Health and Safety Executive (10 July 2000) available at www.hse.gov.uk/aboutus/howwework/framework/f-2001-3.htm. 60 See WENRA website at www.wenra.org and ‘WENRA Reactor Safety Reference Levels’ (2007), available on HSE website.

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92 Licensing not exposed to risks to their health or safety. Section 3 is concerned with the risk of harm and can be breached regardless of whether any actual harm occurs.61 What must be proved in a prosecution is simply that the result described in section 2 or section 3 has not been achieved, that is that the health and safety of employees has not been ensured, or that nonemployees have been exposed to risks; this establishes a prima facie case of breach, unless the defendant can make good the defence of reasonable practicability.62 The concept of a licensee conducting his undertaking has been interpreted widely by the courts.63 It is therefore likely to extend to cases where a nuclear installation has been shut down, as well as where it is in operation. In the context of nuclear installations licensing, a very high degree of control over activities on a licensed site is expected of the licensee as the person using the site; arguments that the licensee was not the person carrying on the undertaking because a contractor was being employed to undertake a specific task or to operate the site generally are therefore unlikely to succeed.64 These general duties of health and safety are supplemented by the further requirements to undertake suitable and sufficient assessments of risks to employees and the general public under the Management of Health and Safety at Work Regulations 1999.65 Consideration of the licensee’s management and safety organisation and the priority which it accords to nuclear safety form an important aspect of the ND’s regulatory work.66 The importance of suitable and sufficient risk assessment by the employer as a basis for identifying risk from all aspects of its operations, and to provide a ‘blueprint’ for further actions such as adequate training of employees, has been strongly emphasised by the Court of Appeal,67 and such a general requirement is clearly no less applicable to nuclear operators, and others such as contractors working in the nuclear field. Detailed regulations on radiological protection, discussed in chapter seven, also require risk assessments to be undertaken. A nuclear installation will, of course, be subject to all the other detailed regulations on health and safety at work as any other large industrial facility, for example on personal protective equipment, lifting equipment, pressure systems, control of major accident hazards, chemicals and dangerous substances and so on. Consideration of these detailed requirements if beyond the scope of this work and reference should be made to specialist health and safety texts.68

NUCLEAR SITE LICENCES GENERALLY The main guidance provided by the HSE on licences is The Licensing of Nuclear Installations, which is published only on the HSE website, and replaces the previous publication, Nuclear 61

R v Board of Trustees of the Science Museum [1993] 1 WLR 1171. R v Chargot Ltd (t/a Contract Services) [2008] UKHL 73; [2009] 1 WLR 1. 63 R v Mara [1987] 1 WLR 87, CA; and R v Associated Octel Ltd [1996] 1 WLR 1543 (HL). 64 See R v Associated Octel Co Ltd [1996] 1 WLR 1543 (HL); Austin Rover Group Ltd v HM Inspector of Factories [1990] 1 AC 619. In November 2008, Sellafield Limited, the principal contractor for the decommissioning of the Windscale Pile B6 chimney, was fined £150,000 under s 3(1) following the death of the employee of a demolition sub-contactor who fell 95 metres from an unprotected ledge. 65 SI 1999 No 3242. 66 See UK Fourth National Report on Compliance with the Convention on Nuclear Safety Obligations (2007) paras 9.1–9.9 and 10.7–10.32. 67 Allison v London Underground Ltd [2008] EWCA 71; [2008] ICR 719. 68 See Michael Ford and Jonathan Clarke, Redgrave’s Health and Safety, 6th edn (London, Lexis Nexis Butterworths, London, 2008); Richard Mathews and James Ageros, Health and Safety Enforcement: Law and Practice, 2nd edn (Oxford, Oxford University Press, 2007). 62

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Licensing: Identity of Site Licensee 93 Site Licences—Notes for Applicants (HSG 120). The guidance describes licences in the following general terms:69 The safety of nuclear installations in the UK is secured primarily through the nuclear site licence. Nuclear site licences are granted for an indefinite term and one licence may cover the lifetime of an installation from design, siting, construction, commissioning, operation, and modification through to eventual completion of decommissioning.

There has been a long gap in the granting of new nuclear site licences in the UK since the 1970s, but there is now the prospect of a resurgence in licensing activity for new nuclear power stations. The first licence for a new site since the 1970s was granted to Studsvik UK Ltd for its metals recycling facility near Workington, Cumbria, which will recycle metals from the Sellafield decommissioning process and process wastes contaminated with low levels of radioactivity and will package radioactive residues.

IDENTITY OF SITE LICENSEE A nuclear site licence may only be granted to a body corporate and is not transferable (subsection 3(1)). Subsection 3(2) allows the HSE, if it thinks fit, to treat two or more installations in the vicinity of one another as being in the same site for the purposes of site licensing, that is they may be licensed together. Provision is also made for the situation where part of the licensed site is no longer required by the licensee for any use needing a licence; by subsection 3(5), provided the HSE is satisfied that there is no danger from ionising radiations from anything on that part of the site, the site licence may be varied so as to exclude it. The fact that a licence can only be granted to a company or other corporate body, and is not transferable, is both unusual and important. A prospective licensee must show not only that the plant to be used will be safe, but also that the corporate body, as licensee, will have an adequate management structure, capability and resources to discharge the relevant obligations and liabilities, commensurate with the risks imposed by the operations on the site and demonstrated in a safety management prospectus.70 The prospectus should cover matters such as: —the corporate safety policy statement; —a review of proposed arrangements as against the Safety Assessment Principles for leadership and management of safety; —a demonstration of structural and organisational competence and resources suitable to manage nuclear safety;71 —definition and documentation of duties; —integration of safety responsibilities to job functions; —arrangements for maintaining adequately trained staff and for the use of contractors; —relationships with any bodies (for example, parent body organisations) which are relevant to demonstrating operational control of the site; 69

HSE, ‘The Licensing of Nuclear Installations’ para 1.7 available at www.hse.gov.uk/nuclear/notesforapplicants.

pdf. 70

pdf.

HSE, ‘The Licensing of Nuclear Installations’ para 2.17 available at www.hse.gov.uk/nuclear/notesforapplicants.

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94 Licensing —lines of authority on relevant activities; —arrangements on key functions such as safety case preparation and review, independent assessment and advice, and internal safety audits; —performance indicators for monitoring safety; and —leasing arrangements for land or facilities. A prospective change in the operator of a licensed nuclear site may therefore involve the grant of a replacement licence to the incoming corporate body. Before granting such a licence, the NII will apply the same evaluation criteria as it would for an initial licensee. A number of sites which were originally exempt from licensing have been brought within control (for example, the Devonport and Rosyth Royal Dockyards, and the UKAEA sites at Dounreay, Harwell, Windscale and Winfrith) and the relicensing of sites has been required following organisational changes and the privatisation of the nuclear industry. Where more than one company is working on the same site, the NII will wish to grant only one licence, to the company in control of the day to day operation of the site. The HSE’s policy is that the licensee must have full rights of access to and control of the site, and will require evidence of security of tenure where the proposed licensee does not own the site.72 The need for the licensee to have control of the site does not rule out the possibility of using contractors for certain functions. The contractor will be using the site along with the licensee and will able to rely on the licence to avoid committing an offence under section 1.73 However, the HSE will expect the licensee to have the capability within its own organisation to understand the safety case and operating limits for the installation, to understand the significance of bought-in expertise and to take responsibility for its implementation (the so-called ‘Intelligent Customer’ capability).74 The licensee will need to demonstrate that its chain of command and ability to control activities on the site have not been compromised by the use of contractors. These requirements are further explained in the NSD’s Technical Assessment Guides on ‘Assessment of “Intelligent Customer” Capability’ (T/AST/049) and ‘Contractorisation’ (T/AST/052) which address the potential risks posed by using contractors, and stress the importance of the licensee being able to recognise when technical questions need answering and the adequacy of the response, as well as maintaining sufficient expertise pertinent to safety, up to and including executive level. The HSE will impose a standard condition (LC3) preventing the licensee from conveying, assigning or transferring ownership or possession of all, or part of, the site to any other person without the HSE’s consent. The rationale is that nothing must confuse the absolute responsibility of the licensee in respect of safety for the whole site. The licensee should be able to show that there are organisational arrangements in place to prevent breach of the condition.

71 Note that HSE regards it as beyond its own remit to judge the financial standing of applicants, but that it will invite interested government departments and agencies to draw to its attention anything they think is relevant in that regard. 72 HSE, ‘The Licensing of Nuclear Installations’ para 2.23. www.hse.gov.uk/nuclear/notesforapplicants.pdf. 73 Should a licence condition be broken, both the licensee and any person having duties upon the site and by who the contravention was committed, ie the contractor, will be guilty of an offence under s 4(6). 74 HSE, ‘The Licensing of Nuclear Installations’ paras 2.19 and 2.20. www.hse.gov.uk/nuclear/notesforapplicants. pdf.

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Licensing: Safety Cases 95

NON-PRESCRIPTIVE NATURE OF THE LICENSING SYSTEM AND SAFETY CASES The regime of nuclear site licensing is essentially non-prescriptive. The licence conditions set goals but do not specify the means of achieving them. A licence applicant must provide a comprehensive demonstration, by way of a safety case, that safety will be controlled through all stages of the plant’s life. Licensees, being responsible for safety, have to propose their own solutions to safety issues; these are not imposed by NII. On the grant of the licence, the conditions will make the licensee responsible for the application of detailed safety standards and safe procedures. Licence condition LC23 requires the licensee, in respect of any operation that may affect safety, to produce an adequate safety case to demonstrate the safety of that operation and to identify the conditions and limits necessary in the interests of safety (referred to as ‘operating rules’). The role of NII is to review these compliance arrangements of the licensee to ensure that they are clear and unambiguous and address the main safety issues adequately.75 There will normally be dialogue between the applicant and the HSE during preparation of the safety case, which is an iterative process involving the making of submissions to the HSE as aspects of design reach the stage where safety can be assessed, for example:76 —a reference design (that is an initial statement of design and the safety criteria to be applied); —a preliminary safety report, intended to show in principle the means by which the reference design can meet safety criteria; —a pre-construction safety report; —proposed research and development work in support of the safety case; —quality assurance proposals; and —the eventual contract design intended for construction.

SAFETY ASSESSMENT PRINCIPLES NII’s assessment of the safety case is informed by the safety assessment principles (SAPs) embodied in its document, ‘Safety Assessment Principles for Nuclear Facilities’.77 This is a comprehensive document covering all aspects and stages of an installation’s operation, and is used with supplementary Technical Assessment Guides (TAGs).78 The principles were first published in 1979, but have been regularly updated and were subject to thorough revisions in 1992 and 2006, including benchmarking the latest revision against applicable IAEA safety standards as representing good practice.79 They provide the framework for making 75 76 77

Ibid, para 1.13. Ibid, para 2.12. HSE, ‘Safety Assessment Principles for Nuclear Facilities’ available at www.hse.gov.uk/nuclear/saps/index.

htm. 78 TAGs include both technical guidance on safety and engineering issues such as structural integrity, ventilation, computer based safety systems and more generic issues such as demonstration of ALARP, assessment of training arrangements, probabilistic safety analysis and ‘intelligent customer’ capability. A list of current TAGs is on HSE website at www.hse.gov.uk/foi/internalops/nsd/tech_asst_guides/index.htm. 79 See also WENRA, ‘WENRA Reactor Safety Reference Levels’ (2007), available on HSE website.

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96 Licensing consistent regulatory judgments on safety cases, and are consistent with the HSE’s approach to decision-making on risk generally.80 They proceed on the basis of eight Fundamental Principles: FP1: The prime responsibility for safety must rest with the person or organisation responsible for the facilities and activities that give rise to radiation risk. FP2: Effective leadership and management for safety must be established and sustained in organisations concerned with, and facilities and activities that give rise to, radiation risks. FP3: Protection must be optimised to provide the highest level of safety that is reasonably practicable. FP4: The duty-holder must demonstrate effective understanding of the hazards and their control for a nuclear site or facility through a comprehensive and systematic process of safety assessment. FP5: Measures for controlling radiation risk must ensure that no individual bears an unacceptable risk of them. FP6: All reasonably practicable steps must be taken to prevent and mitigate nuclear or radiation accidents. FP7: Arrangements must be made for emergency preparedness and response in case of incidents. FP8: People, present and future, must be protected against radiation risks. The safety case should be a logical and hierarchical set of documents, accurate and objective, and identifying any areas of optimism and uncertainty. Its ownership resides within the dutyholder’s organisation with those having direct responsibility for safety. The SAPs, which run to some 140 pages, proceed by way of detailed principles covering areas such as leadership and management for safety, siting, engineering principles on various aspects of the installation, radiation protection, fault analysis, waste management, decommissioning and control and remediation of radioactively contaminated land. The licensing of nuclear installations is one of a number of ‘permissioning regimes’ for which the HSE is responsible, which include matters such as major accident hazards sites, offshore installations and explosive manufacture, and as such shares the general features of such regimes, for example, resource intensive, related to the degree of risk, placing primary responsibility on the licence holder, and operated and enforced openly and transparently.81

NUCLEAR SITE LICENCES: ACCEPTABLE RISK As analysed in chapter six dealing with liability and insurance, subsection 7(1) of the Act contains a duty on the licensee of a nuclear site to secure that injury or damage is not caused by specified occurrences, or by the emission of ionising radiations. In the case of Re Friends of the Earth,82 the issue arose as to the relationship between that duty and the grant of site 80 81 82

‘Reducing Risks, Protecting People’ (R2P2). HSC Policy Statement, ‘Our Approach to Permissioning Regimes’ (2003). Available on HSE website. Re Friends of the Earth [1988] JPL 93.

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Tolerability of Risk 97 licences. Friends of the Earth made an application for judicial review of the Secretary of State’s decision relating to the Sizewell B pressurised water reactor nuclear power station. The application of leave for judicial review in fact failed due to lack of promptitude; but the Court of Appeal in upholding the decision to refuse leave commented on one substantive argument raised by the applicants. This was that subsection 7(1) was to be interpreted as requiring an assurance of absolute safety before a site licence could be granted. Gibson LJ found this proposition untenable: If [the applicant’s] contention were right Parliament had to have intended to prohibit the licensing of a nuclear power station unless it could be shown that no such occurrence could possibly occur, even from an unforeseen natural event or from some combination, however wildly improbable, of equipment failure or human error or malice on the part of the operators. That would in effect mean that no licence could be granted.

Gibson J did not feel that section 7 had been intended by Parliament to impose upon the NII the duty of requiring proof from an applicant that the proposed nuclear power station was so designed, and would be so operated, that no such harmful occurrence could occur. This conclusion, it has been pointed out, is consistent with statements in the course of Parliamentary debates, and with the history of the Nuclear Installations (Licensing and Insurance) Act 1959 as a consequence of the serious fire at the Windscale Pile; ‘there is no evidence here of an absolutist conception of safety’.83

TOLERABILITY OF RISK Following the inquiry into the proposal of Sizewell B nuclear power station, the inspector, Sir Frank Layfield QC, recommended that the HSE should ‘formulate and publish guidelines on the tolerable levels of individual and social risk to workers and the public from nuclear power stations’. The response to that recommendation was the HSE document, ‘The Tolerability of Risk from Nuclear Power Stations’ (revised 1992). The document received close public examination and general endorsement at the public inquiry chaired by Michael Barnes QC into the subsequently proposed nuclear power station at Hinkley Point (1990). The concept of tolerability of risk implies considerations of public opinion, as well as purely expert assessment; the approach and philosophy of the HSE document has been increasingly applied to the regulation of other major industrial risks in the UK.84 The document distinguishes ‘tolerability’ from ‘acceptability’.85 Acceptability implies a willingness to take a risk as it is; to tolerate a risk involves keeping it under review and reducing it further when this is possible. The starting point of the HSE’s approach involves three tests: (a) whether a risk is so great or the outcome so unacceptable that it must be refused altogether; or (b) whether the risk is, or has been made, so small that no further precaution is necessary; or 83

Dr C MiIler, Radiological Risks and Civil Liability [1989] 1(1) Journal of Environmental Law 10 at 11. See ‘Reducing Risks, Protecting People: HSE’s decision-making process’ (2001) which describes HSE’s philosophy on risk generally. For more recent discussion of economic valuation of the health effects of possible nuclear accidents and its difficulties, see NERA Economic Consulting, ‘Human Costs of a Nuclear Accident: Final Report’ (HSE, July 2007). 85 HSE, ‘The Tolerability of Risk from Nuclear Power Stations’ (rev 1992) para 10. 84

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98 Licensing (c) if a risk falls between these two states, that it has been reduced to the lowest level practicable, bearing in mind the benefits following from its acceptance and taking into account the costs of any further reduction. The requirement laid down in health and safety law is that any risk must be reduced so far as reasonably practicable or to a level which is ‘as low as reasonably practicable’ (ALARP principle.)86

The relevant working methods in the case of nuclear risk are complex, but ultimately involve applying one of these three main tests. The document considers risk in the context of normal operation of nuclear installations (which effectively means risks to workers), and the risk of nuclear accidents, involving the calculation of the risk of plant failure, natural catastrophes and human error. The levels of risk which are tolerable for members of the public are much lower than for radiation workers; unlike such workers, the public have no choice as to whether they are exposed or not, and include vulnerable groups such as children and pregnant women. The HSE considers a risk of death of around one in 1,000 per annum as the maximum tolerable for nuclear workers; this roughly equates to the maximum levels of risk acceptable to workers in relatively high-risk occupations such as offshore oil workers, or roofing contractors in the construction industry. For the general public, the risk could not be less than 10 times below this figure, that is one in 10,000 per annum. This is about the average annual risk of dying in a traffic accident, and can be compared with everyone’s general chance of contracting fatal cancer, which is an average of one in 300 per annum. At the Hinkley Point inquiry, inspector Michael Barnes QC recommended a figure for the general public of one in 100,000 per annum. Whilst maintaining its general approach that one in 10,000 is the maximum tolerable level for large industrial plant (which is likely to require further reduction under the ALARP principle), the HSE proposed to adopt a risk of one in 100,000 per annum as the benchmark for new nuclear power stations in the UK. In suggesting this proposal, the HSE recognised that this standard is, broadly speaking, achievable and measurable in the case of a new station.87 In practice, the HSE considered that the measures taken for nuclear installation safety means that the risk borne on average by members of the public from normal nuclear installation activities (that is disregarding outside accidents) is usually no more than one in 1 million per annum. At the other end of the scale to risk regarded as intolerable, there are levels of risk which can be regarded as broadly acceptable, that is below which no further improvement should be required if these entail cost. The HSE suggests that in the light of the ordinary risks of life, this level might be taken as one in 1 million per annum,88 that is about the same level of risk as being electrocuted in the home, and about 100 times less than the average annual risk of dying in a traffic accident.

86 87 88

Ibid, para 25. Ibid, para 173. Ibid, para 175.

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Applications for Licences 99

APPLICATIONS FOR LICENCES Guidance is provided for prospective licensees in the HSE document The Licensing of Nuclear Installations, which is available on the HSE website. This makes it clear that the supporting evidence for an application will usually include:89 —a safety management prospectus —a description of the installation or activities to be licensed —an indication of the status of the activities at the site in terms of the requirements for justification of practices90 —a map of the site91 and for new sites, details of population type and density around the proposed site and other matters relevant to location92 —details of the ownership of the site or the arrangements for its leasing —licence condition compliance statements (that is the proposed arrangements to comply with the standard site licence conditions) —submission or review of adequate safety cases —a statement of decommissioning arrangements —details of emergency arrangements —terms of reference for the nuclear safety committee to be established by the licensee under standard condition 13. In line with its general policy on enforcement, the HSE applies a principle of proportionality to the licensing or re-licensing process.93 Accordingly the main assessment effort will be directed to areas where changes are taking place which may impact on safety, or areas which are judged to be important for other reasons. Where a plant is being relicensed because of a minor change to a site boundary or to reflect a corporate restructuring, it may not be necessary to re-submit information which the HSE already has. On the other hand, where a pre-existing facility is being brought within the licensing framework, much more detailed substantiation of ongoing safety will be required.94

NUCLEAR SITE LICENCES: CONSULTATION In all cases, before granting a nuclear site licence in respect of a site in Great Britain, the HSE must consult the Environment Agency, or if the site is in Scotland, the Scottish Environment Protection Agency.95 This is to ensure that granting any new licence will not prejudice or conflict with the relevant Agency’s responsibilities under the Radioactive Substances Act 1993 or other environmental legislation. Further details can be found in the 89

HSE, ‘The Licensing of Nuclear Installations’ para 2.24. On justification see further chs 7 and 12. 91 This should comply with the specification for maps at Annex 2 of the guidance. 92 For example, seismic and flooding risks, suitability for establishment of adequate emergency plans, population density and proximity of sensitive uses such as schools, hospitals and other institutions (see The Licensing of Nuclear Installations, para 2.21). 93 HSE, ‘The Licensing of Nuclear Installations’ para 2.27 www.hse.gov.uk/nuclear/notesforapplicants.pdf. 94 Ibid, para 2.25. 95 Subs 3(1A) of the 1965 Act, inserted by the Environment Act 1995, Sched 22, para 7(1). 90

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100 Licensing Statement of Intent and Memorandum of Understanding between the HSE and the Environment Agencies.96 By subsection 3(3), where it appears to the HSE appropriate to do so, the applicant for a nuclear site licence may be directed by the HSE to serve notice on any of the following bodies: (a) any local authority; (b) any water undertaker or local fisheries committee; (c) in Scotland, any river purification board, local water authority, salmon fisheries district board, or the Tweed Fisheries Board of Commissioners or Scottish Water; and (d) any other public authority. The notice must give such particulars as may be specified with regard to the use to be made of the site, and state that representations may be made to the HSE within three months of the date of service. Where such a direction is given, the HSE shall not grant the licence unless satisfied that three months have elapsed since service of the last of such notices, and only after considering any representations made in accordance with the notices. In deciding whether to give a direction, the HSE will consider the significance of the development associated with the application, the related impact on the duties and activities of the public body concerned, and consistency with previous use of HSE powers in this regard.97 Subsection 3(3) does not, however, apply in relation to an application in respect of a site for a nuclear power station, where a consent under section 36 of the Electricity Act 1989 is required for its operation (subsection (4)).

REGULATION OF DEFENCE-RELATED SITES A distinction is drawn between defence-related sites which are operated by contractors and those run by the MoD itself. Into the first category fall the Devonport and Rosyth dockyards and the Barrow shipyard which are now privately owned, and the Atomic Weapons Establishment sites at Aldermaston and Burghfield, which are owned by the MoD but are operated by a contractor. In each case the operating contractor holds the nuclear site licence, and Ministers account to Parliament on nuclear safety matters.98 Into the other category fall sites such as the nuclear submarine base as Faslane and the RN Armaments Depot at Coulport, where control rests with the MoD. The 1965 Act applies only to a limited extent to such sites,99 but they are subject to the Health and Safety at Work, etc. Act, the Ionising Radiations Regulations 1999 and the Radiation (Emergency Preparedness and Public Information) Regulations 2001 and are regulated by the HSE under these provisions.100 Where exemptions from normal regulation apply, it is MoD policy to ensure, where reasonably practicable, that the standards it applies are at least as good as those required by civil regulation. The MoD has its own Defence Nuclear Safety Regulator (DNSR) which liaises closely with the MoD. 96 HSE, ‘Our legal framework and our relationship with Other Government Departments and Regulators’ available at www.hse.gov.uk/nuclear/legal.htm. 97 HSE, ‘The Licensing of Nuclear Installations’ para 2.33 www.hse.gov.uk/nuclear/notesforapplicants.pdf. 98 Ibid, paras 1.34–1.36. 99 See, eg, s 9. 100 See the General Agreement between HSE and MoD.

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The Sizewell B Inquiry 101

NUCLEAR SITE LICENCES: RELATIONSHIP WITH ELECTRICITY ACT CONSENTS AND PLANNING PERMISSION As well as satisfying the NII that nuclear site licensing requirements can be met, licence applicants must also comply with planning requirements or provisions in the Electricity Act 1989. There has, in the past, been a measure of doubt as to some aspects of these planning requirements in relation to the special problems presented by major nuclear projects.101 Construction of any form of power station with a capacity greater than 50 megawatts required consent under section 36 of the Electricity Act 1989. Having obtained such consent for the construction process and for use of the site, a licence under the 1965 Act would still be needed to install and operate the reactor. This will remain the case where the Electricity Act procedures are replaced by the new procedures for consenting major infrastructure projects under the Planning Act 2008 as described in chapter five. Under the previous system, the ND would wish to be satisfied that planning requirements had been met before granting a licence and would not usually grant a licence to allow construction to begin on a new nuclear plant until a section 36 consent had been given.102 However, a new system of Generic Design Assessment (GDA), described later in this chapter, now permits the licensing process to begin, in terms of generic reactor design safety, prior to the planning process.

THE SIZEWELL B INQUIRY The relationship between nuclear licensing procedures and consent to construct a nuclear power station was addressed in the 1980s at the public inquiry into the proposal by the Central Electricity Generating Board (CEGB) to seek consent under section 2 of the Electricity Act 1909 for Sizewell B, Britain’s first pressurised water reactor (PWR). This immensely long and complex inquiry, at that point the longest on record, was held under the Electricity Generating Stations and Overhead Lines (Inquiries Procedure) Rules 1981 and ran from January 1983 to March 1985.103 Whilst expressing strong confidence in the safety standards applied by the NII, it is clear that for the purpose of giving consent for Sizewell B, the Government was not satisfied simply with the endorsement of the NII as licensor: the Government appeared to want more: it looked to the Inquiry to reinforce the NII position. The safety case had to be legitimised by the Inquiry, over and above the statutory licensing process.104

The Ministers, Inspector and the CEGB as promoter of the scheme were all well aware of public sensitivity as to safety of PWR design, following the Three Mile Island incident in the USA, which involved a PWR, but of a different design to that proposed at Sizewell B. However, it was also clear that the inquiry could not duplicate the nuclear site licensing process, which it was neither designed to perform, nor technically capable of performing. The pre-construction review stage of the CEGB’s safety case alone ran to 26 volumes and 101 102 103 104

Macrory, ‘Planning Procedures in the Nuclear Age’ [1980] Journal of Planning and Environment Law 148. HSE, ‘The Licensing of Nuclear Installations’ para 2.38 www.hse.gov.uk/nuclear/notesforapplicants.pdf. O’Riordan, Kemp and Purdue, Sizewell B—An Anatomy of the Inquiry (London, MacMillan Press, 1988). Ibid, 22.

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102 Licensing over 300 supporting documents, of which the CEGB presented ‘highlights’ at the inquiry.105 The approach of the inquiry was therefore to look into the entire philosophy of nuclear safety: It demanded justification of the principles and procedures adopted by various responsible and advisory bodies. It analysed the fundamentals of safety assessment calculations for certain key components and possible accident sequences where there was historical experience of danger and expressed public concern. And it explored the competence and efficiency of organisational relationships between the various parties involved in the licensing process. In sum, the Inquiry sought to pass judgment on the reliability of the total safety process—safety assessment reactor design, component manufacture, project management, operational performance and the handling of spent fuel and the decommissioned reactor, so that the whole ‘safety phenomenon’ need not be subject to a similar degree of public scrutiny within a future inquiry.106

This involved a probing consideration of the internal arrangements of the HSE, the Safety Criteria applied by the HSE, and the approach adopted to licensing; the experience was a salutary one for the HSE.107 One specific aspect of design which was discussed in detail related to the integrity of the reactor pressure vessel (RPV), through which pressurised and super-heated water would cascade to cool and moderate the fuel rods. This crucial component of the design had to be shown to have a probability of failure so low as to be ‘incredible’. For the Hinkley Point C proposal, the intended reactor design was very similar to Sizewell B, which was reflected in the reduced scale of the inquiry.

LICENSING FUTURE PLANT Following the experience of Sizewell B, in the course of the Government’s 1994 Nuclear Review, the HSE considered the issue of licensing possible new nuclear power plant which might be of foreign design or manufacture.108 This issue has gained greater impetus with the increased possibility of new nuclear power stations being constructed in the UK.109 The HSE in its expert submission to the Government’s 2006 Energy Review noted that where a standardised design is to be used, the development of the design and safety case could be developed much earlier in the project, reducing the time for regulatory assessment and also regulatory uncertainty. The HSE also noted that since the 1990s, the nuclear and electricity markets had become increasingly internationalised, and that future operators might well wish to adopt well-developed overseas designs, which might already be in operation and have been assessed and licensed by overseas regulators. In the light of this, the HSE proposed a two phase process: first the generic assessment of the reactor design, leading to a statement of ‘Design Acceptance’, followed by the licensing stage to allow construction of that design. In its July 2006 Energy Review Report,110 the Government welcomed these proposals, and asked the HSE to proceed with developing a system for assessing reactor designs and to publish guidance. Impetus for such guidance was also provided by a recommenda105 106 107 108 109 110

Ibid, 182. Ibid, 182–3. Ibid, 228, 231. HSC, Submission to the Nuclear Review (1994) para 99. See ch 5 generally. The Energy Challenge (DTi, 2006).

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Licensing Future Plant 103 tion of the IAEA in its 2006 review,111 that there was a need to develop formal guidance on the assessment of new reactors. Consequently, the HSE and Environment Agency have developed a GDA process for new nuclear power stations, which will enable companies to submit information on reactor designs in advance of any site-specific proposals.112 This is intended to provide a structured assessment of the safety, security and environmental aspects of the design, in an open and transparent manner, taking about three and a half years to complete. This involves a single integrated submission covering all three aspects of regulation, with full public consultation, public statements by the regulators on progress and interim findings at key stages. On 5 July 2007, the Government announced that four design companies (Atomic Energy of Canada (AECL),113 Electricité de France/Areva,114 GE-Hitachi115 and Westinghouse116) had made valid applications for GDA. Subsequently, in April 2008 AECL announced its withdrawal from the process, and in September 2008 GE-Hitachi asked for work on its assessment to be suspended. The public has access to the Safety, Security and Environmental Report submitted with each application (with the exception of security and commercially-sensitive material) by way of each company’s website and may comment via these websites. In March 2008, the HSE and Environment Agency published reports on each design following the conclusion of the initial assessment stage, together with a report on the public involvement process, a report of the independent process review board,117 and a summary of the safety reviews on the designs carried out by overseas regulators.118 The regulators concluded that, after carrying out their initial assessments of these designs, they could see no shortfalls at this stage, in terms of safety, security or the environment, which would prevent any of the designs from being constructed on a licensed site in the UK. The next, more detailed, stage of the GDA process commenced in June 2008, referred to by the HSE as Step 3. Various guidance material has been published on the GDA process and is available on the GDA dedicated website:119 —Guide to the Regulatory Processes for Generic Design Assessment of New Nuclear Power Station (version 2, HSE, SEPA, Environment Agency) —Nuclear Power Station Generic Design Assessment—Guidance to Requesting Parties (version 3, HSE) —OCNS Guidance for Generic Design Assessment Activities —OCNS Management of Sensitive Nuclear Information during the Generic Design Assessment of Nuclear Technologies —Process and Information Document for Generic Assessment of Candidate Nuclear Power Plants (Environment Agency) 111

Report of International Regulatory Review Service IAEA-NSNI-IRRS-2006 1 April 2006. See www.hse.gov.uk/newreactors. 113 The ACR 1000 design www.aecl-uk.co.uk. 114 The EPR design www.epr-reactor.co.uk. 115 The ESBWR design www.gehgenericdesignassessment.co.uk. 116 The AP1000 design www.ukap1000application.com. 117 This is a four person review board established by the HSE to provide external scrutiny of the GDA process. The first report of the Review Board advised that generally the process had been well-executed to date, but sounded a note of caution that the next steps will place much greater demands on HSE’s resources and suggested that more care and imagination could have been shown by the promoters of the designs in presenting information in ways that the majority of members of the public could easily find and understand. 118 HSE, ‘Generic Design Assessment (GDA)—Reports’ www.hse.gov.uk/newreactors. 119 HSE, ‘Guidance’ www.hse.gov.uk/newreactors/guidance.htm. 112

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104 Licensing —New Nuclear Power Stations—Safety Assessment in an International Context (version 2, HSE) —Applying for a Nuclear Site Licence for New Nuclear Power Stations: A Step-by-Step Guide One aspect of GDA which may be important in practice is the sharing of information with overseas regulators, in particular in Canada, Finland, France120 and the US,121 who have already assessed a relevant design. The HSE will seek to make use of such assessments, which would allow attention to be focused on UK-specific areas.122 Convergence and ultimately harmonisation in standards for reactor designs carries potentially important advantages for the nuclear industry and its investors on a global basis.123 Co-operation with the US and French regulators may be particularly important since the Westinghouse AP1000 is a US design and the EPR a French one.124 However, it should be remembered that ultimate responsibility for demonstrating safety lies with the applicant, and also that IAEA Guidance states that even where a similar design has been approved in another State, the regulatory body should still perform its own independent review and assessment.125 The HSE may, as it deems necessary, test the robustness of decisions of overseas regulators, and the extent to which overseas assessments may be taken into account will depend on factors such as the date and continuing validity of the assessment, its level of detail, the depth of information provided by the requesting party, whether any assumptions would remain valid if the technology is adopted in the UK, and whether the legal requirement of reducing risks ALARP can be demonstrated. One issue is the extent to which there may be differences in the detail of designs considered by regulators elsewhere, and those proposed for use in the UK, whether for regulatory reasons or operator preference.126 On completion of the GDA process the regulators will issue reports on their findings and if a design is judged to be satisfactory, the regulators will issue the following documents: —Design Acceptance Confirmation by the HSE; —Statement of Generic Design Acceptability by the Environment Agency; and —Generic Conceptual Security Plan Approval by OCNS It is envisaged that such confirmations would apply to the generic design for a period of 10 years, subject to no significant information arising during that period which might call 120 On 27 March 2008 the UK and French governments announced arrangements to improve efficiency in nuclear development projects including GDA, and the NII Chief Inspector and chair of the French safety regulator issued a joint statement of intent to work closely together on assessment of the European Pressurised Water Reactor (EPR) design www.hse.gov.uk/newreactors. 121 On 12 March 2008 the HSE and the US Regulatory Nuclear Commission signed an agreement to renew cooperation over a five year period in sharing information, personnel and training: see www.nrc.gov/ reading-rm/doc-collections/news/2008/08-054.html. See also Karen D Cyr, Stephen G Burns and Steven V Crockett, ‘Licensing the next generation of reactors in the USA: recent experience, key issues and challenges’ (2006) 1(3) International Journal of Nuclear Law 239–46. 122 HSE, Nuclear Power Station Generic Design Assessment—Guidance to Requesting Parties (version 2, paras 62–6. 123 World Nuclear Association, WNA Working Group on Co-operation in Reactor Design Evaluation and Licensing (CORDEL), ‘Benefits Gained through International Harmonization of Nuclear Safety Standards for Reactor Designs’. 124 There has already been significant co-operation between the nuclear regulators in France, Finland and the USA in exchanging technical data on the EPR design under the Multinational Design Evaluation Programme (MDEP) established in 2005. 125 Review and Assessment of Nuclear Facilities by the Regulatory Body, IAEA Safety Series, GS-G-1.2, para 3.37. 126 New Nuclear Power Stations—Safety Assessment in an International Context (version 3, HSE, March 2009) www.hse.gov.uk/newreactors/ngn05.pdf.

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Insurance 105 into question the original basis of assessment.127 It does not follow that such confirmations will lead inevitably to the grant of a licence at stage 2, since that licensing stage will involve wider issues than GDA. Any exclusions or qualifications in the GDA confirmations would need to be addressed, as would any proposed changes in design. However, prior GDA should make the site licensing stage a relatively much simpler process. The licence applicant will need to fulfil the normal requirements for a licensee under UK law in terms of its organisational and management structure and in terms of transfer of the necessary knowledge and expertise of the engineering and safety case of the reactor design from the vendor to the licensee. This transfer of knowledge will have to be well advanced before a site licence application is made, so that the licensee can demonstrate that they are able to take control of all activities on site as an ‘intelligent operator’.128

INSURANCE Section 19 of the 1965 Act, discussed elsewhere, requires the licensee of a nuclear site to make financial provision against possible claims under the 1965 Act. This issue may, with the Secretary of State’s consent, be dealt with in the licence, by including provisions as to the time from which section 19 is to apply. Where such provision is included in the licence, the requirements of section 19 do not apply until that time, or the first occasion after the grant of the licence on which the site is used for the operation of a nuclear installation, whichever is the earlier. The consequence of not making such special provision is that the requirements of section 19 operate from the time of the grant of the licence (subssections19(1) and 5(3)). In practice site licences do not contain conditions on insurance. The provision of insurance is not enforced by the HSE, but by the department relevant government, which will review the adequacy of cover when a new site is licensed, or there is a change of licensee, or a change in the insurance status. The licensee would be committing an offence under section 19(5) if a licence came into force without proper cover being in place, and to avoid such a situation occurring, NII will seek confirmation from the Department that appropriate arrangements have been made when granting a licence. However, it is not the HSE’s responsibility to audit or validate such arrangements.129

FORM OF LICENCE Whilst each licence will be unique to its site, the NII adopts a form and structure which is common to all nuclear site licences. By subsection 4(1), the HSE must, on granting the licence, attach to it, by instrument in writing, such conditions as appear to them to be necessary or desirable in the interests of safety, whether in normal circumstances, or in the event of accident or other emergency. After the grant of the licence, the HSE has the power 127 HSE, Nuclear Power Station Generic Design Assessment—Guidance to Requesting Parties (version 2, 2007) para 59, www.hse.gov.uk/nuclear/reactors/design.pdf. 128 Applying for a Nuclear Site Licence for New Nuclear Power Stations: A Step by Step Guide, paras 22–24, www.hse.gov.uk/newreactors/ngn02.pdf. 129 HSE, ‘The Licensing of Nuclear Installations’ para 2.31 www.hse.gov.uk/nuclear/notesforapplicants.pdf.

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106 Licensing to attach such conditions from time to time. There is no statutory right of appeal against conditions imposed. Some guidance is provided by subsection 4(1) as to the type of matters which may in particular be covered by conditions. These are: (a) securing the maintenance of an efficient system for detecting and recording the presence and intensity of any ionising radiations from time to time emitted from anything on the site or from anything discharged on or from the site; (b) with respect to the design, construction, installation, operation, modification, and maintenance of any plant or installation on the site, or to be installed on the site; (c) with respect to preparations for dealing with, and measures to be taken on the happening of any accident or other emergency on the site; and (d) without prejudice to control under the Radioactive Substances Act 1993, with respect to the discharge of any substance on or from the site.

STANDARD CONDITIONS The HSE has evolved a standardised set of 36 conditions with the aim of producing consistent safety requirements and which are attached to all licences. They are drafted so as to place on the licensee the onus for putting in place the appropriate safety arrangements and as such they are non-prescriptive.130 The full text of the conditions is set out in the HSE document, ‘Nuclear Site Licence Conditions’, together with explanatory notes. The conditions deal with the following matters. 1. Interpretation. In particular, there are important interpretations of the terms ‘commissioning’ (the process of making operational plant components which have been constructed or modified and verifying them to be in accordance with design assumptions and to have met safety criteria), ‘modification’ (any alteration to buildings, plants, operations, processes or safety cases, and including replacement, refurbishment, repairs or alterations to design), and ‘operations’ (which includes maintenance, examination, testing or operation of plant, and treatment, processing, keeping, storing, accumulating or carriage of radioactive material or radioactive waste). 2. Marking of the site boundary. This includes marking by fences or other appropriate means and the implementation of adequate arrangements to prevent unauthorised persons from entering the site. 3. Restriction on transferring or parting with possession of all or part of the site or granting any licence in relation to the site without the consent of the HSE. The aim of this condition, as discussed further above, is both to avoid activities being carried out which could put safety at risk and to avoid any confusion as to the absolute responsibility of the licensee. There is slightly modified wording for sites in Scotland to reflect different conveyancing terminology, and for defence-related sites wording which allows transfer of possession or occupancy to the Secretary of State for Defence. 4. Restrictions on nuclear matter on site. No nuclear matter is to be brought onto or stored on the site, except in accordance with adequate arrangements which have been submitted to the HSE for approval (nuclear matter includes nuclear fuel and radioactive waste as defined by the 1965 Act). This condition also enables the HSE to require that no nuclear matter be brought onto new installations for the first time without its consent, so as to allow the HSE to assess the adequacy of the arrangements at the outset. 130

Ibid, paras 1.11–1.13.

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Standard Conditions 107 5. Consignment of nuclear matter. Nuclear matter (other than excepted matter131 and radioactive waste) may not be consigned to any place in the UK other than relevant sites132 except with the consent of the HSE. Records are to be kept of nuclear matter consigned for a period of 30 years. 6. Documents, records, authorities and certificates. This ensures that adequate records are kept to ensure that the safety case is available, that operational records are available to assist investigation in the event of an accident or incident, and that construction and design materials are preserved to assist in the decommissioning process. 7. Incidents. Adequate arrangements must be made for the notification, recording, investigation and reporting of incidents on site. 8. Warning notices. Such notices are to be kept in appropriate places to inform persons on site of the meaning of warning signals, emergency exits and the measures to be taken in the event of fire or other emergency. 9. Instructions to persons on the site. These instructions must inform persons on site (to the extent necessary for that person’s circumstances) of hazards and risks associated with plant and operations, precautions to be taken and actions to be taken in emergency situations. 10. Training. The duty extends to suitable training for all persons on site who have responsibility for any operations which may affect safety. 11. Emergency arrangements. Arrangements for dealing with any accident or emergency (ranging from minor incidents to significant releases of radioactivity) must be made and submitted to the NII for approval, and rehearsed at suitable intervals. 12. Duly authorised, qualified and experienced personnel. Arrangements must be made to ensure that only suitably qualified and experienced persons perform safety-related duties, and that a person is removed from safety-related work if the HSE notifies the licensee of its opinion that he or she is unfit to act in that capacity. 13. Nuclear safety committee. A nuclear safety committee or committees shall be established by the licensee, to which relevant safety matters are to be referred for consideration and advice. The terms of reference of the committee and its membership are to be submitted to the HSE. The committee must have at least seven members of whom at least one must be independent of the licensee’s operations. Minutes and recommendations of committee meetings must be sent to the HSE, and the licensee must notify the HSE if it is intended to reject in whole or in part any advice given by the committee. 14. Safety documentation. Adequate arrangements are to be made for the production and assessment of safety cases and their submission to the HSE. 15. Periodic and systematic review and reassessment of safety cases. The purpose is to ensure that the licensee periodically stands back and reviews the adequacy of its safety cases, including comparison against modern standards. 16. Site plans, design and specifications. Plans, particulars of buildings, plant and operations are to be submitted to the HSE, together with amended details in the event of changes, and such other plans, designs or specifications as the HSE may require. The purpose is to ensure that the NII is properly informed of these matters and that the licensee understands the content and function of all safety-related buildings on their site. 17. Quality assurance arrangements. Such arrangements are to be made and submitted to the HSE for all activities associated with design, construction, manufacture, commissioning, operation and decommissioning. Arrangements will be expected to include the provision of a QA department to oversee the specification, review and audit of QA arrangements. 131 132

Nuclear Installations (Excepted Matter) Regulations 1978 No 1779. Relevant sites are defined in s 26 of the 1965 Act, ie other licensed sites, and sites occupied by the government.

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108 Licensing 18. Radiological protection. The licensee must make and submit adequate arrangements for the assessment of effective dose to persons specified in the arrangements, and must notify the HSE forthwith if any effective dose level specified by the HSE is exceeded.133 19. Construction or installation of new plant. Adequate arrangements must be made to control the construction or installation of any new plant which may affect safety. This will include the production of a pre-construction safety report and the condition gives the HSE power to halt the construction until it is satisfied with the safety case. 20. Modifications to design of plant under construction. Arrangements must be made to ensure that no changes are made to the design of plant during construction except in accordance with adequate arrangements made and implemented by the licensee for that purpose. 21. Arrangements for commissioning. Adequate arrangements for commissioning of plant and processes which may affect safety must be put in place, adequate records must be kept and a suitably qualified person appointed for the purpose of controlling, witnessing and recording any tests carried out. The condition allows for the division of commissioning into stages, with hold points until safety has been adequately demonstrated at that stage, for example before radioactive material is introduced. 22. Modification or experiment on existing plant. Arrangements must be made to control any modification or experiment carried out on existing plant, and the condition gives the HSE power to control or halt such activities. 23. Operating rules. In respect of any operation that may affect safety, an adequate safety case to demonstrate the safety of that operation and identify the conditions and limits necessary in the interests of safety; such conditions and limits are referred to as operating rules. This needs to address the factors affecting the safety of the installation, that is its design, behaviour under fault or accident conditions, and the functions of the operators, and the complex interactions between these factors. 24. Operating instructions. Operations which affect safety are to be carried out in accordance with written operating instructions which should be derived from the safety case. This is to avoid the risks of ad hoc actions which may jeopardise safety. 25. Operational records. Adequate records are to be kept of operation, inspection and maintenance of any plant which may affect safety. 26. Control and supervision of operations. The licensee must ensure that no operations are carried out which may affect safety except under the control and supervision of suitably qualified and experienced persons appointed for that purpose by the licensee. 27. Safety mechanisms, devices and circuits. The licensee shall ensure that a plant is not operated, inspected, maintained or tested unless suitable and sufficient safety mechanisms, devices and circuits are properly connected and in good working order. There must be sufficient and operable safety mechanisms to provide defence in depth in the event of mal-operation, faults or accidents. 28. Examination, inspection, maintenance and testing. Arrangements must be made for regular and systematic inspection and testing by suitably qualified persons, in accordance with a plant maintenance schedule and appropriate written procedures. 29. Duty to carry out tests, inspections and examinations. In addition to the regular tests under condition 28, the licensee must carry out further tests as the HSE, after consultation with the licensee, may specify. 30. Periodic shutdown. The licensee must ensure that the plant is shut down at regular intervals for inspection and testing of essential components, at defined intervals. 133

On the Ionising Radiations Regulations 1999, see ch 7.

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Standard Conditions 109 31. Shutdown of specified operations. If directed by the HSE, the licensee must shut down any specified operation, plant or process. 32. Accumulation of radioactive waste. There must be adequate arrangements for minimising so far as is reasonably practicable the rate of production and total accumulation of radioactive waste on the site. The condition also gives the HSE power to specify conditions on the quantity, type, form and location of waste to be accumulated.134 33. Disposal of radioactive waste. This condition gives the HSE power to direct the licensee to dispose of radioactive waste which is accumulated on the site. 34. Leakage or escape of radioactive material and radioactive waste. The licensee must ensure, so far as reasonably practicable, that radioactive material and radioactive waste on the site are adequately controlled or contained, to prevent leaks or escapes, and that any such leaks or escapes are recorded and reported. This reflects the fact that the HSE has responsibility for regulating the management of radioactive waste on licensed sites. 35. Decommissioning. The licensee must make and implement arrangements for decommissioning of any plant and process which may affect safety, including the production of decommissioning programmes for each plant, and their submission to HSE for approval.135 An example of the application of condition 35 is to changes made by UKAEA in 2007 to its decommissioning work programmes for Winfrith and Harwell, without first demonstrating that the outcome remained compliant with the licence condition’s expectations, leading to HSE issuing a Specification under the condition requiring submission to HSE for approval of the relevant part of the plan for each site.136 36. Control of organisational change. The licensee must make and implement adequate arrangements to control any change to its organizational structure or resources which may affect safety. The arrangements must be submitted to the HSE for approval of such parts as the HSE may specify. The arrangements must provide for the classification of changes according to their safety significance, and the licensee must, if directed by the HSE, halt the change. The need for this condition, introduced in July 1999, reflects the fact that the nuclear industry has been undergoing significant change in terms of privatisation, deregulation of electricity markets, and the increasing use of contractors, with economic pressures for reductions in staff levels which could potentially compromise safety. The condition requires the licensee to think through the consequences of changes and to produce documented justification for changes which may affect safety.

A number of general points may be made on these conditions. First, the conditions generally require the licensee to make appropriate arrangements to be reviewed by the NII; those arrangements will form the basis of the licensee’s safety management system. They are not prescriptive in the sense of telling the licensee how they must comply, but rather set out the essential features and goals of the relevant arrangements to be put in place. The licensee is treated as an intelligent corporate body, and is expected to conduct itself accordingly with the assistance of its nuclear safety committee. At the same time, the conditions by various means do reserve substantial powers of control, prior approval and intervention to the NII, for use as required. The conditions provide the basis for control by NII, but do not relieve the licensee of its general statutory responsibilities for safety under the Health and Safety at Work, etc. Act 1974, which have already been referred to.

134 For example, under condition 32 the HSE on 29 October 2007 issued a Specification amending the limits of liquid High Level Waste and oxide-derived High Level Waste stored at Sellafield, Windscale and Calder Works. 135 On decommissioning generally, see ch 11. 136 NII Statement, January 2008 www.hse.gov.uk/nuclear/winharlc35enf.htm?ebul=nuclear/mar-08&cr=09.

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110 Licensing

THE IONISING RADIATIONS REGULATIONS 1999 AND THE ALARP CONCEPT The Nuclear Safety Division of the HSE is also responsible for enforcing the Ionising Radiations Regulations (IRR) 1999137 at licensed sites. These Regulations and their associated Code of Practice provide strict limits for the exposure of workers and members of the public from activities involving work with radiation and include a general duty to keep exposures as low as reasonably practicable. The IRR contain various duties and requirements which are consistent with and complementary to nuclear site licensing obligations and which if breached may be enforced against in their own right. These include prior risk assessment of new activities involving work with ionising radiation (regulation 7), the maintenance and examination of engineering controls (regulation 10), the preparation of contingency plans designed to secure restriction of exposure (regulation 12), the consultation of radiation protection advisers (regulation 13), information, instruction and training (regulation 14) and the making of written local rules in terms of procedures to ensure compliance with the requirements of the Regulations (regulation 17). In general, the key issue is the reduction of radiation exposure to as low as reasonably practicable (ALARP) which involves weighing risk reducing measures against the cost, in time, trouble and money. The ALARP concept is also relevant to other risks in relation to a nuclear licensed site. Detailed guidance on how ALARP is to be demonstrated is provided in Technical Assessment Guide T/AST/005138 and includes the following comments: 4.1 The essence of a demonstration that risks have been reduced ALARP is to show that the ‘costs’ of improving safety further would be grossly disproportionate to the benefits that would accrue from implementing any further options for improvement or change to the status quo. This does not mean that a detailed analysis is necessary: the emphasis must be on an analysis which is fit for purpose. Neither does it mean that a quantitative argument based on risk estimates is always necessary as the qualitative features such as the deterministic engineering principles may be sufficient in making a case . . . 4.2 The demonstration of ALARP will involve the licensee in evaluating the risks and considering whether it would be reasonably practicable to implement further safety measures beyond the initial proposals. This ought to include the consideration of a number of options to identify which is the ALARP solution and making this consideration transparent. In reality there may only be a limited number of options for dealing with a particular health and safety issue. However, features such as: good practice that HSE may have accepted as relevant good practice; an option adopted elsewhere in similar circumstances; and the extent to which this option has worked in practice, often provide strong indications of what the ALARP solution might be ... If the ALARP demonstration employs a comparison of costs and risk reduction benefits to rule out an improvement, it must be shown that the costs of the improvement would be ‘grossly disproportionate’ . . . The law does not recognise an acceptable region other than when ALARP has been met so there is unlikely to be any sympathy in the courts for parity of costs and benefits, even at the TOR [Tolerability of Risk] Broadly Acceptable level. Advice from HSE solicitors is that the courts would still seek ‘gross disproportion’. There is no precise legal factor or HSE algorithm for gross disproportion. For the purposes of this TAG, it is suggested that the evidence 137 138

SI 1999 No 3232. Nuclear Directorate Guidance on the Demonstration of ALARP (January 2009).

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Periodic Safety Reviews 111 given by John Locke, then Director General of HSE, at the Sizewell B Public Inquiry provides a starting point. Although this evidence was produced some time ago, no subsequent legal proceedings or public inquiries have countered these views or provided alternatives. In his evidence, Locke suggested a disproportion factor of up to 3 for workers. For risks to the public the factor would depend on the level of risk, and where the risks were low (consequence and likelihood) a factor of about 2 is suggested, whereas for higher risks the factor would be about 10 times.

CONDITIONS ON HANDLING, TREATMENT AND DISPOSAL OF NUCLEAR MATTER Special provision is made by subsection 4(2) allowing the HSE at any time by instrument in writing, to attach to a site licence such conditions as they think fit with regard to the handling, treatment and disposal of nuclear matter. ‘Nuclear matter’ is defined by subsection 26(1) to cover (subject to any exceptions which may be prescribed): (a) any fissile material in the form of uranium metal, alloy or chemical compound (including natural uranium), or of plutonium metal, alloy or chemical compound, and any other fissile material which may be prescribed; and (b) any radioactive material produced in, or made radioactive by exposure to the radiation incidental to, the process of producing or using such fissile material.

Variations of the standard conditions described above relate to the handling, treatment and disposal of nuclear matter, for example conditions 4, 5 and 32–34.

PERIODIC SAFETY REVIEWS By the mid-1990s, the earliest Magnox reactors had been in operation for between 25 and 40 years, as against an original conservative expectation of 20 to 25 years. In the late 1970s, operators began to be required to carry out a phased programme of Long Term Safety Reviews (LTSRs) which were undertaken after about 25 years of operational life. The standard form of nuclear site licence (condition 15) requires periodic and systematic reviews and reassessment of safety cases; these are known as PSRs (Periodic Safety Reviews) and replace the earlier LTSRS. The licence condition is not prescriptive as to the frequency of PSRs, but a period of 10 years has been adopted in accordance with good practice internationally, as striking a balance between a long enough period to capture important developments on safety and a longer period within which continuity of experienced staff within the HSE and licensee might be lost.139 Essentially, the objective of PSRs is a major safety review to compare the safety case of the reactor with its original design intent and against current standards for new plant, thus providing reassurance that the reactor will continue to be safe for a further period of operation.140 Another essential element is the review of structures, systems and components susceptible to ageing or wear-out and the analysis of any faults 139 See UK Fourth Annual Report on Compliance with the Convention on Nuclear Safety, para 6.13 and IAEA Safety Guide Periodic Safety Reviews of Nuclear Power Plants NS-G-2.10. 140 UK Fourth Annual Report on Compliance with the Convention on Nuclear Safety, para 6.17–24.

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112 Licensing that could develop into accidental sequences.141 As well as the 10-year PSRs, each nuclear power station is required to shut down for inspection and maintenance every two or three years, depending on the design. After such shutdown the operator is required to apply to NII for a consent to re-start the reactor, allowing the HSE to review specific issues and satisfy itself that the reactor is safe to operate until the next shut-down. The Magnox nuclear powers stations have all now closed, or will close shortly, but the requirement of a PSR still remains to cover post-operational safety. The closure of the Magnox stations obviated one of the big issues of safety confronting the UK industry, in terms of the integrity of pressure vessels affected by radioactive embrittlement, and the integrity of the gas ducts forming part of the primary circuits. With the exception of Sizewell B, which is due for its second PSR in 2015, all the AGR/PWR stations have now been through two PSRs. In 2006, an unexpectedly high number of defects were found in the boiler tubes of the AGR stations at Hunterston B and Hinkley Point B, leading to shutdown and a programme of inspection and repair. Following the submission of safety cases, the HSE gave permission to re-start in May 2007.142 In January 2008 the HSE published the conclusions of the second PSR of Dungeness B power station, which was that, after careful consideration, there is an appropriate basis for station operation whilst a programme of work derived from the PSR is progressed. Essentially, the issue is that in the case of some aspects, uncertainty over ageing mechanisms (specifically for AGRs, graphite integrity and the ageing of certain structural features) may mean that a full case for operation for a further 10-year period cannot be made, and PSR acceptance is caveated to recognise this, by subjecting those items to more frequent inspection.143 In 2007, British Energy announced its intention to extend the lives of Hinkley Point B and Hunterson B to 2016, an extension of five years, with £90 million to be spent on overhauling the plant.144 Operators of existing plant are not protected from the imposition of requirements to upgrade or retrofit such plant to achieve more modern standards. However, application of the ALARP principle means that the risk to be reduced will have to be weighed against the sacrifice in terms of difficulty and expense of reducing it on a plant-specific basis. This sacrifice will generally be higher in older plants and hence is more likely to be seen as ‘grossly disproportionate’, certainly in terms of modifications involving extensive reconstruction work.145

VARIATION AND REVOCATION OF CONDITIONS As well as attaching additional conditions to a site licence under subsections 4(1) and 4(2), the HSE may at any time by instrument in writing vary or revoke any condition (subsection 141 See IAEA TECDOC Series 1556, Assessment and management of ageing major nuclear power plant components important to safety—PWR Pressure Vessels and 1557, Assessment and management of ageing major nuclear power plant components important to safety—PWR Vessel Internals 142 Further details on ageing issues appear in the UK’s Fourth National Report on compliance with the Convention on Nuclear Safety (September 2007) 12–14. 143 HSE, ‘HSE decision on the adequacy of the Periodic Safety Review for continued operation of Dungeness B’ www.hse.gov.uk/nuclear/dnbpsr.htm?ebul=nuclear/mar-08&cr=08. 144 See The Times, 12 December 2007: ‘British Energy to extend the life of two of its oldest nuclear reactors to 2016’. 145 See the discussion in Christain Raetzke and Michael Micklinghoff, Existing Nuclear Power Plants and New Safety Requirements—An International Survey (Köln, Carl Heymanns Verlag GmbH, 2006), which contains a valuable comparative survey of the position in Belgium, Finland, France, Germany, Spain, Sweden, Switzerland and the USA as well as the UK.

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Conditions 113 4(3)). In practice, this is important as it makes the licence a flexible regulatory tool, and provides scope for it to be tailored to specific circumstances applying at the relevant phase of the life of the installation.

LACK OF APPEAL AGAINST LICENSING DECISIONS The Health and Safety at Work, etc. Act 1974, section 44, provides a general right of appeal to the Secretary of State against decisions of licensing authorities for refusal to issue licences, or relating to conditions, revocation, variation or refusal to vary. However, that general provision does not apply to nuclear site licensing decisions; a nuclear site licence for that purpose being defined by subsections 44(7) and 44(8), consistently with the Nuclear Installations Act definition. The lack of any appeal route against licensing decisions has been said by the HSE to reflect the nature of the hazard being regulated and the particularly complex technical arguments that underpin most licensing decisions.146 A person aggrieved by a decision of the ND could raise the matter with management within the HSE, but HM Chief Inspector on Nuclear Installations is the final arbiter on such matters. Any further redress would have to be by way of seeking a review by the HSE on the process of the decision (as opposed to its substance) or if suitable grounds exist (which of course may well not be the case) by way of judicial review.

REPRESENTATIONS BY TRADES UNIONS, ETC Subsection 4(4) requires the HSE to consider any representations made by any organisation representing persons having duties upon the licensed nuclear site, though not necessarily employed there, with a view to the exercise of the powers relating to the attachment, variation and revocation of conditions.

RELATIONSHIP OF CONDITIONS TO CONTROLS UNDER THE RADIOACTIVE SUBSTANCES ACT 1993 Radioactive discharges from a licensed nuclear site require authorisation under the Radioactive Substances Act 1993, from the Environment Agency or SEPA. The distinction in theory is therefore between the nuclear processes operated on the site (which fall to the NII to control), and the emissions in gas or liquid form leaving the site. The relationship between the two systems of regulation is governed by a memorandum of understanding between the Agencies and the HSE designed to minimise duplication and conflict. The duties of the two authorities are obviously complementary, and require co-ordination. It has been noted above that standard site licence conditions deal with the accumulation and disposal of radioactive waste. In particular, standard condition 33 requires the licensee, if 146

HSE, ‘The Licensing of Nuclear Installations’ para 1.26 www.hse.gov.uk/nuclear/notesforapplicants.pdf.

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114 Licensing so directed by the HSE, to ensure that radioactive waste is disposed of as the Executive may specify and in accordance with an authorisation granted under the Radioactive Substances Acts 1960 or 1993. The purpose of this condition is to give discretionary powers to the HSE to direct that waste be disposed of in a specific manner. In relation to the requirements of the Radioactive Substances Act 1993 as to registration for keeping and use of radioactive material (section 6), an exemption applies in favour of the licensee of a nuclear licensed site (subsection 8(l)). The exemption applies in respect of any premises situated on the site, and in respect of keeping and use on those premises of radioactive material of every description. It applies until such time as the licence is revoked or surrendered, and thereafter until the licensee’s period of responsibility comes to an end.

POSTING OF CONDITIONS Whilst the site licence remains in force, the licensee must cause copies of the current conditions to be kept posted upon the site, in such characters and in such positions as to be conveniently read by persons having duties upon the site which are, or may be, affected by the conditions (subsection 4(5)). In particular, the inspector may direct part or parts of the site where such notices are to be posted. Contravention of this requirement is an offence, as is removing, injuring or defacing such a notice without reasonable cause (subsection 4(6)).

CONTRAVENTION OF CONDITIONS Contravention of conditions attached to a site licence is an offence under subsection 4(6). ‘Contravention’ is expressly stated to include failure to comply with the condition by subsection 26(1), presumably to avoid any argument that a positive act is required. The offence may be committed by the licensee and by any person having duties on the site who committed the contravention, which would of course include a contractor or sub-contractor.

CORPORATE MANSLAUGHTER Should activities at a licensed nuclear site cause the death of an employee or members of the public, the Corporate Manslaughter and Corporate Homicide Act 2007 may become relevant.147 An offence will be committed if the way in which the activities were managed or organised amount to a gross breach of a relevant duty of care owed to the deceased and where the way in which its activities were managed or organised by its senior management was a substantial element in such breach.148 Clearly the operator of a nuclear licensed site does owe relevant duties at common law and under health and safety legislation to take proper care as to public safety, and indeed as a matter of statute it owes strict duties to avoid 147 See also Ministry of Justice, A guide to the Corporate Manslaughter and Corporate Homicide Act 2007 (October 2007). 148 Section 1(1) and (3).

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Offences: Directors and Similar Officers 115 causing injury to persons from occurrences involving nuclear matter and from ionizing radiations.149

OFFENCES: DIRECTORS AND SIMILAR OFFICERS Subsection 25(1) of the 1965 Act contains the normal provision which appears more generally in section 37 of the Health and Safety at Work, etc. Act 1974, whereby, when a body corporate is guilty of an offence and the offence is proved to have been committed with the consent or connivance of, or be attributable to any neglect on the part of, any director, manager, secretary or similar officer, or any person who was purporting to act in any such capacity, he shall also be guilty of the offence. As referred to above, any holder of a nuclear site licence must be a body corporate, but where health and safety or nuclear site licence offences have been committed, these provisions present a means of prosecuting culpable individuals at senior management level . The term ‘manager’ will be confined to those in positions of real authority as decision-makers within the corporate structure, not simply those with managerial functions.150 In practice, the most likely situation where the section might be used is where an offence results from neglect on the part of a director to carry out duties with which he was charged in relation to safety. The issue will be whether the particular director or other individual charged with an offence had failed to take some step to prevent the commission of the offence by the company or corporate body, where the taking of the step was expressly within the scope of his or her functions, or should be held to be within that scope.151 Simply being a director will not be enough in itself.152 The risk of prosecution has become markedly more serious for individual directors following the introduction under the Health and Safety (Offences) Act 2009 of the ability to sentence convicted individuals to a term of imprisonment (up to 12 months in the magistrates’ courts and up to two years on conviction on indictment).

INSTITUTION OF PROCEEDINGS The ability to bring proceedings for alleged offences under the 1965 Act is restricted in only two cases: the offence of a failure to have a permit under section 2, and failure to make financial provision under section 19. In these cases, proceedings may not be instituted in England and Wales except by the Minister, or with the consent of the Director of Public Prosecutions (subsection 25(3)). In deciding when to prosecute, as opposed to other actions such as a verbal warning, letter of advice or recommendation, caution or use of improvement and prohibition notice powers, the HSE will be guided by its Enforcement Policy Statement,153 and its Enforcement Management Model,154 both available on the HSE website. Essentially the HSE, as well as the obvious factors such as the likelihood of 149 150 151 152 153 154

Nuclear Installations Act 1965, s 7, discussed further in ch 6. R v Boal (Francis) [1992] 1 QB 591. Wotherspoon v HM Advocate [1978] JC 74; R v P and another [2007] EWCA Crim 1937; [2008] ICR 96. Huckerby v Elliot [1970] 1 All ER 189. HSE, ‘Enforcement Policy Statement’ available at www.hse.gov.uk/pubns/hse41.pdf. HSE, ‘Enforcement Management Model’ available at www.hse.gov.uk/enforce/emm.pdf.

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116 Licensing securing a conviction, will be guided by the underlying purposes of enforcement action: to ensure that duty holders take action to deal with serious risks; to promote sustained compliance with legal requirements; and to ensure that those who breach such requirements are held to account. HSE has also been engaged in work to ensure that its enforcement policy and other high level policies meet the requirements of the Government’s statutory code of practice for regulators (the Regulators’ Compliance Code) which came into force on 6 April 2008.155

PENALTIES As originally drafted, the sections covering offences under the 1965 Act provided relatively low penalties; for example, a maximum fine of £100 on summary conviction, or a maximum fine of £500 (or up to five years’ imprisonment) for operation of a nuclear installation without a site licence. These maximum figures were, however, disapplied by subsection 25(2) in the case of any body corporate convicted on indictment, leaving the body corporate subject to a fine of such amount as the court thought just. These upper limits on penalties were removed by the Nuclear Installations, etc. (Repeals and Modifications) Regulations 1974 in relation to most offences. Maximum penalties were retained however in relation to subsections 2(2) and 19(5). However, subsection 25(2) as referred to above remains in operation, so that in the case of a body corporate convicted on indictment, the fine is at the discretion of the court. In serious cases, charges are likely to be brought under the Health and Safety at Work, etc. Act 1974 as well as, or instead of, the 1965 Act.

OFFENCES UNDER THE HEALTH AND SAFETY AT WORK, ETC. ACT 1974 Failure to discharge the statutory duties as to safety is an offence under subsection 33(1)(a) of the 1974 Act. The maximum penalties are a fine not exceeding £20,000 on summary conviction, and an unlimited fine on indictment. Proceedings may only be instituted by an inspector or by or with consent of the Director of Public Prosecutions (section 38). Where the commission of an offence by one person is due to the act or default of some other person (perhaps a contractor) then that person shall be guilty of an offence and may be convicted whether or not proceedings are taken against the first person (section 36(1)). This applies also where the first person is the Crown, even though the Crown cannot be guilty of the relevant offence (section 36(2)). An often-cited case on levels of penalties for health and safety offences is R v F Howe & Son (Engineers) Ltd,156 which has been applied and cited with approval in numerous subsequent cases.157 The court in Howe stressed the need for a fine to be large enough to bring the importance of health and safety compliance home not only to the management of a company but also its shareholders, and laid down a series of important factors to be taken 155 HSE, ‘Better Regulation’ available at www.hse.gov.uk/regulation/?ebul=nuclear/mar-08&cr=10. See further the Better Regulation Executive website at www.betterregulation.gov.uk. 156 R v F Howe & Son (Engineers) Ltd [1999] 2 Cr App R(S) 37. 157 See, eg, R v Rollco Screw and Rivet Co Ltd [1999] 2 Cr App R(S) 436.

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Nuclear Installation Prosecutions: Examples 117 into account in sentencing, such as the seriousness of the consequences of the breach, the degree and extent of the risk created, whether the breach was an isolated occurrence or part of a pattern of conduct, a failure to heed past warnings or similar occurrences, and whether the defendant deliberately profited from the failure. The fine should reflect the gravity of the offence and the means of the offender. Offences relating to the safety of highly regulated and dangerous industries, such as nuclear, where substantial numbers of members of the public may be put at severe risk by failures in safety, are, of course, likely to be treated particularly seriously by the courts in sentencing.158 Any fine should be substantial enough to have a real economic impact and sufficient to be a constant reminder to the defendant and other similar companies of the paramount importance of safety and of prompt attention to any identifiable risk. In particular, the courts will not regard the duty-holder as absolved from responsibility by having relied on contractors,159 particularly given the heavy emphasis in relation to nuclear installations on the licensee having total responsibility for safety.

NUCLEAR INSTALLATION PROSECUTIONS: EXAMPLES Examples of prosecutions for contravention of nuclear site licence conditions are relatively rare, and in this regard can be contrasted with prosecutions for offences under the Radioactive Substances Act 1993, of which there have been some notable examples in recent years.160 The following examples are illustrative of the growing emphasis placed by the courts on safety. In 1988, BNFL was prosecuted under subsection 4(6) of the 1965 Act (and under subsection 13(1) of the Radioactive Substances Act 1960) in respect of the discharge of a large volume of slightly radioactive liquid from its Sellafield plant into the Irish Sea.161 One of the six counts related to contravention of a condition requiring the licensee to take ‘all reasonable steps to minimise the exposure of persons to radiation’. BNFL were found guilty on that count and fined £2,500. In July 1995, BNFL pleaded guilty to five contraventions of site licence conditions, and was fined £3,000 for each of the five offences by Whitehaven Magistrates’ Court. The charges related to non-compliance with operating rules and instructions in transporting a fuel flask and inadequate operational records associated with flask operations. The magistrates indicated that the incident showed complacency on the part of the plant operator; they regarded breaches of the site licence as a serious matter, since the basis of public confidence lay in the operator’s compliance.162 In September 1995 Nuclear Electric was prosecuted after a serious incident, involving failure to shut down a reactor at its Wylfa power station for nine hours following the failure of refuelling equipment which might have restricted the flow of coolant to the reactor 158 As can be seen from cases involving railway safety, such as R v Great Western Trains Co Ltd (1999) (fine of £1.5 million), R v Thames Trains Ltd (2004) (£3 million), and R v Balfour Beatty Rail Infrastructure Services Ltd [2006] EWCA Crim 1586; [2007] 1 Cr App R(S) 65 (£7.5 million); engineering disasters such as the Heathrow Tunnel collapse: R v Balfour Beatty Civil Engineering Ltd (1999) (£1.2 million) A nuclear accident could, of course, potentially have much more serious consequences than even a major train accident or engineering failure, which is likely to be reflected in any fine. 159 See R v Mersey Docks and Harbour Co (1995) 16 Cr App R(S) 806; R v Ceri Davies [1999] 2 Cr App R(S) 356. 160 See chapter 12. 161 Dr C Miller, (see n 83 above) 10 at 15. 162 Nuclear Safety Newsletter Issue 8 (October 1995).

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118 Licensing core. Charges were brought under the Health and Safety at Work, etc. Act 1974 and for three breaches of site licences. The 1974 Act charge was under section 2 in relation to safety of employees. A charge under section 3 of the 1974 Act relating to endangering the public, and a fourth breach of condition charge were left on the file. The most damaging allegation made by the Chief Inspector was that the continued operation of the reactor, ‘a severe violation of the defence-in-depth principle’ may have been actuated by commercial considerations to keep the reactor running as long as possible.163 Having pleaded guilty at Mold Crown Court, Nuclear Electric was fined £250,000 and ordered to pay £138,000 in prosecution costs. The incident was regarded by the trial judge, Morland J, as a very serious one, although he rejected suggestions that a ‘meltdown disaster’ could have taken place. Imposing sentence he said: The total fine must be commensurate with the criminal breaches. It should be exemplary in amount to underline the public’s insistence that the nuclear industry is conducted with absolute safety.164

In October 2006 British Nuclear Group Sellafield Ltd was successfully prosecuted after the discovery by NII of a large leak of highly radioactive liquor within a shielded cell at the Thermal Oxide Reprocessing Plant (THORP) at Sellafield. BNG pleaded guilty to three charges of contravening its site licence conditions, relating to failure to maintain and comply with written instructions, failure to ensure safety systems are in good working order, and failure to ensure containment of radioactive material. It was sentenced at Carlisle Crown Court to a fine of £500,000, plus costs of £67,000.

STATUTORY ENFORCEMENT POWERS The 1965 Act does not itself contain enforcement powers; these are to be found in the Health and Safety at Work, etc. Act 1974. The two main powers are improvement notices and prohibition notices. Improvement notices may be served under section 21 of the 1974 Act where an inspector is of the opinion that a person: (a) is contravening one or more of the relevant statutory provisions, or (b) has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue to be repeated. Since the ‘relevant provisions’ include subsection 4(6) of the 1965 Act (contravention of site licence conditions), an improvement notice is a means of securing compliance with such conditions. The notice must specify the alleged contravention by reference to the relevant provision, and require it to be remedied. Failure to comply is an offence under subsection 33(1) (g) of the 1974 Act, and is subject to maximum penalties of up to a £20,000 fine and six months’ imprisonment on summary conviction, and an unlimited fine and up to two years’ imprisonment on conviction on indictment (subsection 33(2A)). A prohibition notice may be served under section 22 in relation to activities carried on, or to be carried on, under the control of any person, being activities to which the ‘relevant provisions’ apply (see above). The inspectorate must be of the opinion that the activities 163 164

See ENDS Report, 248, September 1995. The Times, 15 September 1995.

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Powers Arising from Site Licences 119 involve, or will involve, a risk of serious personal injury (subsection 33(2)). The notice will direct that the activities shall not be carried on unless the matters giving rise to the risk, and any associated statutory contraventions involved, have been remedied. Failure to comply with the notice is an offence carrying the same penalties as for improvement notices. The fact that the activity in question may have been voluntarily suspended following an accident or incident, even where the duty-holder gives assurances that it will not be recommenced, does not mean that a prohibition notice cannot be served: section 22 will be applied in a purposive way to ensure its effectiveness in protecting public safety.165 Improvement and prohibition notices can be appealed to an employment tribunal under section 24 of the Health and Safety at Work, etc. Act. The effect of an appeal is to suspend the operation of an improvement notice, but not a prohibition notice unless the tribunal so directs (section 24(3)). Such powers are sometimes used in relation to nuclear sites; for example, in 1993 an improvement notice was issued to BNFL following an investigation by the NII into a breach of operating rules at Calder Hall power station.166 In March 1995, an improvement notice was served on Scottish Nuclear following inadvertent isolation of emergency feed and backup cooling systems; deficiencies in maintenance procedures were identified and required to be rectified by the notice. More recently, in 2003 an improvement notice was served on UKAEA pursuant to the IRR 1999, following an incident where the shoes of workers were contaminated with radioactive zinc bromide which had spilled from a flask—the notice required improvements to be made to the flasking design system and operations.167 In relation to the 2005 incident of leakage at Sellafield, which led to prosecution as referred to above, BNG were served with two improvement notices requiring improvements in compliance with licence conditions in respect of leak detection, operating instructions, record keeping and maintenance and testing of safety-related equipment.168

POWERS ARISING FROM SITE LICENCES In practice, one of the most important means of control exercised by the NII derives from the terms of licence conditions rather than express statutory powers. The most significant mechanisms are: 1. Consents—required before the licensee can carry out an activity specifically defined in the licence. For example, a consent will be required before a reactor may be started up again following shutdown; this is one of the most widely used forms of control. 2. Approvals—used to ‘freeze’ a licensee’s arrangements; the licensee is required to submit its arrangements for approval by the NII and, once approved, these cannot be changed without further approval. This mechanism will be used, for example, in relation to operating rules. 3. Directions—issued by the NII when it requires the licensee to take a specific action. For example, various conditions give the NII power to direct a licensee to shut down a plant, 165 166 167 168

See Railtrack plc v Smallwood [2001] EWHC 78 (Admin); [2001] ICR 714. HSE Nuclear Safety Newsletter—Issue 1 (June 1993). HSE Press Release E068:03, (1 May 2003). HSE Press Release E121:05 (14 September 2005).

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120 Licensing operation or process, for example condition 31 or condition 35(7) on decommissioning. Such directions will relate to matters of major or immediate safety importance and have been used only rarely. Other conditions allow the NII to direct matters relating to the continued operation of the plant, for example directions as to the disposal of radioactive waste under condition 33. In addition to these mechanisms, in some cases conditions will require the licensee to obtain the agreement of the NII to a particular course of action, or will allow the NII to notify the licensee that a course of action is required, or to specify a requirement. Effectively, these constitute communications between the NII and the licensee which have a legal effect and are probably on a day-to-day basis a more important regulatory mechanism than the more drastic powers mentioned above. For example, the NII may specify tests or inspections to be carried out (condition 29(1)), or specify arrangements on commissioning, operating instructions or other matters that are to be submitted to NII for approval in advance (for example, condition 21(2) and 24(5)), or specify copies or extracts of operating records to be provided (condition 25(4)). In order to administer such arrangements, the NII makes use of a standard form of letter known as a ‘licence instrument’.

REVOCATION AND SURRENDER OF LICENCES Subsection 5(1) of the 1965 Act states simply that ‘a nuclear site licence may at any time be revoked by the HSE or surrendered by the licensee’. Before revoking a licence, the HSE must consult the Environment Agency or SEPA (section 5(1A)). Whilst no conditions or restrictions are placed upon the NII’s ability to revoke a licence, it is submitted that some justification for such action would be required by the courts in practice. Revocation of a licence would be the ultimate sanction where the NII was concerned about the capacity of the licensee to operate safely, or about the licensee’s commitment to safety. Following revocation or surrender of the licence, the licensee shall, if so required by the HSE, deliver up, or account for, the licence to such person as the HSE may direct. As an alternative to surrender of the entire licence, there is power under section 3(6) for the HSE to vary a licence by excluding any part of the site no longer needed, provided the HSE is satisfied that there is no danger from ionising radiations from anything on that part of the site. The process of delicensing (by revocation or surrender) does not end the licensee’s responsibility, as explained in the next paragraph.

RESPONSIBILITY FOLLOWING REVOCATION OR SURRENDER The licensee’s responsibility does not end following surrender or revocation of a licence. There is then a ‘period of responsibility’ during which the licensee must keep posted on the site notices indicating the site’s limits. The licensee must also comply with any directions given by the HSE for the purpose of preventing, or giving warning of, any risk of injury to any person, or damage to any property by ionising radiations from anything remaining on the site (subsection 5(2)). Contravention of any such direction, or pulling down, injuring or defacing a notice, is an offence under subsection 5(4).

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Decommissioning 121 What constitutes the ‘period of responsibility’ is defined by subsection 5(3). It means the period beginning with the grant of the licence and ending with the earlier of the following dates: (a) when the HSE gives written notice that in its opinion there has ceased to be any danger from ionising radiations from anything on the site or, as the case may be, any part thereof; or (b) the date when a new nuclear site licence in respect of a site comprising the whole, or part of the site, is granted either to the same licensee or to some other person. Although the period of responsibility can continue after delicensing, the HSE’s anticipation is that most licensees will wish to demonstrate cessation of danger when surrendering the licence.169 This will involve the demonstration by the licensee through a detailed safety case of the work done to assess levels of radioactivity, identification of areas of concern, assessment of reasonably practicable methods for remediation, results of radiological surveys with comparison against background levels, and an assessment of dose and risk to the public using conservative assumptions on exposure pathways and future site use.170 In this process, the HSE encourages licensees to engage with the local community and other stakeholders such as local authorities. The same approach to demonstration of ‘no danger’ will be applied to applications for partial delicensing of a site under section 3(6), and in addition consideration will have to be given to the implications for safety on the remaining part of the site as a consequence of the change of boundary.171

DECOMMISSIONING Whilst sites being decommissioned are currently subject to nuclear licensing by virtue of their storage of nuclear matter, the HSE has long been of the view that it would be prudent, in view of the likely wider variety of such sites in the future, to clarify in the Nuclear Installations Regulations 1971 that decommissioning as such is a licensable activity.172 The standard licence conditions require the licensee to make and implement adequate arrangements for decommissioning and for the production of decommissioning programmes, to be submitted to the HSE for approval. As with construction of nuclear plant, decommissioning is a strictly phased and staged process, requiring formal approval at each stage, with the NII having power to direct that decommissioning be halted at any stage. Whilst some of the safeguards required while the plant was operational may no longer be needed as decommissioning proceeds, the full licence will still remain in force until such time as the HSE is satisfied there is no more danger from ionising radiations. The issue of decommissioning more broadly is discussed in chapter eleven.

169 170 171 172

HSE, The Licensing of Nuclear Installations, para 3.10. Ibid, para 3.11. Ibid, para 3.15. See HSC, Submission to the Nuclear Review (1994), para 60(b).

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122 Licensing

MAINTENANCE OF LIST OF LICENSED SITES The Secretary of State is required by subsection 6(1) of the 1965 Act to maintain a list of all sites in respect of which a nuclear site licence has been granted, including maps showing the position of each site; the list is to be made available for inspection by the public. This obligation is qualified by subsection 6(2) in that the list is not required to show any site, or part of a site, in respect of which no nuclear site licence is in force and 30 years have elapsed since the expiration of the last licensee’s period of responsibility.

SITING AND EMERGENCY PROCEDURES The Government took a cautious approach to the siting of the first Magnox stations, locating them in comparatively remote or rural areas to minimise the numbers of people at risk in the event of an escape of radioactivity.173 This safety and siting policy was reviewed in 1968, as a result of which AGRs with pre-stressed concrete pressure vessels were allowed to be built in semi-urban environments such as Hartlepool and Heysham. Standard licence condition 11 requires the licensee to make and rehearse arrangements for dealing with emergencies, including consultation with any other body whose cooperation is necessary. Requirements are also imposed by the Radiation (Emergency Preparedness and Public Information) Regulations 2001.174 Under these Regulations, it is the duty of every employer who conducts an undertaking from which a radiation emergency is reasonably foreseeable, to ensure that members of the public in the area likely to be affected are supplied (without having to request it) with at least the information specified in Schedule 2 to the Regulations, and that such information is made publicly available (regulation 3). The information specified at Schedule 2 includes: basic facts about radioactivity and its effects; the various types of emergency and their consequences; measures envisaged in the event of an emergency; appropriate information on action to be taken by the public in that event; and the authority or authorities responsible for implementing those emergency measures. In preparing that information there must be consultation with ‘first-tier local authorities’ (that is county council or metropolitan county fire and civil defence authorities) and ‘second-tier local authorities’ (that is district councils). Without prejudice to this duty, the employer must endeavour to enter into an agreement with each second-tier local authority in order to disseminate the information to the relevant members of the public. By regulation 4, first-tier local authorities are under a duty to prepare and maintain arrangements to supply, in the event of any emergency, information and advice on the facts, the steps to be taken and the health protection measures applicable. The information must include that specified in Schedule 3, for example, recommendations to stay indoors, evacuation arrangements and basic rules on hygiene and decontamination. These duties are subject to the enforcement and offence provisions of the Health and Safety at Work, etc. Act 1974 as if made under that Act (regulation 6). 173 174

See HSE, The Work of the HSE’s Nuclear Installations Inspectorate (1995), para 36. SI 2001 No 2975.

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Dangerous Occurrences and Nuclear Incidents 123

DANGEROUS OCCURRENCES AND NUCLEAR INCIDENTS Section 22 of the 1965 Act makes provision for the reporting to the HSE of occurrences of a prescribed class on a licensed site, or in the course of carriage of nuclear matter. Failure to report such an occurrence forthwith and in the prescribed manner is an offence (subsection 22(2)). The Nuclear Installations (Dangerous Occurrences) Regulations 1965,175 in prescribing occurrences for this purpose (regulation 3) refer to: (a) occurrences causing or likely to cause death or serious injury to health; (b) occurrences involving the breaking open of any outside container in which nuclear matter is being carried; (c) explosion or outbreaks of fire on a licensed site, affecting or likely to affect the safe working or safe condition of the installation; and (d) any ‘uncontrolled criticality excursion’. The Schedule to the 1965 Regulations specifies the information to be provided, and regulation 4 prescribes the manner in which information is to be reported and to whom. In addition to the HSE, in the case of occurrences involving the risk of deaths or serious injuries off-site and uncontrolled criticality excursions, there is a duty to report by the quickest possible means to the local authority and the chief officer of police. Apart from these statutory provisions, the HSE operates a system of issuing a statement of nuclear incidents at nuclear installations which meet ministerial reporting criteria on a quarterly basis under arrangements originally announced to Parliament by the Parliamentary Under-Secretary of State for Energy on April 30, 1987.176 The arrangements derive from the HSC’s general powers under section 11 of the Health and Safety at Work, etc. Act 1974 for the provision of information and the furtherance of the general purposes of the Act. These quarterly statements are published on the HSE website177 and comprise a brief description of the incident and the required remedial action. In addition to this system, each major licensed installation has a Local Liaison Committee/Site Stakeholder Group, run by the licensee and including local authorities, trade unions, interested local groups and members of the public. Reports on inspections, regulatory activities and any incidents are made to the group and are collated on the HSE website, as well as individual group websites.178 By way of example, the HSE’s quarterly report for Heysham 1 and 2 nuclear power stations for April to June 2006 referred to incidents at both stations, involving a moisture leak from a boiler tube at Heysham 1 and inadequate maintenance of fire dampers at Heysham 2. Those incidents reported vary considerably in seriousness, and include anticipated, as well as actual problems.179 In some cases, the incident involves 175

SI 1965 No 1824. Hansard HC vol 115 cols 203–204. 177 HSE, ‘HM Nuclear Installations Inspectorate: Quarterly statements of nuclear incidents at nuclear installations’ www.hse.gov.uk/nuclear/quarterly-stat/index.htm. 178 HSE, ‘Nuclear Directorate: Local Liaison Committee/ Site Stakeholder group reports’ www.hse.gov.uk/ nuclear/llc/index.htm. 179 See, eg, the incident reported for the second quarter of 2007 at Dounreay, where a survey of historical contamination found an elevated level of alpha-emitting material within a manhole, which was further investigated and found to be a spurious result,www.hse.gov.uk/nuclear/quarterly-stat/2007-2.htm. 176

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124 Licensing traditional work-related, non-nuclear risks, though investigation may reveal that there are also radiological protection issues.180 Incidents are classified on the seven-point International Nuclear Event Scale (INES) depending upon their seriousness and consequences. The INES scale was developed by the IAEA and NEA in 1989, and is used by 48 countries, including the UK.181 It represents a way of communicating the seriousness of an incident in a commonly-understood form, rather like the Richter scale for a seismic event. The scale ranges from 0 (no safety significance) to 7 (major accident with major release of radioactivity and acute health and long term environmental effects). Levels 1 to 3 are termed ‘incidents’ and levels 4 to 7 ‘accidents’. Level 3 represents a serious incident with a very small off-site release of radioactivity but with severe spread of contamination on-site or acute health risks to workers; Level 4 involves a minor release without significant off-site risks but with significant on-site damage or fatal exposure of a worker; Level 5 involves severe plant damage and off-site risks involving partial implementation of counter-measures; Level 6 is a serious accident with a significant release and full implementation of local counter-measures (for example evacuation of population). The 1986 incident at Chernobyl rated 7 on this scale and those at Three Mile Island (1979) and the Windscale Pile (1957) rated 5, representing the highest rated accident that has occurred to date in the UK.182 The vast majority of incidents reported in the UK have been at Level 0, or have not rated on the scale at all. For example, leakage of contaminated zinc bromide from a flask at Dounreay in November 2002, which led to contamination of the working area and a number of site staff, was classified Level 0.183 On the other hand there are occasional incidents rated at Level 3, for example the leakage of 83 cubic metres of liquid from a tank holding dissolved fuel in nitric acid solution at BNG Sellafield in April 2005 was evaluated at Level 3, although no workers or members of the public were affected, because it involved a significant release of radioactivity into the secondary containment system.184 A 1973 accident at Windscale, when an exothermic reaction in a process vessel resulted in a release of radioactive material into a plant operating area, was classified as Level 4, based on its on-site impact.

LICENSING A PRIVATISED NUCLEAR INDUSTRY As a consequence of the structural changes to the industry connected with privatisation, the HSE determined that the changes were sufficient to require re-licensing of all Nuclear Electric and Scottish Nuclear sites.185 This re-licensing process was completed on schedule, with new licences for the 16 sites coming into force on 31 March 1996.186 The process was described in detail in the HSE Report, Restructuring and Privatisation of the Nuclear 180 For example, the incident in 2006 where a worker at BNG Sellafield suffered a major injury to his arm and wrist while maintaining Supercompactor equipment, and where the subsequent investigation showed that the state of the equipment also resulted in exposure of workers to risk of a significant radiological dose from glove/skin puncture wounds, www.hse.gov.uk/nuclear/quarterly-stat/2006-4.htm. 181 Further detail can be found on the IAEA website www.iaea.org. 182 For further details on serious incidents, see ch 1. 183 HSE Press Release E068:03, 1 May 2003, Incident 02/4/2 www.hse.gov.uk/press/2003/e03068.htm. 184 HSE Press Release E121:05, 14 September 2005, Incident 05/2/1 www.hse.gov.uk/press/2005/e05121.htm. 185 Memorandum of Evidence submitted by HSE to the House of Commons Trade and Industry Committee, November 1995, HC 43 186 HSE Press Release—E50:96 (1 April 1996).

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Licensing a Privatised Nuclear Industry 125 Industry: Report on the Work of the HSE to Grant Replacement Site Licences.187 Before privatisation occurred, the Government had expressed itself committed to the view that changes of ownership within the nuclear industry should not affect standards of safety188 and that the existing safety principles and arrangements would continue, whatever the future structure of the industry.189 As part of that process, the HSC made a detailed submission to the Government,190 in which it pointed out that when the Nuclear Installations Act 1965 was drafted, the operators of nuclear installations were primarily Government-owned organisations, which had longevity, financial security and adequate resources. The HSC viewed with concern the possibility that greater commercialisation and fragmentation within the industry might have adverse effects, resulting in ‘applications for licensing under the 1965 Act from companies which have little knowledge or experience of nuclear safety matters and may not appreciate the regulatory requirements’.191 With this in mind, the HSE revised its Notes for Applicants to stress the requirement of a management prospectus in order to deal with possible issues relating to management and safety organisation. The HSE draws a distinction between the ‘ordinary’ use of contractors for specific activities on the one hand, and management-related ‘contractorisation’ on the other. The former situation is relatively easily dealt with by arrangement under licence conditions to ensure proper selection and monitoring of contractors. Contractorisation is less simple; the holder of the licence will be expected to have the competence to oversee and take responsibility for the activities of management contractors, and their use should not be allowed to compromise either the licensee’s chain of command or its ability to control activities on site. Eligibility for a licence will depend upon an applicant being able to demonstrate a sufficient degree of control over the licensable activity. This may be particularly important where a different company employs the staff. The touchstone of control means that in some circumstances the owner of an installation may not be its licensee. Where a contractor is employed to act autonomously, without direct control and supervision by the owner (as under a turnkey contract), it will probably be necessary for the contractor to be the licensee. The essence of such a contract is that the contractor manages the relevant construction project autonomously to completion, before handing over the completed plant to the operator, normally before fuel is loaded. The HSE’s view is that on completion there is no reason why the site could not be re-licensed to the ultimate operator, provided it can meet the appropriate criteria, including a thorough understanding of the plant design and operation. If a suitable operator to hold a new licence does not exist, the contractor will retain the legal liability. One issue which was tentatively considered at the time of privatisation was that of ‘dual licensing’ whereby, in relation to decommissioning, both the owner of the plant and the decommissioning contractor would be licensed; this was a suggestion apparently emanating from the AEA and Nuclear Electric Plc. However, the HSE regards it as fundamental that at any one time a single body should have responsibility under the licensing system, and that there should be no doubt as to the identity of the responsible body. Accordingly, the HSE does not favour dual licensing. Concerns about the potentially detrimental effects of organisational change and possible concomitant staff reductions led to the HSE introducing in 1999 an additional licence 187

HSE Press Release—E100:96 (31 May 1996). The Prospects for Nuclear Power in the UK (Cm 2860 1995) para 10.12; endorsing the White Paper, Privatising Electricity (Cm 322 1988). 189 Ibid, paras 10–19. 190 HSC, Submission to the Nuclear Review (1994). 191 Ibid, para 67. 188

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126 Licensing condition, number 36, requiring the licensee to make and implement adequate arrangements to control any change to its organisational structure or resources which may affect safety, including provision for the classification of changes to structure or resources according to their safety significance. Changes which are inadequately conceived, so that safety implications are not understood, or which may result in lowered safety standards, may be halted by the HSE giving a direction. Another important issue facing the industry, given the hiatus since the 1980s in the construction of new facilities, is the retention of engineering skills and expertise within the industry. The HSE regards licensees as having an obligation to ensure that sufficient skills, knowledge and expertise are available to them to meet safety contingencies, including the commissioning of relevant research, and will press for the retention of adequate research despite any pressures to reduce costs in that respect. Licence conditions 10 and 12 relating to the training and appointment of suitably qualified and experienced persons provide the NII with a regulatory basis for challenging any such loss of expertise, which could result in safety inadequacies. Licensees which use contractors for safety related work must satisfy themselves that the employees of such contractors have adequate qualifications and training for the tasks they will undertake. Licence condition 17 requires the licensee to have quality assurance arrangements in place. Where safety analysis, inspection or design work is contracted out, the licensee as ‘intelligent customer’ should have sufficient in-house expertise available to be able to understand, manage and if necessary challenge, the work of the consultants concerned.192

SECURITY REQUIREMENTS An increasingly important aspect of nuclear licensed sites is that of security. As from 2 April 2007, the OCNS moved within the HSE from being part of the DTI, and at the same time the operational nuclear safeguards work of the UK Nuclear Safeguards Office was also transferred from the DTI into the HSE. Accordingly the HSE now acts as a single point of reference for all operational matters on nuclear safety, safeguards and security. The DBERR retains responsibility for security policy. The issues of security and safeguards of nuclear material are covered in chapter eight.

192 See the discussion on technical support resources and plant operation resources in the UK’s Fourth National Report on Compliance with the Convention on Nuclear Safety (September 2007) 66–7.

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5 New Build The history of designing, constructing and commissioning new nuclear power stations in the UK is not, it must be admitted, a particularly happy one. It has been described as an ‘often depressing story’.1 At the start of the twenty-first century, it did not appear that the civil nuclear industry had much of a future in the UK. However, the Government’s concerns as to the effects of man-made global warming and its approach to setting targets for deep reductions in carbon dioxide emissions have brought nuclear energy very firmly back onto the political agenda. This chapter considers the legal processes for permitting the construction of new nuclear power plants. The issue of licensing their operation is a separate though critically connected process, which is discussed in chapter four, in particular the issue of Generic Design Assessment, which it is hoped will expedite the process of safety assessment and licensing. Similarly, the construction of a new generation of nuclear power stations constitutes a ‘practice’ which requires justification in radiological protection terms. That process is considered in more detail in chapter seven. Arrangements will also have to be in place from the start to fund the ultimate decommissioning programmes for these new facilities, discussed in chapter eleven. This chapter focuses on development consent procedures, but these other gates which nuclear new build projects will have to pass through are a vitally important part of the overall context. So far as generally smoothing the way forward is concerned, the Government is now quite open about its goal of becoming ‘the world’s number one location for new nuclear investment’, in the words of the Business Secretary John Hutton in June 2008, and as can be seen from its creation of a new Office of Nuclear Development2 and the Nuclear Development Forum.3 There are two main aspects to be considered in arriving at a decision to allow construction of new nuclear power stations, which are inextricably intertwined in practice. These are 1 See the excellent account of Simon Taylor, Privatisation and Financial Collapse in the Nuclear Industry (Oxford, Routledge, 2007) 3, from which much of the introductory material in this chapter is drawn. For an alternative, and highly critical, perspective, see Walter C Patterson, Going Critical: an Unofficial History of British Nuclear Power (London, Paladin, 1985). Further and more detailed discussion of the history of the UK nuclear industry is provided in ch 1 above. 2 The OND’s aims are (1) to facilitate new nuclear investment in the UK, to ‘enable operators to build and operate new nuclear power stations in the UK from the earliest possible date and to enable new nuclear to make the fullest contribution it is capable of, with no public subsidy, and with unnecessary obstacles removed’; (2) to advise the Secretary of State on exercise of regulatory and policy functions in relation to the nuclear industry, including to help ensure continued progress on waste management and decommissioning. See www.berr.gov.uk/energy/ sources/nuclear/office/page47701.html. 3 The NDF provides a forum to bring Government together with key industry stakeholders, to support and advise the OND, to ensure the OND is aware of industry views, and to advise on how to secure a globally competitive supply chain in the UK. The Secretary of State for Energy and Climate Change chairs the Forum, which meets three times a year. Its members are senior representatives from the nuclear industry, including vendors, operators, key suppliers, contractors and unions, as well as the Government. See www.decc.gov.uk/en/content/cms/ what_we_do/uk_supply/energy_mix/nuclear/new/develop_forum/develop_forum.aspx.

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128 New Build the general policy context as to whether and to what extent nuclear energy should be part of the country’s future power generation capacity; and the process by which consent is given for the development of a nuclear power station at a specific location. Until 2009, the procedure for such consent has been primarily by way of consent under the Electricity Act 1989, and similar previous legislation. The construction of any form of power station with a capacity greater than 50 megawatts required consent under section 36 of the Act. During recent years, there has been increasing disquiet in government and industry circles as to the cumbersome and time-consuming processes for consenting major infrastructure projects in areas such as energy and transport. This has led to the enactment of a new statutory regime to apply to such projects under the Planning Act 2008. It is this procedure which, the government hopes, will provide a more efficient system for dealing with applications by would-be developers of new nuclear generating capacity, avoiding them becoming bogged down in lengthy public inquiries. It remains to be seen whether that expectation will be fulfilled, as there is an inherent tension between a radically streamlined system and a process which provides acceptable levels of public participation by national or local groups which are opposed to nuclear power generally, or to development at a particular location.

THE SIZEWELL B INQUIRY The prime example of a major public inquiry into development of a nuclear power station was the proposal by the Central Electricity Generating Board (CEGB) to seek consent under the section 2 of the Electricity Act 1909 for Britain’s first pressurised water reactor (PWR): the Sizewell B project. This immensely long and complex inquiry, held under the Electricity Generating Stations and Overhead Lines (Inquiries Procedure) Rules 1981, ran from January 1983 to March 1985, with a noted planning silk, Sir Frank Layfield QC, as the inspector, assisted by four technical assessors dealing with economics and policy, engineering safety, radiobiological aspects, and irradiated fuel transportation. The considerable cost, at least £25 million, was borne by the CEGB. The inquiry set a new record, which has since been broken, for the length of an inquiry. It was the subject of very detailed academic research, and a noted textbook, which analyses fully the approach which was adopted to evidence and decision-making.4 The length of the inquiry is perhaps not surprising given the relatively vague terms of reference, whereby the inquiry examined the entire economic case for a switch of PWR technology, in terms of the need for new capacity and whether a PWR represented the cheapest option for meeting that need.5 The report of Sir Frank Layfield, delivered on 5 December 1987 to Prime Minister Margaret Thatcher, concluded that the proposed Sizewell B PWR was ‘likely to be the least cost choice for new generating plant’. In reaching that conclusion, however, issues such as energy conservation, fossil fuel prices and availability, and the ability to build the PWR on time and to budget, were all opened up for examination; a huge range of subject matter around British energy policy.6 4 Tim O’Riordan, Ray Kemp and Michael Purdue, Sizewell B: An Anatomy of the Inquiry (Basingstoke, Macmillan Press, 1988); see also Martin Ince, Sizewell Report: What Happened at the Inquiry? (London, Pluto Press, 1984). 5 See Dieter Helm, Energy, the State and the Market: British Energy Policy since 1979 (Oxford, Oxford University Press, 2003) 102. In fact it has been pointed out that whilst much time and controversy were involved in seeking to compare the cost of PWR and coal-generated energy, the dominant source of new generation in the 1990s, gas-fired power stations, were ignored because the CEGB saw no prospect for gas generation: see Taylor, (see n 1 above) 38. 6 See Ince, (see n 4 above) 4–5.

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The Evolution of Policy on New Build 129 On that basis, the oft-quoted fact that of the inquiry’s 340 days only 30 were devoted to local issues7 is not at all surprising. Another key aspect of the inquiry was reactor safety in respect of a technology which was not only new to the UK, but which had been involved in the Three Mile Island incident in the USA. This, as explained in chapter four, involved detailed scrutiny of reactor safety issues. These facts need to be kept in mind when criticisms are leveled at the length of time spent at the inquiry. Matters such as generic safety of reactor design still need to be considered under any system. Whereas at Sizewell B they were the subject of evidence and forensic examination, the aim under the present system is for the generic design assessment process to provide a process which is sufficiently transparent to command public confidence. If a programme of constructing further PWRs had been pursued, it does not follow that the inquiries into such proposals would have been anywhere near the scale of that for Sizewell B; in that sense the Sizewell inquiry represented a ‘front-loading’ of the programme. Indeed, the inquiry under Inspector Michael Barnes QC into the proposed (but never built) PWR at Hinkley Point C in the late 1980s was significantly shorter,8 a point which has not escaped comment in the context of the later proposals for planning reform.9 Michael Barnes QC, the inspector at the Hinkley C nuclear inquiry in the late 1980s, managed to complete his inquiry in good time by setting reasonable limits to evidence and succeeded without depriving interested parties of the right to call evidence and ask questions. Why this experience has not been built upon by Government is unclear.

THE EVOLUTION OF POLICY ON NEW BUILD In fact the Sizewell inquiry came at what was a turning point of the fortunes of the UK’s nuclear industry. Sizewell B was promoted by the CEGB, still then a public sector entity, under the leadership of Lord Walter Marshall of Goring, a former director of the Atomic Energy Authority at Harwell, and a forceful proponent of nuclear power whose enthusiasm for the technology was shared by a fellow former scientist, Prime Minister Margaret Thatcher. Indeed, for many years before Sizewell B was promoted, both the CEGB and the Department of Energy as the key Government department, strongly supported nuclear power and more latterly, specifically the PWR technology. Part of this enthusiasm was on grounds of economics, with nuclear power presented as a cheaper option than coal or oil, or indeed any alternative other than hydro-electric power. However, at the end of the 1980s, with the development of proposals for privatisation of the electricity industry and the break up of the CEGB, the issue of nuclear liabilities came onto the agenda. The problem was a lack of any real grasp on the magnitude of those liabilities, which could have had a severely adverse impact on the privatisation process.10 This led first to a decision in July 1989 by Nigel Lawson as Chancellor of the Exchequer and Cecil Parkinson as Secretary of State for Energy to withdraw the older Magnox power stations from the privatisation, retaining the 7

See Meeting the Energy Challenge: A White Paper on Nuclear Power (Cm 7296, January 2008) para 3.11. Michael Barnes QC, The Hinkley Point Public Inquiries: A Report to the Secretary of State for Energy and the Environment (London, HMSO, 1990). 9 David Elvin QC, The Planning Bill: Major Infrastructure Proposals (2008) 20 Environmental Law and Management 261 at 272. 10 Taylor, (see n 1 above) 43–4. 8

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130 New Build more modern AGR reactors in the sale. At that point, National Power (the larger of the two companies to be privatised) was publicly affirming its intention to build three more PWRs of the Sizewell B type, while its smaller counterpart PowerGen supported a new and smaller Anglo–US PWR type known as the Safe Integral Reactor (SIR) with involvement from Rolls Royce. However, that was not the end of the matter. As Simon Taylor has pointed out, when exposed to the banking and commercial realities of flotation, the economics of a new generation of PWRs began to look very shaky: the already questionable costs of building new PWRs were becoming utterly uncompetitive when a higher, private sector rate of return was applied to them. Nuclear plants, being very capital intensive, are especially sensitive to the required rate of return on that capital. It was increasingly obvious that new PWRs would simply not make economic sense.11

In November 1989, the new Energy Secretary, Lord Wakeham, announced the withdrawal of all nuclear power stations from privatisation, including the partly built Sizewell B. Ironically, in the light of later environmental priorities, this came the very day after Margaret Thatcher had made a speech to the UN in New York, on the role that nuclear power could play in mitigating global warming.12 It is easy to overlook the fact that manmade global warming was very firmly on the environmental policy agenda back in 1990, with a commitment (subject to other countries taking similar action) to reduce carbon dioxide emissions to 1990 levels by 2005.13 Government policy was however distinctly lukewarm towards nuclear power—despite recognizing its potential advantages, the Government simply wished ‘to maintain the nuclear option, but only if nuclear power becomes more economic and the industry demonstrates that it can maintain high standards of safety and environmental protection’.14 Hopes for reducing greenhouse gas emissions were placed on the privatised electricity industry installing ‘high efficiency gas-fired plant’ and on ‘greater use of renewables’.15 A new corporate entity, Nuclear Electric plc, was carved out from National Power to own and operate the nuclear fleet in England and Wales, with Scottish Nuclear Ltd operating those in Scotland. However, over the period 1990–94 these companies succeeded in reinstating the reputation of the nuclear side of generation, through improvement in cost control, productivity and operational reliability of the AGR stations. It has been said that this improvement was ‘remarkable’ and indeed ‘arguably . . . the most successful phase in the whole history of British nuclear power’.16 Nuclear power came on to the political agenda again in 1992–93, when a crisis in the British coal industry was triggered by the expiration of pre-privatisation coal supply contracts, leaving National Power and PowerGen free to buy cheaper imported coal. It was—extraordinarily in retrospect—seriously suggested that the Magnox stations should be closed early in order to assist the domestic coal industry. This idea was scotched in the 1993 White Paper on Coal,17 but resulted in bringing forward a nuclear review, the terms of which were announced in May 1994 as being (1) the economic and commercial viability of nuclear power stations; (2) options for 11 Ibid, 44. See also 46–7 for a summary of the ways in which it can be said that previously the AEA, CEGB and government had disguised or ‘flattered’ the true costs of nuclear power. 12 The Times, 9 November 1989: ‘Thatcher calls for a global green crusade’. 13 White Paper, This Common Inheritance (September 1990, Cm. 1200) para 5.20. 14 Ibid, para 15.8. 15 Ibid, para 5.22. 16 Taylor, (see n 1 above) 55. 17 Prospects for Coal: Conclusions of the Government’s Coal Review (Cm 2235, March 1993).

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The Evolution of Policy on New Build 131 bringing private finance into the existing nuclear industry; and (3) the financing of the full costs of nuclear power. In the meantime, Nuclear Electric had formally submitted (in October 1993) a planning application for a twin PWR, Sizewell C. There was, however, in reality little hope of Government support for such a project, and a ‘frosty’ DTI statement noted that it was purely a commercial decision for Nuclear Electric and was not encouraged by the Government.18 In evidence to the review, Nuclear Electric made the case that the heavy investment in Sizewell B could best be exploited by building a further two PWRs, but acknowledged that there would be a gap between the real return yielded by these stations and that which the private sector would require, the implication being that this could only be bridged by Government support. The main outcome of the review was the decision in May 1995 to privatise the saleable elements of the nuclear industry (the AGRs and Sizewell B).19 The review came out firmly against Government support for new nuclear build. Announcing the outcome in Parliament, the President of the Board of Trade and Secretary of State for Trade and Industry, Michael Heseltine, said: The nuclear industry argued the case for additional nuclear power stations. The appropriate test of that case is the potential availability of private sector finance for a project to build a new nuclear power station. There is, at present, no case for Government intervention to distort the electricity market by providing finance or guarantees for one form of generation over another. While the market will ultimately be the judge, the review concluded that on the basis of the figures provided by the industry in the review and in the light of the returns available from alternative generation projects, private finance is unlikely to be available at present for new nuclear construction.20

The 1995 White Paper 21 giving the conclusions of the review took a similarly commercial approach. The test adopted by the Government was that a new nuclear power station may only be considered genuinely commercial if it is capable of attracting investment on the same terms as comparable projects in the private sector (the current comparable projects being gas-fired combined cycle gas turbine (CCGT) power stations). The Government to some extent downplayed the environmental benefits of nuclear power in reducing greenhouse gas emissions. On strategic environmental issues, the conclusion was that new nuclear stations were not required in the near future on emissions abatement grounds. In coming to this conclusion, the Government took account of the role of existing nuclear power stations in helping to meet the UK’s commitments regarding the limitation of carbon dioxide emissions. It also recognised that there could be problems in meeting such targets if existing nuclear power stations were not replaced by other generating facilities which do not emit carbon dioxide when they reached the end of their working lives. In the longer term, it was accepted that a case for new nuclear stations could be strengthened if the Government was obliged to achieve further substantial reductions in carbon dioxide emissions; to some extent, therefore, the future of the nuclear industry was seen as dependent upon international and domestic policies relating to climate change. Another strategic issue considered in the White Paper was that of diversity of fuel supply; here the Government’s view was that there is no reason to suppose that the market would not of its own accord provide an appropriate level of diversity, and that there was currently no case for public financial support for new nuclear power stations on diversity grounds. It is fair to say however that the White Paper kept an open mind on factors which could change the balance towards 18 19 20 21

Taylor, (see n 1 above) 67–8. Discussed further in ch 1. Hansard HC vol 259 cols 562–3 (9 May 1995). The Prospects of Nuclear Power in the UK (Cm 2860 May 1995).

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132 New Build new nuclear build and expressed the wish to encourage private sector operators to investigate the construction of nuclear power stations on a fully commercial basis, whilst emphasising that public sector support for new nuclear stations could only be justified on the basis of compelling strategic needs. Once privatised, British Energy was preoccupied with commercial matters other than constructing new nuclear stations in the UK: its agenda was dominated by the need to diversify away from its ageing nuclear assets, whether by investment in the US and Canada, or by acquisition of a regional electricity company or one of the large coal fired power stations which were coming onto the market in the late 1990s (it eventually bought the 2,000 megawatt Eggborough station in Yorkshire for £615 million from National Power in 1999). Having failed to merge with Southern Electric plc in 1997, it acquired the relatively small supply business of South Wales Electricity Company (SWALEC) in 1999. However, from 1999 British Energy was in serious difficulties as a result of its falling share price, prompted by concerns over likely drops in wholesale power prices with the introduction of the New Electricity Trading Arrangements in 2001. During 2001–02 the situation became a crisis for British Energy with falling revenues from its generating assets. However, the climate for nuclear new build was changing somewhat. The Labour Government elected in 1997 had stated in its manifesto that it could see no case for the building of any new nuclear power stations. This stance did not appear in the 2001 Labour manifesto, and following its reelection, the Government set up an energy review in June 2001 to consider how to meet the challenge of global warming, whilst ensuring secure, diverse and reliable energy supplies at competitive prices. The review was, however, subject to competing forces within the Cabinet, with the Secretary of State for Environment, Michael Meacher, opposed to further nuclear power development. The outcome of the review by the Performance and Innovation Unit at the Cabinet Office in February 200222 recommended keeping the nuclear option open, but nothing more encouraging than that. In May 2002 there followed a consultation document, Energy Policy—Key Issues for Consultation, which picked up the theme of what steps would be necessary to keep that option open. Responses to the consultation indicated deep-seated differences of views on environmental and economic questions related to new nuclear capacity, and in particular a strong theme was the need to engender public and stakeholder confidence in the management of existing nuclear waste. In February 2003 the DTI published the White Paper, Our Energy Future—Creating a Low Carbon Economy.23 The White Paper contained the sub-heading, ‘We do not propose nuclear new build’, but went on at paragraph 4.68 to state that the Government did not rule out that at some point in the future new nuclear build might be necessary if the UK is to meet carbon reduction targets. Importantly, in view of what followed, the paragraph went on to state, emphasised by bold typeface, that: Before any decision to proceed with the building of new nuclear power stations, there would need to be the fullest public consultation and the publication of a white paper setting out the Government’s proposals.

22 23

Cabinet Office, The Energy Review (HMSO, 2002). Cm 5761 available at www.berr.gov.uk/files/file10719.pdf.

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The Flawed 2006 Consultation 133

THE FLAWED 2006 CONSULTATION In November 2005 a further wide-ranging energy review was announced, taking forward the Energy White Paper, and including the question of nuclear energy. Part of the agenda for the review was the question of whether the door which had been left ajar to possible new nuclear build in 2003 should be opened or closed. In January 2006, there emerged the consultation document, Our Energy Challenge—Securing Clean, Affordable Energy for the Long Term. Issued on 23 January 2006, this gave less than three months (until 14 April) for responses. One of the ‘key questions’ set out related to nuclear power: Are there particular considerations that should apply to nuclear as the government re-examines the issues bearing on new build, including long-term liabilities and waste management? If so, what are these, and how should the government address them?

The body of the consultation paper contained very little detail on the nuclear issue, whereas Part 4 of Annex A to the paper dealt in broad terms with nuclear power generation, identifying relevant issues as being carbon profile, reliable access to fuel, flexibility, safety and security, proliferation and risk, waste, cost, decommissioning and long-term waste management, and skills. In July 2006 the House of Commons Trade and Industry Committee published an important report, New Nuclear? Examining the Issues.24 The Committee expressed concern in the most trenchant terms that such an important review—one of the most important the Government had faced in its time in office, and one which would have ramifications for future generations—was being pushed through in barely six months. It suggested that a policy designed to enable the construction of new nuclear power stations would be credible only if it was based on four key elements: (1) broad national consensus on the role of nuclear power, with both cross-party political support and wider public backing; (2) a carbon-pricing framework providing long-term incentives for investment in all low-carbon technologies; (3) a long-term storage solution in place for the UK’s existing radioactive waste legacy; and (4) a review of the planning and licensing system to reduce the lead time for construction. The Committee regarded many of the practical issues relating to new build as being capable of technical resolution, but expressed itself concerned as to the manner in which the Energy Review had been conducted, in particular that the outcome appeared to have been largely determined before adequate consideration could possibly have been given to important evidence from the Committee on Radioactive Waste Management in its final report and recommendations on high-level radioactive waste management; and that there had been insufficient analysis of the true extent of the UK’s ‘energy gap’, given the potential for extensions of life of some of the existing nuclear fleet. Given what was to follow in terms of the legal challenge to the outcome of the Energy Review, these uncomfortable remarks were highly prescient. The Energy Review (The Energy Challenge Energy Review Report) was published on 11 July 2006, a few days after the Trade and Industry Committee’s warning, and gave as a conclusion that new nuclear power stations would make a significant contribution to meeting energy policy goals, that it would be for the private sector to initiate, fund, construct and operate new plants and to cover the costs of decommissioning and waste management, but 24

Fourth Report of Session 2005–06, HC 1122.

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134 New Build that in view of the potential benefits for public policy goals, the Government proposed ‘to address potential barriers to new nuclear build’. The Review set out to provide ‘clarification’ as to policy on new build. This stated, among other things, that nuclear ‘has a role to play in the future UK generating mix alongside other low carbon generating options’ and that evidence gathered during the Energy Review consultation supported that view. On the issue of waste, the Review referred to interim draft conclusions by the Committee on Radioactive Waste Management (CoRWM) which had been published in April 2006, recommending deep geological disposal with interim storage as the best available approach. The intention was announced to publish a White Paper around the end of 2006 on issues relevant to new build, and to that end views were sought on proposals outlined in Annex A, which would involve the discussion of national strategic and regulatory material considerations in a forum other than a public inquiry. However, before the promised White Paper could be published, Greenpeace Ltd initiated a judicial review of the process on the basis of failure to fulfil the expectation created in 2003 of the ‘fullest public consultation’ before any change to the policy of not supporting new build. Essentially the criticism was that the 2006 consultation document was merely an ‘issues paper’, seeking views on what issues should be examined, rather than a proper consultation paper; or that if it was a consultation paper it was inadequate and unfair in failing to provide consultees with sufficient information or clear proposals on which to make an intelligent response. Sullivan J accepted these criticisms as valid and produced a judgment which was unsparingly critical of the Government’s approach.25 The Government was obliged to honour the promise it had made of the fullest consultation; indeed, even if it had made no such promise it was difficult to see how anything less could have been consistent with the obligations to provide opportunities for public participation accepted by the Government under the United Nations Economic Commission for Europe (UNECE Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.26 The ‘in principle’ decision in the Energy Review to support new build was of critical importance in that it would feed through into further national policy statements, which would preclude questions such as need as matters for debate at any public inquiry. On the issue of whether the consultation was fair, Sullivan J held that the January 2006 consultation document had every appearance of being an issues paper, and no more, in terms of the questions it asked and the amount of information which it provided. On that basis, it was impossible to say how many consultees might have been misled into not responding, based on the reasonable inference that this was only the initial question-setting phase of the review, as opposed to the last chance to comment on the substantive issue of whether the Government should support new nuclear build.27 Apart from this, the lack of information on critical issues in the paper was such as to render the process unfair: on the issue of economics, the document presented consultees ‘with little more than an empty husk’, the kernel of the issue being contained in numerous reports which emerged only after the consultation period had expired in a manner that was ‘manifestly unfair’.28 On the question of waste, the document was not only inadequate but actually misleading, in that it told consultees that CoRWM had confirmed that waste from a new build 25 26 27 28

R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311; [2007] Env LR 29. Ibid, para 51. Ibid, para 89. Ibid, para 97.

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Policy Following the Greenpeace Judgment 135 programme could be technically accommodated by the options it was considering. This was ‘seriously misleading’ in that it did not give the full picture of the reservations which CoRWM clearly had about treating existing and new build wastes in the same way. Moreover, it could not possibly be fair simply to say in the consultation that CoRWM would be reporting on the issue of waste, which was clearly one of the main potential obstacles to a decision to support new build, and then move to such a decision without inviting consultees’ comments on CoRWM’s conclusions.29 The outcome was a declaration that there was a breach of the claimant’s legitimate expectation as to full public consultation; that the consultation process was procedurally unfair, and that the final decision in the Energy Review that nuclear new build ‘has a role to play’ was unlawful.30 The judgment of Sullivan J essentially applied existing legal principles to the facts of the case before him:31 whilst those principles are constant and hard-edged, their application to specific facts must be infinitely variable and flexible, and will, of course, not always succeed by way of challenge, even when objectors feel aggrieved by the manner of consultation, unless there is real identified unfairness.32

POLICY FOLLOWING THE GREENPEACE JUDGMENT Sullivan J’s devastatingly critical judgment of the 2006 consultation exercise was handed down on 15 February 2007. The Government, seemingly undeterred, moved quickly to put out a new consultation, The Future of Nuclear Power—the Role of Nuclear Power in a Low Carbon UK Economy, in May 2007. At the same time the Energy White Paper, Meeting the Energy Challenge,33 was published which included a section (5.5) dealing with nuclear energy. This provided much more information on the Government’s reasoning, and asked for comments on a series of 18 very specific questions. Heavily underlying the Government’s approach were the objectives of addressing climate change and ensuring security of energy supplies. The consultation document also explained why, in the Government’s view, urgent decisions on new nuclear capacity were needed in order to secure the necessary investment over the next two decades. This consultation, whilst not subject to legal challenge in the courts, was the subject of a complaint by Greenpeace to the Market Standards Research Board (MRSB) in respect of the role of a consultancy, Opinion Leader, which was commissioned to run a number of ‘citizen deliberative events’ which were held in nine locations across the UK in September 2007. Greenpeace alleged that the ‘stimulus materials’ used at such events were not of appropriate quality in that they were ‘misleading, inaccurate or erroneous and were designed to achieve a desired outcome’. The MRSB found that the consultant had acted in breach of B14 of the MRS code of conduct, in that there were a number of examples where ‘information was inaccurately or misleadingly presented, or was imbalanced, which gave rise to a material risk of respondents being led towards a particular answer’.34 29

Ibid, para 109. Ibid, para 120. 31 See in particular, R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 (CA). 32 For an example of an unsuccessful challenge on eco-towns, see The Bard Campaign and David Bliss v Secretary of State for Communities and Local Government [2009] EWHC 308 (Admin). 33 Cm 7124 (May 2007) available at www.berr.gov.uk/files/file39387.pdf. 34 See www.mrs.org.uk/standards/complaints.htm. 30

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136 New Build The Government’s conclusions following this consultation were set out in January 2008 in a further White Paper, Meeting the Energy Challenge: A White Paper on Nuclear Power.35 The main conclusions may be summarised as follows: (a) climate change and security of energy supplies are critical challenges for the UK, requiring significant and urgent action between now and 2050; (b) nuclear power stations produce low carbon dioxide emissions through their whole lifecycle and could make a material contribution to tackling climate change; (c) allowing energy companies the option of investing in new nuclear power stations would make an important contribution to the security of national energy supplies; (d) while it would be for potential investors to determine whether nuclear power provides sufficiently attractive returns on capital, on the basis of its own cost–benefit analysis the Government believes that nuclear power is likely to be an attractive proposition; (e) nuclear power needs to be part of an overall approach to electricity generation; (f) new nuclear power stations would pose very small risks to safety, security, health and proliferation; (g) the risks of transporting nuclear materials are very small and are not a reason not to allow energy companies to invest in new nuclear capacity; (h) it is technically possible to dispose of new higher-activity waste in a geological facility; that this would be viable and ‘the right approach’ for managing waste from any new power stations; that it would be desirable to dispose of both new and legacy waste in the same geological disposal facilities; and that waste can and should be placed in safe and secure interim storage facilities until a geological facility becomes available; (i) importantly, ‘Our policy is that before development consents for new nuclear power stations are granted, the Government will need to be satisfied that effective arrangements exist or will exist to manage and dispose of the waste they will produce’; (j) the existence of sufficient high-grade uranium ores to meet future global demand means that there should be sufficient reserves to fuel any new nuclear power stations constructed in the UK; and (k) the skills and supply chain situation, though challenging, does not provide a reason to prevent energy companies from investing in new nuclear power stations. The conclusion is, therefore, that it would be in the public interest to give energy companies the option of investing in new nuclear power stations, and that steps should be taken to facilitate nuclear new build. With those measures, the Government’s view is that the Strategic Siting Assessment (SSA) and Strategic Environmental Assessment (SEA) processes should enable suitable sites to come forward, that the Government would monitor whether an appropriate market in such sites is developing, and that its expectation is that applications for new build would focus on areas in the vicinity of existing nuclear facilities. The steps to be taken to ‘open up the way’ for new nuclear power stations were summarised in the White Paper as follows: (a) strengthening the EU Emissions Trading Scheme so that investors have confidence in a continuing carbon price signal when making decisions; (b) improving the planning system for major generating stations by ensuring that full weight is given to policy issues already debated and consulted on a national level, without these being reopened in relation to individual applications; 35

Cm 7296 available at www.berr.gov.uk/files/file43006.pdf.

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The Planning Act 2008 137 (c) running an SSA process to develop criteria for determining the suitability of sites for new nuclear power stations and, combined with this, taking further the high level impacts of new nuclear power stations through a formal SEA process; (d) running a process of justification to test whether economic, social or other benefits of specific new nuclear power technologies outweigh the health detriments; (e) assisting the nuclear regulators to pursue a process of Generic Design Assessment (GDA) of industry-preferred designs; and (f) delivering legislative arrangements to ensure that operators meet full decommissioning costs and their full share of waste management and disposal costs, which may enhance investor confidence by giving greater certainty. The essential expressed objective of the White Paper is to give a ‘clear signal’ to the market that nuclear power can be an investment option.36 Not only this, but the White Paper provided a chart setting out for illustrative purposes a potential path through the process, leading to construction of plants between 2013 and 2018 and power output from the latter part of 2018.37 Some of these issues (justification, GDA and decommissioning) are topics dealt with elsewhere in this book. The remainder of this chapter deals with the other topics of the planning system reforms, SSA and SEA, which will, on the Government’s reckoning, lead to the determination of development consent applications some time between 2011 and 2012.

THE PLANNING ACT 2008 The Planning Act 2008 is central to the Government’s plans for facilitating the development of new nuclear capacity in England and Wales. The Act creates a new system for granting ‘development consent’ for the construction of a specified nationally significant infrastructure project, which will replace the various consents required under existing legislation. It provides for the appointment of an Infrastructure Planning Commission, to which applications for development consent will be made. Provision is made for the designation of national policy statements, in accordance with which the application must be determined, subject to certain exceptions. It is not the intention of this chapter to provide a detailed analysis of the Act’s genesis or of its provisions, which are applicable to many types of infrastructure project going beyond power stations, for example gas storage and reception facilities, pipelines, highways, airports, harbours, railways and reservoirs.38 Suffice it to say that three separate reviews published in 2006 to 2007 (the Barker Review on Land Use Planning, the Eddington Review on Transport and the May 2007 Energy White Paper already referred to) concluded that the planning system was failing to deliver efficient and timely outcomes for major infrastructure. The public inquiry system was largely seen as the culprit, with many projects taking over two years to gain approval (and with some, such as Heathrow 36

See para 85. Chart 1, 36: Indicative pathway to possible new nuclear power stations. 38 A discussion of the Act at Bill stage can be found, eg, in the following articles: Elvin (see n 9 above) 261; Bernadette Kelly, ‘The Planning Bill: Implications of the Proposals for a New Regime for Major Infrastructure for Democracy and Delivery’ [2008] Journal of Planning and Environmental Law (13) Occasional Papers No 36, 1; Richard Harwood, ‘The Planning Bill: Infrastructure Proposals’ [2008] JPL 1411; see also K Lindblom QC and R Honey, ‘Planning for an New Generation of Power Stations’ [2007] JPL 343. 37

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138 New Build Terminal 5 and the North Yorkshire Grid Upgrade, taking much longer). Cost was also a serious issue, with the example of the Dibden Bay port application and inquiry costing the promoter some £45 million. The Planning White Paper published in May 200739 set out proposals to address these concerns, based on a number of key principles, including that the planning system must be responsive to long-term challenges; that it must be streamlined, efficient and predictable; that it should be open and accessible, with full and fair opportunities for public consultation and community involvement; that decisions should be taken in a fair way and should be reasoned; and that they should be taken at the right level, whether national, regional or local. These reflect the key issues which emerged in debate on the Bill: the relationship between national and local democracy; ensuring fair and adequate opportunities for public participation in the process; and the political accountability of the decision-maker.40 The Act provides that development consent is required for development (which in general has the same meaning as under the normal Town and Country Planning regime) which is or forms part of a nationally significant infrastructure project (section 31). A nationally significant infrastructure project is one which falls within a list (a) to (p) set out in section 14(1). New types of project may in future be added to the list by Order. In particular, item (a) on the list is ‘the construction or extension of a generating station’, which under section 15(2) includes an onshore generating station in England and Wales, with a capacity of more than 50 megawatts. ‘Generating station’ bears the same meaning as in section 64(1) of the Electricity Act 1989,41 and would include a nuclear power station. The new regime therefore would not apply to any new nuclear power station proposed in Scotland.

NATIONAL POLICY STATEMENTS Part 2 of the Planning Act makes provision for national policy statements (NPS). National policy can of course be promulgated in various ways, through Planning Policy Statements, White Papers or Parliamentary Statements, to name but three. However, it is clear that the intention is to formalise such statements within the new statutory framework, and in particular to give them a formal status which is intended to avoid such policy issues being questioned or re-traversed in the context of a specific project application. During the progress of the Bill through Parliament, a number of safeguards were added in terms of Parliamentary scrutiny of such statements. Section 5(1) provides that the Secretary of State may designate a statement as an NPS for the purposes of the Act if the statement is (a) issued by the Secretary of State and (b) sets out national policy in relation to one or more specified descriptions of development. By section 5(3) the policy set out in an NPS may be at various levels of specificity, ranging from setting out the amount, type or size of development that is appropriate nationally or for a specified area, setting out criteria to be applied in determining whether a location is suitable, or potentially suitable, for a particular kind of development, setting out relative weight to be given to criteria, and identifying one or more locations as suitable, or potentially suitable, or unsuitable, for a particular description of development. At its most specific there39 40 41

Planning for a Sustainable Future Cm 7120. See Kelly, (n 38 above) 7–11. See s 235(1).

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National Policy Statements 139 fore, an NPS could be highly directional as to not only the need for a type of national infrastructure, but also as to where it should be located. Most if not all of the key decisions concerning a major project may therefore be determined before any application for consent is made. In this context it is important to note the commitment made by the Secretary of State in debate: First, I make a commitment that the national policy statements that cover nuclear power stations and airport development—the two most contentious forms of development covered by the Bill— will be location-specific. The national policy statements will not only cover the national need, but they will also say that development is likely to take place in certain areas, and it is unlikely to take place in other areas where, simply, it would not be suitable. As far as we can, we will make those location-specific. That is important, as it further constrains the ability of the IPC to take these decisions without reference to a politically determined framework that has been the subject of debate and scrutiny by the Select Committee and of public involvement.42

There are various safeguards and procedural requirements built into the Act regarding NPS, which can be summarised as follows: 1. Before designating a statement as an NPS, the Secretary of State must carry out an appraisal of the sustainability of the policy set out in it (section 5(4)). 2. If the NPS sets out policy in relation to a particular description of development, it must set out criteria to be taken into account in the design of that description of development (section 5(6)). 3. An NPS must give reasons for the policy set out in it (section 5(7)). 4. The reasons must in particular include an explanation of how the policy set out in the NPS takes account of Government policy relating to the mitigation of, and adaptation to, climate change (section 5(8)). 5. The Secretary of State must in exercising his functions with regard to an NPS, do so with the objective of contributing to the achievement of sustainable development and must in particular have regard to the desirability of (a) mitigating and adapting to climate change, and (b) achieving good design (section 10). 6. Proposals for an NPS must be subject to such publicity and consultation as is prescribed in regulations or as the Secretary of State thinks appropriate (sections 5(4) and 7). 7. In particular, if it is proposed to identify one or more locations as suitable or potentially suitable, appropriate steps must be taken to publicise the proposal, and the relevant local authority or authorities should be consulted as to what steps are appropriate (sections 7(5) and 8). 8. Parliamentary requirements must be complied with, involving the proposal being laid before Parliament and if either House of Parliament makes a resolution with regard to the proposal or a committee of either House makes recommendations, then the Secretary of State must lay before Parliament a statement setting out their response to the resolution or recommendation (sections 5(4)) and 9).43 9. The final NPS must be published and laid before Parliament (section 5(9)). 42

Hansard, HC vol 478 col 348 (25 June 2008). Amendments to Parliamentary Standing Orders have provided for initial consideration and report by the Liaison Committee, followed either by designation of an existing standing committee to consider the NPS, or appointment of a National Policy Statement Committee: Hansard HC col 1532 (20 May 2009); Fourth Special Report from the Liaison Committee, Session 2007-2008: Parliamentary Scrutiny of National Policy Statements (HC 1109). 43

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140 New Build As well as these requirements, the requirements of SEA, which are discussed below, will apply to an NPS on nuclear power stations, as the NPS will be a plan or programme which is subject to preparation and adoption through a legislative procedure, and which will set the framework for future development consents of these important energy projects.44 Whilst the consultation, Parliamentary and other requirements outlined above are significant safeguards of a democratic process (and indeed are mandated by the UK’s obligations as to public participation under the Aarhus Convention) a major concern is that, as described below, there is not likely to be an opportunity to deal with matters covered by the NPS in the context of a specific application for consent. This arises most starkly if, as seems likely, any NPS on nuclear power stations is locationally directive. Whilst (provided there are fair procedures for consultation and comment at the policy-making stage) it may well be inappropriate to embark on a wide-ranging examination of national policy as part of the process for determining an application for development consent, the questions of whether a specific location is appropriate, whether there are possible alternatives, whether the local impacts are outweighed by national need, and whether proposed mitigation measures are adequate and are likely to be effective, are all matters which arguably should not be precluded from forensic examination at a public inquiry, as opposed to consideration simply by the decision-maker. If such matters are precluded, this places substantial reliance on the fairness, thoroughness and rigour of the NPS formulation process and on the attendant disciplines of SSA and SEA. There are procedures for reviewing an NPS under section 6, and for suspending the operation of an NPS pending review under section 11, but these are only likely to apply in reality where there is a significant and unanticipated change in circumstances. All of this means that an NPS on a controversial area such as nuclear power is very likely to be subject to legal challenge.45 The procedure for such challenge is set out in section 13, and requires any claim to be made by judicial review and to be filed within six weeks beginning with the day on which the statement was designated as an NPS, or (if later) the day on which it was published. Needless to say, this is a demanding timescale, even for an experienced NGO.

THE INFRASTRUCTURE PLANNING COMMISSION Section 1 of the Act establishes a body corporate called the Infrastructure Planning Commission (IPC), which has the functions conferred on it by the Act. Regulations may be made about the charging of fees by the Commission for processing and determining applications (section 4). The IPC will comprise a Chair, two Deputies and other Commissioners, appointed by the Secretary of State (see Schedule 1). It will have a chief executive and staff, and will be subject to the jurisdiction of the Parliamentary Ombudsman (Schedule 1, paragraph 24). Clearly the Commissioners will need to be of high calibre and with experience of assessing major development proposals, as well as providing an appropriate mix of specialist expertise. As will be explained, in cases where there is a national policy statement in play, the IPC becomes the final decision-making body. The Secretary of State has residual powers of intervention by requiring an application to be referred to him for determina44 45

See Dir 2001/42/EC, Arts 2(a) and 3(2)(a). See James Maurici, ‘Judicial Review under the Planning Act 2008’ [2009] JPL 446.

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Applications and their Examination 141 tion, but, at least initially, such intervention may only be on grounds of defence or national security (sections 110–13). During debate on the Bill, a number of Ministerial commitments were given in relation to ensuring accountability on the part of the IPC. The Chair and Deputies of the Commission will be subject to pre-appointment scrutiny by a Parliamentary Select Committee; the IPC will be required to provide the Select Committee with reports on particular subjects; the relevant Select Committees will be able to call the Chair before them to explain not just the overall performance of the IPC, but aspects of specific decisions; and the Government will carry out a review of how the IPC is working two years after its establishment, with Ministers able to extend the grounds for intervention if it appears that the IPC is not working as hoped.46 In March 2009, Sir Michael Pitt, a former chief executive of Kent and Cheshire County Councils, was appointed as first Chair of the IPC. Whether the IPC in its present form will survive a change of Government remains to be seen. The Conservative Party has indicated its intention to abolish the IPC if elected, and indeed in May 2009 the Conservative shadow minister for planning, Bob Neill, wrote personally to Sir Michael Pitt, asking him to ensure that the IPC did not incur significant costs by entering into long term employment contracts.47 If all runs to plan, subject to such potential problems, the Government’s intention is that all the secondary legislation and guidance will be in place so as to allow the IPC to begin to receive applications by the first half of 2010.48

APPLICATIONS AND THEIR EXAMINATION An application for an order granting development consent must be made to the IPC (section 37(1)). It will have to be made in prescribed form and be accompanied by documents and information to be prescribed.49 These will have to include a consultation report detailing what has been done by way of pre-application public consultation. Consideration will also need to be given to any guidance issued by the IPC under section 37(4) as to applications. Considerable emphasis is placed on pre-application procedures (see Part 5, Chapter 2) in terms of consultation carried out by the applicant, both with local authorities and the local community. By the end of 28 days from receiving the application, the IPC must decide 46

See Hansard HC col 349 (25 June 2008). Planning, 22 May 2009, 3. Since then, the Conservative approach seems to have shifted somewhat, towards merging the Commission with the Planning Inspectorate, with decisions on applications being taken by the Secretary of State: see Planning, 24 July 2009, 2. 48 DCLG, Infrastructure Planning Commission Implementation Route Map (January 2009). For a thoughtful analysis of the difficulties in meeting such a timescale, see Robbie Owen, ‘Policies under pressure’ (Planning, 31 July 2009, 8). 49 The following consultations were made on the detailed procedures under the 2008 Act, with a view to the entire package of secondary legislation being in place by April 2010: see [2009] JPL 978. Consultation on who should be statutory consultees before designating a document as a national policy statement (January 2009) available at www.communities.gov.uk/ documents/planningandbuilding/pdf/ consultationstatutoryconsultees.pdf. Consultation on draft regulations and guidance documents on pre-application procedures and contents of applications (March 2009) available at www.communities.gov.uk/archived/publications/planningandbuilding/ consultationpreapplication. Consultation on procedures during examination and decision phases (July 2009) available at www.communities. gov.uk/archived/publications/planningandbuilding/consultationexaminationnsips. 47

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142 New Build whether to accept it (see section 55(2) and 55(3) setting out the criteria for acceptance). There then follow requirements for the applicant to notify various persons, in particular local authorities, owners and occupiers of the relevant land, and where the application includes a request for the authorisation of compulsory acquisition of land, persons who are affected as being interested in the land to which the request relates (see sections 56–9). A decision is then made by the Chair as to whether the application should be handled by a single Commissioner under Chapter 3, or by a Panel of Commissioners under Chapter 2. Clearly an application for a development as significant as a nuclear power station is going to be handled by a Panel, which involves the appointment of three or more Commissioners and a ‘lead member’ to chair the Panel. Within the Panel, one or more members may be given the allocated function of undertaking some part of the examination (section 76). Decision making requires the agreement of a majority of Panel members, the lead member having a second (or casting) vote in the event of a tie (section 75). Where, as with an application for a nuclear power station, there is an effective NPS, then the function of the Panel is to both examine and decide the application (section 74(1)), not simply to report and recommend to the Secretary of State.50 These functions are to be carried out in accordance with Chapter 4. Under these provisions: 1. It is for the Panel to decide how to examine the application (section 86(1)). 2. The Panel may disregard representations if it considers they are frivolous or vexatious or—importantly—that they relate to the merits of policy set out in an NPS (section 87(3)). 3. Having made an initial assessment of the principal issues arising, the Panel must hold a meeting with the applicant and any interested party to allow representations to be made as to how the examination should be conducted (section 88). ‘Interested party’ includes the applicant, statutory parties, relevant local authorities and any person who has made a relevant representation about the application in prescribed form and within any relevant deadline (section 102). A representation about the merits of policy in an NPS will not be a relevant representation (section 102(4)(e)). 4. The Panel then makes such procedural decisions as it thinks appropriate (section 89). 5. Examination may take the form of consideration of written representations (section 90), hearings about specific issues (section 91), compulsory acquisition hearings (section 92) and open-floor hearings (section 93). The criteria for a hearing on a specific issue are whether consideration of oral representations are necessary in order to ensure (a) adequate examination of the issue, or (b) that an interested party has a fair opportunity to put the party’s case. An open floor hearing must be held in all cases where at least one interested party requests it, and allows each interested party (subject to the Panel’s powers of control over the conduct of the hearing) to make oral representations about the application. 6. Any hearing must be held in public, and it is for the Panel to decide how the hearing is to be conducted. In particular, it is for the Panel to decide whether to allow crossexamination and if so on what topics and for how long (section 94(4)). The Panel’s powers may be used to control the entitlement of interested parties to make relevant oral representations, but not so as to deprive the person of all benefit of the entitlement (section 94(6)). In deciding whether to permit cross-examination, the Panel will start from the principle that oral questioning should be undertaken by the Panel except where it 50 An amendment providing that all decisions of the IPC should be subject to confirmation by the Secretary of State was defeated on 25 June 2008 by 303 votes to 260.

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Applications and their Examination 143

7.

8. 9.

10. 11.

thinks that cross-examination51 by another person is necessary in order to ensure either (a) adequate testing of any representations, or (b) that a person has a fair chance to put the person’s case (section 94(7)). Whilst in earlier versions of the Bill the word ‘exceptionally’ qualified the circumstances where cross examination was to be allowed, but was deleted at a late stage, it remains obviously the case that oral questioning by the Panel will be the default position, and that cross-examination will require justification. The Panel may refuse to allow representations to be made at a hearing where it considers them irrelevant, frivolous or vexatious, or relating to the merits of a policy set out in an NPS (section 94(8)). Procedural rules regulating procedure may be made by the Lord Chancellor after consultation with the Administrative Justice and Councils Tribunal (section 97(1)). The Panel is under a duty to complete the examination by the end of six months from the start day of the initial procedural meeting (section 98). This deadline may be extended by the IPC Chairman, but the Secretary of State must be notified and reasons given. It may be anticipated that the Chairman will wish to keep the number of cases where extensions are given to a minimum. Assessors with suitable expertise may be appointed to assist the Panel (section 100). At the request of the Panel, a barrister, solicitor or advocate may be appointed to provide legal advice and assistance to the Panel, which may include carrying out oral questioning on behalf of the Panel at any hearing (section 101). This procedure, equivalent to the normal practice of appointing ‘counsel to the inquiry’, may prove to be very important in relation to complex and controversial applications such as nuclear power stations. Such counsel will be able to take a probing, adversarial stance where necessary to test evidence, whereas the Panel as impartial decision-maker might be constrained by not wishing to appear hostile to one party. In particular in those hearings where there is such a counsel, the case for allowing cross examination against the criteria in section 94(7) will be more difficult to justify.

One issue which will probably arise under these arrangements is compatibility with Article 6 of the European Convention on Human Rights, which entitles everyone, in the determination of their civil rights to ‘a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. A development consent to build a new nuclear power station may well engage the Article 8 right to respect for home and family life for those living in the vicinity of the proposed site;52 the risk of accidents may also, arguably, engage the Article 2 right to life (though of course, in this regard the existence of stringent safety regulation and of emergency plans as required by law, cannot be ignored). It may be significant to note here that (as explained below) one effect of the grant of development consent will be to provide immunity for the construction, and possibly operation, of the installation against normal claims in nuisance by affected local people. If the proposal involves authorisation of compulsory purchase then the rights of those affected land owners under Article 1 of the First Protocol relating to deprivation of possessions will be engaged; indeed, there may well be blight affecting the peaceful enjoyment of possessions at the stage when potential sites are identified in the NPS. It has been suggested that the wide 51 The Act does not in fact use the term ‘cross-examination’, simply ‘questioning’. However, there is no doubt that this is what it means. 52 See S v France, Appl. No 13728/88 (1990) 65 D&R 250 (compensation for noise and other nuisance caused by a nuclear power station). See also the obiter comments indicating the applicability of that case in UK law in Davis & Docherty v Balfour Kilpatrick Ltd [2002] EWCA Civ 736, para 42.

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144 New Build discretion that the IPC will enjoy regarding the procedure preliminary to and at hearings will mean that consideration of the procedural guarantees in Article 6 will be relevant in most applications it hears.53 It is important to appreciate that a fair hearing under Article 6 does not automatically involve the opportunity to be heard orally, particularly in the context of what will be a tendency to regard written representations as the normal starting, and quite possibly finishing, point under the IPC system. The question will be whether an oral hearing is required to ensure a fair hearing, which in turn will depend on the nature of the matters in issue, the affected party’s interest, and how seriously the issue affects him.54 An important issue will be whether the matter on which an oral hearing is said to be required is one involving the application of discretion and judgment, or whether there are disputed facts that can only be tested fairly by oral evidence.55 The difficulty is that it may not be entirely straightforward to extricate and isolate disputed matters of fact from a complex document in support of some aspect of an application. In any event, a person making representations who seeks to rely on Article 6 must show that their civil rights are engaged: an anti-nuclear group or environmental NGO will only be able to assert such rights through individuals who are affected. As put in one case by the Grand Chamber of the European Court of Human Rights: The Court considers, however, that how best to regulate the use of nuclear power is a policy decision for each Contracting State to take according to its democratic processes. Article 6 § 1 cannot be read as dictating any one scheme rather than another. What Article 6 § 1 requires is that individuals be granted access to a court whenever they have an arguable claim that there has been an unlawful interference with the exercise of one of their (civil) rights recognised under domestic law.56

However, an environmental group’s members may be able to claim their own entitlement to effective participation (though again, not necessarily involving an oral hearing, much less cross-examination) under Article 6 of the Aarhus Convention, discussed later. So far as the independence and impartiality of the IPC as the tribunal is concerned, the key aspects are the manner and terms of appointment of members, the existence of guarantees against outside (Governmental) pressure, for example by the power to remove members, and whether the tribunal itself presents an objective appearance of independence.57 One important practical point is the procedure to be adopted when challenging a procedural decision of the IPC as to the form and conduct of the examination, in particular whether the aggrieved party must challenge that decision immediately using judicial review procedures and doing so promptly and in any event within three months, or whether they can wait and challenge the substantive decision to grant (or refuse) development consent within the six week time limit. Given the high likelihood of such challenges, clear guidance on the matter is desirable;58 in the absence of such guidance persons aggrieved are likely to feel obliged to bring a challenge at the first opportunity in order to avoid being ruled out of 53

Elvin, (see n 9 above), 272. See, eg, R (Vetterlein) v Hampshire County Council [2002] Env LR 198; see also Jacobsson v Sweden (No 2) (2001) 32 EHRR 463 at [49], making it clear that each case must be determined on its own facts. 55 See, eg, R (Adlard) v Secretary of State for the Environment [2002] 1 WLR 2515. 56 Athanassoglou and others v Switzerland, Appl No 27644/95; [2000] ECHR 159; (2001) 31 EHRR 13, para 54. See also Balmer-Schafroth and others v Switzerland (1997) 25 EHRR 598 and Re Medicaments and Related Classes of Goods (No 4) [2001] EWCA Civ 1217; [2002] 1 WLR 269, paras 6-7, 20-21. 57 See Campbell and Fell v UK [1985] 7 EHRR 165. 58 See Elvin (see n 9 above) 273–4. 54

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Local Impact Reports 145 time later, despite the possibility of arguing that a claimant should not have to challenge a decision which does not as yet have firm impacts on their rights.59

LOCAL IMPACT REPORTS Where an application has been accepted for determination, the IPC must give notice to each relevant local authority60 inviting them to submit a local impact report and giving a deadline for doing so. A local impact report is a report in writing giving details of the likely impact of the proposed development on the authority’s area, or part of the area (section 60). Clearly there will be an important relationship to be worked out between the local impact report and the environmental statement produced by or on behalf of the applicant. The impact report may present a quite different perspective on what are regarded as likely and significant impacts.

CRITERIA FOR DECISIONS In deciding the application, the Panel must by section 104(2) have regard to: (a) (b) (c) (d)

any NPS which has effect in relation to that description of development; any local impact report submitted within the deadline; any matters prescribed by regulations; and any other matters which the Panel thinks are both important and relevant to its decision.

However, whilst section 104(2) simply lists the NPS along with other material considerations, section 104(3) makes it clear that the Panel must decide the application in accordance with the NPS unless one of five situations applies: 1. The Panel is satisfied that deciding the application in accordance with the NPS would lead to the UK being in breach of any of its international obligations (section 104(4)). 2. The Panel is satisfied that deciding the application in accordance with the NPS would lead to the Panel being in breach of any duty imposed on it by any enactment (section 104(5)). 3. The Panel is satisfied that deciding the application in accordance with the NPS would be unlawful by virtue of any enactment (section 104(6)). 4. The Panel is satisfied that the adverse impact of the proposed development would outweigh its benefits (section 104(7)). 5. The Panel is satisfied that any condition prescribed for deciding an application otherwise than in accordance with a NPS is met (section 104(8)). For the avoidance of doubt, it is provided that the fact that any relevant NPS identifies a location as suitable or potentially suitable for a particular description of development does not prevent one or more of these circumstances from applying (section 104(9)). 59

See R (Burkett) v Hammersmith and Fulham London Borough Council [2002] 1 WLR 1593. Defined by s 102(5)–(9) to include not only local authorities where the relevant land falls within their area, but also bordering authorities. 60

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146 New Build The order granting development consent, or its refusal, must be supported by a statement of reasons (section 116). The order is subject to the same formalities as a statutory instrument under the Statutory Instruments Act 1946 (section 117). It may cover both the development for which consent was required and associated development (section 115). Procedures are provided for the correction of errors in decisions where this is necessary (section 119 and Schedule 4). The order may impose requirements which are the equivalent of planning conditions (section 120). It will also be possible to enter into planning obligations under section 106 of the Town and Country Planning Act 1990 in connection with development consent applications, known as ‘development consent obligations’ (see section 174). Such agreements might, for example, relate to the provision or funding of off-site mitigation works, or physical or social infrastructure connected with the project. Decisions as to orders, or the refusal of orders, are challengeable by a claim for judicial review, which must be filed within six weeks of the day on which the order is published, or if later, the date on which the statement of reasons is published (section 118). The order may also authorise compulsory acquisition of land which is required for the development, or to facilitate it (section 122). It may also extinguish public rights of way (section 136). In the case of an order relating to the construction or extension of a generating station, the order may also authorise its operation (section 140) though, of course, the site will still require to be licensed as a nuclear installation in order to operate. For developments which are on the coast and which involve coastal works or marine works, the order may also include provision deeming the necessary consent to have been given under section 34 of the Coast Protection Act 1949 (section 148) or the necessary licence to have been issued under Part II of the Food and Environment Protection Act 1985 (section 149). The order may not include a provision which has the effect of excluding or modifying any provision of the Nuclear Installations Act 1965 (section 151(a)). Development for which development consent has been granted must be begun before the end of a period to be prescribed, or such other period as is specified in the order granting the consent (section 154). The order has effect for the benefit of the land in question and all persons for the time being interested in the land (as with planning permission) (section 156). One controversial aspect of the scheme is that an order (unlike planning permission) confers statutory authority in respect of the carrying out of the development and doing anything else authorised by the order—which may include as already indicated, operating a generating station—so as to provide a defence in civil or criminal proceedings for nuisance (section 158). This would not, of course, affect the potential liability for injury or damage in the event of an incident falling within the Nuclear Installations Act; it would however apply to normal types of nuisances, such as noise, dust and light pollution. However, where there is no claim for an injunction or damages as a result of the defence provided by section 158, there is the possibility of a claim for compensation for any person whose land is injuriously affected by the carrying out of authorised works (section 152). Enforcement in respect of development carried out without development consent or in breach of the terms of consent is the responsibility of the local planning authority under the provisions of Part 8 of the Act.

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Progress in Planning New Plant 147

PROGRESS IN PLANNING NEW PLANT Obviously the process of nuclear new build will involve a number of activities running in parallel. The processes of justification and generic design assessment are already under way. So far as the development consent process is concerned, a critical first step (indeed, possibly the decisive one) will be the production of a National Policy Statement, on an indicative basis said to be at some point in early 2010, with the IPC then ready to receive applications in the spring of 2010, and the first decisions being made in mid 2011. In reality, prospective applicants are already engaged in the process and will already have done very significant preparatory work by the time the NPS is issued.61 Preparation of the NPS involves two processes in particular: SSA and SEA. These were explained in broad terms in the January 2008 White Paper on Nuclear Power as involving the following stages:62 1. An SSA to identify criteria to be used to assess the suitability of sites nominated for new nuclear power stations and to assess the high level impacts of building on those sites. These would be of two main types: ‘exclusionary’ criteria used to rule out unsuitable areas, and ‘discretionary’ or ‘detailed’ criteria for assessing the suitability of possible sites. 2. As part of the SSA, an SEA within Directive 2001/42/EC on the assessment of the effects of certain plans and projects on the environment (the SEA Directive),63 with publication of a draft scoping report, followed by publication of a first outline Environmental Report. The Environmental Report is an important part of the SEA process: see Article 5 of the SEA Directive. 3. The finalisation of the assessment criteria, following consultation, marking the end of Stage 1 of the process. 4. Invitation to operators to nominate potential sites, effectively commencing Stage 2 of the process. 5. Assessment of nominated sites against the criteria as Stage 2, including the publication, as necessary, of an updated Environmental Report. 6. Publication and consultation on a draft list of sites judged by the Government to meet the relevant criteria, as Stage 3, with publication and consultation on the final Environmental Report for SEA purposes and culminating in a statement setting out: (a) the final statement on the criteria; (b) the final ‘non-exhaustive’ list of sites which meet the criteria. 7. The SSA would not replace the need for environmental impact assessment (EIA) of the project at the development consent stage.64 The Government acknowledges that while a 61 It has been reported that in July 2008, Sedgmoor District Council had sought £750,000 from British Energy and EDF to cover costs incurred by the council on planning work for a reactor at Hinkley Point, prompting some discussion over issues of probity and community input: see Planning, 6 February 2009, 2 and 10. See also Planning, 17 July 2009, 1, noting the proposal for a Planning Performance Agreement between EDF and the local authority. 62 Cm 7296, paras 3.18–3.25. See also the dedicated Departmental website on siting at www.nuclearpowersiting. decc.gov.uk. 63 Implemented by the Environmental Assessment of Plans and Programmes Regulations 2004 No 1633 (the SEA Regulations). 64 EIA is discussed further below.

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148 New Build site may satisfy the SSA criteria, detailed examination of the site may raise issues which would rule out its suitability. This process has been followed. At the start of the SSA process the relevant bodies were consulted as to the scoping of the assessment, as required by Article 5(4) of the SEA Directive.65 In July 2008, the Government published a consultation on the SSA process and siting criteria,66 together with a separate study of the potential environmental and sustainability effects67 and a Habitats Regulations Assessment (HRA) Screening Report68 in relation to the criteria. This also set out requirements as to the nomination process. In January 2009 the criteria for strategically suitable sites were published.69 This included at Annex C guidance to those nominating sites and the requirements for those nominating, including that the nominator be ‘a credible nuclear power operator’ and that it be demonstrated that steps had been taken to raise awareness of the nomination with local communities living in the vicinity of the site. Nominations were received by the Government on 31 March 2009. They were then screened against the conditions of nominating, including whether adequate public awareness raising was undertaken, and whether the sites were credible for deployment by 2025. A list of 11 sites was published on 15 April,70 with the public having one month to supply initial comments on the site nomination reports and supporting documentation. These represent the nominations that the Government currently believes have met these conditions but the Government may return to these issues later in the assessment. Because of the policy of Scottish Ministers and the Scottish Parliament against new nuclear build in Scotland, discussed below, nominations were only accepted for sites in England and Wales, though there are, of course, a number of potentially suitable sites in Scotland. The indicative timetable for further stages, at the time of writing, suggests that a draft NPS including a list of potential sites will be published for consultation in autumn 2009, with Parliamentary scrutiny and finalisation of the NPS over the winter of 2009–10.

65 Views on the SEA Scoping Report were sought from statutory SEA consultation bodies and other relevant regulatory bodies on 13 March 2008, and the Scoping Report was published on the Government website. 66 Towards a Nuclear National Policy Statement, July 2008. 67 This is termed an ‘environmental study’ to make it clear that it is not intended to assess the NPS as a whole, but simply focuses on the SSA criteria, which are assessed against a range of 25 ‘SEA objectives’ which relate to the avoidance of specified adverse impacts—effectively an adverse impacts checklist. The key conclusion of the study is that while factors including the discretionary nature of some criteria mean that adverse impacts cannot be wholly ruled out, using the proposed SSA criteria is likely to lead to outcomes which are, on balance, broadly in line with principles of sustainability and environmental protection. Obviously, as the study acknowledges, this can only be a very high level assessment and much uncertainty remains at this stage. It is certainly not suggested that significant adverse impacts on features of importance can be ruled out. 68 This was published, but not for public consultation (though the Government has said it will consider any comments made on it). 69 DECC, Towards a Nuclear National Policy Statement (January 2009) available at www.berr.gov.uk/files/ file49866.pdf. This is the response to the consultation on the SSA process and siting criteria, and to the study on the potential environmental and sustainability effects of applying the criteria See also DECC Towards a Nuclear National Policy Statement: Applying the SSA Criteria: an update to the study of the potential environmental and sustainability effects (January 2009) available at www.berr.gov.uk/files/file49869.pdf. 70 www.nuclearpowersiting.decc.gov.uk/nominations. The 11 sites nominated were, with details of the nominating entity in brackets: Bradwell, Essex (NDA), Braystones, Cumbria (RWE/nPower), Dungeness, Kent (EDF Energy), Hartlepool, Durham (EDF Energy), Heysham, Lancashire (EDF Energy), Kirksanton, Cumbria (RWE/NPower), Oldbury, Gloucestershire (NDA/Eon), Sellafield, Cumbria (NDA), Sizewell, Suffolk (EDF Energy), Wylfa, Anglesey (RWE/nPower and NDA).

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Siting Criteria 149

SITING CRITERIA Criteria are both Exclusionary (excluding sites from further consideration) and Discretionary (which may, at a strategic level, make a site unsuitable). The following passage from Annex C of the January 2009 siting criteria document sets out the significance of the criteria: The Government will conduct its assessment using exclusionary and discretionary criteria, using the advice that nominators have supplied, comments from the public and advice from specialists including regulators and others . . . Exclusionary criteria are those which, if breached, will categorically exclude all or part of a site from further consideration. Discretionary criteria are those criteria that the Government considers, for various reasons, could, either singly or in combination, make all or part of a site unsuitable for a new nuclear power station but which need to be carefully considered in order to come to a conclusion as to the site’s strategic suitability. These criteria will address issues such as flood risk, impact on protected sites or suitable cooling. DECC will assess these issues at a strategic level through the SSA. It is important to note that, through the SSA process, the Government will be conducting a high-level strategic assessment that will not involve site-specific investigations or detailed site-specific data, unless this is material to the impact on one or more criteria, in which case information should be provided on how those impacts could be mitigated. Detailed site-specific information will need to considered by the IPC and would be identified, for example, in the Environmental Impact Assessment accompanying any proposal for development. In reaching a decision on whether to include a site that engages one or more discretionary criteria in the list in the Nuclear NPS, DECC will consider, inter alia: —whether the nominator has demonstrated that there is a reasonable prospect of appropriately mitigating (wholly or in part) any potential adverse impacts in relation to the relevant discretionary criterion or criteria; —where any potential adverse impact(s) cannot be appropriately mitigated, whether the potential adverse impact should prevent the site from being considered suitable at a strategic level taking account of the White Paper on Nuclear Power. The Government does not expect to form a conclusive view as to the viability of detailed proposals for mitigation or the precise extent of any potential adverse impact. Rather, this will be a matter for the IPC to assess when it receives a specific application for development consent to build on sites listed in the Nuclear NPS. However, the Government would expect the Nuclear NPS to make clear that the IPC, when examining an application, would need to consider the mitigation measures above in more detail before making its decision in relation to the granting of development consent for a specific application to build on a site included in the list in the Nuclear NPS. The Government will also consider the cumulative impact of the discretionary criteria in relation to a nominated site. Where a site significantly breaches a large number of discretionary criteria, it may be appropriate to exclude it from the Nuclear NPS.71

A further category is that of Local Criteria, that is those criteria which are more appropriately assessed at the local level by the IPC in due course.72 Nominators were not required to provide information at this stage against criteria which are ‘flagged for local consideration’ and these criteria were therefore not listed with the nomination form. The guidance makes clear that they nonetheless remain important: 71

DECC, Towards a Nuclear National Policy Statement (January 2009). These are likely to include: seismic risk, capable faulting, non-seismic ground conditions, meteorological conditions, proximity to mining, drilling and other underground operations, emergency planning, access to transmission infrastructure, and size of site to accommodate construction and decommissioning. 72

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150 New Build Largely due to the need for detailed site-specific investigations and data, the Government believes these criteria are more appropriately assessed at the local level when details of the specific application for development consent are available. As such these ‘flag for local consideration’ criteria will form an important consideration at the development consent stage. They do not represent a less onerous test for the nominator to satisfy and a local flag in no way changes their critical nature, but recognises that assessment at a strategic level is not capable of adequately addressing these issues. The Nuclear NPS will reflect the importance of these issues.

The final criteria are as follows: Demographics (Exclusionary)73 Proximity to military activities (Exclusionary)74 Flooding, tsunami and storm surge (Discretionary)75 Coastal processes (Discretionary)76 Proximity to hazardous industrial facilities and operations (Discretionary)77 Proximity to civil aircraft movements (Discretionary) Proximity to other military activity (Discretionary)78 Internationally designated sites of ecological importance (Discretionary)79 Nationally designated sites of ecological importance (Discretionary) Areas of amenity, cultural heritage and landscape value (Discretionary)80 Size of site to accommodate operation (Discretionary)81 Access to suitable sources of cooling water (Discretionary). There are some matters which seem surprising in the list of criteria. Access to grid transmission infrastructure might be thought to be a paradigm example of a strategic issue for national consideration, rather than being left to the IPC. Equally there are some matters classified as discretionary criteria at the strategic level, such as coastal processes and flooding, or effects on designated sites of ecological importance, where it would seem that detailed consideration of local conditions is still going to be required. It can certainly be said that the possible flooding or sea incursion of nationally strategic assets, not to mention the associated hazards from flooding a nuclear site, are matters of high national importance; 73 This reflects the Government’s long-standing policy of siting existing nuclear power stations in ‘Remote’ or ‘Semi-Urban’ areas and of limiting the population around licensed nuclear sites. The much stricter Remote criteria were developed for the Magnox stations, the Semi-Urban criteria for the later AGRs. When the Sizewell B PWR was consented, the approach was to apply the stricter Remote criteria in view of the novelty of the technology to the UK; HSE’s advice is now that there have been significant advances both in the experience of PWR technology and in the refinement of safety regulation in the UK and internationally, and that it is appropriate to apply the Semi-Urban criteria to proposed new stations. This involves excluding sites with a cumulative weighted population at various distances around the site and in any 30 degree sector of such distances, eg 1,300,000 people within the 5–8 km radii band, or 430,000 within any 30 degree sector of such radii; 290,000 within a 0–20 km radius, or 96,000 within any 30 degree sector of that radius. See July 2008 Consultation Paper, Box 1. 74 This covers specified areas and activities such as military low flying tactical areas, MoD aerodromes, military ranges and training areas and MoD explosives storage facilities. 75 Discussed further below. 76 Discussed further below. 77 Sites falling within the Control of Major Accident Hazards Regulations 1999 (COMAH). 78 This covers other military activities not falling within the exclusionary criterion, such as technical sites and transmitters, offshore danger areas and ports used by military nuclear vessels. 79 Discussed further below. 80 Including World Heritage sites, scheduled ancient monuments, protected wreck sites, national parks, areas of outstanding natural beauty, listed buildings, conservation areas and areas of archaeological importance. 81 The Government expects nominators of new nuclear power stations to make provision for safe and secure storage of all the spent fuel and intermediate level waste produced through operation and from decommissioning on the site of the station until it can be sent for disposal in a geological disposal facility.

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Coastal Processes and Flooding 151 however, this issue relates not only to the safety of siting a reactor in an area at risk from flooding or sea level rise, but also the wider impacts of what would be the necessary protective countermeasures on the surrounding area. That would seem very much an issue of considering the local impacts, which will depend on detailed design and assessment which is unlikely to be available at the strategic siting stage. The Royal Town Planning Institute in its response to consultation on the initial draft criteria suggested that the discretionary criteria needed re-evaluating, distinguishing between those which raised immediate strong indications against a location and those which established more localised siting and design issues for mitigation; it also suggested that the exclusionary criteria needed strengthening to include the vulnerabilities of sites to climate change processes such as coastal inundation within the operational or decommissioning life of a power station and also to respond more clearly to international treaty obligations in respect of nature conservation.82

COASTAL PROCESSES AND FLOODING The issue of vulnerability of potential sites to flooding and to coastal change processes seems likely to be a controversial one.83 Sir Michael Pitt as appointed Chairman of the IPC should be well aware of these issues since he undertook the review of flood risk for the Government following the disastrous floods of the summer of 2007, and in his final report published in 2008, recommended that development control should play a central role in the management of flood risk by avoiding development in at-risk areas where possible.84 The existing nuclear power stations are on the coast or in estuaries, many at low elevations which are potentially vulnerable to sea level changes. In 2007 British Energy published a preliminary high-level review by engineering consultants Halcrow, which examined eight potential sites in the company’s ownership, utilising Met Office projections and climate change projections and based on credible worst case scenarios.85 This study concluded that coastal geohazards to the chosen 100-year horizon of 2105 were not considered to present significant risks at some sites, provided that existing sea defences were maintained (Heysham, Hunterston and Torness) but that at others, such as Dungeness and Sizewell in the south-east of England, the risks were significant. Accordingly, upgraded or new defence works, some of which may have significant implications for existing protected habitats, would be required.86 The Halcrow study however concluded that flood defence and coast protection at these sites was likely to be ‘entirely feasible within existing engineering knowledge’. A more pessimistic prognosis appears from a report undertaken for Greenpeace in 2007, which looks at more extreme scenarios, such as a sudden collapse of the West Antarctic Ice Shelf causing an abrupt 5–6 metre rise in sea levels.87 In July 2008, the 82

RTPI, Response to the Consultation on the SSA Process and Siting Criteria (July 2008). See RN Lawton, ‘Coastal Flooding and New Nuclear Build: Risk, Uncertainty and Precaution in the Strategic Siting Assessment Process’ (2008) 19 Water Law 120. 84 The Pitt Review: Learning Lessons from the 2007 Floods (June 2008) available at archive.cabinetoffice.gov.uk/ pittreview/thepittreview.html. 85 Halcrow Group Ltd, Review of medium to long-term coastal geohazard risks at British Energy Sites (September 2007) available at www.british-energy.com/documents/halcrow_review.PDF. 86 New defences would be required at Bradwell and Hinkley Point, and potentially substantial upgrades at Dungeness and Sizewell, with also the potential to set back the sites to accommodate increased erosion potential. 87 Flood Hazard Research Centre, The Impacts of Climate Change on Nuclear Power Stations Sites: A Review of four Proposed New-Build Sites on the UK coastline (Middlesex University, Greenpeace, March 2007). The report, 83

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152 New Build Department for Communities and Local Government published for consultation a new draft Planning Policy Statement on development and coastal change.88 This would require the identification of areas where rates of shoreline change are significant over the next 100 years, known as coastal change management areas (CCMAs). Development would only be appropriate in a CCMA if it requires a coastal location and the impacts of coastal change upon it can be managed. The proposed policy is that essential infrastructure (based on the definition in Table D2 of Planning Policy Statement 25 on Flood Risk, and as such including electricity generating power stations) would be permitted in a CCMA, provided there are clear plans to manage the impacts of coastal change on it, and that it will not have an adverse impact on rates of coastal change elsewhere. There is also the need to consider carefully IAEA guidance on the subject of siting evaluation89 and flood hazards in particular.90 The IAEA flood hazard guidance recognises the potential significance of human induced climate change in this respect but suggests that it is too early to seek to quantify these effects and that, whilst modelling should address these matters in terms of safety margins, action should not be taken at this stage: 14.9. There are wide variations in predictions concerning human induced climatic change but some definite values should be assumed for the purposes of site evaluation for nuclear power plants. Within the framework of the Intergovernmental Panel on Climate Change investigations in relation to climate change are being carried out worldwide. The results of these investigations can be used to analyse the possible impacts on nuclear power plants. Results for the far future will have an associated unreliability. For the nuclear power plants the upper boundary of the 95 per cent confidence interval should be taken. The period can be taken to be 100 years ahead as being the lifetime of a nuclear power plant (including decommissioning time, if needed), but it should be possible to take measures to prolong this as far as necessary. The possible changes in storminess and precipitation will be of major importance, although nothing quantitative can yet be stated on the basis of existing scientific theories. 14.10. Some safety margin should be taken into consideration in the design of a nuclear power plant . . . 14.12. As concerns hazards induced by climatic change, such as rises in sea levels or gradual changes in land use, immediate actions should not necessarily be taken. In the procedure for spatial planning around the plant, land should be reserved for the adaptation of the water defences when such measures are deemed necessary. Careful monitoring should be performed to indicate when action should be taken. Such measures should usually be taken in connection with the construction of a new plant.91

which considered Bradwell, Dungeness, Hinkley Point and Sizewell, concluded that that defending the sites from the sea would mean they are ‘likely to become economically unsustainable’ and they ‘cannot be considered as suitable locations for new reactors’ available at www.greenpeace.org.uk/media/press-releases/scientists-mapflooding-risk-to-nuclear-sites. 88 www.communities.gov.uk/documents/planningandbuilding/pdf/consultationcoastal.pdf. 89 IAEA Safety Standards Series, Site Evaluation for Nuclear Installations, Safety Requirements, No NS-R-3 available at www-pub.iaea.org/MTCD/publications/PDF/Pub1177_web.pdf. 90 IAEA Safety Standards Series, Flood Hazard for Nuclear Power Plants on Coastal and River Sites, Safety Guide, No NS-G-3.5 available at www-pub.iaea.org/MTCD/publications/PDF/Pub1170_web.pdf. 91 Ibid.

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Strategic Environmental Assessment 153

STRATEGIC ENVIRONMENTAL ASSESSMENT The relevance of the requirements for SEA, and how it is intended to fit within the staged approach to producing an NPS on nuclear power, are matters discussed above. It hardly needs saying that it is vital that the Government gets this aspect right, as a breach of the SEA Directive 2001/42/EC or of the implementing regulations, the Environmental Assessment of Plans and Programmes Regulations 2004,92 would present an obvious target for legal challenge. The key requirements are the preparation of an environmental report, with consultation of relevant authorities and the public93 on the draft plan or programme and the environmental report. Such arrangements must allow the authorities and the public ‘an early and effective opportunity within appropriate time frames’ to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme, or its submission to the legislative procedure.94 It is also important to note that consultation should include transboundary consultations, where it is considered that the implementation of the plan or programme is likely to have significant effects on the territory of another Member State, or where a Member State likely to be so affected requests.95 Other European countries, such as Ireland, may well have views as to whether they might be affected by the implementation of a programme of building nuclear reactors in the UK, in terms of the risk of accidents or the ultimate disposal of waste products. The environmental report and the results of the consultations must be taken into account ‘during the preparation of the plan or programme and before its adoption or submission to the legislative procedure’.96 It has been held that compliance with the Directive must include the setting of clear timeframes for consultation so not to infringe the principle of legal certainty, and that the environmental report and draft plan must be kept in step, so that the report and the consultation outcomes can genuinely influence the plan as it is prepared: The scheme of the Directive and the Regulations clearly envisages the parallel development of the environmental report and the draft plan with the former impacting on the development of the latter throughout the periods before, during and after the public consultation. In the period before public consultation the developing environmental report will influence the developing plan and there will be engagement with the consultation body on the contents of the report. Where the latter becomes largely settled, even though as a draft plan, before the development of the former, then the fulfilment of the scheme of the Directive and the Regulations may be placed in jeopardy. The later public consultation on the environmental report and draft plan may not be capable of exerting the appropriate influence on the contents of the draft plan.97

This passage provides an important reminder that the SEA process cannot be regarded simply as a procedural game with a view to ‘judge-proofing’ the outcome; even leaving aside external consultation, the environmental report must itself be available in such a form and 92

SI 2004 No 1633. The public in this sense means at least the public likely to be affected by, or having an interest in, the relevant decision-making, including relevant NGOs such as those promoting environmental protection (Art 6(4). 94 Dir 2001/42/EC, Art 6(2). The 2004 Regulations require the period to be of such length as will give those consulted ‘an effective opportunity to express their opinion on the relevant documents’ (reg 13(3)). 95 Art 7; see also reg 14 of the 2004 Regulations. 96 Art 8; see also reg 8 of the 2004 Regulations. 97 Application by Seaport Investments Ltd [2007] NIQB 62, para [47] per Weatherup J. 93

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154 New Build at such a time as to be capable of influencing internal discussions within the body preparing the plan or programme, before its form, even while still a draft, becomes too settled.

PUBLIC PARTICIPATION The importance of the commitments under the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention) has already been noted in the judgment of Sullivan J in the 2007 challenge by Greenpeace to the 2006 consultation and Energy Review, and there is every reason to believe that this is an issue which judges will take very seriously.98 The Convention may operate in the context of nuclear proposals at two levels. First, under Article 7, parties must make appropriate practical provisions for the public to participate during the preparation of plans and programmes relating to the environment ‘within a transparent and fair framework, having provided the necessary information to the public’; further, to the extent appropriate parties must ‘endeavour to provide opportunities for public participation in the preparation of policies relating to the environment’. The obligation on policies is obviously somewhat weaker and vaguer than that on ‘plans and programmes’, but it would seem fairly clear that a locationally specific NPS on nuclear power would engage Article 7 as a plan or programme, rather than simply a policy. In this context what matters is the legal effect of the decision, not the label under the domestic law of the party concerned.99 Secondly, Article 6 applies to decisions on whether to permit proposed activities listed in Annex I (including nuclear power stations). This involves informing the public early in the environmental decision-making procedure and in an adequate, timely and effective manner (Article 6(2); allowing sufficient time for the public to prepare and participate effectively (Article 6(3)); providing for early public participation, when all options are open (Article 6(4)); encouraging prospective applicants to identify, engage with and inform the public concerned (Article 6(5)); and providing adequate access for the public to available information (Article 6(6)). The procedures for public participation should allow the public ‘to submit, in writing or, as appropriate, at a public hearing or inquiry with the applicant’ any comments, information, analyses or opinions that it considers relevant to the proposed activity. It has been pointed out that there is no precise boundary between Article 6 and Article 7 dealing with plans and programmes, but that on balance, it is more characteristic of decisions under Article 6 than Article 7, ‘that they concern the carrying out of a specific Annex I activity in a particular place by or on behalf of a specific applicant’.100 A decision which paves the way for a later decision on a specific activity can contain an Article 6-type decision as well as Article 7-type decisions; thus a plan or programme may contain elements which are capable of bringing it within the ambit of Article 6.101 It is possible, therefore, that the preparation of an NPS which identifies specific locations as suitable (or 98 See, eg, the Report of the Working Group on Access to Environmental Justice, Ensuring Access to Environmental Justice in England and Wales (May 2008). 99 See Case Law of the Aarhus Convention Compliance Committee 2004–2008 (RACSE, Lviv, 2008), Lithuania ACCC/2006/16, 35. 100 Ibid, 22. 101 Ibid, 23.

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Alternative Sites 155 rules out other options) could engage Article 6, and the Government would be wise to proceed on that basis. Certainly, it would be likely to be in breach of the Convention to limit the public’s ability to make representations to the IPC in respect of a specific application, on the basis that the matter was concluded by the term of the NPS, unless sufficient opportunity had been given for representations on that issue before the NPS was finalised. The issue may well arise if, when the matter comes to be examined by the IPC, new or further information has arisen which was not available when the public was consulted on the NPS. It may well be argued that Article 6 requires the opportunity to test the NPS in the light of that new information, in which case it would be in breach of the UK’s international obligations simply to determine the application in accordance with the NPS. Whilst Article 6(7) requires the public to be able to submit in writing whatever comments, opinion or information it regards as relevant (and not simply what the decision-maker may deem to be relevant) it does not guarantee an oral hearing or the ability to test opposing evidence at such a hearing. It does, however, refer to submission at a public inquiry or hearing ‘as appropriate’, which it is submitted implies that the decision-maker must at least give consideration on a case by case basis as to whether it would be appropriate to go beyond simply written representations in order to allow the group or member of the public concerned to participate effectively in the process.

ALTERNATIVE SITES One issue which is potentially important is that of alternative sites for new nuclear power stations. This may arise in various ways. As a matter purely of domestic law, it is arguable that in the case of nationally important infrastructure developments which are bound to have some significant adverse environmental effects and where the argument is that the need for the development outweighs these disadvantages, the existence of alternative sites which might be capable of meeting that need with less serious disadvantages is a material consideration.102 Secondly, the process of an SEA requires, at least to some extent, the identification and evaluation of ‘reasonable alternatives’: see Directive 2001/42/EC, Articles 5(1), 9(1)(b) and Annex I paragraph (h). Thirdly, if there is a likely significant effect on a European site, and the appropriate assessment indicates that there may be an adverse effect, alternative solutions must be considered: see Directive 92/43/EEC, Article 6(4). The nomination process for potential sites is supposed to play an important part in ensuring proper consideration of alternatives: it is intended that this will identify those sites in England and Wales which are ‘potentially strategically suitable and credible for the deployment of new nuclear power stations by the end of 2025’ and in particular to ensure that the sites that might be considered to be potential alternatives to those listed in the NPS have been identified and assessed at a strategic level.103 This is intended to reduce the need—as far as possible—for the IPC to consider alternative sites, since the suitability of such sites will already have been considered through the SSA process. It is, however, acknowledged by the Government that the IPC may need to consider alternative sites under 102 See, eg, Trusthouse Forte Hotels Ltd v Secretary of State for the Environment (1986) 53 P & CR 293; R (Scott Jones) v North Warwickshire Borough Council [2001] 2 PLR 59; EWCA Civ 315; R (Bovale Ltd) v Secretary of State for Communities and Local Government [2008] EWHC 2538 (Admin). 103 Consultation paper, Towards a Nuclear National Policy Statement (July 2008), para 16.

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156 New Build domestic and EU law, but it is expected that the IPC will be able to rely to a large extent on the assessment of alternative sites for the NPS, ‘and will not need to revisit the question of alternative sites in detail’.104 Whether that will be the case remains to be seen, and may depend to a significant extent on how thorough and complete the appraisal of alternatives can be seen to have been at the SSA stage. This seems to be dependent on sites being proposed by persons deemed to be credible nuclear operators, who will presumably put forward sites for commercial reasons, and there is no guarantee that this will generate a comprehensive list of reasonable alternative sites. This is particularly the case since the initial consultation on the nominations process in July 2008 suggested a period of only eight weeks for nominations, and also bearing in mind that nomination of a site will have to be preceded by a period of meaningful community engagement. The Royal Town Planning Institute (RTPI) in its response to the consultation suggested that a year’s notice should be allowed for such engagement and research.105

APPROPRIATE ASSESSMENT UNDER THE HABITATS DIRECTIVE If a locationally-specific NPS is likely to have a significant effect on a European Natura 2000 site (whether a special area of conservation or special protection area for birds) then as a plan or project it will require an appropriate assessment complying with the requirements of Directive 92/43/EEC, Article 6(3).106 As indicated above, Habitats Assessment is being built into the SSA process at a high level. However, there will still remain the need for an assessment at the stage when development consent is sought for the specific project, when, of course, the effects of the project, and any mitigating or compensatory measures, and their effects, are likely to be much clearer. The SSA should therefore perhaps be seen as the first hurdle: the Government has indicated that in its view it would be undesirable to nominate a site in an internationally designated site, or one which is likely to cause adverse impacts on such a site unless the nominator can confirm it is able to avoid, mitigate or minimise such effects, and provide ‘high level information’ on the effects and the countermeasures proposed.107 This will be necessary to clear the first hurdle and allow the site the chance to be included in an NPS, either on the basis that, taking mitigation measures into account, it will not adversely affect the integrity of the site, or that it is supported by imperative reasons of overriding public interest (IROPI) and that compensatory measures can ensure that the overall coherence of Natura 2000 is protected.108 However, this is not a guarantee that the site will survive more detailed scrutiny of these issues at the development consent stage, as even if a site is included as suitable in an NPS, the IPC are not obliged to follow the NPS if that would entail a breach of Community law. Clearly the IPC would not be expected to depart from the view of the Government on whether the IROPI test is met, but more detailed 104

Ibid, para 17. RTPI, Response to the Consultation on the SSA Process and Siting Criteria (July 2008). See further, ODPM/DEFRA Circular 06/2005, Biodiversity and Geological Conservation—Statutory Obligations and their Impact within the Planning System (August 2005); ODPM/DEFRA/English Nature, Planning for Biodiversity and Geological Conservation: A Guide to Good Practice (March 2006). 107 Ibid, para 2.117. 108 See Dir 92/43/EEC, Arts 6(3) and 6(4). To satisfy the IROPI test high level factors of overriding interest will be required and the test will not be met by proposals which will yield only short term economic or societal benefits: see Decision Letter of Secretary of State for Transport on the Dibden Bay Container Terminal Proposal, 20 April 2004, para 47. 105 106

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Environmental Impact Assessment 157 examination of adverse effects and compensatory measures may well lead to a different conclusion than that reached at the SSA stage, as the July 2008 consultation implicitly accepted: However, the Appropriate Assessment [at SSA stage] will be conducted at strategic level and the Government do not expect to include the level of detail which would be required for an Appropriate Assessment of a specific project as this would be impracticable and inappropriate . . . Appropriate Assessment of the Nuclear NPS cannot and will not replace the detailed examination of specific impacts and mitigation measures by the IPC in relation to an application for planning consent. The Government expects the IPC to be guided by any consideration of those matters that occurred at the strategic level assessment, but it will need to examine them all in detail in relation to the specific development proposal.109

ENVIRONMENTAL IMPACT ASSESSMENT Directive 85/337/EEC on the assessment of the environmental effects of certain public and private projects as amended by Directive 97/11/EC includes, as a Schedule 1 type of project (requiring environmental assessment in all cases), a nuclear power station or other nuclear reactor, excluding research installations for the production and conversion of fissionable and fissile materials, the maximum power of which does not exceed 1 kilowatt continuous thermal load. Clearly, therefore, the development consent process for any new nuclear power station under the Planning Act 2008 will have to include an EIA complying with Articles 3 to 6 of the Directive, identifying and assessing the direct and indirect effects of the project. There will also have to be transboundary consultation under Article 7 with other Member States which might be affected. The environmental statement will obviously be a vitally important document for the applicant, the IPC in examining the application, and the public. The fact that a site has been identified as suitable in the NPS as the outcome of the SSA and accompanying SEA cannot remove or avoid the need to ‘identify, describe and assess in an appropriate manner’ the effects of the project (Article 3). The SEA can, of course, provide the starting point to this process. In practice, some areas of the EIA process will be more controversial than others. Matters such as ecological assessment, noise, traffic, landscape and archaeology, for example, will be no different in principle for a nuclear power station than for other major development projects. Other aspects are likely to attract particular scrutiny. Annex III of the Directive which deals with the selection criteria to be applied to Annex II projects, makes clear that among other effects, the Directive is concerned with ‘the production of waste’ and ‘the risk of accidents’, both matters of intense interest to those opposed to nuclear power. It is difficult to see how their examination in the environmental statement can be avoided, but the key question is, of course, how far such examination needs to go, and how far the IPC will be able to rely on such matters being adequately controlled by other bodies, through the GDA and site licensing processes for safety, and through regulation on radio active waste management. To give an example, there has been substantial controversy in France as to the vulnerability of new nuclear power stations (specifically the AREVA European Pressurised Reactor) to a terrorist strike using a civilian airliner, following Greenpeace having obtained a leaked report from eDF to the French nuclear safety 109

Paras 2.115–2.116.

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158 New Build regulator, and subjecting that report to its own expert analysis.110 Disputes can be foreseen as to how such issues should be handled in the environmental report, which should include a description of ‘the likely significant effects’ resulting from the existence of the project. The US Supreme Court in Metropolitan Edision Co v PANE 111 was asked to determine whether psychological health damage flowing directly from the perceived risk of a nuclear accident (in the context of restarting the second reactor at Three Mile Island following the accident affecting the other reactor) fell within the scope of environmental impact assessment under the National Environmental Policy Act (NEPA). The Court regarded risk as ‘a pervasive element of modern life’ and held that such risk was not an effect on the physical environment—time and resources were simply too limited to allow the Court to believe that NEPA extended so far as to require the relevant agencies to consider such matters.

EIA AND THE WASTE QUESTION A potentially difficult issue is how to deal in EIA terms with waste arising from a new nuclear power station. The Government’s policy is that before development consents for new nuclear power stations are granted, the Government will need to be satisfied ‘that effective arrangements exist or will exist to manage and dispose of the waste they will produce’.112 The Nuclear NPS and accompanying Appraisal of Sustainability are expected to deal with the issue.113 Technically it may well be possible to say that such waste is in principle capable of being dealt with by a long period of interim storage, followed by disposal in a deep geological repository.114 However, it is clear that the location for such a repository will not have been identified, let alone consented or built, by the time that the NPS is issued, or applications for new power stations come to be determined. It remains an open question as to whether waste from new build should be located in the same repository as for existing, ‘legacy’ waste. It will, of course, be possible to estimate the type and quantity of expected waste residues from the reactor over its operating lifetime and on decommissioning. However, the key issue is whether sufficient information will be available to identify and allow proper assessment of the effects of dealing with such wastes and to allow the requirements for EIA to be satisfied: otherwise there may be legal challenges to any development consent. In this context it must be remembered that no environmental statement is ever going to be complete in the sense of including every possible detail of information, that there is no prescriptive method for conducting an environmental assessment, and that by its nature the process is going to involve some uncertainty. Nevertheless, it is submitted that an environmental statement on a new power station will have to make an attempt to assess the environmental effects of spent fuel storage and disposal, making clear the assumptions on which such assessment is based and dealing with the uncertainties and contingencies involved, for example if a final disposal solution is not in fact forthcoming within the timescale envisaged. Nuclear waste is not, of course, the only material which has very longlived environmental effects—the same is true of many persistent toxic chemicals. However, 110 111 112 113 114

See www.greenpeace.org.uk/media/press-releases. Metropolitan Edision Co v PANE 460 US 766 (1983). Meeting the Energy Challenge (Cm 7296) 99. Towards a Nuclear National Policy Statement (January 2009), para 1.42. See further ch 12 on waste management.

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EIA and the Waste Question 159 high-level wastes certainly present serious challenges for assessment given the immensely long timescales over which they remain a serious hazard. Whichever way one looks at it, a judgment on the likely significant effects and whether they are acceptable must involve either an informed appraisal or leap of faith, to the effect that once placed in a geological repository they will not present an unacceptable level of risk to the environment or to future generations, and that they can be safely managed and stored in the interim, possibly itself lengthy, period. In considering the issue from a legal standpoint, a number of points can be made. First, there is an important distinction between the information necessary to constitute a valid environmental statement as a matter of law, and the adequacy of that information. This has been emphasised in a number of cases, such as R (Blewett) v Derbyshire County Council: In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant’s environmental statement will always contain the ‘full information’ about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting ‘environmental information’ provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations . . . but they are likely to be few and far between.115

As it was put in one Canadian case, ‘No information about probable future effects of a project can ever be complete or exclude all possible future outcomes’, and that ‘given the nature of the task . . . finality and certainty in environmental assessment can never be achieved’.116 Further, as put by Cripps J in the Land and Environment Court of New South Wales in another case: I do not think the [statute] . . . imposes on a determining authority when preparing an environmental impact statement a standard of absolute perfection or a standard of compliance measured by no consideration other than whether it is possible in fact to carry out the investigation. I do not think the legislature directed determining authorities to ignore such matters as money, time, manpower etc. In my opinion, there must be imported into the statutory obligation a concept of reasonableness . . . [P]rovided an environmental impact statement is comprehensive in its treatment of the subject matter, objective in its approach and meets the requirement that it alerts the decision maker and members of the public . . . to the effect of the activity on the environment and the consequences to the community inherent in the carrying out or not carrying out of the activity, it meets the standards imposed by the regulations. The fact that the environmental impact statement does not cover every topic and explore every avenue advocated by experts does not necessarily invalidate it or require a finding that it does not substantially comply with the statute and the regulations.117

Is an environmental statement which does not identify the nature and location of the disposal site for the waste from the proposed power station ‘so deficient that it could not 115 [2003] EWHC 2775 (Admin); [2004] Env LR 29, para 41, per Sullivan J; see also para 68. The passage was approved by the House of Lords in R (Edwards) v Environment Agency [2008] UKHL 22; [2008] Env LR 34, para 38. 116 Alberta Wilderness Association v Express Pipelines Ltd 137 DLR (4th) 177 at 181, 183; approved by the Federal Court of Appeal in Inverhuron & District Ratepayers’ Assn v Canada (Minister of the Environment) [2001] FCA 203 (CanLII) (a case involving a dry storage facility for used nuclear fuel). 117 Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402, 417, approved by the majority of the Privy Council in Belize Alliance of Conservation Non-Governmental Organisations v The Department of the Environment [2004] UKPC 6; [2004] Env LR 38, para 69.

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160 New Build reasonably be described as an environmental statement’ under the Directive? In particular, does it allow the environmental effects of those wastes to be assessed? The EIA Directive at Article 5 distinguishes between environmental information referred to at Article 5(1) and at Article 5(3). Article 5(3) represents the bare minimum of the information to be provided, which must include ‘at least’: —a description of the project comprising information on the site, design and size of the project; —a description of the measures envisaged in order to avoid, reduce, and if possible, remedy significant adverse effects; —the data required to identify and assess the main effects which the project is likely to have on the environment; —an outline of the main alternatives studied by the developer and the main reasons for his choice, taking into account the environmental effects; and —a non-technical summary of the information mentioned in the previous indents. Article 5(1) requires that measures be adopted to ensure that the developer supplies in an appropriate form the information specified in Annex IV, inasmuch as: (a) the Member State considers that the information is relevant to a given stage of the consent procedure and to the specific characteristics of a particular project or type of project and of the environmental features likely to be affected; (b) the Member State considers that a developer may reasonably be required to compile this information having regard inter alia to current knowledge and methods of assessment.

The information specified in Annex IV includes: —‘an estimate, by type and quantity, of expected residues and emissions . . . [including radiation] . . . resulting from the operation of the proposed project’ (paragraph 1, third indent); —‘a description of the aspects of the environment likely to be significantly affected by the proposed project’ (paragraph 3); —‘a description of the likely significant effects of the proposed project on the environment resulting from . . . the emission of pollutants, the creation of nuisances and the elimination of waste, and the description by the developer of the forecasting methods used to assess the effects on the environment’ (paragraph 4, third indent). This description, according to footnote 5 to the Directive, ‘should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the project’; —‘a description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment’ (paragraph 5); and —‘an indication of any difficulties (technical deficiencies or lack of know-how) encountered by the developer in compiling the required information’ (paragraph 7). It therefore seems clear that as a matter of law, so as long as at least the minimum information required by Article 5(3) (which includes data required to identify and assess the main effects which the project is likely to have on the environment) is provided, there may be further information which at the relevant time cannot be provided, or which the Member State considers may not be relevant to the immediate stage of the consent procedure, or which the developer may not reasonably be required to compile. The question of whether the further information is or is not required against these criteria appears to be one predominantly

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EIA and the Waste Question 161 for the discretion of the competent authority. On any account, the long term effects of radioactive waste from a nuclear power station must be among the ‘main effects’ of that proposal, and therefore an environmental statement which did not address those effects in any way would be so seriously defective as not to be an environmental statement at all. The question is whether data at a conceptual level, rather than site specific data, can be regarded as adequate to allow the effects of the waste, over geological timescales, to be assessed. In other words, if the concept of the form of disposal, that is deep geological disposal, has been established and the decision-maker regards that as providing enough information to assess the likely effects, would the courts either at domestic or EC level, interfere with that approach? There is some support for an approach based on generic assessment in the case of R (Kent) v First Secretary of State,118 where Sir Michael Harrison accepted as lawful an approach to assessing the effects of waste to be emplaced underground by reference to a number of generic waste types: 80. In my view, there was sufficient information provided in the environmental statement in this case for the Secretary of State to be able to identify and assess the main effects of the development on the environment and to set the parameters within which future details could be worked out. Whilst I can understand the claimant’s concern over the indicative nature of the waste types as expressed in the environmental statement, and his concern to know the specific waste types that were to be deposited in the mine, it was, in my view, perfectly reasonable for the planning authority and for the Secretary of State to take the waste types that [the developer] had said would be acceptable to them in order to ascertain whether they would be likely to have significant effects on the environment. It is true that those waste types are generic and not particularised into specific waste types, but there is no need for them to be so specified at the EIA stage, provided that the description of the generic waste types was sufficient to enable the decision maker to identify and assess the main effects of the development on the environment. 81. I see nothing wrong with the way in which the risk assessment took three waste types as being the most representative, the most reactive and the most volatile respectively. There is nothing in the Regulations which requires the data referred to in paragraph 3 of Part II of Schedule 4 of the Regulations to be ‘hard data’ that could be scientifically validated. Data can consistent of information from many different kinds of sources. As I have said, the environmental statement contained a considerable amount of data relevant to the assessment of risk. Significantly, . . . no-one has suggested that any particular waste type has fallen through the net of the generic waste types considered in the risk assessment which was likely to have a significant effect on the environment.119

However, it has to be remembered that in the Kent case there was a high degree of certainty that the waste types assessed were those which were representative of what would actually be emplaced, and that this was secured by way of planning condition. On that basis, there was then site specific assessment, by reference to pathways and targets, of the host facility. If in the case of radioactive waste the host facility is not yet known such assessment will not be possible. The issue of environmental assessment of waste arising from a project was considered in Atkinson v Secretary of State for Transport.120 There the environmental statement provided information on the volume of material arising from tunneling and dredging operations, to be disposed of to landfill and it was held that it was a matter for the Secretary of State whether he regarded that information to be sufficient.121 What seems clear however is that 118 119 120 121

R (Kent) v First Secretary of State [2004] EWHC 2953 (Admin); [2005] Env LR 30. Paras 80–81. Atkinson v Secretary of State for Transport [2006] EWHC 995 (Admin). Ibid, para 38.

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162 New Build it will not be lawful simply to leave aside the issue of the effects of waste disposal on the basis that this will be addressed at a later stage by other competent authorities: The decision maker must make his decision in the light of an environmental statement that describes the likely significant effects of the project and the measures to be taken to avoid, reduce or remedy any significant adverse effects. In determining whether the statement does provide the necessary description he is not entitled, in relation to a particular area of potential impact, to take the view, simply because subsequent consent from some other responsible body will be required, that no consideration needs to be given as to whether there are likely to be significant effects in that area or what they will be or what mitigation measures are needed. What he is entitled to do, however, is to reach the conclusion, on the basis of such information as he has that is of relevance to the particular area of potential impact, and in the light of the need for subsequent consent from the other responsible body, that the effects in that area are unlikely to be significant or that appropriate mitigation measures will be taken. He must, that is to say, have some information before him that, when coupled with the need for subsequent consent, enables him to conclude that the effects will not be significant or that appropriate mitigation measures will be taken.122

In summary therefore, this is likely to be an extremely contentious area of law in the process of consenting new nuclear plant, and the focus of critical attention from opponents of nuclear power. It is a field in which both Government and prospective operators will have to tread extremely carefully if they are to avoid legal problems.

THE NUCLEAR SAFETY CONVENTION The IAEA Convention on Nuclear Safety of 1994 is, of course, primarily of relevance to the licensing of nuclear installations and is discussed in that context in chapter four. It should be noted, however, that Article 17 of the Convention deals with the siting of installations. It requires parties to take the appropriate steps for evaluating all relevant site-related factors likely to affect the safety of a nuclear installation for its projected lifetime, for evaluating the likely safety impact of a proposed installation on individuals, society and the environment, and for consulting other Contracting Parties in the vicinity of the installation insofar as they are likely to be affected by it. These requirements are obviously not prescriptive as to the means to be used to evaluate these matters, but it will need to be considered whether the SSA and development consent processes have between them provided adequate compliance with these requirements. As has already been pointed out, there are IAEA Safety Standards dealing with site evaluation generally,123 and with various specific aspects of siting such as geotechnical hazards, flooding, meteorological events and population distribution.124

DEVOLUTION ASPECTS This is a tricky area for the Government, particularly in respect of any proposal to develop a nuclear power station in Scotland. Under the devolution settlement with Scotland and 122

Ibid, para 29. IAEA Safety Standards Series, Site Evaluation for Nuclear Installations, Safety Requirements, No NS-R-3 available at www-pub.iaea.org/MTCD/publications/PDF/Pub1177_web.pdf. 124 See the list at www-ns.iaea.org/standards/documents/default.asp?sub=150. 123

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Devolution Aspects 163 Northern Ireland, nuclear energy and nuclear installations are matters reserved to the UK Government in terms of legislative competence.125 However, in terms of executive competence, consenting the construction of a nuclear power station under section 36 of the Electricity Act 1989 (the Planning Act 2008’s operation does not extend in this respect to Scotland) falls to Scottish Ministers.126 The 2008 White Paper simply stated that the Government would discuss whether, and how, the SSA process should extend to Scotland, and whether to develop SSA criteria that could have UK-wide coverage.127 Scottish policy is at present firmly against new nuclear build, despite the fact that a large proportion of Scotland’s electricity is currently nuclear-generated.128 The Scottish National Party Government elected in 2007 came to power on a ‘no nuclear power’ commitment and the First Minister Alex Salmond has been reported as saying that there is ‘no chance’ of a new nuclear power station being built in Scotland. In January 2008, the Scottish Parliament voted 63/58 to support that policy.129 This view has not however gone unchallenged. The former head of the Scottish Science Advisory Committee, Professor Wilson Sibbett, has warned that the policy, relying essentially on renewable energy, could lead to Scotland facing a future energy gap,130 and the Scottish Council of Economic Advisers has suggested that there should be an independent assessment before nuclear energy is ruled out.131 Clearly, as matters currently stand, the Government is not likely to find enthusiastic co-operation in the Scottish Administration for any proposal to develop strategic siting criteria for new nuclear power stations in Scotland.132 It has in fact been suggested that the implications of Scotland’s anti-nuclear policy, both in terms of the UK’s energy security and its stance against the continued siting of UK nuclear deterrent submarine facilities in Scotland, are such that the relevant executive powers should be taken back within UK competence.133 The position in Wales is easier in that the Welsh Assembly Government does not have devolved powers in respect of consenting 50 megawatt power stations, and in that the provisions of the Planning Act 2008 will apply to any such proposals in Wales. Hence, Wales is included in the SSA process in the same way as England.134

125 See the Scotland Act 1998, Sched 5, Pt 2, Head D, Section D4. See also the discussion in Peter D Cameron, ‘The Revival of Nuclear Power: An Analysis of the Legal Implications’ [2007] 19(1) JEL 84–6. 126 Scotland Act 1998 (Transfer of Functions to the Scottish Ministers, etc) (No 2) Order 2006 No 1040, Arts 2, 3, 6. 127 Cm 7296, para3.24. 128 In December 2007, the lifetime of the Hunterston B AGR at North Ayrshire was extended by five years until at least 2016. 129 The Scotsman, 18 January 2008: ‘MSPs vote No to new nuclear power stations’. 130 Scotland on Sunday, 13 January 2008: ‘Scientist attacks SNP nuclear power block’. 131 The Herald, 28 August 2008: ‘SNP’s “no” to nuclear power challenged by key advisers’. 132 The July 2008 consultation on SSA criteria accepted as much, saying that the SSA’s application in Scotland and Northern Ireland would be ‘limited’ and that the process for nominating sites would not extend to Scotland and Northern Ireland (see para 1.21). 133 Scotland on Sunday, 24 February 2008: ‘Brown urged to claw back devolved powers from Holyrood’. 134 Cm 7296, para 3.25.

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6 Liability INTRODUCTION: PROBLEMS OF LIABILITY AND INSURANCE With the post-war expansion of work in developing modern sources of energy came the problem of the potential damage which might flow from a nuclear accident. This was particularly so given the possibility of power stations being constructed and run by private operators. Private construction and engineering companies could be wary of involvement in commercial nuclear plants because of the risk of heavy financial liabilities in the event of an accident, and the reluctance of insurance companies to provide cover. A 1957 report prepared for the US Atomic Energy Commission, the so-called Brookhaven Report, estimated that in a ‘worst case’ accident, 3,400 fatalities and 43,000 injuries would arise, along with some US $7 billion in property damage; such predictions heightened existing concerns of electricity utility companies and equipment suppliers and insurance companies informed the US Congress that maintaining actuarial reserves at such levels was impossible.1 Before the international instruments mentioned below were formulated, a number of countries, Britain included, had adopted their own legislation on the issue of liability. These included the US Price-Anderson Act of 1957,2 the German Atomic Energy Act (1959), the Swiss Federal Law on the Exploitation of Nuclear Energy for Peaceful Purposes and Protection from Irradiation (1959), and the Japanese law on Compensation for Nuclear Damage (1961). All followed the basic principle of imposing legal liability on a strict liability basis on the operator of a nuclear installation, coupled with the limitation of liability both in amount and in time. This balancing of liabilities against protection for operators was a reflection of the desire of the UK Government, and indeed the Governments of Western Europe in general, not to risk stifling this new industry at birth by imposing impossibly heavy financial responsibility on the operators and others who would be concerned in the industrial and commercial development of nuclear energy.3

EARLY UK LEGISLATION In the UK, the Nuclear Installations (Licensing and Insurance) Act 1959 was the outcome of this strategy. As well as making provision for the licensing of nuclear installations 1 Celia Campbell, Barry Breen and J William Futrell (eds), Sustainable Environmental Law (St Paul, Minnesota, West Publishing Co, 1993), 891. 2 Discussed further below. 3 James C Dow, Nuclear Energy and Insurance 1st edn (London, Witherby & Co Ltd, 1989) 99.

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Early UK Legislation 165 (sections 1 to 3), the 1959 Act provided a general framework of liability which has remained largely unchanged in subsequent legislation. The licensee of a nuclear installation was placed under a strict duty to secure that no ionising radiations emitted from the site, or from waste discharged on or from the site, caused hurt to any person or damage to any property, whether that person or property was on the site or elsewhere (subsection 4(1)(a)). This duty also applied to ionising radiations from irradiated nuclear fuel in the course of carriage on behalf of the licensee within the UK (subsection 4(1)(b)). The only exception to such liability related to emissions or damage attributable to hostile action in the course of armed conflict. Channelling liability was accomplished by subsection 4(2), which provided that no person other than the licensee should be under any liability in respect of hurt to any person or damage to property to which subsection 4(1) applied. By subsection 4(5) the licensee’s liability under subsection 4(1) was provided to be in substitution for any other liability of the licensee apart from that subsection, thus achieving channelling in terms of the cause of action as well as the defendant. Limitation of liability in terms of time was provided by subsection 4(4), by which no action to establish a claim by virtue of subsection 4 could be commenced after the expiration of 30 years from the ‘relevant date’, that is the date of the occurrence on, or in connection with the use of, the site in question which gave rise to the claim. The corollary of this limitation was that the licensee was also protected in relation to claims made more than 10 years after the relevant date, in that the licensee was not required to make any payment in satisfaction of such claims unless and until Parliament had made provision to secure that the amount required to satisfy the claim would be reimbursed to the licensee (subsection 4(4) proviso). The other aspect of limitation related to the amount of liability, and was dealt with as part of the issue of insurance cover or other financial provision. By subsection 5(1), the licensee was required to make provision, by insurance or other means, for sufficient funds to be available to ensure that duly established claims were satisfied up to an aggregate amount of £5 million, in respect of certain stated ‘cover periods’. Where a claim was established successfully, but funds created under subsection 5(1) were not required to be made available for the full satisfaction of that claim, again, the licensee would not be required to meet the claim until Parliament had provided a means by which the excess over the insured amount would be reimbursed to the licensee (subsection4(4) proviso). The question of insurance cover is dealt with in more detail later in this chapter, but it is important to stress at this point that the scheme of insurance and limitation was designed in close consultation with insurers, and was largely based upon what insurance capacity was then available. When introducing the bill (which became the 1959 Act) for second reading in the House of Commons, the Paymaster-General (Reginald Maudling) referred to the need to clarify the liability of operators to those hurt or damaged by an accident. He went on to say that in the case of private operators it was the responsibility of such operators, as with every type of commercial risk, to obtain adequate insurance against such liability: It is, however, not possible to provide insurance cover of an unlimited amount or over a period so long as 30 years. This is not only the experience in this country. It is the experience in some neighbouring countries as well . . . Equally, in the case of the length of claim, it is, as a practical matter, impossible to ensure [sic] against claims arising more than about ten years ahead. Should claims arise after ten years up to a period of thirty years, these, again, will devolve upon Parliament for settlement.4 4

Hansard HC vol 599 cols 866–7; see also Hansard HLvol 212 cols 1035–6.

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166 Liability Thus the UK developed its own framework of liability in advance of international action in the field. At the same time, the Organisation for European Economic Co-operation (now the OECD) was studying the issue, and there were soon to be Conventions agreed. The subsequent evolution of UK legislation was largely a response to the requirements of those Conventions, and before considering the UK legislation further, it is necessary to refer to the Conventions themselves.

INTERNATIONAL PROVISIONS: GENERALLY The early days of nuclear energy, from the time of President Eisenhower’s ‘Atoms for Peace’ address to the UN General Assembly in 1953, were marked by great optimism as to the mutual benefits for humankind of the peaceful application of nuclear technology.5 The assumption embodied in the founding statute of the International Atomic Energy Agency (IAEA), established in 1956 in fulfillment of President Eisenhower’s suggestion to the General Assembly, was that atomic energy would contribute to the peace, health and prosperity of the world.6 However, internationally, as at the national level, early appreciation of the potential benefits was rapidly tempered by the realisation of the catastrophic consequences that could follow from failure to maintain adequate levels of safety 7: In atomic energy, because of its spectacularly military origins and the potential risk involved in its utilisation, the notion of calamities has taken high precedence over other considerations both in the public mind and in the minds of lawyers and administrators concerned with problems of regulation.

This realisation led to efforts on the part of the relevant international organisations, specifically the Organisation for Economic Co-operation and Development (OECD) and IAEA, not only to devise means of seeking to prevent nuclear accidents, but also to secure adequate mechanisms for compensation in the event that such disasters did occur:8 The principal national and international legal problems posed by the development of the pacific uses of atomic energy have been on the one hand to keep calamities from happening and on the other to devise appropriate remedies so that damage to health and property may be compensated in the most humane, equitable and expeditious way possible.

The position under public international law on state liability in the event of nuclear accidents remains unclear and is likely to remain an unpredictable option for any state seeking redress.9 In particular, it is telling that following the Chernobyl accident, which caused widespread harm in Europe, for example to agricultural produce and livestock, and led to substantial clean-up costs and compensation payments being incurred by a number of governments, no voluntary offer of compensation was made by the Soviet Union, nor was 5 Address to 470th Plenary Meeting of the UN General Assembly, 8 December 1953; available on the IAEA website, www.iaea.org/About/history_speech.html. 6 The IAEA Statute, Art II, gives the Agency’s objective as ‘to accelerate and enlarge the contribution of atomic energy to peace, health and prosperity throughout the world’. 7 Jerry L Weinstein, Progress in Nuclear Energy, Service X, Law and Administration (Oxford, Pergamon Press, 1966) ix. 8 Ibid. 9 Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law & the Environment 3rd edn (Oxford, Oxford University Press, 2009) 492.

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International Provisions: Generally 167 any claim made against the Soviet Union by an affected state. Accordingly, the main redress for future incidents will most probably lie under the conventions dealing with civil liability and compensation schemes that have been developed. Essentially, there are currently two main conventions on third party liability in the field of nuclear energy. The first was the Paris Convention of 1960, concluded under the aegis of the OECD, which came into force on 1 April 1968, and to which the UK is a party. It is open to any OECD country as of right and to any non-member with the consent of the contracting parties; it covers most Western European countries with nuclear power capability, as well as Slovenia and Turkey.10 The Paris Convention is supplemented by the Brussels Supplementary Convention of 1963, which increases the amount of funds available for compensation, and to which the UK is also a party. The 1986 Chernobyl accident brought home forcibly the need to increase both the amounts and coverage of liability in order to ensure equitable compensation in the event of trans-national damage.11 This led to a concerted effort to modernise the Paris Convention regime, and the adoption in February 2004 of Protocols to amend both the Paris Convention and the Brussels Supplementary Convention. The other main Convention is that negotiated by the IAEA and adopted in Vienna in 1963. However, it did not come into force until November 1977, when the necessary five ratifications were achieved. Indeed, of the first 10 ratifying states only two (Argentina and the former Yugoslavia) had nuclear power stations in operation at that time.12 It is interesting to note that the UK, alone among Western European states, signed the Vienna Convention (on 11 November 1964) but never ratified it. This helps to explain why the framers of the Nuclear Installations Act 1965 had the Vienna Convention, as well as the Paris Convention, in mind. The importance of the Vienna Convention to Europe is that following the break-up of the Soviet bloc, it was ratified during the early 1990s, by a number of Eastern European nuclear states with Soviet-era reactors, such as Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, and Slovakia. More recently, it has also been ratified by the Ukraine (1996), Belarus (1998), and the Russian Federation (2005). As with the Nuclear Energy Agency (NEA) in the case of the Paris Convention, the Chernobyl disaster acted as an important warning to the IAEA of the need to strengthen the Vienna Convention, which at that time was in a relatively dormant state.13 This led to the adoption of the Protocol to amend the Vienna Convention which was adopted in September 1997, together with a Convention on Supplementary Compensation for Nuclear Damage. The Convention on Supplementary Compensation is designed as an instrument to which any state may adhere regardless of whether it is a party to any existing nuclear convention; it has been signed by a number of states including Australia and the US, but has not yet received the necessary number of ratifications to come into force. Another important recent strand of the work of the IAEA is the formation in September 2003 of the International Expert Group on Nuclear Liability (INLEX), which creates a forum for the 10

Austria, Luxembourg and Switzerland signed the Convention, but never ratified it. See Julia A Schwartz, ‘International Third Party Liability Law: the Response to Chernobyl’ in the Joint Report by the OECD, NEA and IAEA, International Nuclear Law in the Post-Chernobyl Period (2006); see also in the same publication, Dr Norbert Pelzer, ‘Learning the Hard Way: Did the Lessons Taught by the Chernobyl Nuclear Accident Contribute to Improving Nuclear Law?’ 12 Dow (see n 3 above) 102. 13 See Vanda Lamm, ‘The Protocol Amending the 1963 Vienna Convention’ (Nuclear Law Bulletin No 61 (1998)); also Otto von Busekist, ‘A Bridge Between Two Conventions on Civil Liability for Nuclear Damage’, in the Joint Report by the OECD, NEA and IAEA, International Nuclear Law in the Post-Chernobyl Period (2006). 11

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168 Liability exploration of the issues of legal liability and assists in the development of nuclear legal liability frameworks in IAEA member states.14 For states with nuclear facilities, there are clear advantages in being a party to one or other of these conventions, particularly in terms of the legal certainty provided to operators and others involved in the construction, maintenance and operation of nuclear installations on matters such as jurisdiction, channeling of liability, and limitations of liability in time and quantum. For non-nuclear states, such as Ireland, there is a perception that the Conventions are balanced in favour of the nuclear industry, the main advantage for victims being the lack of any requirement to prove civil wrong or tort, and it may be felt that the interests of victims would better be served by the ability to bring proceedings in the courts of the victim’s country, relying on the Brussels Convention of 1968 on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters, or possibly in the country where the installation was located if under the rules of those courts the applicable law is that of the state where the damage occurred (lex damni).15 Equally, however, it may be observed that adherence to the Paris and Vienna Conventions is not by any means universal among nuclear states. Major nuclear power generating countries accounting for over 50 per cent of the world’s current installed nuclear capacity (Canada, Japan, Korea, Russia and the US) are not parties to either Convention.

JOINT PROTOCOL RELATING TO PARIS AND VIENNA CONVENTIONS An attempt to regulate the relationship between the Paris and Vienna Conventions (no state being a party to both) was provided by the Joint Protocol relating to the application of the Vienna Convention and the Paris Convention. This Protocol was adopted in 1988 at a jointly-convened Conference of the NEA and IAEA, and entered into force in April 1992. The UK is not a party, though a number of other Paris Convention states (such as Denmark, Germany, Italy, the Netherlands, Norway, Slovenia, Sweden and Turkey) are. The Joint Protocol seeks to establish a link between the two Conventions and to eliminate potential conflicts arising from the simultaneous application of both conventions. It provides that either the Vienna or Paris Convention shall apply to a nuclear incident to the exclusion of the other (Article III(1)); that the determining factor will be whether the nuclear installation involved is situated in the territory of a party to the Vienna Convention, or the Paris Convention (Article III(2)); and that in the case of a nuclear incident occurring outside a nuclear installation and involving nuclear matter in the course of carriage, the applicable Convention shall depend on which operator is liable, and in whose territory their nuclear installation is situated (Article III(3)). The liability and compensation provisions, as 14

See ola.iaea.org/OLA/what_we_do/inlex-group.asp. See the interesting and detailed discussion by Paul O’Higgins SC and Patrick McGrath, considering the scenario of a nuclear accident in France, causing damage in Ireland: Third Party Liability in the Field of Nuclear Law— An Irish Perspective (Nuclear Law Bulletin No 70 (2002)). See also Philippe Sands and Paolo Galizzi, The Brussels Convention and Liability for Nuclear Damage (Nuclear Law Bulletin No 64 (1999)) considering a hypothetical accident in the UK having transboundary effects in Ireland, and concluding that non-nuclear states are unlikely to gain much from participating in the Paris or Vienna Conventions and may be better off relying on the Brussels Convention on Jurisdiction and Enforcement of Judgments: ‘The Paris and Vienna Conventions were essentially developed to nurture nascent nuclear industries. Even as amended they can scarcely be said to accommodate the interests of victims. It is surely no coincidence that it is principally nuclear-power states which have acceded to these instruments’. 15

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The Paris Convention Generally 169 amended from time to time, will apply, with respect to Paris Convention Parties, in the same manner as between Vienna Convention Parties, and vice versa, allowing victims to claim under the relevant regime; thus if an operator is liable under the Vienna Convention for an incident which has transboundary effects, it will be liable to victims in Paris Convention states as well.

THE PARIS CONVENTION GENERALLY Together with the Supplementary Brussels Convention, the Paris Convention represented an impressive feat of international diplomacy in its day. The Convention was negotiated and agreed under the auspices of the Organisation for European Economic Co-operation (later to become the OECD). The specific arm of the OEEC involved was the European Nuclear Energy Agency, which was later re-named the Nuclear Energy Agency. The impetus for negotiation sprang in part from Article 98 of the newly-signed Treaty of Rome, which committed the six members of the European Atomic Energy Community (Euratom) to ‘take all necessary measures to facilitate the conclusion of insurance contracts covering nuclear risks’, and in part from a commitment in an Agreement for Co-operation between Euratom and the USA to develop suitable measures providing protection against thirdparty liability. As already indicated, the parties to the Paris Convention as well as the UK include the Western European states which have developed nuclear power.16 The preamble to the Convention refers to the desire of the parties to ensure: adequate and equitable compensation for persons who suffer damage caused by nuclear incidents whilst taking the necessary steps to ensure that the development of the production and uses of nuclear energy for peaceful purposes is not thereby hindered.

It refers also to the conviction of the parties as to the need for unification of the basic liability rules applying nationally, whilst leaving parties free to take additional measures on a national basis where they deem it appropriate. The Convention was signed on 29 July 1960, by the 16 OEEC countries involved in its negotiation. Ratification was required by five signatories before the Convention could come into force (Article 19(b)). With the need to pass national legislation to ratify the Convention, it did not come into force until 1968, the UK being among the initial group of signatories to ratify. Before it came into force, the Convention was amended by an Additional Protocol of 28 January 1964, with the object of making it compatible with the Vienna Convention, thus solving problems which could arise for states wishing to participate in both the Paris and Brussels Conventions. The Convention was also amended by a further Protocol in 1982, which entered into force on 7 October 1988. The 2004 Protocol amending the Convention has not yet entered into force, but is discussed below, after describing the Convention in its current form.

16 The parties are: Belgium, Denmark, Finland, France, Germany, Greece, Italy, the Netherlands, Norway, Portugal, Slovenia, Spain, Sweden, Turkey, and the UK. Switzerland ratified the Convention in March 2009, but only as amended by the 2004 Protocol, and so that ratification does not take effect until the 2004 Protocol comes into force. Austria and Luxembourg are signatories but have not ratified the Convention.

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170 Liability The Paris Convention has been said to rest on four fundamental principles, namely: (a) (b) (c) (d)

channelling of liability; limitation of liability; compulsory cover for liability; and single jurisdiction.17

Each of these principles is considered separately in the following paragraphs.

The Paris Convention: Channelling of Liability The Convention applies to nuclear installations, defined as reactors18 other than those comprised in any means of transport, factories for the manufacture or processing of nuclear substances, or the separation of isotopes of nuclear fuel or reprocessing irradiated fuel, and facilities for the storage of nuclear substances. It does not expressly refer to installations in the course of being decommissioned, but an Interpretation of the OECD Steering Committee in 1987 stated that the provisions of the Convention should be interpreted as covering such installations19 and the 2004 Protocol, when in force, will expressly include reactors, factories, facilities and installations that are in the course of being decommissioned. Article 3(a) of the Convention provides that the operator of a nuclear installation shall be liable for: (i) damage to or loss of life of any person; and (ii) damage to or loss of any property (other than the nuclear reactor itself, any on-site property used in connection with the installation, and the means of transport in the case of incidents in the course of carriage);

upon proof that such damage or loss was caused by a nuclear incident involving either nuclear fuel, radioactive products or waste (as defined) in the installation, or nuclear substances coming from the installation. The term ‘damage’ is not defined in the Convention as it stands, though as discussed below the 2004 Protocol provides a definition of ‘nuclear damage’. Therefore, the requirement is that first there be a ‘nuclear incident’, that is an occurrence or succession of occurrences causing damage, provided that the occurrence or the damage arises out of, or results from, the radioactive properties of nuclear fuel, radioactive products or waste, or a combination of radioactive properties with toxic, explosive or other hazardous properties. Secondly, it must be proven that the incident involved either nuclear fuel, radioactive products or waste in the installation, or nuclear substances coming from the installation. Article 3(c) allows any contracting party by legislation to provide that the liability of the operator of a nuclear installation situated in its territory shall include liability for damage 17

See Rafaello Fornassier in Weinstein, Progress in Nuclear Energy (see n 7 above) 24. By Interpretation NE/M(67)1 of the Steering Committee (Paris Convention, Decisions, Recommendations, Interpretations (1990), 8 June 1967) sub-critical assemblies should not be included in the definition of ‘reactor’. 19 See Paris Convention, Decisions, Recommendations, Interpretations (1990), Interpretation NE/M(87)1 (28 April 1987). Decision NE/M(90)1 of the Steering Committee (20 April 1990) currently allows member states to cease to apply the Convention to an installation in the course of decommissioning, provided criteria are met as to permanent cessation of operations, removal of fuel and waste, control by the competent national authority, maintenance of provisions for the confinement of radioactivity, and non-exceedance of activity limits in any remaining radionuclides. 18

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The Paris Convention Generally 171 which arises out of, or results from, ionising radiations emitted by any source of radiation inside the installation, and not just those referred to in Article 3(a). Article 3(b) of the Convention deals with mixed damage, that is that which is caused only in part by a nuclear incident. If the ‘nuclear’ and ‘non-nuclear’ damage are not reasonably separable, then the ‘non nuclear’ damage shall be considered to be damage caused by the nuclear incident. Article 4 deals with the carriage of nuclear substances, including storage incidental thereto.20 The provisions are complex, but Article 4(a) essentially deals with incidents involving nuclear substances in the course of carriage from a nuclear installation, and Article 4(b) deals with carriage to the installation. In relation to carriage from the installation, the operator shall be liable only if the incident occurs: (a) before liability has been assumed by the operator of another nuclear installation, expressly and in writing; (b) in the absence of such express terms, before the operator of another nuclear installation has taken charge of the nuclear substances; (c) where the nuclear substances are intended to be used in a reactor comprised in a means of transport, before the person duly authorised to operate the reactor has taken charge of the substances; or (d) where the nuclear substances have been sent to a person within the territory of a noncontracting state, before they have been unloaded from the means of transport by which they have arrived in the territory of that non-contracting state. By Article 4(b), the operator of an installation shall be liable in respect of nuclear incidents involving nuclear substances in the course of carriage to the installation only if the incident occurs: (a) after liability has been assumed by him, pursuant to the express terms of a contract in writing from the operator of another nuclear installation; (b) in the absence of such express terms, after he has taken charge of the nuclear substances; (c) after he has taken charge of the nuclear substances from a person operating a reactor in a means of transport; or (d) where the nuclear substances have, with the written consent of the operator, been sent from a person within the territory of a non-contracting state, after they have been loaded onto the means of transport by which they are to be carried. The provisions of Articles 4(a) and (b) therefore mirror each other, to provide what should be a clear scheme of liability. Article 4 is expressed to be without prejudice to Article 2, which deals with the territorial scope of the Convention. As a regional agreement, the Convention does not apply to nuclear incidents occurring in the territory of a noncontracting state or to damage suffered in such territory. The two exceptions to this principle are where the legislation of the operator’s contracting state provides otherwise, and in relation to the rights under Article 6(e) of those who have their principal place of business in the territory of a contracting state. The channelling of liability in accordance with these provisions is achieved by Article 6 which provides that the right to compensation for damage caused by a nuclear incident may be exercised only against an operator liable for the damage in accordance with the 20 On the issue of transport generally, see Nathalie Horbach, ‘Nuclear Liability for International transport accidents under the Modernised Nuclear Liability Conventions: An Assessment’ (2006) 1(2) International Journal of Nuclear Law 189.

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172 Liability Convention. Direct rights of action against the insurer or other financial guarantor of the operator are preserved, if national law permits such action. By Article 6(f) the operator has a right of recourse against third parties in respect of nuclear incidents only in very limited circumstances, where the damage results from an act or omission done with intent to cause damage, and if, and to the extent that, it is so provided expressly by contract. The situation where an operator is liable, without recourse, for the negligence of others can be criticised as not providing an incentive for others than the operator, such as contractors, suppliers and consultants, to behave responsibly. However, there are other ways than liability regimes of ensuring nuclear safety and the arrangement of focusing liability solely on the operator has proved generally acceptable in European states, because of the availability of insurance, as discussed below.

The Paris Convention: Limitation of Liability in Amount By Article 7, the aggregate of compensation required to be paid in respect of damage caused by a nuclear incident shall not exceed the maximum liability established in accordance with the Article. The scheme of the Convention was to fix a maximum amount of liability, but to provide that any contracting party can, taking into account the possibilities for the operator of obtaining the necessary insurance or other financial security, establish by national legislation a greater or lesser amount, but in no event to be less than a minimum figure. These maximum and minimum amounts were originally set at 15 million and 5 million European Monetary Agreement Units (effectively equivalent to US $15 million and $5 million at that time). Subsequently, the units of account were changed by the Protocol of 16 November 1982, to adopt as the currency unit the Special Drawing Rights of the International Monetary Fund (SDR). The main weakness of the Paris Convention was the inadequacy of these amounts; this problem was addressed by the Brussels Supplementary Convention, discussed below. Article 15(a) allows any contracting party to take such measures as it deems necessary to provide for an increase in the amount of compensation specified in the Convention and indeed a number of countries have done so, increasing the sums payable by significant amounts. In 1990 the Steering Committee recommended that the contracting parties adopt as an objective the setting, to the extent possible, of the maximum liability of the nuclear operator of not less than 150 million SDR,21 and most parties have done so. When in force, the 2004 Protocol will increase the amount to not less than €700 million.

The Paris Convention: Limitation of Liability in Time Article 8 of the Convention provides that the right of compensation shall be extinguished if an action is not brought within 10 years from the date of the incident. This limitation was a response to representations made on behalf of insurers, who pointed out the impracticability of requiring them to keep their books open indefinitely after the occurrence of an 21 Recommendation NE/M(90)1 (20 April 1990). 150 million SDR equated to about £139,000,000 or €163,000,000 as at 1 August 2009.

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The Paris Convention Generally 173 incident which might, or might not, give rise to claims many years hence.22 The Article does, however, allow national legislation to establish a longer period if measures have been taken by the contracting party, in whose territory the nuclear installation is situated, to cover the liability. Special provision is made for damage caused by nuclear matter which is stolen, lost, jettisoned or abandoned. The period of 10 years from the incident still applies, but is subject to a further limit of 20 years from the date of the theft, loss, jettison or abandonment (Article 8(b)).

The Paris Convention: Compulsory Cover for Liability Article 10 provides that to cover liability under the Convention, the operator shall be required to have and maintain insurance or other financial security of the amount established pursuant to Article 7 and of such type and terms as the competent public authority shall specify. By Article 10(b), contracting parties must not allow the insurer or other financial guarantor to suspend or cancel the insurance or other financial security without giving notice in writing of at least two months or, in the case of the carriage of nuclear substances, during the period of carriage. By Article 12, the compensation payable, insurance and reinsurance premiums and sums, must be freely transferable between the monetary areas of the contracting parties.

The Paris Convention: Single Jurisdiction Article 13(a) provides for jurisdiction for actions under the compensation provisions of the Convention to lie only with the courts of the contracting party in whose territory the nuclear incident occurred.23 Where the incident occurs outside the territory of any of the contracting parties, or where its location cannot be determined with certainty, jurisdiction lies with the courts of the contracting party in whose territory the nuclear installation of the relevant operator is sited (Article 13(b)). Provision is made by Article 13(c) for determining jurisdiction in case of potential conflicts. Article 13(d) provides for the enforcement of final judgments to be entered by the competent court under this article throughout all contracting parties; it is specifically provided that the merits of the case may not be subject to further proceedings. Another important aspect of jurisdiction is that by Article 13(e), if action is brought against a contracting party itself, that party may not invoke any jurisdictional immunities before the competent court, save in matters of execution: thus states are subject to the same liability rules as private operators.

22

Dow (see n 3 above) 91–2. A detailed discussion of the problems of jurisdiction which might arise is provided by Paolo Galizzi, ‘Questions of Jurisdiction in the Event of a Nuclear Accident in a Member State of the European Union’ [1996] 8 Journal of Environmental Law 7. 23

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174 Liability

The 2004 Protocol to amend the Paris Convention The 2004 Protocol makes a number of important amendments to the Paris Convention regime, which will have the effect of significantly increasing the amount of compensation to which victims will have access, while also widening the range of victims who may claim and the damage in respect of which they may claim. The Protocol requires six ratifications to come into force and as yet has only been ratified by one signatory (Spain).24 All of the parties to the Paris Convention are signatories to the Protocol and by Article II(c) of the Protocol express their intention to ratify the Protocol as soon as possible. The 2004 Protocol marks a step-change in terms of liability.25 Article 7 of the Paris Convention is amended to require provision that the liability of the operator in respect of nuclear damage caused by any one nuclear incident shall not be less that €700 million.26 This represents a massive increase in the minimum liability for the operator, and in conjunction with the state-provided element means that the total available compensation will come to some €1,500 million per nuclear incident. Unlike the 1960 Convention (Article 7(b)), there will be no ability to establish a lower amount in domestic legislation, on the basis of availability of insurance or otherwise. The main burden will shift significantly to nuclear operators and their insurers, but it will still remain the case that the funds available will not necessarily cover a really serious accident, leaving the burden to lie where it falls, or raising the possibility of claims under general international law of state responsibility.27 As with the Paris Convention, the possibility remains for contracting parties to fix lower amounts for low risk activities and for the carriage of nuclear substances, but these sums shall respectively not be less than €70 million and €80 million (as compared to 5 million SDR previously). As before, the operator is to be required to have and maintain insurance or other financial security to cover the relevant amount of liability, but there is also a new obligation on the contracting party within whose territory the nuclear installation is situated to ensure payment of claims established against the operator by providing the necessary funds to the extent that the insurance is not available or sufficient to satisfy claims, up to the €700 million figure (Article 10(c)). As well as increasing the limit on the operator’s liability financially, the 2004 Protocol also increases the limitation period for claims with respect to personal injury and loss of life to 30 years from the date of the nuclear incident (Article 8(a)(i)). For other types of damage, the period remains 10 years. There are also extensions geographically. The general principle under the Paris Convention was that the Convention did not apply to nuclear incidents occurring in the territory of non-contracting states or to damage suffered in such territory (Article 2). Under the 2004 Protocol, the Convention will apply to nuclear damage suffered in the territory or legally established maritime zones28 of (i) contracting parties; (ii) contracting parties to the Vienna Convention and the Joint Protocol relating to Application of the Vienna and Paris 24 Switzerland has also ratified the 2004 Protocol (in 2009) but on the basis of ratifying the Paris Convention as amended by that Protocol, and hence this will only take effect when the 2004 Protocol comes into force. 25 Monika Hintergger and Susann Kissich, ‘The Paris Convention 2004—a new liability system for Europe’ [2004] 3 Environmental Liability 116. 26 For states acceding after 1 January 1999 there is the option for a transitional period of five years from the adoption of the Protocol to adopt a sum not exceeding a minimum of €350 million (see Art 21(c)). 27 Birnie, Boyle and Redgwell (see n 9 above) 528. 28 For example an EEZ.

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The Paris Convention Generally 175 Conventions (provided that the contracting party in whose territory the relevant installation is situated is also a party to the Joint Protocol); and (iii) states which are not contracting parties to either Convention, and which either have no nuclear installation in their territory; or (iv) have in force nuclear liability legislation affording equivalent reciprocal benefits and based on principles identical to those of the Paris Convention. Also of major importance is the wider definition of ‘nuclear installation’ provided by the 2004 Protocol, which adds to the installations previously covered, installations for the disposal of nuclear substances and installations in the course of being decommissioned (Article 1(a)(ii)). The most far-reaching change however is the new definition provided by Article 1(a)(vii) of ‘nuclear damage’ and associated terms. ‘Nuclear damage’ now covers the following types of damage: 1. loss of life or personal injury; and 2. loss of or damage to property; and each of the following ‘to the extent determined by the law of the competent court’; 3. economic loss arising from loss or damage referred to in sub-paragraphs 1 or 2, insofar as not included under those sub-paragraphs, if incurred by a person entitled to claim in respect of such loss or damage; 4. the cost of measures of reinstatement of impaired environment, unless such impairment is insignificant, if such measures are actually taken or to be taken, and insofar as not included in sub-paragraph 2; 5. loss of income deriving from a direct economic interest in any use or enjoyment of the environment, incurred as a result of a significant impairment of that environment, and insofar as not included in sub-paragraph 2; and 6. the cost of preventive measures, and further loss or damage caused by such measures. ‘Measures of reinstatement’ are defined to mean any reasonable measures approved by the competent authorities of the state where the measures were taken, and which aim to reinstate or restore damaged or destroyed components of the environment, or to introduce where reasonable the equivalent of those components into the environment. ‘Preventive measures’ means any reasonable measures taken by any person after a nuclear incident or an event creating a grave and imminent threat of nuclear damage has occurred, to prevent or eliminate nuclear damage, subject to any competent authority approval required by national law. ‘Reasonable measures’ means measures which are found under the law of the national court to be appropriate and proportionate, having regard to all the circumstances, including for example, the nature and extent of the damage or risk of damage, the extent to which such measures are likely to be effective, and relevant scientific and technical expertise. It will be appreciated that the damage for which the operator is liable, and which must be insured against or financial security provided for, is very much wider than the damage to or loss of life of any person and damage to or loss of any property, which was the scope of liability under Article 3(a) of the Convention in its original form. In particular, preventive measures and measures of reinstatement or impaired environment, taken by or with the approval of competent authorities (quite possibly in other member states), may well far exceed any losses arising from actual injury or damage caused by the incident. In addition, the possibility of liability for economic loss under sub-paragraph 5, though limited by the necessity for the claimant to have had ‘a direct economic interest in any use or enjoyment’ of the impaired environment, presents a potentially much extended risk of

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176 Liability liability.29 Accordingly, there are significant issues for the UK in deciding how to proceed as regards the 2004 Protocol, which are considered further below in the context of UK law. One issue of general concern is whether and to what extent the nuclear insurance market will be willing to provide cover for the extended categories of ‘nuclear damage’ created by the Protocol. This may well mean that governments will have to consider the provision of ‘other financial security’ as an alternative to insurance, as envisaged by Article 10(a) of the Convention, and if so whether the source of such security is to be public or private.

THE BRUSSELS SUPPLEMENTARY CONVENTION As mentioned above, the amounts of compensation provided by the Paris Convention were relatively low. Article 15 of that Convention, however, provided that any contracting party may take such measures as it deems necessary to provide for an increase in the amount of compensation specified in the Convention. Considerable progress was made in negotiations between Belgium, France, Germany, Italy, Luxembourg, the Netherlands, (as the original six members of the European Community) and Britain towards agreeing a convention within the framework of Euratom. This Convention would have involved agreement to increase the Paris limits, but in the event the proposal was superseded by the Convention Supplementary to the Paris Convention on Third Party Liability in the field of Nuclear Energy, formulated by the OECD. This Convention (the Brussels Supplementary Convention) was adopted at Brussels on 31 January 1963, and has been amended by the 1964 Additional Protocol (to minimise inconsistencies with the Vienna Convention) and by the 1982 Protocol. As with the Paris Convention, the Brussels Supplementary Convention was subject to re-appraisal in the aftermath of the Chernobyl accident and has been substantially revised and strengthened by the 2004 Protocol, which is however not yet in force. As for the Paris Convention, the text here briefly describes the Brussels Supplementary Convention in its current form, then the amendments provided for by the 2004 Protocol. The purpose of the Brussels Supplementary Convention, as indicated in the Preamble, is to supplement the measures provided for in the Paris Convention, with a view to increasing the amount of compensation for damage which might result from the use of nuclear energy for peaceful purposes. The system is subject to the provisions of the Paris Convention, including the relevant definitions. No state may become or continue to be a contracting party to the Supplementary Convention unless it is a contracting party to the Paris Convention (Article 19). By Article 2, the Brussels Supplementary Convention applies to damage caused by nuclear incidents, other than those occurring entirely in the territory of a state which is not a party to the Convention, for which an operator of a nuclear installation situated in the territory of a contracting party, and which appears on a list of nuclear installations used for peaceful purposes, established and updated under Article 13. Moreover, the damage must be suffered in the territory of a contracting party, or on the 29 The Exposé des Motifs for the revised Convention (2005) suggests that the head should not be construed broadly, so that fishermen who cannot fish because of contamination would be compensated, but that suppliers of goods or equipment to the fishermen would not; and that a hotel owner whose guests stay away because a beach is contaminated would only be compensated if they could show geographical proximity between the hotel and the beach and that the hotel business depends on the guests being able to use the beach. With respect, the example illustrates, rather than resolves, the uncertainties.

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The Brussels Supplementary Convention 177 high seas on board a ship or aircraft either registered in the territory of a contracting party, or by a national of a contracting party. The coverage is therefore strictly confined both as to the location of the incident giving rise to the damage and the damage itself. By Article 3 of the Brussels Convention, as amended by the 1982 Protocol, the contracting parties undertake that compensation in respect of damage shall be provided up to the amount of 300 million SDR per incident (that is according to Article 1(a)(i) of the Paris Convention, any occurrence or succession of occurrences having the same origin). That compensation is to be provided in three tiers: (a) up to an amount of at least 5 million SDR, out of funds provided by insurance or other financial security, such amount to be established by the legislation of the contracting party in whose territory the nuclear installation of the operator liable is situated; (b) between this amount and 175 million SDR, out of public funds to be made available by the contracting party in whose territory the nuclear installation of the operator liable is situated; and (c) between 175 and 300 million SDR, out of public funds to be made available by the contracting parties according to the formula for contributions specified in Article 12. This formula is based on two ratios: gross national product of contracting parties and the thermal power of reactors on the territory of contracting parties. Article 3(c) gives contracting parties the option of either simply establishing the maximum liability of the operator at 300 million SDR and providing that such liability shall be covered by all three tiers of funding, or establishing the maximum liability of the operator at figure of at least 5 million SDR, and making the balance up to the 300 million SDR figure available from the public funds in tiers (ii) and (iii) by some means other than as liability cover. In any event, the obligation of the operator to pay compensation from the public funds is only enforceable as and when such funds are in fact made available (Article 3(d)). The ability of states to limit the liability of the operator, and its insurers, to a figure as low as 5 million SDR, is a reflection of the potential difficulties of obtaining insurance cover. As with the Paris Convention, there is flexibility to fix higher insurance cover requirements, where individual insurance markets, or the ability to pool risks internationally, will allow this. It is easy to overlook the magnitude of the advance marked by the Brussels Supplementary Convention, which has been described as: an unprecedented step in international collaboration and mutual confidence by agreeing to pay victims of nuclear incidents out of joint Government funds.30

Effectively, the Convention creates a system of mutual assistance on the principle of financial solidarity, which may result in a contracting party being obliged to make available funds where the incident occurs in another Party’s territory and where the operator and all the victims are foreigners.31 When the Nuclear Installations (Amendment) Bill was introduced in 1965 to implement the Brussels Supplementary Convention, this risk-sharing arrangement was described to Parliament by Lord Stonham, the Joint Parliamentary Under-Secretary of State at the Home Office, in terms of collective arrangements by members of a club, which would provide reassurance to the public, suppliers and carriers, without imposing an unacceptable burden on the UK.32 It was this principle of solidarity, and 30 31 32

Weinstein (see n 7 above) x. Ibid, 29. Hansard HL vol 263 col 1280 (1965).

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178 Liability the greater financial security which this could provide, which made the Paris/Brussels scheme a superior system to the Vienna Convention, at least prior to the amendments made to the Vienna system in 1997.

The 2004 Protocol to amend the Brussels Supplementary Convention With the marked increase in liability amounts required by the 2004 Paris Convention Protocol, it became necessary to make corresponding amendments to the Brussels Supplementary Convention. A Protocol for that purpose was adopted on 12 February 2004. The structure of the Supplementary Convention remains unchanged, with the basic threetier compensation system. However, the amounts are significantly increased: the first tier, from the operator’s own financial security, is €700 million; the second tier, from the state on whose territory the installation is located, a further €500 million; and the third tier, from all contracting parties is €300 million, making a total combined compensation fund of at least €1.5 billion. The method of calculation set out in Article 12 for contracting parties’ contributions is changed so as to be based as to 35 per cent on gross domestic product and 65 per cent on installed nuclear capacity in terms of thermal power, compared with a 50/50 approach under the Supplementary Convention, intended to reflect a greater emphasis on the responsibilities of nuclear power generating states. The 2004 Protocol also changes somewhat the territorial scope of the Supplementary Convention, to apply to damage suffered in or above the exclusive economic zone (EEZ) of a contracting party, or on the continental shelf of a contracting party in connection with exploration or exploitation of natural resources. The 2004 Protocol will come into force three months after deposit of the sixth instrument of ratification (Article 20(c) as amended). Spain is the only country so far to have ratified the Protocol.

THE VIENNA CONVENTION As previously indicated, the Vienna Convention on Civil Liability for Nuclear Damage of May 196333 was influential in the formulation of the UK’s Nuclear Installations legislation, in that the UK was a signatory to that Convention, but never ratified it. The Government at the time, when passing the Nuclear Installations (Amendment) Act 1965, had the Vienna Convention in mind as well as the Paris and Brussels Conventions, and regarded all three as ‘fully compatible’.34 The same was true in relation to the Nuclear Installations Act 1969: the three Conventions were regarded as lying behind it, and the Act was intended to be consistent with all three.35 The schemes of the Vienna and Paris Conventions are basically similar: the operator of a nuclear installation is strictly liable for damage caused by a nuclear incident, that liability is limited in time and amount, and the operator is required to provide financial security. However, there are some significant differences in the drafting of the

33 34 35

The Convention entered into force on 21 May 1963; it is published by the IAEA as INFCIRC/500. Hansard HL vol 263 col 1275; Hansard HC vol 702 cols 48–50. Hansard HL vol 301 cols 329–30.

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The Vienna Convention 179 two Conventions. The Vienna Convention, for example, provided a useful definition of ‘nuclear damage’ which was lacking in the Paris Convention; it is also provided more explicitly in the Vienna Convention that liability is absolute (Article IV.1). In particular, Article V.1 of the Vienna Convention provided that the liability of the operator for any one nuclear incident could be limited by national legislation to not less than US $5 million;36 a figure which was always inadequate, though of course it was possible for countries to set a higher limit. The US $5 million figure was the subject of much debate in Conference. It was recognised as insufficient for the proper protection of victims, inadequate in comparison with the figures in the Brussels Supplementary Convention of 70 million and 120 million SDR, and with the figures used in some national legislation (as high as US $500 million). Running counter to this view was the argument that a high figure for minimum liability would prevent many financially weak countries from signing the Convention; this view eventually prevailed. The objective was to provide minimum standards which would be flexible and adaptable to a range of social and economic systems. As noted above, steps were taken in September 1997 to strengthen and improve the liability and compensation regime of the Vienna Convention.

Protocol to amend the Vienna Convention The first step to improve the regime was the adoption of a Protocol to amend the Vienna Convention.37 This Protocol required five ratifications to enter into force, and came into force on 4 October 2003. One of the most significant changes is that the Protocol amends the definition of ‘nuclear damage’, extending it from loss of life, personal injury and property damage, to include in addition economic loss arising from such damage, the costs of measures of reinstatement of impaired environment, loss of income deriving from economic interests in the use and enjoyment of the environment, the costs of preventive measures, and any other economic loss if permitted by the general law on civil liability of the competent court. The definition of nuclear damage in the 2004 Protocol to the Paris Convention, discussed above, is framed in much the same terms. The drafting seeks to strike a delicate compromise between the wish to extend the heads of damage and achieve a degree of uniformity in what damage is covered, and the differences inevitably existing in national laws on precisely what damage is and is not recoverable in civil law. This compromise is reflected in the wording that the new heads of damage are covered ‘to the extent determined by the law of the competent court’; thus the significance of national law is restricted but not eliminated in that it can govern the extent of the damage covered, but not the principle of the types of damage to be covered. A new Article IA makes it clear that the Convention applies to nuclear damage wherever suffered, but that legislation of the Installation State may exclude damage suffered in the territory of a non-contracting state, or in maritime zones established by non-contracting states, in cases where the noncontracting state has a nuclear installation in its territory but does not offer reciprocal equivalent benefits. The effect of this is that the Convention cannot be excluded in relation to non-contracting states which do not have nuclear installations, so that in the event of an incident causing damage in such a state, the victims will be able to rely on the Convention. 36 37

In fact a unit of account equivalent to the value of the dollar in terms of gold on 29 April 1963. Discussed by Lamm (see n 13 above).

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180 Liability Article V is amended so that now the liability of the operator for any one nuclear incident may be limited either: (a) to not less than 300 million SDR; or (b) to not less than 150 million SDR, provided that public funds are made available to provide up to at least 300 million SDR; or (c) to a transitional amount of not less than 100 million SDR which applies for a maximum of 15 years from the date of entry into force.38 The limitation period of 10 years in Article VI has been extended to 30 years in the case of loss of life and personal injury. It remains the case that jurisdiction over actions for nuclear damage lies only with the courts of the contracting party within whose territory the nuclear incident occurred, but new Article XIA provides that it must be ensured that any state may bring an action on behalf of persons who have suffered nuclear damage, who are nationals of that state or are resident or domiciled in its territory, and who have consented thereto, and that any person may bring an action to enforce rights acquired by subrogation or assignment. The significantly increased liability for nuclear operators which would result from the Protocol, and doubts as to whether the insurance market will cover such liabilities, has almost certainly contributed to the slow progress in ratifying the Protocol. Since 1998, only five of the 15 signatories (Argentina, Belarus, Latvia, Morocco and Romania) have ratified. The ratification by Belarus in 2003 sufficed to bring the Protocol into force, but the more significant players in the nuclear power field have not yet ratified it.

THE CONVENTION ON SUPPLEMENTARY COMPENSATION A further step to improve the Vienna Convention regime was to adopt a Convention on Supplementary Compensation for Nuclear Damage, which was opened for signature on 29 September 1997. It requires five ratifications to come into force, and so far has been ratified by four countries (Argentina, Morocco, Romania and, as of 21 May 2008, the USA). As with the revised Vienna Convention, it applies to nuclear installations used for peaceful purposes. The aim of the Convention is to supplement systems of compensation which implement the Vienna and Paris Conventions. It does this by public funds being made available beyond the 300 million SDR required by the revised Vienna Convention, according to a formula specified in Article IV, based predominantly on installed nuclear capacity and to a much smaller extent on the United Nations rate of assessment for contracting parties, but with a cap on contributions which operates during the early stages of ratification, to prevent Parties with relatively large amounts of installed capacity being subject to an unduly heavy burden (Article IV.1(c)). The first tier compensation provided by the Installation State is to be ‘distributed equitably without discrimination on the basis of nationality, domicile or residence’, though the law of the installation state may exclude nuclear damage suffered in a non-contracting state if this is allowed by other conventions on nuclear liability39 (Article III.2(a)). The second tier public funds are also to be distributed equitably and without discrimination, but are subject to Article V, dealing with geographical scope, and Article XI.1(b) on allocation of funds. By Article V, the funds apply to 38 This transitional phasing in of full cover was a political compromise reflecting the economic difficulties faced by some states at the time of negotiating the Protocol, and the wish to encourage accession, whilst still setting a transitional figure very significantly higher than that under the previous regime: see Lamm, (n 13 above)’. 39 Thus a state party to the Vienna or Paris Conventions could not be excluded by an installation state which is a party to those Conventions, as this would be contrary to that state’s obligations.

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The Convention on Supplementary Compensation 181 nuclear damage suffered in the territory of contracting parties (Article V.1(a)) and also (in recognition of concerns of maritime countries as to shipments of radioactive material) to certain damage suffered in the EEZ or continental shelf (Article V.1(c)). By Article XI, they are to be distributed (a) as to 50 per cent to compensate claims for nuclear damage suffered in or outside the installation state; and (b) as to 50 per cent for such damage suffered outside the territory of the installation state which is remains uncompensated under (a). Thus at least half of the fund must be reserved for use in respect of transboundary damage. ‘Nuclear damage’ receives the extended definition of the 1997 Vienna Protocol, so as to include economic loss, reinstatement of impaired environments, and preventive measures. The Supplementary Compensation Convention has been described as opening a new chapter in international nuclear law:40 significantly, it is a free-standing instrument open to all states, whether nuclear or not,41 and whether or not a party to the Paris or Vienna Conventions. In particular, non-nuclear countries may perceive it as offering a more balanced approach in favour of those who might suffer harm as a result of a nuclear incident, and the recognition of the importance of ensuring that funds are reserved to deal with transboundary damage as well as that occurring in the Installation State. One major practical point is that the situation of the US is catered for by a ‘grandfather’ clause in Article 2 of the Annex to the Convention, which provides that the national law of a contracting party will be deemed to be in conformity with the requirements of the Convention provided that it contained on 1 January 1995 and continues to contain, provisions providing for strict liability in the event of a nuclear incident, requiring the indemnification of any person other than the operator, and ensuring the availability of at least 1,000 million SDR in respect of a civil nuclear power plant and 300 million SDR for other civil nuclear installations. This means that the Price-Anderson regime in the US, which pre-dated the Paris and Vienna Conventions and operates on a different legal premise, would qualify. Indeed, the US has supported the creation of a worldwide regime by way of the Convention, was the first signatory and in 2008 ratified the Convention following the consent of the US Senate.42 An important feature—probably the most important—of the global regime which the Convention might ultimately create is that by Article XIII, jurisdiction over actions concerning nuclear damage from a nuclear incident shall only lie with the courts of the contracting party where the incident occurs, or if it occurs within an EEZ, with the Courts of that Party,43 or with the courts of the installation state if the incident does not occur within any contracting party’s territory or EEZ. Expression of the principle of exclusive jurisdiction on the face of the Supplementary Compensation Convention means that, as a later treaty dealing with the same subject matter as the Paris and Vienna Conventions, the provisions of the Supplementary Convention on the issue will take precedence by Article 30 of the Vienna Convention on the Law of Treaties. 40 See Ben McRae, ‘The Compensation Convention: Path to a Global Regime for Dealing with Legal Liability and Compensation for Nuclear Damage’ (Nuclear Law Bulletin No 61 (1998)). 41 Countries with civil nuclear plants must be a party to the Convention on Nuclear Safety in order to be a party to the Compensation Convention (Art XVIII.1). 42 McRae (see n 40 above). 43 Though in relation to incidents during carriage in the EEZ, the maximum amount of liability of the operator would be governed by the law of the installation state: see Annex to the Convention, Art 6.1 and also Art 7(d) of the Paris Convention and Art V of the Vienna Convention. This is in contrast to the situation where an incident during carriage occurs in the territory of a contracting party, in which case the party is allowed to subject carriage of nuclear material through its territory to an amount of liability not exceeding that to which the operator of an installation situated within its territory would be subject: see Annex, Art 6.2 (also see Art 7(e) of Paris Convention).

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182 Liability

SCOPE OF THE PARIS, BRUSSELS AND VIENNA CONVENTIONS— NON-PEACEFUL USES OF NUCLEAR ENERGY The preamble to the Vienna Convention refers to the desirability of establishing minimum standards to provide financial protection against damage resulting from ‘certain peaceful uses of nuclear energy’. No such reference appeared in the body of the Vienna Convention as originally drafted. However, Article IB, inserted by the 1997 Protocol, now makes clear that the Convention does not apply to nuclear installations ‘used for non-peaceful purposes’. The Paris Convention contains no reference at all to peaceful uses, though its published Exposé des Motifs is written in such terms as to indicate that this is what was in mind. The Brussels Supplementary Convention is quite clearly confined to installations used for peaceful purposes (Article 2(a)(i)), as is the IAEA Convention on Supplementary Compensation (Article II.2). Whilst some installations may clearly be non-peaceful in nature, for example, weapons manufacture or nuclear submarine refuelling, it is quite possible that some installations might be used only partly for the production of fissile material destined for non-peaceful purposes. The status of such installations may be obscure, in that the nuclear incident giving rise to damage or injury may or may not involve material intended for military use; if it does not involve such material then it might be argued that the ‘peaceful’ status of the installation is compromised by its occasional military-related use. As explained below, the UK legislation draws no distinction between peaceful and nonpeaceful uses of nuclear matter in the context of liability.

THE CONVENTION ON THE LIABILITY OF OPERATORS OF NUCLEAR SHIPS This Convention was adopted in Brussels in May 1962, as the result of a Diplomatic Conference on Maritime Law. It is not in force and the UK is not a signatory. The definition of ‘nuclear ship’ is wide enough to cover both naval and merchant vessels, although by Article X.3, warships or other state-owned or state-operated ships are not liable to arrest, attachment or seizure, or to the jurisdiction of the courts of any foreign state. The Convention primarily had in mind the potential growth in nuclear-powered merchant vessels; the simple fact that very few nuclear ships, other than naval vessels and submarines, have been produced accounts for the general lack of interest in the Convention or national legislation on the subject. Article II of the Convention channels absolute liability to the operator of a nuclear ship for nuclear damage caused by a nuclear incident involving the nuclear fuel of the ship, or radioactive products or wastes produced in the ship. Such liability is limited to 1,500 million francs (a unit of account related to gold) per nuclear ship in respect of any one nuclear incident (Article III). An operator is required to maintain insurance or other financial security to cover this liability to such an amount as the licensing state may specify; the licensing state must ensure the payments of claims for compensation up to the 1,500 million franc limit to the extent that the insurance or other financial security is inadequate. By Article V, a limitation period of 10 years is applied, running from the date of the nuclear incident.

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Civil Liability in the Field of Maritime Carriage of Nuclear Material 183 At the stage when the Nuclear Installations (Amendment) Act 1965 was under consideration, it was pointed out that anomalies could arise if nuclear matter in transit was treated differently to that related to the propulsion of a ship. The response of the Government was that in the absence of special legislation dealing with nuclear ships, the ordinary law would apply once an operator governed by the UK nuclear installations legislation had ceased to have liability.44 At that time, apart from warships (which were, and are, subject to special intergovernmental arrangements) there were only two nuclear ships operating in the world; the then recent visit of one of these, the ‘Savannah’, to Southampton was the subject of a special agreement with the US Government. Even under the Convention, contracting states may deny access to their harbours and waters to nuclear ships licensed by other contracting states, even if they have fully complied with the Convention (Article XVII).

THE CONVENTION RELATING TO CIVIL LIABILITY IN THE FIELD OF MARITIME CARRIAGE OF NUCLEAR MATERIAL This Convention, adopted in 1971, which has been signed but not ratified by the UK, was the result of concerns, following the entry into force of the Paris Convention, as to how the liability provisions of that Convention would relate to the large existing body of law on the liability of carriers of goods by sea. The IAEA and the NEA of the OECD organised a joint symposium, including the relevant maritime organisations, to consider these issues. A diplomatic conference followed, and led to the signing of the Convention by the UK and others. The Convention entered into force on 15 July 1975, and has been ratified by Argentina, Denmark, France, Germany, Italy, Liberia, Norway, Spain, Sweden and Yemen, but not by the UK. The key point of the Convention is that a person who, by virtue of an international convention or national law applicable in the field of maritime transport, might be held liable for damage caused by a nuclear incident, is exonerated from such liability if the operator of a nuclear installation is liable for such damage either under the Paris or Vienna Convention, or by virtue of a national law which is in all respects as favourable to the victims of damage as those conventions (Article 1). This exoneration extends by Article 2 to damage to a nuclear installation, property on the site of the installation, or the means of transport of nuclear material for which the operator of the nuclear installation is not liable because his liability is excluded under the conventions or under the relevant national law. By Article 3, the Convention does not affect the liability of the operator of a nuclear ship in respect of damage caused by a nuclear incident involving the nuclear fuel or nuclear waste of the ship.

MULTILATERAL NUCLEAR ENVIRONMENTAL PROGRAMME IN RUSSIAN FEDERATION The Multilateral Nuclear Environmental Programme in the Russian Federation (MNEPR) is a programme designed to provide assistance to Russia in relation to spent nuclear fuel 44

Hansard HC vol 702 col 63; see also Hansard HC vol 706 col 694 (11 February 1965).

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184 Liability safety and radioactive waste management, for example in cleaning up spent fuel storage sites and dismantling decommissioned submarines. A number of OECD countries (including France, Germany, the UK, the US) and the Community signed a Framework Agreement with Russia in May 2003 in Stockholm. The MNEPR Agreement includes a Protocol on Claims, Legal Proceedings and Indemnification, dealing with claims against contributing parties and their personnel or contractors, consultants, suppliers and so on, in respect of nuclear damage arising from activities undertaken pursuant to the Agreement. Russia agrees to bring no such claims and to provide for adequate legal defence and indemnify such parties, unless there was an act or omission done with intent to cause damage. A model form of indemnity confirmation letter to be provided by the Russian Federation for Atomic Energy is annexed to the Protocol.

EURATOM DEVELOPMENTS The Euratom Community is considering the issue of accession to the Paris Convention and the need for a uniform EU regime on nuclear liability. During 2008 a study for the Commission was undertaken by the Spanish law firm Gómez-Acebo & Pombo Abogados. However, uniformity is not assisted by the fact that 13 Euratom member states45 are parties to the Paris Convention, nine are parties to the Vienna Convention,46 and five47 (plus the Community itself) are not party to either Convention.

CURRENT INTERNATIONAL ISSUES IN LIABILITY Overall, it cannot be said that the current national and international liability regimes provide a framework which is satisfactory and fit for purpose if there is to be a global renaissance in nuclear power. The world can for practical purposes be divided into three groups: those countries which are parties to one of the conventions and have their own legislative regimes; those (such as Canada, Japan, South Africa and South Korea) which are not parties to a convention, but have their own domestic regimes; and those which are neither parties to a convention, nor have domestic regimes (principally China). Of the existing 440 or thereabouts operational reactors worldwide, it has been estimated that 75 fall within the Vienna Convention, 130 the Paris Convention, and over 230 are outside either regime (though they may of course be subject to domestic legislation on liability). As long ago as 1994, major US engineering companies were reported as complaining to the Clinton administration that the absence of provisions on liability were a strong disincentive to projects such as working on the improvement of safety in existing former Soviet reactors, leading to the administration seeking to initiate a global regime.48 In some states where new 45 Belgium, Denmark, Finland, France, Germany, Greece, Italy, the Netherlands, Portugal, Slovenia, Spain, Sweden and the UK. 46 Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania and Slovak Republic. 47 Austria, Cyprus, Ireland, Luxembourg, Malta. 48 The New York Times, 31 May 1994, See also Omer F Brown II, Nuclear Liability: A Continuing Impediment to Nuclear Commerce (The Uranium Institute, 24th Annual Symposium, 1999) available at world-nuclear.org/ sym/1999/brown.htm.

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Current International Issues in Liability 185 nuclear plants may be built, liability and compensation legislation is non-existent or woefully inadequate. China, though one of the world’s fastest growing nuclear energy producers, lacks a comprehensive body of law dealing with liability for nuclear accidents and derives its principles from a 1986 administrative instrument, the legal status of which is debatable.49 North Korea similarly lacks any regime.50 Russia has been forced to address the issue of nuclear liability and compensation, having signed the Vienna Convention in 1996 and having ratified it in 2005.51 In Indonesia, where there have been plans for a new nuclear power plant to be constructed by the state electricity company, PLN, the Indonesian Nuclear Energy Act of 1997 provided a limit for liability on a nuclear operator of 900 billion Indonesian rupiah (IDR), or roughly US $87 million, as compared with approximately US $463 million required under the amended Vienna Convention, to which Indonesia is a signatory.52 In 2009 a Presidential decree GR 46/2009 increased the limit to 4 trillion IDR. For some years, the US has been suggesting that lack of a nuclear liability law in India could be a major impediment to investment in nuclear projects there, and it has been reported that India is considering becoming a party to the Convention on Supplementary Compensation. That Convention offers the opportunity to create a global regime for nuclear power projects, with legal certainty and the assurance of substantial funding in the event of an accident. As such it is promoted by the US,53 and it may be that other countries will now follow the lead of the US in ratification. In countries with established liability legislation there have been discussions on the adequacy of these regimes.54 In April 2009, the Japanese Diet approved legislation to amend the existing Laws on Compensation for Nuclear Damage and on Contract for Liability Insurance for Nuclear Damage,55 doubling the ‘financial security amount’ required to be provided by operators from 60 billion to 120 billion yen, a sum equivalent to US $1.2 billion.56 Within Europe the move has been towards expanded liability.57 The Swedish government has considered the idea of unlimited liability,58 but presently requires insurance for a sum equating to around €302 million. Germany has unlimited operator liability and requires €2.5 billion in security to be provided per plant. France currently limits liability to €91 million per accident.59 In 1998 Austria adopted a new Federal Law on Civil 49 Reply of the Council to the Ministry of Nuclear Industry, the National Nuclear Safety Bureau and the State Council Atomic Energy Board in respect of Resolving Third Parties’ Nuclear Liability. 50 Patricia Goedde, ‘In Search of a Civil Nuclear Liability Regime for North Korea’ (2003) 27 Asian Perspective 225 available at www.asianperspective.org/articles/v27n1-h.pdf. 51 Sir Alexander Alexandrovich Matveev, ‘The Russian Approach to Nuclear Liability’ (2006) 1 International Journal of Nuclear Law 270. 52 www.thejakartapost.com/print/218117. 53 See US Embassy press release, 21 May 2008 at www.vienna.usmission.gov/08-05-21_csc/. 54 For a useful comparison of the main western European regimes, see Monika Hinteregger, Environmental Liability and Ecological Damage in European Law (Cambridge University Press, 2008) 290–314 55 The amendments followed from work of the Nuclear Liability System review Committee, set up to consider the operation of the system in the light of the accident at the Tokai-Mura nuclear fuel fabrication plant in 1999. For an account of how the Japanese legislation operated following that incident,, see the study of the Secretariat of the NEA, ‘Tokai-Mura Incident, Japan—Third Party Liability and Compensation Aspects’ (Nuclear Law Bulletin No 66, December 2000) available at www.nea.fr/html/law/nlb/Nlb-66/013-022.pdf. 56 World Nuclear News, 23 April 2009 available at www.world-nuclear-news.org/print.aspx?id=25087. See Hirotoshi Iizuka, ‘Concerning Improvement and Reform Towards a More Effective and Realisable Nuclear Liability Legal System in Japan’ (2006) 1, International Journal of Nuclear Law 219. 57 Information taken from World Nuclear Association (June 2009) available at www.world-nuclear.org/info/ inf67.html. 58 ENDS Europe, 18 November 2004. 59 Law No 90-488 of 16 June 1990, amending Law No 68-943 of 30 October 1868.

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186 Liability Liability for Damages Caused by Radioactivity, which runs counter to many of the basic principles of the Conventions, by providing for unlimited liability, no channeling to the operator, substantial widening of what damage is covered, provisions to facilitate proof of causation, and jurisdiction for the Austrian courts, with Austrian law applicable, if damage occurs in Austria, regardless of where it was caused.60 In Finland, legislation of 2005 provides for unlimited liability and requires at least €700 million insurance cover. The Czech Republic in 2009 increased the mandatory cover required for each reactor to 8 billion Czech crowns (CZK), around €296 million. There has been heated debate in Canada as to the adequacy of the scheme provided by the Nuclear Liability Act of 1970, and in 2007 a bill was introduced to increase the required insurance coverage from the current US $75 million, which can be regarded as no more than a token amount, to US $650 million. The bill was reintroduced in 2009 as Bill C-20 but remains controversial as coming nowhere close to providing an adequate sum of compensation to meet a nuclear accident.61 As discussed below, the current UK limit is £140 million.

THE ENVIRONMENTAL LIABILITY DIRECTIVE Directive 2004/35/CE seeks to provide for a common European public law framework for the prevention and remedying of environmental damage.62 This covers damage to protected species and natural habitats, to water and to land, and ‘damage’ means a measurable adverse change in a natural resource or measurable impairment of a natural resources service (Article 2). Nuclear or radiological accidents may have such an effect. Whilst licensed nuclear installations are not among the occupational activities listed at Annex III which are covered by the Directive, liability may also arise in respect of damage to protected species and natural habitats caused by other activities, whenever the operator has been at fault or negligent (Article 3(2)(b)). However, it is clear that the Directive is intended to take account of the Euratom Treaty and other international conventions regulating relevant activities more comprehensively (recital (10)). This is reflected in Article 4(4), which provides that the Directive does not apply to such nuclear risks or environmental damage as may be caused by any of the activities covered by the Euratom Treaty or caused by an incident or activity in respect of which liability or compensation falls within the scope of any of the international instruments listed in Annex V, including any future amendments. Annex V includes the Paris and Brussels Conventions, the Vienna Convention, the Supplementary Compensation Convention and the Brussels Convention on Maritime Carriage. As originally drafted these Conventions are, of course, limited to personal injury and damage to property, which are normal forms of traditional damage which the Directive never intended to cover in any event (recital (11)). Nevertheless, the wording of Article 4(4), as well as excluding environmental damage caused by incidents or activities in respect of which liability or compensation lies within the Conventions, also appears quite separately to exclude ‘nuclear risks or environmental damage’ caused by activities covered by the Euratom Treaty, that is nuclear energy and associated activities. Accordingly, if provision is to be 60 Monika Hinteregger, ‘The New Austrian Act on Third Party Liability for Nuclear Damage’ (2006) 35, Denver Journal of International Law and Policy. 61 Canada, House of Commons Debate, 28 May 2009. 62 See also the Environmental Damage (Prevention and Remediation) Regulations 2009 No 153.

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The US Approach 187 made for remedying or compensating for environmental damage, it will need to be through the specific conventions, rather than the Directive.

THE US APPROACH The scheme in the US is based upon the 1957 Price-Anderson Act, which predated international developments and was intended to provide an answer to the commercial problems for suppliers and insurers which emerged in the late 1950s. Though originally intended as a temporary measure until the demonstrated safety record of reactors allowed commercial insurance cover to be obtained, it has been consistently renewed, and was last renewed in 2005 by the Energy Policy Act for a 20 year period. Essentially it now operates by providing a no-fault system, providing currently around US $12 billion of cover from insurance and industry funds,63 and with claims above that figure being covered by the Federal Government. Operators are required to obtain insurance at a sum representing the maximum amount of cover available on the insurance market (originally set at US $60 million, currently US $300 million for each reactor unit,64 provided by insurance pool arrangements operated by American Nuclear Insurers). Claims exceeding that figure are met from the fund, which is provided by contributions to a secondary insurance pool from the operators of the current 103 nuclear power plants licensed in the US. These contributions are to be paid effectively as retrospective premiums equal to the company’s proportionate share of the excess loss, when an accident occurs, in annual installments of up to US $17.5 million, up to a maximum of US $111.9 million per reactor per accident, plus up to a further 5 per cent for claims expenses. Proof must be provided by the operator to the regulator of ability to pay these contributions, by way of some approved form of guarantee, such as surety bond, letter of credit, revolving loan, escrow deposit, certified financial statement, or bond arrangements with American Nuclear Insurers. Claims covered by the Act are for any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation.65 ‘Nuclear incident’ covers injury to persons or property arising out of or resulting from the radioactive, toxic, explosive or other hazardous properties of nuclear material. The relevant damages cover bodily injury, sickness, disease or death, loss of or damage to property, and loss of use of property. Once the insurance and industry funds are exhausted, state and local governments may petition Congress for disaster relief under the provisions of the Act or under the Robert T Stafford Disaster Relief and Emergency Act of 1988 if an emergency is declared by the President. As well as power reactors, the Price-Anderson arrangements also cover research reactors, Department of Energy facilities, and transportation of nuclear fuel. The statute survived a legal challenge in 1978 when the Supreme Court found that it was lawful in that there was adequate justification for treating nuclear accidents differently to other claims, that the Act provided a reasonably just substitute for the common-law or state tort law which it replaced, and that it could not be said that the Act encouraged irresponsibility in matters of safety and environmental protection.66 Concerns, however, have 63 The most recent figure is US $11.9 billion, following adjustment in September 2008 by the Nuclear Regulatory Commission to reflect inflation: see 73 Federal Register 56451 of 29 September 2008. 64 The current average annual premium for a single unit reactor is in the order of US $400,000. 65 The definition of ‘precautionary evacuation’ was added in 1988 to remove any doubt based on experience of the Three Mile Island accident. 66 Duke Power Co v Carolina Environmental Study Group 438 US 59 (1978).

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188 Liability remained in some quarters as to the likelihood that the taxpayer would end up footing the lion’s share of the costs of a really serious accident, representing a substantial and unjustified subsidy in favour of nuclear power. On the other hand, the government does, of course, provide similar back-up cover for various types of natural and man-made disasters, such as hurricanes, floods, dam failures, maritime accidents and savings and loan catastrophes. It has been said that the US Price-Anderson system, with its total amounts of compensation that are substantially higher than under the Paris and Vienna systems, funded through operators under collective arrangements, provides a better model for future development, with mutual risk sharing and higher compensation.67 It needs to be recalled, however, that any system, however large, is unlikely to cover the losses and costs that would be incurred in a major nuclear accident with widespread contamination. Weather related insurance claims for incidents such as hurricanes have regularly exceeded US $10 billion, and for Hurricane Katrina were over $71 billion; losses in respect of the September 11th terrorist attacks were over US $24 billion.68 The costs of the Chernobyl accident over 30 years have been estimated by Belarus at US $235 billion. In respect of the Three Mile Island accident, some 140,000 local residents were evacuated from the area. The major costs, in the order of $1 billion, were incurred in cleaning up the site and removing radioactive fuel, and did not include the later costs of decommissioning the reactor. Emissions of radioactivity were fortunately low, so that there were not widespread health effects or contamination of property. The costs paid out in claims under the Price-Anderson Act therefore were predominantly in respect of evacuation by individuals and businesses. Some US $1.2 million was paid to individuals in respect of evacuation costs, though it is thought that the costs actually borne by households were significantly higher. In settling claims, further sums were paid in respect of economic harm to businesses and individuals (US $20 million), US $5 million for medical surveillance costs, and later settlements of around US $70 million in respect of health claims. These sums were able to be met from the primary level of insurance without recourse to the secondary fund, though matters could have been very different if the accident had been worse in terms of emissions.69

THE NUCLEAR INSTALLATIONS ACT 1965: GENERALLY The Nuclear Installations Act 1965 (‘the 1965 Act’) consolidates the Nuclear Installations (Licensing and Insurance) Act 1959, and the Nuclear Installations (Amendment) Act 1965. The latter Act was passed to implement the UK’s international obligations under the Paris and Brussels Supplementary Conventions (see above) and also took into account the Vienna Convention. Given the 1965 Act’s status as consolidating legislation, it is helpful to have regard to the Parliamentary debates on the 1959 and 1965 Acts. Sections 1 to 5 of the 67 See Michael G Faure and Tom Vanden Borre, ‘Compensating Nuclear Damage: A Comparative Economic Analysis of the US and International Liability Schemes’ (2008) 33 William & Mary Environmental Law and Policy Review. See also Richard M Temple, Christina Penny and Mary Anne Sullivan, ‘Liability for Nuclear Incidents: Should the UK Now Follow the US Approach?’ (2006) 18 JEL 443. 68 See ‘The top 40 most costly insurance losses 1970–2008’, at www.reactionsnet.com/Article/2210697/Thetop-40-most-costly-insurance-losses-1970-2008.html. 69 In 1974 the Reactor Safety Study produced for the Nuclear Regulatory Commission (WASH-100, the Rasmussen Report) had estimated potential damages arising from a reactor accident as in excess of US $17 billion. Following the Three Mile Island accident, the federally-funded Sandia National Laboratory produced the CRAC-2 report in 1982 which estimated damages from a severe nuclear accident at US $314 billion.

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Duty of Licensee of Licensed Site 189 1965 Act deal with the licensing of nuclear installations and are discussed in chapter four. Sections 7 to 21 deal with liability and insurance issues and are analysed in this chapter.

SECTION 7: DUTY OF LICENSEE OF LICENSED SITE Subsection 7(1) of the 1965 Act imposes a duty on the licensee of a nuclear site to secure that specified matters do not cause injury to any person, or damage to any property of any person other than the licensee. Those matters are as follows: (a) occurrences of the type mentioned in subsection (2) involving nuclear matter, the injury or damage arising out of, or resulting from, the radioactive properties of the nuclear matter, or a combination of those and any toxic, explosive or other hazardous properties of the nuclear matter; and (b) the emission of ionising radiations emitted during the period of the licensee’s responsibility from anything caused or suffered by the licensee to be on the site which is not nuclear matter, or from any waste discharged (in whatever form) on or from the site. Category (a) corresponds broadly to the definition of ‘nuclear incident’ contained in the Paris Convention and which must be covered under that Convention. Category (b) in fact corresponds to the wording used in subsection 4(1)(a) of the Nuclear Installations (Licensing and Insurance) Act 1959. Article 3(c) of the Paris Convention allows the UK as a contracting party, to make an operator liable for damage arising out of, or resulting from, ionising radiations emitted by any source other than nuclear fuel, radioactive products or waste in the installation, or nuclear substances coming from the installation.

OCCURRENCES INVOLVING NUCLEAR MATTER Subject to any exceptions which may be prescribed, ‘nuclear matter’ is defined by section 26 of the 1965 Act to mean: (a) any fissile material in the form of uranium metal, alloy or chemical compound (including natural uranium), or of plutonium metal, alloy or chemical compound, and any other fissile material which may be prescribed; and (b) any radioactive material produced in or made radioactive by exposure to the radiation incidental to the process of producing or utilising any such fissile material. This definition represents a paraphrase of the definitions of ‘nuclear fuel’ and ‘radioactive products or waste’ as contained in the Paris Convention (Article 1(a)(iii) and (iv)). The occurrences referred to in subsection 7(1) are specified in subsection 7(2), and fall into three categories, covering both occurrences on and off the nuclear site. Each of the three categories is discussed separately below. The concept of an ‘occurrence’ is central to the liability scheme of section 7. Whilst the term is defined by section 26, that definition is only expressed to be for the purposes of sections 16(1), 17(3) and 18. Accordingly, the definition of ‘occurrence’ contained in subsection 26(1) is not relevant to the term as used in section 7, though as appears from subsection 15(1) the occurrence may be either a single event, a

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190 Liability continuing event, or succession of events. Whilst it might be possible to argue that, in the absence of a statutory definition, the term implies some specific accident or incident rather than an ongoing release of radiation in the normal course of operations, it seems unlikely that a court would be attracted to such an argument. The Paris and Vienna Conventions both use the term ‘nuclear incident’ to mean any occurrence or succession of occurrences that have the same origin (Articles 1(a)(I) and 1(1) respectively).

OCCURRENCES ON THE LICENSED SITE Subsection 7(2)(a) refers to any occurrence on a licensed site. The question is, therefore, whether the occurrence causing the injury or damage involved nuclear matter (see above), whether it took place on the licensed site, and whether it took place during the period of the licensee’s responsibility. Whether the occurrence took place on the licensed site will be a question of fact; the extent of the site will be clear from the licence and it should be noted that under subsection 3(2) of the 1965 Act, the Health and Safety Executive as licensing authority may treat two or more installations in the vicinity of one another as a single site for licensing purposes. The 1965 Act does not use the term ‘nuclear incident’, which occurs in the Paris Convention (Article 1(a)(I)). The licensee’s period of responsibility is defined by subsection 5(3) to cover the period beginning with the grant of the licence, and ending with the earlier of the following two dates: (a) the date when the HSE gives written notice that in its opinion there has ceased to be any danger from ionising radiations from anything on the site; or (b) the date when a new nuclear site licence in respect of the site is granted, whether to the same licensee or to some other person. The licensee may therefore be responsible for occurrences that take place after the installation has ceased to be operational. OCCURRENCES INVOLVING NUCLEAR MATTER BEING CARRIED Subsection 7(2)(b) refers to two types of occurrence elsewhere than on the licensed site involving nuclear matter which is not excepted matter. Excepted matter is that prescribed by the Nuclear Installations (Excepted Matter) Regulations 197870 (explained below). The forms of occurrence are those involving nuclear matter which at the time of the occurrence is either: (a) in the course of carriage on behalf of the licensee as licensee of the site; or (b) in the course of carriage to the site with the agreement of the licensee from a place outside the ‘relevant territories’ (that is a country for the time being bound by an international agreement to which the UK is a party relating to third-party liability in the field of nuclear energy—currently the Paris and Brussels Supplementary Conventions).

70

SI 1978 No 1779.

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Matter which has been on the Licensed Site or in the Course of Carriage 191 In either case, the nuclear matter must not at the time of the incident be on any other ‘relevant site’ in the UK (that is a licensed site during the period of the licensee’s responsibility, premises occupied by the United Kingdom Atomic Energy Authority (UKAEA), or sites occupied for nuclear purposes by Government departments). The nuclear matter must then be carried on behalf of the licensee, or with the licensee’s agreement to the site in order to render the licensee liable. Unlike occurrences on the licensed site, the occurrence need not take place during the period of the licensee’s responsibility. The Regulations defining excepted matter are technically complex, but essentially cover: (a) substances where the content of uranium 235 does not exceed one per cent of the total mass of all the uranium isotopes present and which do not exceed certain stated limits of radioactivity; and (b) nuclear matter (other than waste discharged on or from a relevant site or consigned therefrom) which has been consigned from the site, is not at the time on a relevant site, and when it left the site was duly packaged and labelled and did not exceed certain stated limits of radioactivity, and if fissile material, met further requirements. The parameters of the 1978 Regulations correspond to those established in 1977 in relation to the Paris Convention (Decision on the Exclusion of Small Quantities of Nuclear Substances, adopted by the OECD/NEA Steering Committee on 27 October 1977) and, in relation to the Vienna Convention, in 1978 (Resolution of the Board of Governors Concerning the Establishment of Maximum Limits for the Exclusion of Small Quantities of Nuclear Material, adopted on 14 September 1978).

OCCURRENCES INVOLVING MATTER WHICH HAS BEEN ON THE LICENSED SITE OR IN THE COURSE OF CARRIAGE The third main type of occurrence is mentioned at subsection 7(2)(c). This is any occurrence elsewhere than on the licensed site involving nuclear matter which is not excepted matter and which: (a) has been on the licensed site at any time during the licensee’s period of responsibility; or (b) has been in the course of carriage on behalf of the licensee as licensee of the site. In either case, the nuclear matter must not have subsequently been: (a) on any ‘relevant site’; (b) in the course of any ‘relevant carriage’; or (c) within the territorial limits of any country which is not a ‘relevant territory’ (except in the course of relevant carriage). The various terms ‘relevant site’, ‘relevant carriage’ and ‘relevant territory’ are defined at section 26. The repeated use of the phrase, ‘relevant territories’ was described as using the word ‘relevant’ to the point of nausea’ during the Second Reading of the Nuclear Installations (Amendment) Bill.71 ‘Relevant site’ and ‘relevant territory’ are referred to above; ‘relevant carriage’ means carriage on behalf of the licensee of a licensed site, the 71

Hansard HC vol 702 col 55 (Mr John Peyton, Yeovil).

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192 Liability UKAEA, a Government department for the purposes of using a nuclear site, a relevant foreign operator (that is the operator of an installation in a relevant territory outside the UK), or a person authorised to operate a nuclear reactor comprised in a means of transport and in which the nuclear matter in question is intended to be used. For example, therefore, the operator of a nuclear reactor who sends spent fuel for reprocessing would remain liable until the nuclear matter reaches the licensed reprocessing plant; unless the matter is carried on behalf of the licensee of the reprocessing plant, in which case the liability of the operator of the reactor ceases—and that of the reprocessor commences—when carriage begins. The general concept is therefore that the licensee assumes liability for nuclear matter which has been on its site or which has been carried on its behalf, until such time as responsibility passes to another nuclear operator or analogous person. Apart from this, there is no time limit on such liability relating to when the material left its site, other than the general limitation periods under section 15, which relate to the occurrence giving rise to the claim. This accords with the principle at Article 5(c) of the Paris Convention, that where nuclear matter has been in a number of nuclear installations before a nuclear incident occurs, it is the operator of the last installation, or an operator who has subsequently taken the nuclear matter in charge, who would be liable.

IONISING RADIATIONS Apart from the liability for nuclear occurrences referred to above, section 7 also imposes a duty on the licensee to secure that no ionising radiations emitted during his period of responsibility: (a) from anything caused or suffered by the licensee to be on the site which is not nuclear matter; or (b) from any waste discharged (in whatever form) on or from the site, cause injury to any person, or damage to any property of any person other than the licensee. The duty is wider than that based on occurrences in that the source of the radiation need not be nuclear matter but may be any article or substance, or waste in any form. As mentioned previously, this corresponds to the wording originally used in subsection 4(1)(a) of the Nuclear Installations (Licensing and Insurance) Act 1959. As it was put by Mr Reginald Maudling (Paymaster-General) in relation to the 1959 Act:72 The absolute liability will apply to everything that happens on the site of the nuclear installation and anything that emerges from it whether by reason of the operation of the reactor or the discharge of waste.

The duty extends to material which has left the licensed site (for example, waste discharged from the site), but only applies to ionising radiations emitted during the period of responsibility; liability does not therefore extend indefinitely in respect of waste which has left the site. One question is the potentially difficult relationship between subsections 7(1)(a) and 7(1)(b) of the Act. In relation to waste consigned from a site to another licensed site for storage or treatment, subsection 7(2)(c) would, as mentioned above, terminate the consignor’s responsibility at the latest when it reaches the licensed site of the consignee, and possibly ear72

Hansard HC vol 599 col 865 (February 1959).

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Injury to Persons 193 lier. Subsection 7(1)(b) contains no such restriction, and the possibility of the consignor remaining liable under subsection 7(1)(b) after the consignee has become liable under subsections 7(2)(a) or (b),would run counter to the basic principle of channelling liability.

INJURY TO PERSONS The Paris and Vienna Conventions include within their respective definitions of nuclear damage, ‘damage to or loss of life of any person’, and ‘loss of life and personal injury’. The wording originally used in the 1959 Act was ‘hurt to any person’. This terminology was the subject of lengthy debate in the context of the Nuclear Installations Amendment Bill, in which it was changed to ‘injury’ in preference to ‘physical hurt’, which had been proposed. The intention was to avoid the use of the ‘inelegant’ word ‘hurt’; to substitute the more familiar term ‘injury’ and by omitting the word ‘physical’, to extend the benefits conferred by the Act.73 Subsection 26(1) defines ‘injury’ to mean personal injury and to include loss of life. The issue of whether the duty extends to the avoidance of risks to health was considered in Merlin v British Nuclear Fuels Plc.74 The case related to contamination of the plaintiffs’ home by radioactive matter emanating from the defendant’s plant at Sellafield, Cumbria. It was claimed that as a result of the discharge of waste from the site into the Irish Sea, radioactive matter had found its way back onto the coastline, where it had become deposited in the mud of the Ravenglass Estuary and then, by the action of wind and by the carriage of the sediment on the feet of the plaintiffs, their family and pets, into their house. The main arguments in the case related to whether the contamination constituted damage to the property (this is discussed below). In rejecting the argument that contamination of the plaintiff’s house itself amounted to damage to property, Gatehouse J referred to the issue of risk to health in the following terms: The Act of 1965 compensates for proved personal injury, not the risk of future personal injury. If the Act were concerned with risk a number of very difficult questions would arise. For instance risk to whom? Is it the plaintiffs’ health risk that has to be evaluated, or, (and this was their concern) that of their children, or is it that of potential purchasers of the house? The degree of risk depends, among other factors, on the length of time over which the individual is exposed to radioactivity. Is the court to attempt to forecast how many years each individual concerned is likely to live in the house?75

In closing, Gatehouse J also expressed the view that: The presence of alpha-emitting radionuclides in the human airways or digestive tracts or even in the bloodstream merely increases the risk of cancer to which everyone is exposed from both natural and artificial radioactive sources. They do not per se amount to injury.76

This approach was endorsed by Lady Paton in the Court of Session (Outer House) in Magnohard Ltd v UKAEA.77 The case is considered more fully below in the context of dam73 74 75 76 77

Hansard HC vol 706 col 668. Merlin v British Nuclear Fuels Plc [1990] 2 QB 557. Ibid, 130. Ibid, 131. Magnohard Ltd v UKAEA [2004] Env LR 19.

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194 Liability age to property, but one aspect of the case was that residents of houses near a beach where small numbers of radioactive particles had been found averred that they had suffered stress and anxiety by reason of the uncertainty and lack of information as to the risks posed by the contamination, and that there were risks to health from ingestion of, or contact with, such particles. Lady Paton agreed with Gatehouse J that the 1965 Act compensates for proved personal injury, not the risk of future injury. The general policy reasons why general anxiety or shock unrelated to physical injury was not recognised as a basis of claim in tort were held to apply a fortiori in relation to the 1965 Act, where countless people might claim to suffer stress or anxiety in the context of a nuclear occurrence. The approach of the courts in requiring actual physical injury under section 7 would appear to accord with the more recent consideration by the House of Lords as to the legal significance of exposure to asbestos fibres and the generation of pleural plaques on lung tissue.78

UNBORN CHILDREN The potential hazards of radiation to unborn children, or indeed children not yet conceived, was appreciated at the time of the Nuclear Installations (Licensing and Insurance) Bill in 1958. For example, Lord Taylor raised the issue in the context of concerns that the 10 year limitation period originally proposed (see below) was too short: Radioactive caesium gives out gamma rays which can have the effect of irradiating the gonads or sex glands from a distance. The pioneers of radiology showed on autopsy an atrophy of the sex glands. But before this occurs there are other changes in the cellular structure of the sperm or ova. This is what has created so much discussion, the question of the congenital malformation of infants as a result of this long continued irradiation of the sexual cells. This risk continues throughout the entire procreative life of the individual and I think that this again points to the need to abolish or at least to modify drastically the ten-year period.79

Even after the Government extended the limitation period to 30 years in the course of the bill, this left considerable concern as to the position of persons unborn at the time of the occurrence, or even future generations affected.80 Such concerns were still being raised in 1965, when the Nuclear Installations (Amendment) Bill was under debate. Mr Nicholas Ridley (Cirencester and Tewkesbury) sought clarification from the Minister as to the position under the bill of the unborn child and the un-conceived child, quoting from the Ballad of Chevy Chase: The child may rue that is unborn The hunting of that day!

The Minister without Portfolio (Sir Eric Fletcher) responded by saying he was advised that no addition to the bill was necessary to enable: an unborn child to make a claim in the unhappy result of that child, when born, suffering injury as a result of a nuclear incident occurring before his birth.81 78 79 80 81

Johnston v NEI Internal Combustion Limited [2007] UKHL 39. Hansard HL vol 212 col 1031. Hansard HL vol 213 cols 344–348 and Hansard HC vol 599 col 891. Hansard HC vol 706 col 669.

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Unborn Children 195 In relation to a child not conceived at the time of the incident he thought it ‘very doubtful’ that such a person could substantiate a claim, but felt that this was a matter best left to the judiciary to decide.82 Neither the Paris nor Vienna Conventions give any help in this respect. The position was not fully clarified until the passage of the Congenital Disabilities (Civil Liability) Act 1976, which was passed to give effect to recommendations in the Law Commission’s Report on Injuries to Unborn Children.83 The general provisions in section 1 of that Act on civil liability to children born disabled do not affect the operation of the 1965 Act as to liability and compensation in respect of injury or damage caused by occurrences involving nuclear matter, or the emission of ionising radiation (subsection 3(1)). However, subsection 3(2) provides, for the avoidance of doubt, that anything which affects a man in his ability to have a normal, healthy child, or which affects a woman in that ability, or affects her while pregnant so that her child is born with disabilities, is an injury for the purposes of the 1965 Act. By subsection 3(3) of the 1976 Act, if a child is born disabled as a result of injury to either of its parents caused in breach of a duty imposed by sections 7 to 11 of the 1965 Act, the child’s disabilities are to be regarded for the purpose of compensation and related matters under the 1965 Act as injuries caused on the same occasion, and by the same breach of duty, as was the injury to the parent. The combined effect of subsections 3(2) and (3) is therefore that the disability of the child is equated with the injury to its parent, either in the sense of impairment of healthy reproductive function, or effects on the unborn child. The child will be regarded as having suffered injury in its own right on the same occasion as the parent. The statutory limitation period will therefore begin to run before the child is born, or even conceived in some cases. This can be contrasted with the position for other types of injury under the 1976 Act where the liability is treated as relating to personal injury sustained by the child immediately after its birth (subsection 4(3)). The ability to obtain compensation under the 1976 Act is qualified in three ways: 1. Subsection 13(6) of the 1965 Act, dealing with contributory fault, is applied in relation to the child as if the reference in that section to fault were that of the parent, that is the parents’ contributory fault may apply to limit the award to the child (subsection 3(4)). 2. By subsection 3(5), compensation is not payable to the child at all if the relevant injury to the parent preceded the time of conception, and at the time of conception either or both parents knew the risk of the child being born disabled, that is the particular risk created by their own injury. Effectively, the principle of volenti on the part of a parent is applied against the child. This approach has been cogently criticised on the basis that it renders the1976 Act virtually a nullity with regard to genetic risk from ionising radiation.84 The child which has been conceived and is affected by the subsequent exposure of its mother to radiation will have a remedy. However, where either the father or mother has been exposed to radiation before the child’s conception, liability will be dependent upon neither having been aware of the risk associated with the injury by radiation. Persons working at nuclear installations or living in the vicinity will in all likelihood be aware of the genetic risks in general associated with radioactivity and it would be hardly just that such knowledge should in itself prevent the child who suffers from those effects recovering any compensation. In any event, the parents may not know 82 83 84

Ibid. Law Commission No 60, Cmnd 5709 (1974). See Christopher Miller, ‘Radiological Risks and Civil Liability’ [1989] 1(1) JEL 17–19.

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196 Liability the extent to which they have been exposed and whether they have suffered injury. The provision would seem in referring to ‘ignorance of the risk associated with that injury’ to contemplate that they must have had some awareness of having suffered some injury, and it would be hard indeed if the child of a parent who had conceived the child in ignorance of having been affected was disentitled from recovery on the basis of general knowledge of genetic risk on the part of the parent. Would-be parents who, knowing they have been exposed and are thereby prevented from trying to have children will have their own cause of action if they are affected in their ability to have a normal, healthy child. There is, however, a potential problem in that a person who has been exposed to radiation may be at risk of giving birth to a disabled child, though it may not be certain that this will be the case. If the person takes that risk, the child, if born with defects, will be penalised by the effect of subsection 3(5). If the person chooses not to take the risk of having children, it may be said that the adverse effect on their ability to have a healthy child has not been proven and thus there is no injury. It is to be hoped, however, that the risk of producing a disabled child in such circumstances would be regarded by the courts as an injury. 3. Compensation for loss of expectation of life is not recoverable unless the child lives for at least 48 hours (subsection 4 (4)).

PERSONAL INJURY: THE SELLAFIELD LITIGATION The issue of personal injury arising from parental exposure to radiation was litigated at great length in the cases of Reay v British Nuclear Fuels and Hope v British Nuclear Fuels.85 The first plaintiff was the mother of Dorothy Reay, who was born in October 1961, and died from early acute lymphatic leukaemia in September 1962. The second plaintiff was Vivien Hope, who was born in 1965 and was diagnosed as having non-Hodgkins lymphoma (NHL) in 1988 (from which she recovered). It was alleged that the plaintiffs’ conditions were caused by paternal pre-conception irradiation (PPI), causing mutation in the sperm of their fathers who worked at Windscale (later Sellafield). The cause of action was not in fact the 1965 Act, but rather the duty applying to the defendants’ predecessor, the Atomic Energy Authority, under subsection 5(3) of the Atomic Energy Act 1954 to secure that no ionising radiations from anything on their premises, or from waste discharged from those premises, caused any hurt to any person or damage to property. The case turned on expert evidence and on the results of various studies, in particular, epidemiological research by Professor Martin Gardner associating leukaemia cases in Seascale, West Cumbria with PPI.86 The judge concluded that the observation of an excess number of cases of cancer in the area was not the result of PPI, but could most reasonably be explained by a combination of chance, socio-demographic and statistical factors. The plaintiffs put forward an argument that, if causality through PPI was not the explanation, then the fact that those excess cases were children of fathers who had been subject to high doses of radiation must be put down simply to chance. This argument gave the judge ‘cause 85 Reay v British Nuclear Fuels [1994] 5 Med LR 1; Hope v British Nuclear Fuels [1994] PIQR P171; [1994] Env LR at 320. 86 (1990) British Medical Journal (1990) 300, 423–29.

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Personal Injury: The The Industry Compensation Scheme 197 for pause and reflection’,87 but he concluded that, considering the evidence, the scales tilted decisively in favour of the defendants; the plaintiffs had therefore failed to satisfy him on the balance of probabilities that PPI was a material cause of this excess, or of their own injuries. In particular, there was no evidence of excess leukaemia among children born to fathers who were victims of the atom bombs in Japan. Whilst there were factors which might have gone some way towards explaining the differences in the Japanese data and the Gardner thesis, the fact remained that far from being ‘in the same ballpark’, the Gardner thesis would be ‘way out in Australia or whatever’.88 The ‘synergy theory’, put forward by the plaintiffs as a possible explanation for this difference, was found to have several flaws. The Gardner Report, on which the plaintiffs relied heavily, was found to be virtually unsupported by other studies, and had shortcomings which reduced confidence in it; in particular, it could not explain excesses of leukaemia in sites where PPI could not be the explanation. The Gardner thesis of PPI could not be excluded on ‘mechanistic’ grounds on the state of current knowledge on genetics. However, on the other hand, the mechanisms proposed to explain PPI were speculative and did not carry forward the case against BNFL. Finally, it was not established on the evidence that leukaemia and NHL were a single disease; this greatly weakened the case for PPI as a cause of NHL. Shortly after the judgment, the HSE published a report following up the work of Professor Gardner. This concluded that, for West Cumbria as a whole, there was little evidence to support any link between PPI and leukaemia/NHL. However, a strong statistical association of these factors was acknowledged in children born to Sellafield mothers resident in Seascale who had started work at Sellafield before about 1965. Research into possible workplace factors other than radiation yielded no clear explanations. The association might be explained by a combination of causes; no single factor seemed capable of explaining the findings beyond all doubt.89

PERSONAL INJURY: THE INDUSTRY COMPENSATION SCHEME The nuclear industry operates, in agreement with the relevant trades unions, a Compensation Scheme for Radiation-Linked diseases, which applies to employees.90 The scheme was set up initially by BNFL in the 1970s, following a number of cases brought by workers in the 1970s, which were settled out of court but which were extremely protracted and expensive. The Scheme was established in 1982, applying originally only to cases of deaths, but was extended in 1987 to cover morbidity claims. The Scheme now includes as participants all the major employers in the civil and military nuclear industry, including as well as BNFL the power station operators, fuel services companies such as Urenco, those 87

[1994] Env LR at 369. Ibid, 365. 89 HSE, Investigation of Leukaemia and other Cancers on the Children of Male Workers at Sellafield (1993). The issue of contributory causes in the context of industrial diseases was considered by the Court of Appeal in Novartis Grimsby Ltd v Cookson [2007] EWCA Civ 1261 in which the claimant had been exposed to carcinogenic amines during his employment in the dyestuffs industry. He had also been a moderate smoker for 20 years. He developed bladder cancer. At first instance it was found on the basis of expert evidence that the exposure to amines was a more potent potential cause of the cancer than smoking, effectively more than double the risk of contracting cancer due to smoking. On the basis of that finding, the Court of Appeal held that the ‘but for’ test of causation was satisfied in relation to exposure to amines, and that as a matter of logic it must be more probable than not that the disease was caused by such exposure. 90 www.csrld.org.uk. 88

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198 Liability operating Ministry of Defence sites, and companies holding site licenses for decommissioning work. The Nuclear Decommissioning Authority (NDA) makes it a requirement that contractors for such work participate in the scheme. The scheme operates on a no-fault basis. An independent secretariat, which takes expert advice, considers the probability, based on the claimant’s occupational exposure records, that such exposure was the cause of the injury. If the probability is more than 50 per cent, then the claim is paid in full, with heads of damage being assessed in the same way as in civil proceedings. The innovation of the scheme, and the significant benefit from the claimant’s point of view, is that partial awards can be made where the probability is over 20 per cent but fails to achieve the 51 per cent that would be required on the civil balance of probabilities test.

DAMAGE TO PROPERTY The duties created by section 7 also apply to ‘damage to any property of any person other than the licensee’. The question of what constitutes damage to property has now been considered in a number of cases. The first was Merlin v British Nuclear Fuels Plc,91 the facts of which are set out above. Having discovered the extent of the contamination of their property, the plaintiffs in that case decided to move. They acquired another property with the aid of a bridging-loan, but experienced difficulty in selling their original house following the broadcast of a Yorkshire Television documentary entitled ‘Sellafield—the Nuclear Dustbin’ which featured the family’s problems (and in which the plaintiffs voluntarily co-operated). Under pressure from the bank, the property was ultimately sold at auction (to a Sellafield employee) at a low value. The contention of BNFL was that the 1965 Act provided for compensation in respect of proven personal injury or damage to property and did not compensate for mere economic loss, which was the essence of the plaintiffs’ claim. Despite an initially unfavourable reaction to this argument—which would give no remedy for a case which might be the typical result of an accidental emission of radioactive material from a nuclear site—Gatehouse J was ultimately convinced that the defendants’ approach was correct. The reasons for this were that the Vienna Convention, Article 1(k), defines ‘nuclear damage’ to include (i) loss of life, personal injury or loss or damage to property, together with ‘(ii) any other loss or damage . . . if and to the extent that the law of the competent court so provides’. Thus, a contracting party would have to provide redress for damage to property but could choose whether or not to give redress for other forms of loss, for example, economic loss. The 1965 Act went as far as the Vienna Convention required, but did not provide compensation for ‘any other loss or damage’, as it could have done in accordance with Article 1(k)(ii). In the judge’s words: Personal injury or damage to property is a familiar enough phrase and in my judgment it means, as it does in other contexts, physical (or mental) injury or physical damage to tangible property. The word ‘property’ may well have a wider meaning in some contexts . . . but where used in the Vienna Convention and in the Act of 1965, it does not in my judgment extend to incorporeal property or property rights. The plaintiff’s argument that property including the airspace within the walls, ceilings and floors of Mountain Ash, that this has been damaged by the presence of radionuclides and the house rendered less valuable as the family’s home, seems to me to be too far-fetched. 91

[1990] 2 QB 557.

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Damage to Property 199 The judge also noted that the 1965 Act contains various compromises, one of which is a restriction on the nature of the harm which qualifies for compensation; whilst enormous doses of radioactivity would be required to produce any detectable damage to the molecular structure of building materials and other inanimate objects, the phrase ‘damage to property’ could well apply, for example, to injury to livestock, and thus have a sensible function. Overall, it was not the case that ‘the jurisprudence of the English court’ would fill the gap intentionally left by Parliament. Gatehouse J could see no reason why compensation under the 1965 Act should extend to pure economic loss when such loss would not be recoverable at common law. No ‘special relationship’ existed between the plaintiffs and the defendants to sustain any such claim. Finally, whilst bearing in mind the dangers of accepting arguments based upon the ‘floodgates’ principle, the judge inclined away from ‘a construction of the Act of 1965 which would result in the operator being in continued breach of the statutory duty to a possibly very large number of people’. The judge thought it was in the very nature of nuclear installations that there would be some additional radionuclides present in the houses of local people; if the mere presence of such radiation sources was enough to constitute damage, the result would be to confer a claim for compensation on ‘possibly thousands of citizens’. The use of the word ‘cause’ in section 7 implied to the judge the necessity for cause and effect between the relevant incident or emission and the damage. The mere presence of ionising radiations was not enough without some consequential damage. This reasoning is, however, open to question in certain respects. It is perhaps curious that the judgment relied so heavily upon the Vienna Convention (to which the UK is not a party) whilst making no reference to the Paris Convention. The Vienna Convention does indeed draw a distinction in defining nuclear damage between loss of life, personal injury and damage to property on the one hand, and ‘any loss or damage’ on the other. The Paris Convention does not contain the same explicit distinction, but simply refers to damage to, or loss of, any property. Also, it has been suggested by Professor Richard Macrory92 that Gatehouse J was ‘obviously influenced by the terms of the Vienna Convention and could have adopted a rather more flexible approach’. In any event, the decision has been distinguished in the later cases. The second case to consider the question of radioactive contamination was Blue Circle Industries Plc v Ministry of Defence.93 A storm in 1989 had caused ponds on the land of the Atomic Weapons Establishment at Aldermaston to overflow, passing through marshland and into a lake on adjacent property owned by Blue Circle Industries. As a result, Blue Circle’s land became contaminated by radioactive material. The extent and significance of the contamination was not disclosed by MoD to Blue Circle until 1993, by which time Blue Circle were in negotiations to sell the property to a prospective purchaser for a price in excess of £10 million. The prospective purchaser withdrew once the contamination was disclosed. At first instance, Carnwath J held that there had been a breach of the duty imposed by section 7(1)(a) of the Nuclear Installations Act 1965, and awarded damages based on the assessed loss of chance of concluding a sale. The MoD appealed against that judgment. In construing section 7, Aldous LJ indicated that while the Paris and Vienna Conventions were of ‘historical interest’, in his view they did not throw light on the issue of construction under the 1965 Act. MoD accepted that the contamination of the marshland was an ‘occurrence’ 92

[1991] 3(1) JEL, 132. Blue Circle Industries Plc v Ministry of Defence [1999] 2 Ch 289. See Stephen Tromans, ‘Nuclear Liabilities and Environmental Damages’ (1999) 1 Environmental Law Review 59. 93

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200 Liability within the Act; however, it argued that there had to be physical damage to property arising out of or resulting from the radioactive properties of the escaped material (see section 7(1)(a)) and relied on the decision in Merlin. Plutonium had become admixed with the soil and could only be removed by excavating the contaminated mixture. Levels of radiation were such that the excavated material was to be regarded as radioactive waste but not such as to present a risk to health. Followed the reasoning of Carnwath J, Aldous LJ robustly rejected MoD’s submission: The physical damage to property contemplated in section 7(1)(a) is not limited to particular types of damage. Damage within the Act will occur provided there is some alteration in the physical characteristics of the property . . . caused by radioactive properties which render it less useful or less valuable . . . I have no doubt there was such alteration in this case.

The basis for this conclusion was that the plutonium had intermingled with the soil to such an extent that it could not be separated by any practical process. The soil had thereby become radioactive, and the land less valuable (indeed unsaleable until the contaminated soil had been removed). The consequence may have been economic, but the damage was physical. Aldous LJ distinguished Merlin on the basis that the fabric of the house in that case had not been altered. The radioactivity was present in dust within the house, but had not intermingled with the house itself or changed its characteristics. On those facts it was possible for the judge in Merlin to hold that the cause of the reduction in value of the house was stigma, not damage to the house itself, and it was not necessary to express a view on whether the case had been correctly decided. Chadwick LJ and Simon Brown LJ agreed with that reasoning. The third decision is that of Lady Paton in the Court of Session (Outer House) in Magnohard Ltd v UKAEA.94 This was again a case on contamination. Radioactive particles from UKAEA’s Dounreay site were present in the sea, possibly from operations undertaken in the 1960s and 70s or in 1983, and by operation of wind and tide they were deposited on Sandside Beach, part of an estate owned by the claimant. UKAEA operated a monitoring and particle-removal programme, but the claimant was not satisfied with this. Between 1984 and 2003, a total of 22 particles had been found on the beach. Work by SEPA and Radioactive Waste Management Advisory Committee (RWMAC) indicated that the risks of a member of the public being exposed to a particle were so low as not to warrant further action,95 but as a precautionary measure a ban on fishing had been imposed within a 2 kilometre radius of the Dounreay outfall.96 To put the matter in context, it was submitted by UKAEA that, while a particle might, if lodged under a fingernail for several hours, cause minor blistering, there was only one particle per 90,000 tonnes of sand, and a one in seven million chance of a visitor to the beach getting a blister. Lady Paton held that the term ‘occurrence’ in section 7 was wide enough to cover both the circumstance of a radioactive particle arriving on the beach and also its continued presence on the beach. She was not convinced that it was necessary, as in Merlin, to construe ‘damage to any property’ as being restricted to purely physical damage—questions of amenity, loss of value and stigma could be very relevant in the context of damage to land. 94

Magnohard Ltd v UKAEA [2004] Env LR 19. See SEPA, ‘Fragments of Irradiated Nuclear Fuel in the Dounreay Local Environment’ (1998); RWMAC, Review of Radioactive Particles at UKAEA Dounreay (1999). 96 Food Protection (Emergency Prohibitions) (Dounreay Nuclear Establishment) Order 1997 No 2622. 95

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Consequential Loss 201 However, in this case the beach had suffered physical damage on the basis of the Blue Circle case. This, according to the judge, occurred by reason of the sporadic and unpredictable deposit of tiny radioactive particles, which had become inmixed with fine grains of sand, with no visible way of knowing which part of the beach might be contaminated; the size or level of contamination could not be controlled, nor could it be guaranteed that every particle would be detected and removed. Thus the beach was: subject to a peculiarly unpleasant type of physical contamination which cannot easily be cured, and which makes the beach unattractive to any potential user or purchaser.97

Whereas in Merlin, all that was necessary was to hoover and remove dust which might contain low level radioactivity (an ordinary household operation that would have to be undertaken anyway) in Magnohard special and elaborate measures for monitoring and removal were necessary, including a detector lorry sweeping the beach for 12 days each month, and warning notices. The effects of these measures were ‘damage’ in themselves. Further, the judge expressed the view obiter, that the order prohibiting fishing had itself caused damage to fishing rights, in that licences to fish had to be terminated and fixed nets removed from the foreshore. It remains the case that the problems of translating the consequences of a nuclear release into traditional common concepts of bodily injury and physical property damage provides a less than satisfactory framework for providing a clear and adequate system of liability.98

CONSEQUENTIAL LOSS The 1965 Act makes no express reference to the issue of consequential loss. At the Commons stage of the Nuclear Installations (Amendment) Bill, an amendment was proposed to make it clear that damage to property included loss of profits or other earnings suffered by the victim. In the case of an individual suffering injury, such loss could include loss of earnings and medical expenses. In the case of a corporate plaintiff, there might be loss of profits or other purely monetary loss.99 It is interesting to note that Article 1(k)(ii) of the Vienna Convention was referred to in support of the amendment.100 The Minister without Portfolio, in rejecting the amendment, denied that it was originally the intention of the 1959 Act to cover such consequential loss; it was neither the function nor the intention of Parliament to legislate on issues of remoteness of damage.101 Loss of earning capacity would, on normal principles, be a possible head of damages for individuals.102 Sir Eric Fletcher stated the Government’s intention so far as corporate plaintiffs were concerned as follows: It is the Government’s intention to place a corporate plaintiff in an action under the Bill in the same position as he would be in an action for negligence at Common law in which liability were either admitted or proved. It is my belief that the words of the Bill adequately give effect to that intention.103 97 98 99 100 101 102 103

Ibid, para 156. See Maria Lee, ‘Civil Liability of the Nuclear Industry’ (2000) 12 JEL 317. Hansard HC vol 706 col 683 (11 February 1965). Ibid, col 685. Ibid, col 687. Ibid, col 688. Ibid, col 690.

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202 Liability The Government reconsidered the issue before the Lords stage and remained confident that the bill would leave a plaintiff, including a corporate plaintiff, in an action under the bill, in the same position as he would be in an action for negligence at common law in which liability was admitted or proved:104 the Bill as drafted leaves it to the court to decide, as at common law, the extent and quantum of damages and, in particular, any question as to remoteness of damage.

In other words, the normal rules of remoteness of damage will govern whether loss of profit or other consequential loss is recoverable. These rules were explored at length by the Court of Appeal in Blue Circle Industries Plc v Ministry of Defence,105 discussed above in the context of what is damage to property. Once damage within the meaning of section 7 had been established, liability followed for all foreseeable losses caused by the breach, provided they were not too remote, and were not limited to the costs of rectifying the damage itself. Therefore diminution in value and effect on saleability were recoverable in principle provided they were foreseeable (as they were in that case). Essentially, the exercise, as in general property tort cases, is to put the claimant back in the position they would have been in if the breach had not occurred. The Court of Appeal also addressed the issue of residual stigma arising from the contamination after clean up as a head of damage, and concluded that this was recoverable provided it related to the fact of past contamination. Therefore, once damage to a person’s property is established, a claim under section 7 may include the range of consequential and financial losses which may result, provided they are caused by the property damage and are not too remote. Plainly in the event of a wide-scale release of radioactivity such losses, in terms of loss of value, business disruption, the costs of obtaining alternative accommodation and so on, could far exceed the cost of dealing with the actual damage, even assuming that it is capable of being dealt with. The issue is discussed further below in the context of the changes to the definition of ‘nuclear damage’ in the Paris Convention.

THE LICENSEE’S PROPERTY AND THAT OF THIRD PARTIES The duties under section 7 apply to property of any person other than the licensee. As originally drafted in the 1959 Act, the duty applied expressly to property on the site of the installation or elsewhere. However, Article 3(a)(ii) of the Paris Convention excludes damage to the installation itself and any property on the site of the installation which is used, or is to be used, in connection with the installation; the 1965 Act now reflects that exclusion. In determining whether there is liability in respect of an occurrence, any property which at the time of the occurrence is on the licensed site may, by subsection 7(3), be deemed to be the property of the licensee (and so not protected by the section 7 duties), even though it is in fact the property of some other person. The subsection applies to property which is: (a) a nuclear installation; or (b) other property on the site for use in connection with the operation of the nuclear installation by the licensee, or the cessation of such operation. Effectively therefore, a third party will have no remedy under subsection 7(1)(a) for occurrences affecting their property if, for example, it is on-site plant or equipment used for operation 104 105

Hansard HL vol 263 col 1287. [1999] 2 Ch 289.

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Liability of Third Parties in Respect of Licensee’s Property 203 or decommissioning of the reactor. However, subsection 7(3) applies only to determine liability ‘in respect of any occurrence’. This leaves open the possibility that the deeming provision would not apply to the detriment of a person relying on breach of the duty under subsection 7(1)(b), since this relates to damage caused by the emission of ionising radiations, rather than an ‘occurrence’.

LIABILITY OF THIRD PARTIES IN RESPECT OF LICENSEE’S PROPERTY As explained above, subsection 7(1) excludes damage to the licensee’s property. Where that property is damaged by a nuclear occurrence caused by a third party, section 12 (discussed below) would not prevent that third party incurring liability since the section applies to damage caused in breach of a duty under section 7, and, if it is the licensee’s own property which has been damaged, there is no breach of such duty by the licensee. However, subsection 12(3A) (added by the Nuclear Installations Act 1969, section 1, allows a third party to incur such liability only: (a) in pursuance of an agreement to incur liability in respect of such damage entered into in writing before the occurrence of the damage; or (b) where the damage was caused by an act or omission of that person done with intent to cause injury or damage.

This reflects the underlying intention of Article 6(f) of the Paris Convention, which states that the operator shall have a right of recourse only: (a) if the damage caused by a nuclear incident results from an act or omission [by a third party] done with intent to cause damage, against the third party acting or omitting to act with intent; (b) if and to the extent that it is so provided expressly by the contract.

The reasoning of subsection 12(3A) would appear to apply equally whether it is actually the licensee’s property which has been damaged, or property of a third party which is deemed to belong to the licensee by subsection 7(3). In debates on the 1969 Act, the purpose of the amendment was said to be to make the UK legislation match the Conventions, and to restrict the possibility of an operator seeking to establish liability on the basis of negligence against the supplier of a faulty component which resulted in damage to the reactor.106

DUTY OF THE UKAEA Subsection 7(1) is expressly made subject to subsection 7(4), which provides that section 8 shall apply to sites occupied by the Authority; this wording was added by the Nuclear Installations Act 1965 (Repeal and Modifications) Regulations 1990. Section 8 provides that the duties of section 7 apply to the Authority whether or not a nuclear site licence is in force in relation to premises occupied by the Authority. If no such licence is in force, then the reference to the ‘period of responsibility’ in section 7 cannot of course be established by 106

Hansard HL vol 301 col 332; and Hansard HC vol 779 col 624.

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204 Liability reference to licensing, as is provided by subsection 5(3); the period is thus simply that of occupation by the Authority (subsection 8 (b)). It should be noted that section 7 is applied to the Authority in relation to all sites which are currently occupied by the Authority or which have been so occupied. By contrast, section 9 applies to the Crown only in relation to sites used for purposes within section 1. The application of the section 7 duties to the Authority in 1990 did not represent a new burden on the Authority, since the Authority was subject to a corresponding and more onerous duty under subsection 5(3) of the Atomic Energy Authority Act 1954. The subsection was repealed by the Energy Act 1983, sections 34, 36, Part 2, Schedule 2. This duty was to secure that no ionising radiations from anything on any premises occupied by the Authority, or from any waste discharged (in whatever form) on or from such premises, caused hurt to any person or damage to any property, whether he or it was on the premises or elsewhere. This duty was described as making the Authority ‘completely and absolutely liable to an unlimited extent for the result of any of its operations and for any period of time’—a position which could not be expected of the private sector.107

DUTY OF THE CROWN A Government department which uses a site for a purpose described in section 1 of the 1965 Act is subject to section 7 as if the Crown were the licensee under a nuclear site licence (section 9). As with the UKAEA, the ‘period of responsibility’ corresponds to the period of occupation by the Department.

DUTY OF FOREIGN OPERATORS Section 10 applies a limited version of the section 7 duty to certain foreign operators. A ‘relevant foreign operator’ is defined by section 26 as a person who operates an installation to which a relevant international agreement applies in a territory for the time being bound by such agreement, other than the UK. An obvious example would be the operator of a nuclear reactor in a country which is a party to the Paris Convention, such as France. Where nuclear matter (which is not excepted matter) either: (a) is in the course of carriage on behalf of a relevant foreign operator or is in the course of carriage to that operator’s site with their agreement (by subsection 13(3), the agreement must be in writing) from a place outside the relevant territories, and in neither case is for the time being on any relevant site in the UK; or (b) having been on the foreign operator’s site or in the course of carriage on behalf of the operator, has not subsequently been on any relevant site or in the course of any relevant carriage or (except in the course of relevant carriage) within the territorial limits of a country which is not a relevant country; then it is the duty of the operator to secure that no occurrence mentioned in subsection (2) causes injury or damage resulting from radioactive properties of the material, or a com107

Hansard HL vol 212 col 1059.

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Movements of Nuclear Matter To and From the UK 205 bination of radioactive, toxic or other hazardous properties. The occurrences referred to in subsection (2) are: (a) an occurrence taking place wholly or partly within the territorial limits of the UK; or (b) an occurrence outside such territorial limits which also involves nuclear matter in respect of which a duty is imposed on any person by section 7, 8 or 9. The first type of occurrence might relate to material entering the UK for reprocessing. The second type might apply where materials of different origin are being carried together outside the UK.

MOVEMENTS OF NUCLEAR MATTER TO AND FROM THE UK It may be helpful to give examples of how these complex sections 7 to 10 might operate. Points 1, 2 and 3 below set out some possibilities: 1. Spent nuclear fuel from a foreign operator subject to the Paris Convention is being transported to a site in the UK for reprocessing. The foreign operator would be subject to the section 10 duty if, (a) it was being carried on his behalf and was not yet on a relevant site in the UK, or (b) (since it was material that had been on the foreign operator’s site) it had not subsequently been at another installation subject to the Convention, or entered the territory of a non-party except in the course of carriage on behalf of the foreign operator. The foreign operator would be liable in respect of an occurrence taking place wholly or partly within the UK (including territorial waters). If the occurrence also involves nuclear matter in respect of which a duty is imposed by section 7, 8 or 9 (for example because it is in the course of carriage on behalf of the licensee of the UK site) then the duty extends to occurrences outside the UK territorial limits. It should be noted that in the circumstances described above, the UK licensee would be under the section 7 duty if: (a) the material was being carried on his behalf rather than on behalf of the foreign operator (if this were the case then it would not be in the course of carriage on behalf of the foreign operator); or (b) the material was being carried with his agreement from a place outside the relevant territories. If it was being carried straight from the foreign operator’s site then this would not be the case. If it had entered the territory of a non-party (other than simply in the course of carriage) then the UK licensee would be liable under subsection 7(2)(b), but the foreign operator would not. There is, therefore, a degree of symmetry inherent in sections 7 and 10 which should prevent both a UK licensee and a foreign operator being liable. 2. Nuclear fuel produced or reprocessed in the UK is transported to a relevant foreign operator for use in the foreign operator’s reactor. If it is carried on behalf of the foreign operator, that operator will be liable under subsection 10(1)(a)(i) once it leaves the licensed site in the UK. The UK licensee will not be liable since it is not being carried on his behalf, nor will he be liable under subsection 7(2)(c) since it will have entered ‘relevant carriage’ on behalf of the foreign operator. If it is carried on behalf of the UK licensee, then he will be liable: the foreign operator will

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206 Liability not be liable under subsection 10(1)(a)(ii) since it is not being carried to the operator’s site from a place outside the relevant territories. 3. Waste arising from the reprocessing in the UK of spent nuclear fuel from a relevant foreign operator is returned to the foreign operator for disposal. The position is essentially the same as for 2 above, but with one added complication. It could be said that the UK licensee is not only subject to the duty of subsection 7(1)(a) in relation to ‘occurrences’, but is also subject to the duty under subsection 7(1)(b) in relation to waste discharged (in whatever form) from the site. However, if the UK licensee continued to be liable under subsection 7(1)(b) after the foreign operator had taken charge of the material or assumed responsibility for it in writing, this would be contrary to the principles of channelling of liability as expressed in relation to the carriage of nuclear substances in Article 4(a)(i) and (ii) of the Paris Convention. The legislation ought to be construed, if possible, to avoid a situation where both the UK licensee and foreign operator are both liable in respect of the same occurrence.

DUTY OF CARRIERS Section 11 of the 1965 Act deals with nuclear matter which is in the course of carriage within the UK (including territorial waters) where the carriage is not ‘relevant carriage’, and the nuclear matter is not for the time being on any ‘relevant site’. In such cases it is the duty of the person on whose behalf the material is being carried, to secure that no occurrence involving the nuclear matter causes injury or damage (other than damage to their own property) to be incurred within the territorial limits of the UK, resulting from the radioactive properties of the matter. In most foreseeable cases, it is likely in practice that carriage within the UK will be relevant carriage, that is on behalf of a site licensee, the Atomic Energy Authority, the government, or a foreign operator. In that case, section 11 will not apply. At the time of introducing clause 3 of the 1965 Nuclear Installations (Amendment) Bill (which in due course became section 11), it was pointed out that by administrative means, steps would normally be taken to ensure that nuclear matter entering the UK would engage the liability of an operator from a Convention party. However, there might be cases of traffic between non-convention states crossing UK territorial waters, and vessels carrying nuclear matter might need to dock in the UK in an emergency.108 The section imposes absolute liability, unlimited in time or amount; since no Convention party is involved, there was no basis or reason for setting any such limit.109 Under the 1976 Convention on Limitation of Liability for Maritime Claims, which has the force of law in the UK by virtue of section 17 of, and Part 1, Schedule 4 to, the Merchant Shipping Act 1979, it is generally possible for shipowners and salvors to limit their liability for claims in respect of injury and damage. However, certain types of claim are excepted from limitation under the Convention, and these include claims subject to any international Convention or national law governing or prohibiting liability for nuclear damage and claims against the shipowner of a nuclear ship for nuclear damage (Article 3(c) and (d), Schedule 4).

108 109

Hansard HC vol 702 col 51; Hansard HL vol 263 col 1278. Ibid.

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Right to Compensation: Section 12 207

RIGHT TO COMPENSATION: SECTION 12 Section 12 of the 1965 Act is the key section which gives rise to a right to compensation in respect of injury or damage caused in breach of section 7, 8, 9 or 10. The section is qualified in various respects by following sections and needs to be read in conjunction with them. To be precise, the section does two separate things, in accordance with the principle established by the international Conventions of channelling liability: (a) it provides that compensation is payable in accordance with section 16 (which limits liability financially) wherever the injury or damage was incurred (that is whether inside or outside the territory of the UK); and (b) it precludes any liability for such injury or damage being incurred by any other person than the person subject to the duty under section 7, 8, 9 or 10. The Health and Safety at Work, etc. Act 1974 contains various provisions on safety and risk which will be applicable to nuclear sites; however, subsection 47(1)(c) of the 1974 Act provides that nothing contained in Part I of the 1974 Act is to be construed as affecting the operation of section 12 of the 1965 Act. Accordingly, it is not possible to circumvent the effect of section 12 by bringing an action for breach of statutory duty against the operator or some other person under health and safety legislation.

DAMAGE, INJURY OR LOSS OUTSIDE SECTION 12 Section 12 applies only to injury or damage caused in breach of a duty under sections 7 to 10 of the 1965 Act. If the damage or injury results entirely from a release of radiation which does not constitute such a breach, section 12 does not apply, and liability will be determined on common law principles. Similarly, if there is no ‘injury or damage’ as required by the Act, common law principles will also apply. A release of radioactive material might cause economic loss without physical damage; for example, loss of the use of property, diminution in value, or the inability to sell crops or produce. Whether a claim in negligence, nuisance or the Rule in Rylands v Fletcher would succeed would depend largely upon the approach taken to the recovery of economic loss. It is conceivable that damage may result from mixed causes, and this is indeed contemplated by section 12. Injury or damage which is not caused by breach of such a duty, but is not reasonably separable from that which is, shall be deemed for the purposes of compensation to be caused in breach of duty (subsection 12(2)). This principle is, however, subject to subsection (3), in that the application of section 12 to any emission of radiation which is not a breach of duty does not affect any liability of any person arising outside the Act. The two causes of action may therefore co-exist in this particular situation, but subsection (3) expressly provides that a claimant may not recover compensation both under and outside the Act for the same injury or damage.

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208 Liability

EXCLUSION OF OTHER CLAIMS Section 12 provides the only remedy for injury or damage failing under it; by subsection 12(1)(b), no other liability shall be incurred by any person in respect of that injury or damage. The expressed policy of this provision is the avoidance of a multiplicity of claims, for example against, or between, contractors.110 The principle, therefore, will exclude claims at common law or under other statutory provisions against the person in breach of the duty. It would not, of course, exclude criminal liability, which is not liability in respect of the injury or damage. Importantly, it also excludes any possible claims against third parties, for example, the liability of a negligent contractor or subcontractor whose work at a nuclear reactor gives rise to an occurrence, or the liability of a negligent driver who causes an accident involving nuclear matter which is being carried. The general principle is subject to some exceptions: (a) in respect of injury or damage caused partly by a breach of duty under the 1965 Act and partly by an emission of ionising radiations which does not constitute such a breach, liability outside the Act is not excluded in relation to the emissions (subsection (3)); (b) the exclusion does not affect the operation of the Carriage by Air Act 1931, the Carriage by Air Act 1961 or the Carriage by Air (Supplementary Provisions) Act 1962 in relation to international carriage covered by one of the relevant conventions for those purposes (subsection (4)(b)); (c) nor does it affect the operation of any Act giving effect to the 1956 Geneva Convention on the Contract for the International Carriage of Goods by Road (subsection (4)(c)); (d) in cases where an occurrence involving nuclear matter in the course of carriage results in a claim in respect of damage to the means of transport being made against a foreign operator under section 10, the foreign operator may be protected by subsection 16(2)(a) if he would not have been liable under the law of his own territory had the occurrence taken place there. In such cases subsection 12(1)(b) does not apply to prevent a claim outside the Act being made in respect of that damage. The reference to the specific Conventions at paragraphs (b) and (c) above is explicable by reference to Article 6(b) of the Paris Convention, which provides that the rule as to channelling of liability shall not affect the application of any international agreement in force or open for signature, ratification or accession as at the date of the Convention (29 July 1960). Originally, subsection 12(4)(a) of the 1965 Act provided that the exclusion in subsection 12(1)(b) was not to affect the operation of the Carriage of Goods by Sea Act 1924, but that provision was repealed by the Carriage of Goods by Sea Act 1971, section 6(3)(b). LIMITATION FOR MARITIME CLAIMS The general ability to limit liability for maritime claims provided for in Part 1, Schedule 7, to the Merchant Shipping Act 1995 does not apply to claims made by virtue of sections 7 to 11 of the 1965 Act (Part II, Schedule 7, paragraph 4(3)). This is the effect of paragraph 3(c) 110

Hansard HL vol 212 col 504.

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Compensation for Damage to Licensee’s Property 209 of Part 1, Schedule 7, and the same applies to claims against a shipowner of a nuclear ship for nuclear damage (paragraph 3(d)).

COMPENSATION FOR DAMAGE TO LICENSEE’S PROPERTY The principle that a third party cannot be liable for injury or damage under the 1965 Act requires careful application to cases where it is the property of the licensee or foreign operator itself which is damaged. Damage to the licensee or operator’s property does not fall within the duties imposed by sections 7 and 10. That being the case, section 12 would not apply to prevent a claim being made in contract or tort by the licensee/operator or their insurers against the person who caused the damage. Subsection 12(3A) restricts cases where any such liability can be incurred to: (a) where there was a written agreement to incur such liability entered into before the damage occurred; or (b) where the damage was caused by an act or omission of that person done with intent to cause injury or damage. The subsection was inserted by the Nuclear Installations Act 1969, section 1, after it was discovered that the 1965 Act might allow the operator to make a claim in negligence against the supplier of a faulty component for damage to property on the site. This would have been contrary to the Paris Convention.111 The relevant provision of the Paris Convention states that the operator shall have a right of recourse only: (a) if the damage results from an act or omission done with intent to cause damage, and against the individual acting or omitting to act with such intent; or (b) if and to the extent that it is so provided by contract (Article 6(f)). The Government, in enacting subsection 12(3A), clearly regarded requirements (i) and (ii) of the Convention as being alternatives, though the word ‘or’ does not appear there. The issue of damage caused to the licensee’s own property has increased in importance with arrangements made between the NDA and site licence companies for the decommissioning of nuclear sites, described further in chapter eleven. Contractors down the supply chain to the site licence companies are concerned not to be liable for nuclear damage and this has led to discussion of the ‘flow through’ contract terms which the NDA requires site licence companies to impose on lower tier contractors, in order to ensure that these follow the general principle of channeling of liability to the licence holder and do not amount to a written agreement by the contractor to incur liability for damage to the site.112

EXCLUSION, EXTENSION AND REDUCTION OF COMPENSATION: SECTION 13 Section 13 contains miscellaneous qualifications to the general principle of compensation provided by section 12. These are considered in the following paragraphs. 111 112

Hansard HL vol 301 col 332; Hansard HC vol 779 col 624. See www.niauk.org/industry-link/issue-10/update-liability-for-nuclear-damage-and-insurance.html.

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210 Liability

Extra-territorial Damage: Subsection 13(1) The ostensibly wide words in section 12 ‘wherever the injury or damage occurred’ are expressly subject to subsection 13(1) which provides that, in fact, compensation is not payable in two circumstances: (a) where the breach of duty involved matter in the course of carriage within subsection 7(2)(b) or 10(2)(b) and caused injury or damage which is shown to have taken place within the territorial limits of a single relevant territory other than the UK; or (b) the injury or damage was incurred within the territorial limits of a country which is not a relevant territory. This principle is, however, itself qualified by subsection 13(2) (see below). The first exclusion is presumably on the assumption that rights of action would exist under the legislation of the relevant territory where the damage occurred. The second is consistent with Article 2 of the Paris Convention, which provides that the Convention does not apply to nuclear incidents occurring in the territory of non-contracting states or to damage suffered in such territory, unless the national legislation of the operator’s country provides otherwise.

UK-registered Ships and Aircraft: Subsection 13(2) By subsection 13(2), the exclusion of compensation for injury or damage incurred within the territory of a country, which is not a relevant territory, does not apply in the case of breach of duty under sections 7 to 9 (but not 10) causing injury or damage to persons or property on a ship or aircraft registered in the UK, or to the ship or aircraft, itself. To take an example, if nuclear matter was being carried on behalf of a UK nuclear site licenceholder, and an occurrence took place within the territorial waters of a non-party state, the licensee would still be liable for injury to persons (of whatever nationality) on the vessel, for damage to the ship and for damage to property on it. If, however, the carriage was on behalf of a relevant foreign operator and an occurrence falling within section 10 resulted in such damage, subsection (2) would not apply and so liability would be precluded by subsection 13(1). This provision was made specifically for the protection of crews and of carriers; it is particularly important since, in the absence of any such remedy, enforcement of foreign judgments would be barred by section 17.113

Carriage to Foreign Operator’s Site—Need for Written Agreement: Subsection 13(3) Subsection 13(3) adds a gloss to subsection 10(1)(a)(ii) (see above) in that the agreement of the operator for it to be carried to his site, which is a prerequisite of liability under that subsection, must be in writing. Article 4(b)(iv) of the Paris Convention refers to written consent being necessary in such circumstances.

Hostile Action and Natural Disaster: Subsection 13(4) Subsection 13(4) provides what is effectively the only general defence to the absolute liability under section 12 namely that the occurrence constituting breach of duty was attributable to hostile action in the course of any armed conflict, including any armed conflict within the UK, or the causing of injury or damage by the occurrence was attributable to such conflict. The subsection goes on to make it clear that natural disaster does not constitute a defence 113

Hansard HC vol 702 col 51.

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Exclusion of Compensation 211 and, therefore, liability arises where the occurrence, or the causing of injury or damage by it, was attributable to a natural disaster, even if the disaster was of such an exceptional character that it could not reasonably have been foreseen. Both the Paris and Vienna Conventions (Articles 9 and IV(3) respectively) provide that the operator shall not be liable for ‘damage caused by a nuclear incident directly due to an act of armed conflict, hostilities, civil war or insurrection’. This may assist in the interpretation of the term ‘any armed conflict’ in the 1965 Act. However, the Conventions were drafted at a time when organised terrorism, possibly using military-style weapons, was not the concern that it is today, and the issue seems ripe for clarification. The general consensus within the OECD and NEA is that the exception does not apply to acts of terrorism.114 Both Conventions also provide that the operator is not liable for nuclear incidents caused by ‘a grave national disaster of an exceptional character, unless national law provides to the contrary’ which, of course, UK law does.

Right to Recover Payments made outside the Act: Subsections 13(5) and (5A) Subsections 13(5) and (5A) provide a procedure to allow, in limited cases, a third party who has paid compensation for injury or damage caused in breach of sections 7 to 10 of the 1965 Act to claim compensation from the person subject to that duty, up to the amount of the payment made by the third party. Those cases are: (a) where the payment was made in pursuance of the international transport conventions referred to at subsection 2(4) (in respect of which the third party’s liability is not precluded by section 12 generally) (see above); and (b) where the occurrence took place or the injury or damage was incurred within the territory of a non-party, and a person who has his principal place of business in a relevant territory (or is acting on behalf of such a person) was required to make payment by virtue of a law of the country where the occurrence took place. In these cases the amount claimed as reimbursement may not exceed the overall limits applicable under section 16 (see below) to the person subject to the duty. The words ‘or the injury or damage was incurred’ at (b) above were inserted by section 3 of the Nuclear Installations Act 1969, so as to bring the wording of the Act fully into accord with Article 6(e) of the Paris Convention (compare the more relaxed wording of Article IX(2)(a) of the Vienna Convention). In introducing the amendment, Lord Stonham referred to the recognition by the Conventions that in some circumstances a person other than the operator might find himself obliged to pay damages under the law of a country which was not a party to the Convention; the example was given of the owner of a ship carrying nuclear material. To cater for such an eventuality, such a person is given the right to make a corresponding claim against the operator.115 The provisions in (a) above reflect the position under the Paris Convention (Article 6(d)).

Contributory Malicious or Reckless Behaviour: Subsection 13(6) Subsection 13(6) provides what is effectively a limited form of contributory negligence, confined to cases where the party suffering the injury or damage acted with the intention of 114 See the study by the OECD/NEA Secretariat, ‘Insurance Coverage for Third Party Liability and Material Damage Arising from Nuclear Incidents Caused by Terrorist Acts’ available at www.nea.fr/html/law/nlb/nlb78/019-036.pdf. 115 Hansard HL vol 301 col 332.

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212 Liability causing harm to any person or property, or with reckless disregard for the consequences. In such circumstances the compensation payable to such person may be reduced if, and to the extent that, the causing of the injury or damage was attributable to a malicious or reckless act. The wording of the subsection provides an interesting example of UK law which follows the Vienna Convention more closely than the Paris Convention. No such provision appeared in the Nuclear Installations (Licensing and Insurance) Act 1959. Article IV(2) of the Vienna Convention allows the competent court, if its own law so provides, to relieve the operator wholly or partly from payment of compensation to a person suffering nuclear damage caused wholly or partly by their gross negligence or act done with intent to cause damage. The Paris Convention contains no express provision to that effect, though the concept is consistent with the references to persons acting or omitting to act with intent to cause damage found in section 6. The wording in subsection 13(6) is not identical to the Vienna Convention, in that it refers to acts done with reckless disregard for their consequences, rather than gross negligence, as referred to in the Convention. In relation to unborn children, this subsection must be read in conjunction with the Congenital Disabilities Act 1976, section 3(4) and (5).116

Protection for Ships and Aircraft: Section 14 Section 14 provides protection for ships and aircraft against any lien or rights in rem where the claim relates to an occurrence mentioned in sections 7(2)(b) or (c) (certain occurrences outside licensed sites), 10 (relevant foreign operators) and 11 (carriers). The provision can be traced back to subsection 4(5) of the Nuclear Installations (Licensing and Insurance) Act 1959.

Time Limitation: Section 15 The nature of injury caused by ionising radiations is such that special provision may be needed for limitation periods. Subsection 15(1) (which overrides any other statutory limitation periods) provides that a claim under sections 7 to 11 shall not be entertained if made after the expiration of 30 years from the ‘relevant date’. This date is either: (a) the date of the occurrence; or (b) where the occurrence was a continuing one, or there was a succession of occurrences attributable to a particular happening or operation on a particular site, the date of the last event in the course of the occurrence or succession of occurrences. As well as the 30 year period, which constitutes an absolute time-bar on claims, it is important to note that by subsection 16(3)(b), a claim which is made after 10 years from the relevant date is made not to the licensee/operator, but to the Government (see below). The 1959 Nuclear Installations (Licensing and Insurance) Bill was originally drafted with a 10 year limitation period running from the last date on which the relevant ionising radiations were emitted.117 Amendments were proposed in the Lords to remove that limit on the basis that it was arbitrary and unrealistic. The Government’s initial resistance to such an amendment was based upon the difficulties of proof which would arise the longer a claim was delayed, but also because insurers could not, on the current state of claims experience, work with a longer period for the purpose of setting outside reserves: 116 117

See above. Hansard HL vol 212 col 1026.

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Financial Limitation 213 Unless some shorter period is fixed licensees would find it difficult and expensive, if not impossible to obtain cover for their liability.118

However, after reflection, the Government introduced an amendment extending the period to 30 years, which was explained as follows: It would make the time limit for the presentation of claims thirty years instead of ten years. Since, however, claims presented after ten years or in excess of £5 million for each occurrence will be an uninsurable risk, it is necessary to make special arrangements so that the licensee can be reimbursed when he has met them. Therefore, under the Amendment claims presented within ten years or which do not carry the total above £5 million will be dealt with by the licensee or his insurers in the usual way. Claims presented after ten years or carrying the total beyond £5 million are not to be paid unless or until Parliament had decided how the licensee is to be reimbursed for paying them.119

Ten years was the period chosen for limitation by the Paris and Vienna Conventions (see Articles 8(a) and VI(1) respectively). Both conventions allow a longer period to be provided, on condition that measures have been taken to cover liability for actions begun during that period, whether by insurance, other financial security, or state funds; this is of course the case in the UK. By subsection 15(2), specific rules apply to nuclear matter which is stolen, lost, jettisoned or abandoned. Here, the claim will not be entertained if the occurrence took place after 20 years beginning with the day when the matter was stolen, lost, jettisoned or abandoned. Any claim made after the 20 year period is to be made to the Government under subsection 16(3)(c) (see below). This period accords with the Paris and Vienna Conventions (Articles 8(b) and VI(2)).

Financial Limitation of Liability: Section 16 As referred to earlier, it was vital for the development of the nuclear industry to have a cap on the amount of potential liability for nuclear incidents, at a level for which insurance could be obtained. Originally, the legislation provided for a maximum figure of £5 million in respect of any one occurrence. To put this seemingly modest figure into its contemporary perspective, the Windscale accident in 1957, the worst at that time in the UK, generated claims of less than £100,000.120 The figure of £5 million was itself criticised as being excessive for small reactors.121 The figure was increased to £20 million in respect of occurrences after 1 September 1983 by the Energy Act 1983, section 27(1). Following a further increase, subsection 16(1) now provides that in relation to breach of duty under sections 7 to 9, the person in breach is not required to pay compensation exceeding £140 million in aggregate in respect of any one occurrence, excluding payments in respect of interest and costs. The increase to £140 million was effected by the Nuclear Installations (Increase in Operators’ Limits of Liability) Order 1994122 made under subsection 16(1A), and took effect on 1 April 1994. By subsection 16(1A), the order may not affect liability in respect of any occurrence before (or beginning before) the order came into force. The issue of the figure was reviewed in 1995. The Government viewed the £140 million figure as being adequate, given the high 118 119 120 121 122

Ibid, col 1034. Hansard HL vol 213 col 336. Hansard HL vol 212, col 505. Hansard HC vol 599, col 901. SI 1994 No 909.

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214 Liability levels of safety within the nuclear industry, but recognised the importance of working with international partners to keep the figure under review.123 It is now clearly not an adequate figure, when compared with the provision being made in other jurisdictions discussed above, or with the likely damage arising from a nuclear accident. Implementation of the amended Paris Convention will require an increase to around £500 million in any event. For licensees of such sites as may be prescribed, the figure is £10 million, increased from £5 million as from 1 April 1994.124 For this purpose, the Nuclear Installations (Prescribed Sites) Regulations 1983125 prescribe sites for which a nuclear site licence is in force and for which: (a) the quantity of radionuclides present at any time is such that their total activity does not exceed prescribed limits—these depend on which of a series of groups the radionuclides fall into and whether or not the radionuclides are within a sealed source; or (b) the only nuclear reactor is a small reactor (defined as a thermal neutron nuclear reactor designed to operate at a thermal power output not exceeding 600 kilowatt) and the quantity of radionuclides outside the reactor, other than associated nuclear fuel, is such that its total activity does not exceed half the limits of (a) above. In either case, the total mass of fissile materials (other than those comprised in associated nuclear fuel) present at any time must not exceed prescribed mass limits expressed in grammes and referable to plutonium 239, plutonium 241, uranium 233, and uranium 235.

Financial Liability of Foreign Operators Special provision is made for the liability of foreign operators under section 10, by subsection 16(2). Their liability is limited in two ways: (a) the foreign operator is not required to make any payment in circumstances where he would not have been required to do so had the occurrence taken place in his home territory and the claim had been made under the relevant foreign law corresponding to sections 7 to 9. Effectively, therefore, the foreign operator can take advantage of any limitations or exclusions under its home law; and (b) the foreign operator is not required to make any payment to the extent that the relevant amount is not required to be made available as insurance or other provision, by the relevant foreign law corresponding to section 19 (see below) and has not in fact been made available by Parliamentary funds under section 18 (see below) or by a contribution from a foreign government made under a relevant Convention. Thus, the foreign operator may be subject to reduced liability if his home legislation requires lower financial cover than in the UK.

Claims made to the Government: Subsections 16(3) and (4) In certain circumstances, a claim for compensation for breach of a duty under sections 7 to 10 is to be made to the Government, usually to the Secretary of State for Trade and Industry, unless the claim is made under section 8 in relation to a site occupied by a Government department, in which case it is to the Minister for that Department. The instances where claims are to be directed to the Government are: 123 124 125

The Prospects for Nuclear Power in the UK, Cm 2860 (1995), para 10.35. SI 1994 No 909. SI 1983 No 919.

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Financial Limitation of Liability 215 (a) where the claim exceeds the statutory maximum figure (now £140 million generally or £10 million for prescribed sites), to the extent that it exceeds that figure; (b) where the claim is made after the expiry of ‘the relevant period’ that is 10 years beginning with the relevant date as defined in section 15; (c) where the claim relates to nuclear matter which has been stolen, lost, jettisoned or abandoned and is made after the 20 year period provided by subsection 15(2); or (d) where the claim relates to damage to the means of transport caused by nuclear matter in the course of carriage and full satisfaction is prevented by subsection 21(1). The original rationale for this approach relates to the difficulty of obtaining insurance outside certain parameters. Originally, subsection 4(4) of the Nuclear Installations (Licensing and Insurance) Act 1959 provided that all claims were to be made to the operator, but that the licensee was not required to make any payment until Parliament had made provision for his reimbursement. Section 17 of the 1965 Act operates differently in that the claim is made to the Minister, not the operator. The procedure provided by subsection 16(4) for claims to the Government is that the relevant Minister may refer any question as to the establishment or quantum of the claim to the High Court (or the Court of Session in Scotland, or High Court of Justice in Northern Ireland, as appropriate). If the Government does not refer a question to the court, the claimant may appeal to the court against the Secretary of State’s decision on the claim. Whether on a reference or appeal, the court’s decision is final. If the claim is established to the satisfaction of the relevant Secretary of State, then it may be met in whole or in part by money provided by Parliament under section 18, for example, where the claim exceeds the £140 million figure. There may also be a contribution from foreign Governments pursuant to the relevant conventions. If the claim cannot be satisfied from those sources, then by subsection 16(3) it is essentially for Parliament to determine to what extent the relevant Government department shall meet the claim, and by what means the funds for that purpose are to be provided.

Jurisdiction and Foreign Judgments Section 17 contains procedural provisions dealing with two separate issues: (1) jurisdiction and foreign judgments; and (2) joint and several liability. Jurisdiction of the UK courts may be ousted by a certificate from the Secretary of State for Trade and Industry to the effect that the claim or question falls, under any relevant international agreement, to be determined by the court of another party state (subsection 17(1)). Such a certificate may also determine conclusively that a question or claim falls to be dealt with in the court of a particular part of the UK (subsection 17(2)). This has the effect of ousting the jurisdiction of the courts of the other parts (subsection 17(1)). Enforcement of the judgments of foreign courts is dealt with by subsection 17(4). The Secretary of State may certify that the judgment is a ‘relevant foreign judgment’ (that is a judgment which under the Paris and Brussels Conventions is to be enforceable anywhere within the territories of contracting parties), in which case by subsection 17(4), the Foreign Judgments (Reciprocal Enforcement) Act 1933 applies. Subsection 17(5) provides a defence to proceedings in the UK to enforce a foreign judgment which is effectively that the injury or damage in question is subject to a relevant international agreement, and that the country in question is not bound by that agreement. The concern which prompted the defence under subsection 17(5) was that laws of non-contracting states might impose liability on a

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216 Liability UK operator to a higher figure than under the Conventions, leaving a claimant there better off than in the UK; alternatively, such laws might impose liability on someone other than the operator, thereby defeating the principle of channelling. The barring of such enforcement was also thought likely to help provide the widespread acceptance of the Conventions.126 By subsection (5A),127 the defence cannot be used where the judgment is enforceable in the UK pursuant to an international agreement (not necessarily a relevant international agreement relating to nuclear liability). So for example, in the civil proceedings brought in the Irish Courts in the 1990s by a number of claimants in Dundalk for personal injury, psychiatric illness and mental stress,128 if the claims had succeeded they would have been enforceable against BNFL in the UK courts on the basis that the UK and Ireland are parties to the EU arrangements for reciprocal enforcement of judgments in the Brussels Convention of 1968, and despite the fact that Ireland is not a party to the Paris Convention.129 Finally, subsection 17(6) deals with claims against foreign operators under section 10 who turn out to be a government of a state party. The foreign government is deemed to have submitted to the jurisdiction of the relevant UK court, but the subsection does not authorise execution against the property of that Government.

Joint and Several Liability In the light of the principle of channelling liability, cases where two or more persons are liable under the 1965 Act for the same injury or damage ought to be rare. However, where that is the situation, subsection 17(3) provides that for the purposes of proceedings in the UK (including enforcing foreign judgments) all of those persons shall be treated as jointly and severally liable. By subsection 17(3)(b), the maximum liability limits for each liable party are stacked, and funds from Parliament under section 18 are not required until the aggregate maximum is exceeded.

Cover for Licensee’s Liability: Section 19 Section 19 places an obligation on the holder of a nuclear site licence to make provision for sufficient funds to be available at all times to ensure that duly established claims made under section 7 or any relevant foreign law corresponding to section 10 (under which, of course, the licensee would be a foreign operator) are satisfied to the extent required by the section. Failure to make the financial provision is a criminal offence (subsection19(5)). The provision may be made by insurance or by some other means. Insurance is discussed below. Insurance or other financial security is a requirement under Article 10 of the Paris Convention, and Article VII of the Vienna Convention. The provision must relate to claims

126

See Hansard HC vol 702 col 51. Inserted by the Energy Act 1981, s 31. 128 This rested on a cluster of Down’s syndrome babies born to six mothers who had attended a local school, the St Louis Convent, together as children and had been linked to the fire at the Windscale Pile in 1957. The possibility of link was mooted in a study published in the British Medical Journal in 1983. 129 In the event the public law element of the claims aimed at stopping the operation of THORP were dismissed by Peart J in June 2003, following a trial on preliminary issues, on the basis that the Irish Court did not have jurisdiction, and the civil element has not been pursued. A later study in 2000 indicated that radiation from the Windscale fire could not have been responsible and that chance was the most likely explanation for the cluster, as three of the women with affected offspring had left the school and the area by the time of the fire: Dean and others, ‘Investigation of a cluster of children with Down’s syndrome born to mothers who had attended a school in Dundalk, Ireland’ (2000) 57(12) Occupational and Environmental Medicine 793. 127

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Provision by Insurance: The Pool 217 exclusive of interest or costs. The provision required is for the ‘required amount’ in respect of each, severally, of: 1. The current ‘cover period’ if any. ‘Cover period’ is defined by subsection 19(2) to mean the period of the licensee’s responsibility. This, in turn, by subsection 5(3) means the period from the grant of the licence until either a new licence is granted or the Health and Safety Executive gives written notice of their opinion that there has ceased to be danger from ionising radiations from the site. The period is also deemed to include any time after the expiration of that period during which it remains possible to incur liability in relation to material in the course of carriage or which was previously on the site (subsection 19(2)). 2. Any cover period which ended less than 10 years before the time in question (that is in respect of which a claim could still be made). 3. Any earlier cover period in respect of which a claim remains to be disposed of, having been made within the relevant limitation period. The ‘required amount’, by subsection 19(1A), means an aggregate amount equal to the amount applicable under subsection 16(1) in respect of an occurrence within the period, that is £140 million or £10 million for prescribed installations. It should be noted that the amount is an aggregate one relating to claims within the cover period, not an amount per occurrence, as is the statutory maximum under subsection 16(1). Subsections 19(2A) and (2B) deal with changes occurring during a cover period. By subsection (2A), if the amount of cover required is changed by order or by the site becoming, or ceasing to be, a prescribed site, then a new cover period begins. However by subsection (2B), the grant of a new licence to the same licensee for the same or an enlarged site will not cause a new cover period to begin.

PROVISION BY INSURANCE: THE POOL The development of the insurance market in relation to nuclear risks has been well charted by James Dow in his book, Nuclear Energy and Insurance (1989).130 By the end of 1954, it had become clear in the US and the UK that the insurance industry was going to have to tackle the issue of providing cover to the fledgling nuclear industry in respect of property damage and third party liability. The US Insurance Association set up an Atomic Energy Committee in 1955, and in the same year the British Insurance Association set up its Atomic Energy Liaison Sub-Committee, which shortly thereafter became known as the Atomic Energy Committee and included representatives of Lloyd’s. This Committee was to be highly influential in considering the extent to which the UK market could cover nuclear risks and in shaping the early UK legislation; the Committee was, for instance, made aware at an early stage of the importance of limiting liability. There also evolved a syndicate or pool of insurance companies run by a Committee of Management which was set up in 1956;131 this became the British Insurance (Atomic 130

Dow (see n 3 above) 176. The term ‘pool’ describes a voluntary association of insurers who collaborate to provide capacity required for the insurance of risks, usually of a non-standard nature. The non-standard nature of nuclear risks lies in the relatively small number of installations, coupled with the very large potential liabilities in the event of an accident. 131

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218 Liability Energy) Committee. A formal agreement was signed in December 1957 between the Management Committee, participating companies and Lloyd’s Underwriters. Membership of the pool is renewable annually; as a voluntary association, members may leave by giving six months’ notice. The Agreement defined the nature of business to be contracted by the pool and the powers of the Management Committee. The creation of the pool was a bold step at the time; although risks of a catastrophic accident might be slight, there was no relevant underwriting experience and the nuclear sector could have generated heavy claims before having contributed significant premiums. The Atomic Energy Committee, referred to above, remained in being as an Advisory Committee to the pool, and in April 1957 presented a lengthy and detailed report on the issue of nuclear risks and their insurance. This report was remarkably successful in identifying the key risks and issues without the benefit of actual underwriting experience.132 Since the 1950s, there has of course been a huge amount of experience gained in terms of the safety record of nuclear plants, and on safety standards generally. As well as the early pools developed in Canada, the UK and the US, most countries with nuclear capacity now have similar insurance pools (including China, Russia, the Ukraine and many East European states) which facilitates the exchange of experience and the provision of reinsurance between pools. The pool is now, since 1 October 2003, operated by a company, Nuclear Risk Insurers Ltd (NRI), on behalf of British Nuclear Insurers (an unincorporated association which was formerly known as the British Insurance (Atomic Energy) Committee). NRI is a company limited by guarantee and a Financial Services Act authorised insurance intermediary, which acts as the UK insurance market’s underwriting agent for all matters of nuclear insurance and is now colloquially known as the nuclear insurance pool.133 NRI and the insurance companies and Lloyd’s underwriters and syndicates who are members of the pool operate under a Pool Membership Agreement, under which each insurer appoints NRI to act as its agent to provide the relevant services, with each insurer being severally liable for its respective proportion of each insured risk, as set out in the individual insurance policies written under the Pool Agreement. Premiums, commissions and relevant investment income are paid by NRI to the insurers in their respective proportions after deducting NRI’s running costs. As well as accepting insurance proposals on the insurers’ behalf, NRI is authorised to effect reinsurance. The insurers themselves undertake not to reinsure themselves any risk undertaken by NRI on their behalf.

TERMS OF INSURANCE The standard form of liability policy developed by the Pool is linked closely to liability under the 1965 Act, or any relevant foreign law as defined in section 26 of that Act. A 10 year limitation is ensured by excluding claims made against the insured more than 10 years after the relevant date (as defined in section 15 of the 1965 Act). This is fundamental, since it is of the nature of nuclear liability policies that they must be written on an occurrence basis (that is responding to incidents occurring during the policy) and not on a claimsmade basis. Without the 10 year limitation, the insurer would remain indefinitely exposed. It is also important that exclusions from cover do not reduce the cover provided below the 132 133

Dow (see n 3 above), 186–96 for detailed analysis. www.nuclear-risk.com.

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Terms of Insurance 219 level required by the legislation. Whilst insurers are not, in general, willing to cover liability resulting from intentional releases of radioactivity (for example permitted emissions), this cannot lawfully be excluded. The approach is, therefore, to cover the legal liability from such emissions, but to negotiate a right to recover such sums from the insured. NRI (the Pool) covers the following categories of installations and risks: 1. Land based reactors, ancillary buildings, nuclear fuel and generally all other property on a designated site. 2. Plants for any manufacture, fabrication or processing of nuclear fuel, other than natural uranium, including the reprocessing of irradiated nuclear fuel. 3. Plants for processing or disposal of nuclear waste arising from the nuclear fuel cycle. 4. Factories for the separation of isotopes of nuclear fuel. 5. Buildings concerned with the storage of enriched or irradiated fuel used or to be used in any reactor, or nuclear waste arising from nuclear fuel (not being incidental to or temporarily used in connection with transport of such nuclear fuel or waste). 6. Research establishments using nuclear substances. 7. Construction work taking place on a designated nuclear site. 8. Any other installation considered by national law to be a nuclear installation and for which the operator is obliged to insure for third party risks up to the minimum sums set out in the Paris or Vienna Nuclear Liability Conventions. 9. Nuclear liability insurance for the international or national transportation of nuclear materials.134 The standard Site Liability Policy provides that the insurers, according to the proportions provided in the schedule to the policy, will indemnify the insured in respect of any claim duly established against the insured as licensee by virtue of section 7 of the 1965 act or any relevant foreign law, provided that the relevant date (as provided in section 15) for the occurrence or succession of occurrence to which the claim relates falls during the periods of insurance. Insurance is only provided for periods of a year of part of a year. Liability is subject to an aggregate limit for all insurers in respect of all claims under current and past policies. As already indicated, the time limit for claims is a crucial matter for insurers and any claim made against the insured more than 10 years after the relevant date, as defined in section 15 of the Act, is excluded. The exercise of rights of subrogation against negligent contractors would defeat the principle of channelling liability. Consequently, a standard special condition contains a warranty by the insured not to claim indemnity from any other person, and an agreement by the insurers not to enforce any rights or remedies against other parties to which they would otherwise become entitled or subrogated. The Site Policy does not cover claims arising from the carriage of nuclear matter from or to places outside the UK. NRI provides separate Transit Liability Policies, which cover liability under section 7 or any relevant foreign law, in respect of voyages (meaning transit by land, sea and air) where the voyage is declared to the insurers and is commenced during the period of insurance. Liability after the lapse of 10 years from the date of the nuclear incident during the course of the voyage is excluded. NRI also provides cover in respect of other risks, such as general public liability and material damage to nuclear plant,135 as well as product liability cover for contractors 134

www.nuclear-risk.com/onlineBrochure.asp. For a case in a different context considering coverage for the cost of removal of slag contaminated by radioactivity, see Outokumpu Stainless Ltd v Axa Global Risks (UK) Ltd [2007] EWHC 2555 (Com) (held that 135

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220 Liability supplying goods and services to nuclear installations. New nuclear plant under construction is not covered by the Pool until it becomes operational, upon the delivery of nuclear fuel to the site or loading of fuel into a reactor, but insurance cover is available for construction risks on operational nuclear sites. Any legal liability directly or indirectly caused by, or contributed to by, or arising from ionizing radiations or contamination by radioactivity from any nuclear fuel or nuclear waste will be excluded from normal commercial public liability policies. The construction of new nuclear power stations will present new challenges for the insurance market, both in terms of nuclear liabilities and insurable asset values. It is however unlikely that they will not be insurable, at least so far as the traditional heads of risk are concerned. The good safety record of modern western-designed reactors makes them an attractive proposition for insurance under the pool arrangements described above. Underwriters will perform regular insurance surveys on nuclear plant and on the risk management systems of the operator. Deficiencies may result in additional premiums or even withdrawal of cover. Accordingly, the risk profile of the specific site is very much within the insurer’s control. The RBMK plant at Chernobyl was not insured simply because insurers at that time were not willing to provide insurance within the Soviet Union because of the perceived risks based on plant design, low standards of maintenance and non-adherence to international safety standards. The real difficulty, as with the Environmental Liability Directive, described above, is that insurers will not, in the absence of experience, be willing to provide cover for risks which are not readily quantifiable. The distinction which is critical is between insuring probable losses, as opposed to possible losses. It is this which makes covering some of the new heads of nuclear damage created by the 2004 Protocol to the Paris Convention problematic for insurers.136 The increased threat of terrorism against nuclear facilities has created a further and unwelcome complication, in respect of which insurers are prepared to provide only limited cover, particularly in the event of a series of attacks within a relatively short period: again this is an area where Government assistance in covering the risks is likely to be required.137 The position of the UK market is that only one full loss incident a year caused by terrorism is privately insurable. The compromise reached in the UK involves the Government effectively underwriting part of the risk relating to terrorism, by way of an indemnity to NRI, in return for which it receives a commercial premium.

PROVISION BY OTHER MEANS No indication is given in section 19 as to what ‘other means’ of making provision might involve, although the provision is subject to the overriding requirement of approval by the Minister, with the consent of the Treasury; this form of wording goes back to the Nuclear extension of coverage for property damage to ‘loss, destruction or damage due to decontamination caused by the use of radioactive scrap materials’ did not cover the cost of disposing of a large quantity of slag from a scrap metal smelting process which had been rendered radioactive by the presence of a discarded radioactive source in the scrap. 136 Mark Tetley, ‘Revised Paris and Vienna Nuclear Liability Conventions—Challenges for Nuclear Insurers’ (2006) Nuclear Law Bulletin No 77. 137 See the study by the OECD/NEA Secretariat, ‘Insurance Coverage for Third Party Liability and Material Damage Arising from Nuclear Incidents Caused by Terrorist Acts’ at www.nea.fr/html/law/nlb/nlb-78/019-036. pdf.

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Claims Exceeding the Aggregate Figure 221 Installations (Licensing and Insurance) Act 1959, section 5(1). Both the Paris and Vienna Conventions (Articles 10(a) and VII(1) respectively) refer to the possibility of ‘other financial security’. The most obvious possible form of security is some type of indemnity or guarantee, but the difficulty may be whether this is likely to provide adequate security over the long timescale involved, unless given by an institution such as the Government. Special provision is made where a licensee is required to make provision for three or more sites and does so otherwise than by insurance (subsection 19(3)). The statutory requirements will be deemed to be satisfied if funds are available for all sites collectively and such funds would, for the time being, be sufficient to meet the requirements for those two sites in respect of which the requirements are highest. For example, if a licensee operated five separate sites, three of which were subject to the £140 million figure, and two of which were prescribed sites subject to the lower £10 million figure, the collective provision for all five sites could be £280 million. However, the subsection is subject to a proviso by which the Secretary of State can either disapply it completely, or can direct provision at some figure between that for two sites and that for all sites.

CLAIMS EXCEEDING THE AGGREGATE FIGURE The cover required by section 19 relates to claims in the aggregate, whereas the section 16 limit on liability is per occurrence. It could therefore be possible, if a number of occurrences took place within the cover period, for the amount of insurance available to be exceeded before the section 16 limit was reached. The 1965 Act deals with this by subsection 19(4), which allows the Secretary of State to direct the licensee by notice in writing that a new cover period is to begin, thereby requiring the £140 million cover, which may have been eroded by previous claims, to be reinstated. The notice may be issued when the Secretary of State thinks it proper to do so, either by reason of the gravity of any occurrence which has taken place and may result in claims, or having regard to previous occurrences which have resulted in claims or which may do so. This power is complemented by the requirement under section 20 to furnish information to the Secretary of State on aggregate claims received. An important issue for the licensee is its position if a new cover period is not directed, resulting in an excess of claims over cover available. This is discussed below in the context of section 18.

Information relating to Cover: Section 20 Section 20 imposes various requirements to provide information as to cover and claims. These are: 1. For each licensed site, notice in writing must be given to the Secretary of State forthwith if it appears to the licensee that the aggregate amount of claims in any cover period (see above) has reached 60 per cent of the cover required (subsection 20(1)). This will obviously give the Secretary of State the opportunity to direct a new cover period under subsection 19(4). Once such notice has been given, the licensee may not settle further claims in relation to the cover period except after consultation with the Secretary of State and in accordance with any written direction given by the Secretary of State in relation to any particular claim;

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222 Liability 2. In relation to any licensed site where the cover period has ended, the licensee must, not later than 31 January in each year, send a statement in writing to the Secretary of State showing the date when the cover period ended and particulars of aggregate claims reviewed, established and satisfied (subsection 20(2)); 3. The Secretary of State in turn is under an obligation to lay notices received under subsection (1) and reports received under subsection (2) before Parliament (subsection 20(3)); and 4. Any person providing the funds required by section 19 (for example, the insurer) must give at least two months’ written notice to the Secretary of State before ceasing to keep the funds available (for example before withdrawing cover or allowing it to lapse) (subsection 20(4)). In relation to nuclear matter which is in the course of carriage, cover may not cease while the carriage continues. This reflects the requirements of Article 10(b) of the Paris Convention and Article VII(4) of the Vienna Convention.

Effect of the 1965 Act in Preventing Subrogation On normal principles, an insurer or other financial guarantor of a nuclear operator might claim to be subrogated to any rights and remedies of the operator against a third party in the event of a nuclear occurrence causing injury or damage. However, the effect of the Nuclear Installations (Licensing and Insurance) Act 1959 and subsequent legislation was to extinguish the right of operators to take action in negligence against the suppliers of faulty components or contractors for defective work. Part of the reasoning behind this curtailment of normal legal remedies was to avoid the litigation which would evolve from subrogation and, in this respect, a distinction was originally drawn between the rights of private operators as licensees and the Government:138 It has been necessary to extinguish this right in the case of a licensee in order to avoid litigation which would arise if insurers or other financial guarantors of a licensee tried to exercise any rights they might have against contractors or sub-contractors responsible for building reactors or supplying parts. But the Authority or a Government Department does not normally insure, and, seeing that the taxpayers’ money is involved, it is considered proper that in their case the right to sue a negligent contractor is preserved.

That distinction between the Crown and the Authority and private operators no longer exists; sections 7 to 9 place the Crown and Authority under similar duties, and subsection 12(1)(b) has the same effect for all of them in preventing liability being incurred by any other person. Standard forms of nuclear insurance contain a waiver of any subrogation rights by the insurers.

Cover from Public Funds: Section 18 The requirements of section 19 on insurance or other cover are to be read together with section 18. The two sections provide a scheme by which claims arising from an occurrence are to be met up to an aggregate amount, being the equivalent in sterling of 300 million SDR (subsection 18(1A)). Beyond this figure, Parliament decides whether it wishes to vote funds to meet claims. The figure accords with the requirements of the Brussels Supplementary Convention. ‘Special drawing rights’ means such rights as defined by the International Monetary Fund (IMF) (section 25B).139 This depends upon the sum in sterling fixed by the 138 139

Hansard HL vol 212 col 509. See www.imf.org/external/np/exr/facts/sdr.htm.

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Claims Exceeding the Aggregate Figure 223 IMF as being the equivalent to one SDR on the day in question, that is the day or first day of the occurrence, or some other day fixed in accordance with a relevant international agreement. A certificate from the Treasury is conclusive as to these matters (subsection 25B(2)). To give an indication of the amount, as at July 2008 the sterling equivalent of 300 million SDR was approximately £246 million. Subsection 18(1) requires any necessary sums to be made available from funds provided by Parliament so as to ensure that duly established claims in the case of any occurrence (excluding interest and costs) are satisfied up to the 300 million SDR figure. The sum required from Parliament is that which is necessary to reach the 300 million figure when aggregated with funds available from the following sources: (a) funds provided pursuant to section 19 or any relevant foreign law made for the equivalent purpose; (b) where the claim is made by virtue of any relevant foreign law (that is one implementing the Paris and Brussels Conventions) any sum falling to be paid by any relevant foreign government; or (c) where the Atomic Energy Authority has incurred liability, any amounts payable under insurance or other arrangements applying to the Authority. Compensation up to 175 million SDR is funded exclusively by the UK Government. Funds between 175 million and 300 million SDR are provided from the pool contributed to by contracting parties under the Brussels Supplementary Convention. Where a claim is satisfied wholly or partly out of money provided by Parliament under section 18, there shall also be provided from such funds, sums necessary to satisfy claims for interest and costs. Complex provisions apply in relation to liability under foreign law under subsections 18(4A) and 18(4B). The complexity of these provisions reflects the fact that Parliamentary funds may be called upon under section 18 to meet claims not only under the 1965 Act, but also under any relevant foreign law made for equivalent purposes. This may result in adjustment of the 300 million SDR figure; for example, if claims are made under a foreign law which provides a lower aggregate figure than 300 million SDR, or if the foreign law does not provide for any sums to be made available from public funds.

Gap between Occurrence-based and Cover Period-based Provisions As mentioned above, one potential difficulty with sections 18 and 19 is the possible gap between claims made on an occurrence basis and cover available on an aggregate cover period basis. On considering the relevant Parliamentary debates, it seems reasonably clear that the Government recognised the potential discrepancy between the occurrence-based limit on liability and the cover period-based requirement of insurance, and intended that there should be no gap between the funds available from insurance and the money provided by Parliament. The issue is complicated by virtue of the drafting changes made to nuclear installations legislation since 1959, but, in relation to the original Act of 1959, it was simply provided that the licensee was not required to meet any claim for the satisfaction of which funds were not required to be made available (the requirement being £5 million per cover period). Subsection 4(4) relieved the licensee of any liability to pay such claims unless and until Parliament had made provisions for the necessary funds to be available. This was stated by the Minister of Power to be in recognition of the fact that ‘claims presented after ten years

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224 Liability or in excess of the £5 million for each occurrence will be an uninsurable risk’.140 This was reiterated in the Commons debates by the Parliamentary Secretary to the Minister of Power (Sir Ian Horobin): [B]eyond £5 million and a period of ten years, the matter becomes uninsurable. Therefore the Government have said that if there were some inconceivable catastrophe—if . . . some colossal damage did occur, Parliament and the country would have to meet it. It is not an insurable risk, and therefore it is dealt with in the Bill in a different way.141

The matter became more complicated in 1965, when the Nuclear Installations (Amendment) Bill was introduced, since by then the questions of liability and insurance were also covered by the relevant international conventions. The Joint Parliamentary Under-Secretary of State for the Home Office (Lord Stonham) on the Second Reading drew attention to the fact that: liability imposed by the Conventions is on a per incident basis, whereas the Act deals with damage caused during the period covered by insurance.142

The Minister went on to say that the intention was to avoid any gap which might arise between a per incident and per cover-period basis: Insurance for nuclear liability is available only on a per installation per cover period basis; so far as we are aware this is so throughout the world. But, in order to give full protection to the public, the Conventions call for cover for the liability to be on a per incident basis. In common with other countries wishing to ratify the Conventions, we must therefore provide backing from public funds for any difference there might be between the per cover period and per incident basis. Such a difference could arise only if two incidents engaging the responsibility of the operator of one installation occurred simultaneously or in very quick succession and together caused damage exceeding £5 million. The position under the Act is that, in this respect, liability and insurance cover correspond; under the Bill, provision is made in Clause 8(1) and (4) to cover any gap there might be. Within our jurisdiction the matter is not significant, because of our system of meeting all established claims in full. But for a United Kingdom operator abroad (outside the coverage of the Supplementary Convention), had the system of the Act been preserved, insurance cover alone would have provided the full cover required by the Conventions.143

Clause 8(1) of the 1965 Nuclear Installations (Amendment) Bill is sufficiently similar to subsection 18(1) of the Nuclear Installations Act 1965 (as amended) to make this statement of intention relevant. It seems clear therefore, that if there were successive occurrences within the same cover period which together exceeded £140 million, then the excess would fall to be met from funds provided by Parliament, and not from the licensee or other liable party. During the Parliamentary debates, the assumption was that this would be likely only if the occurrences were so close together that there would be no opportunity for the Minister to declare a new cover period.

Damage to Means of Transport Subsection 21(1) makes special provision for cases where there is an occurrence involving nuclear matter in the course of carriage, and a claim is established in respect of damage to 140 141 142 143

Hansard HL vol 213 col 336. Hansard HC vol 599 col 932. Hansard HL vol 263 col 1276. Ibid, col 1277.

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Claims Exceeding the Aggregate Figure 225 the means of transport. The effect is to prevent payment of such claims out of funds under section 18 or 19 or any relevant foreign law, if the effect would be to prevent satisfaction of other types of claims up to an aggregate amount of 5 million SDR.

Carriage of Nuclear Matter—Particulars of Cover By subsection 21(3), where nuclear matter is to be carried, the person who may incur liability under sections 7 to 10 or any equivalent foreign law must, before the carriage is begun, deliver to the carrier a document issued by ‘the guarantor’ (the insurer, relevant Government Minister or other person providing the funds) containing prescribed particulars of the responsible party, the nuclear matter, and the funds available to satisfy claims. These particulars are prescribed by the Nuclear Installations (Insurance Certificate) Regulations 1965,144 and include details of the nuclear matter, the places of departure and destination, the amount of funds available, the period they cover and the type of security. The guarantor is debarred from disputing in court the particulars in this document. If there is a wilful failure to comply with these requirements, the responsible party who failed to give the particulars may be criminally liable, as may the carrier, if he knew or ought to have known the nature of the matter and the circumstances of the carriage.

Reporting of Occurrences Section 22 applies to prescribed types of occurrences on licensed sites or in the course of carriage of nuclear matter. The Nuclear Installations (Dangerous Occurrences) Regulations 1965145 prescribe four classes of occurrence: 1. Occurrences on a licensed site involving the emission of ionising radiations or the release of radiations or toxic substances in such circumstances as to cause or be likely to cause death or serious injury to persons on the site at the time of the occurrence, or outside the site. 2. Occurrences in the course of the carriage of nuclear matter (other than on behalf of the Authority or a Government Department) being an occurrence which the person on whose behalf the matter is being carried has reason to believe has caused or may be likely to cause death or serious injury to any person by reason of radioactive properties of such matter; or which involves the breaking open of any outside container in which such matter is being carried. 3. Any explosion or outbreak of fire in a licensed site, affecting or likely to affect the safe working or safe condition of the nuclear installation. 4. Any uncontrolled criticality excursion. For such occurrences, the licensee or responsible person must cause the occurrence to be reported forthwith in the prescribed manner to the HSE. Failure to do so is an offence (subsection 22(2)). The Secretary of State may in turn either direct an inspector to make a special report on the occurrence (subsection 22(3)), or direct an inquiry to be held into the occurrence and its causes, circumstances and effects (subsection 22(5)).

144 145

SI 1965 No 1823. SI 1965 No 1824.

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226 Liability

Registration of Potential Claimants Given the potentially widespread and delayed effects of nuclear occurrences, it may be very difficult to establish who was affected by an occurrence. Section 23 allows the Secretary of State (or if the occurrence is one where a claim falls to be made against the Crown, the Minister of the Department concerned) to make an order for enabling particulars of persons shown to have been within the area during the relevant period to be registered. Such registration will then be evidence of such presence unless the contrary is proven; however, failure to register will not prejudice the right to make a claim.

Amendment of 1965 Act to Reflect Revised Paris Convention As mentioned above, in 2004 the Paris Convention was amended to increase substantially the level of compensation required to be provided by nuclear operators and to extend the scope of liability beyond damage to persons and property. At the time it was agreed in the EU Council of Ministers that those member states which were parties to the Convention would aim to put in place the arrangements that would enable them to implement to amendments by December 2006. Some countries have made reforms to their law in the light of the changes to the Convention, for example Germany.146 The UK has not met that objective, though there have been discussions between Government, industry representatives and their insurers as to the issues which may be problematic. Amendments to the 1965 Act could be made by secondary legislation under the power provided by section 76 of the Energy Act 2004, in order to facilitate ratification of the Protocol. It had been hoped originally to make the changes in the Energy Act 2004,147 but at that stage there was still dispute within the European Community as to Community competence in respect of the Protocol.148 A number of important policy and drafting issues will fall to be resolved in the course of implementing the Protocol, but in commercial terms it is the insurability aspect which seems likely to be most problematic. Premiums would obviously increase to reflect the increased sums of potential liability, but the more difficult issue is likely to be the nature of new heads of damage to be covered and their inherent uncertainty. Any extension of the current 10 year limit on cover, explained above, would also present major problems. Insurers are of course not obliged to offer cover, and the Government will have to address provision of cover by other means if it transpires that some of the new liabilities are not insurable on commercial terms. Security might in principle be provided through self or captive insurance, through an industry-wide pool arrangement (effectively as in the US), through scrutiny of the net worth of the licensee, or through the issue of ‘catastrophe bonds’ in the capital markets. Ultimately, if all else fails, the Government may provide the necessary guarantees, though it would most likely require to be paid a fee for this, which might in principle equate to the rate of return which would be required by a commercial provider if one were available.

146 Simon Oehlmann, ‘The state of implementation of the Paris Convention as amended by the Protocol of 12th February 2004 in Germany’ (2006) 1(2) International Journal of Nuclear Law 132. 147 See the White Paper, Managing the Nuclear Legacy (Cm 5552, July 2002) Annex A, 60–61. 148 As discussed in ch 3 above.

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Extension to British Territories 227

EXTENSION TO BRITISH TERRITORIES Some of the provisions of the 1965 Act have been extended to territories outside the UK, for which Her Majesty’s Government is responsible for foreign relations. Section 28 of the 1965 Act allows directions to this effect to be made by Orders in Council. Such Orders have generally applied modifications to sections 10 to 17, 20, 21 and 26 together with relevant provisions of the Congenital Disabilities (Civil Liability) Act 1978, effectively creating a scheme of liability and compensation applying only to nuclear matter in the course of carriage. The relevant orders are as follows: —The Nuclear Installations (Gibraltar) Order 1970 (SI 1970 No 116), as amended by (SI 1985 No 752). —The Nuclear Installations (Bahamas) Order 1972 (SI 1972 No 121). —The Nuclear Installations (British Solomon Islands Protectorate) Order 1972 (SI 1972 No 122). —The Nuclear Installations (Cayman Islands) Order 1972 (SI 1972 No 123), as amended by (SI 1983 No 1889). —The Nuclear Installations (Falkland Islands and Dependencies) Order 1972 (SI 1972 No 124). —The Nuclear Installations (Gilbert and Ellice Islands) Order 1972 (SI 1972 No 125). —The Nuclear Installations (Montserrat) Order 1972 (SI 1972 No 127), amended by (SI 1983 No 1891). —The Nuclear Installations (St Helena) Order 1972 (SI 1972 No128), as amended by (SI 1983 No 1892). —The Nuclear Installations (Virgin Islands) Order 1973 (SI 1973 No 235), as amended by (SI 1983 No 1873). —The Nuclear Installations (Isle of Man) Order 1977 (SI 1977 No 429), as amended by (SI 1983 No 666) and (SI 1987 No 668). —The Nuclear Installations (Jersey) Order 1980 (SI 1980 No 1527), as amended by (SI 1983 No 2207) and (SI 1987 No 2207). —The Nuclear Installations (Guernsey) Order 1978 (SI 1978 No 1528), as amended by (SI 1985 No 1640).

PERSONAL INJURY LIABILITY OUTSIDE THE ACT: THE TEST VETERANS’ LITIGATION Ongoing controversy relates to the servicemen exposed to radiation during the UK’s nuclear weapons atmospheric tests in the Pacific Ocean and at Maralinga in Australia between 1952 and 1967. These included the ‘Grapple Y’ and ‘Grapple Z’ detonations at Christmas Island in 1957–58. Among these men and their descendants there have been reported premature deaths, reproductive difficulties and birth defects.149 Attempts to obtain compensation and indeed relevant information on exposure have been resisted by 149

See the British Nuclear Test Veterans Association at www.bntva.com.

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228 Liability the UK Government over many years.150 Test case claims as part of a group action for negligence at common law involving over 1,000 claimants came to court in 2009, opposed by the Ministry of Defence on the basis that they were time-barred under the Limitation Act 1980. In a massive and remarkable judgment, running to 885 paragraphs, which in reality includes a series of essays covering the historical context of nuclear weapons development, the detail of the tests themselves, the underlying nuclear and health science, and the state of knowledge in the public domain on the effects of radiation over the relevant period, Foskett J held that the MoD’s application to strike out the claims failed.151 The relevant particulars of the alleged negligence in the master particulars of claim were that the MoD: 1. Knew or should have known the testing programme exposed the claimants to ionising radiation in levels, both one-off and/or cumulative, sufficient to cause damage to health including both external exposure to ionising radiation as well as internal exposure through inhalation and/or ingestion of ionising radioactive particles and material; 2. Failed to take reasonable care for the health and safety of the claimants who were likely to be exposed to dangerous, unnecessary and unwarranted exposure to ionising radiation including both external exposure to ionising radiation as well as internal exposure through inhalation and/or ingestion of ionising radioactive particles and material; 3. Failed appropriately to consider the health and safety of the claimants in the design and/or execution and/or aftermath of the tests; and 4. Failed to consider, account for or allow for the effects of multiple, combined or accumulated radiation dose exposures to the claimants in the planning and execution and aftermath of the tests including both external exposure to ionising radiation as well as internal exposure through inhalation and/or ingestion of ionising radioactive particles and material. Specifically it was asserted that: The tests, trials, experiments and clean-up operations . . . were planned and conducted with either disregard for the physical consequences upon the Claimants, or with the stated intent of exposing the Claimants to the potentially devastating consequences of ionising radiation. The tests relevant to this action involved atmospheric, surface and low level explosions of atomic and thermonuclear devices in remote regions of Australia, Australasia and/or the South Pacific. While each test had its own stated purpose, type of atomic or thermonuclear device, possible range of yield and methodology, all had one common theme: the exposure of humans to potentially hazardous levels of ionising radiation. . . . it was the purpose of many of the tests to examine the human limits or thresholds of the biological harm caused by ionising radiation. In short, the individual Claimants were themselves subjects of hazardous and terrible experiments

Foskett J held that the claims could not be said to be time-barred, and nor could it be said that there could not now, decades later, be a fair trial of the allegations made by the claimants, as set out above: 603. The choice is, in a sense, a simple and stark one. Is it to be said that there is now no way in which there can be a fair trial in this case because most of those who planned and played a leading role in the test programme are no longer available to give evidence? Or is it to be said that a trial 150 See McGinley and Egan v UK (1999) 27 EHRR 212 for claims in the European Court of Human Rights on the issue of disclosure of information. 151 AB and others v Ministry of Defence [2009] EWHC 1225 (QB).

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The Test Veterans’ Litigation 229 can take place because of the availability of the quite overwhelming amount of written material evidencing what took place which the trial judge will be able to evaluate in a way that is entirely consistent with trying fairly the issues? 604. Bearing in mind that, as in any piece of civil litigation, the burden of proof will lie upon the Claimants, I do not see why it should be said that there is now no reasonable prospect of a fair trial. In many respects this is a claim against an institution, now identified as ‘The Ministry of Defence’, and relates to the systems put in place by that institution at the time of the tests to secure the safety of the participants and their protection from the effects of ionising radiation. The views and positions of the institution that the Defendant now represents will be clear from the voluminous documentation available for consideration and the systems put in place are clearly and fully recorded. Indeed the views and positions of many of the significant individuals within that institution will also be clear from the same sources. Indeed some, as I have observed above, have had to defend their position before the Australian Royal Commission. What they said is on the record. 605 It is possible that in respect of a number of the issues some expert assistance will be required by the trial judge; but I do not see the assistance from contemporary experts as being invalidated merely because the papers containing scientific material, or plans based upon scientific material, were composed over 50 years ago. What was known scientifically at the time can doubtless be deduced from other contemporary sources if necessary and the practice of the day in relation, for example, to safety procedures and so on can also be derived from contemporaneous documentation. Merely because a present-day expert was not there at the time will not necessarily undermine what he or she can contribute to the trial judge’s understanding of the issues. It should also be tolerably easy to discern the true meaning of the documents from the documents themselves. Why should it be necessary for the individual who composed them to be there to explain? Whilst it will, of course, be a matter for the trial judge, but if a material part of the documentation upon which the Claimants rely is ambiguous and the ambiguity cannot be resolved by expert or other evidence, it may be that the relevant fact will not be found proved on the balance of probabilities bearing in mind where the burden of proof lies. 606 In my view, the existence of the ‘guinea pig’ allegation, upon which the Defendant relies as a major factor in relation to the alleged prejudice of dealing with the trial without witnesses, does not undermine the general conclusion at which I have arrived. As a matter of fairness to a number amongst the Claimants, it should be noted that not all of them subscribe to the allegation in any event. Furthermore, it seems to me quite possible for the claims to be presented without having to put the case as high as suggesting a wholesale deliberate Governmental policy to expose thousands of young conscripts to unknown levels of radiation just to see what happened. As will be apparent from the earlier parts of this judgment, the case being advanced is more subtle than that and, in effect, amounts to an allegation that insufficient steps were taken to prevent exposure to ionising radiation from the effects of ingesting or inhaling materials affected by fall-out. 607 It may be that there are those who consider that they were ‘guinea pigs’, but the claims can be tried without seeking to make the case on that basis. If the case is put that way, the trial judge will potentially have available the flexibility of the civil standard of proof that exists in relation to serious allegations in civil cases. 608 All those considerations go largely to evidence about the issue of the arrangements made for the safety of the participants in the tests. To what extent might consideration at trial of the issue of exposure or lack of exposure to ionising radiation be compromised by the passage of time? 609 Exposure or lack of exposure to radiation will be a matter that can be addressed in relation to most if not all Claimants by reference to the scientific evidence now in existence. Doubtless the Rowland Report and any advances upon it if any become available will play a significant part in that issue if a trial takes place. If the scientific evidence establishes that the participants were probably exposed to ionising radiation at a level above background level then . . . it is difficult to see why

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230 Liability accurate and precise reconstruction of any participant’s involvement or location will be necessary. The essential allegation is that the material exposure, if it occurred, arose from the effects of fallout over the period that the men were in the areas affected by fall-out from the tests. If the Defendant’s records confirm that the relevant Claimant was in one of those areas then little further inquiry would seem necessary. If the records indicated differently or there were no records, then the trial judge would have to decide where the evidence that does exist leads. Again, it has to be remembered that the burden of proof will be on the individual Claimant. 610 Subject, therefore, to any particular consideration in an individual case, I do not see why from the Defendant’s perspective a fair trial cannot take place in this case by reference substantially to the documentation created at or about the time of the tests and by reference to any statements or accounts that those involved have given subsequently. I do not see why the cogency of the evidence from the Defendant’s point of view will be substantially diminished by the absence of live witnesses.

The saga of the test veterans may well in due course carry through to litigation by their children and grandchildren who have in many cases suffered abnormalities, said to be a similar phenomenon to what has been observed in territories affected by the Chernobyl accident: ‘the trans-generational induction of genomic instability, a process where a signal is passed down to the offspring which causes increases in random genetic mutation’.152 In the US, the Radiation Exposure Compensation Act of 1990 sanctions ‘compassionate payments’ of US $75,000 to veterans of overground tests suffering from one or more of a range of specified cancers, as well as former uranium miners and those who resided or worked ‘downwind’ of the Nevada atom bomb test site.153

152 See The Times, 27 April 2009, ‘We didn’t know about radiation. We were so naïve’. For a case addressing in detail the scientific and legal issues of birth defects arising from environmental exposure to teratogenic substances, see Corby Group Litigation v Corby District Council [2009] EWHC 1944 (TCC). 153 www.usdoj.gov/civil/torts/const/reca/about.htm.

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7 Radiological Protection We are all exposed throughout our lives to naturally occurring radiation, from radioactive elements dating back to the inception of the universe. Cosmic radiation from outside the solar system is continually bombarding the earth, interacting in the atmosphere to produce a constant rain of x-rays, protons, muons, alpha particles, pions, electrons and neutrons, and radioactive isotopes such as carbon-14. The exposure will depend on where in the world the individual is, and at what altitude. As is well known, high doses are received during airline flights, more on average for commercial pilots than for workers in civil nuclear plant. Lower levels of particle radiation are produced by the sun, though the ionising effects are minor compared with other forms of naturally-occurring radiation. The earth’s crust is radioactive, and terrestrial radiation comes from gamma-ray emitting substances such as potassium, uranium and thorium, whether still in the earth’s rocks and soils, or incorporated into the walls and floors of buildings, for example as granite, bricks or concrete. Such materials are sometimes known by the acronym ‘NORM’, or naturally-occurring radioactive materials.1 Exposure to NORM can be increased by human activities such as burning coal,2 exploring for oil and gas,3 or manufacturing some fertilisers.4 In many instances the regulatory controls on NORM, for example in recycling contaminated scrap steel from oil and gas plant, or disposing of coal ash, are significantly more lax than those applying to similarly active materials from the nuclear industry. This, however, seems likely to change with proposals for revision of the Euratom Basic Safety Standards Directive to address NORM, as discussed below. The presence of uranium in the earth is accompanied by radon-222, a gas which is produced by the decay of radium-226, and which depending on location can be the dominant source of exposure of an individual to radioactivity. The background radiation dose for an individual can vary widely depending on geological conditions: for example the average overall exposure for a US citizen is about 360 mrem (3.6 mSv) a year, compared with 2.2 mSv in the UK and up to 260 mSv in some parts of Ramsar, Northern Iran, the differences being accounted for by naturally-occurring radiation. These natural exposures, to put the matter in context, will generally account for 80 per cent or more of the total exposure of the 1 See www.world-nuclear.org/info/inf30.html. See also IAEA Proceedings Series, NORM V: proceedings of the fifth symposium on naturally occurring radioactive materials (STI/PUB/1329, 2007), available at www-ns.iaea.org/downloads/rw/ppss/iaporp/norm-v-summary-proceedings-seville.pdf. 2 Most coal will contain radioactive uranium and thorium, which will end up as fractions in parts per million of the fly ash and bottom ash produced by power stations. Given that such ash is produced in quantities of millions of tonnes globally, the quantities of radioactive materials involved are substantial, though the actual radioactivity levels are not large. 3 Radioactive elements (radium-226 and lead-210) are deposited as scale on pipes and equipment. 4 Phosphate rock used to make fertilisers is a major source of NORM, the processing of which can give rise to measurable radiation doses.

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232 Radiological Protection individual.5 Some foods, such as brazil nuts, are rich in radioactive elements. Our very bodies, blood and internal organs contain isotopes such as potassium-40 which are part of the normal make-up of life, and which naturally irradiate us from within. As one writer has put it: ‘To avoid radiation, you would have to leave your own body and you would have to leave the universe’.6 Some forms of radiation cause more damage to human cells and tissues than others, depending on their ionising potency and penetrative ability. The effect of ionising radiation, which displaces electrons from molecules, is generally to produce negatively-charged electrons and positively charged ions. These may cause damage to living tissues, either immediately (as where radiation poisoning occurs) or over the long-term (as with cancer and birth defects). For this reason, exposure of individuals to human-derived radiation sources is subject to controls and limits. Medical procedures are by a long way the most dominant source of man-made exposure, through X-rays, CAT scans, nuclear medicine and radiation therapy. Other sources are building and engineering materials, fuels such as coal, and products containing radioactive sources. Coal fired power stations will discharge significant quantities of radioactive by-products, and uranium and other radioactive sources are concentrated in the fly ash which they produce. All fossil fuels, whether diesel oil or wood, will release radionuclides when combusted. Tobacco smoke, whether first or second-hand, is another significant source, as it contains radium, radon gas, and radium daughter products such as polonium-210 that are released when tobacco is burned. The normal nuclear fuel cycle is also of course a contributor, but generally at lower levels, leaving aside exposure from accidents. Exposures are measured in terms of the quantity absorbed dose, that is the ratio of energy imparted to the exposed body or body part. The absorbed dose is measured in units known as grays (Gy).7 The heavier particles impart more energy and cause more ionising transformations as they pass through a cell: this rate of energy transfer is referred to as the LET (linear energy transfer). The high-LET radiations are capable of causing more damage per unit of absorbed dose and hence a unit is needed which reflects the biological effect. Accordingly, a weighted dose factor is applied to high-LET radiation, resulting in what is termed the equivalent dose. This could be expressed as an energy/mass ratio of joules/ kilogram, but the special term, sievert (Sv) is used.8 For lower doses, the term rem (röntgen equivalent man) (0.01 Sv) and millisievert (mSv, 0.001 Sv) are also used. The average natural background effective dose is 2.4 mSv (aircraft crews’ natural doses rise to 3.0 mSv). This can be compared with average doses of 0.4 mSv from diagnostic medical examinations, 0.005 mSv from former atmospheric nuclear tests, 0.002 mSv from the Chernobyl accident fallout, and 0.0002 mSv from nuclear power production.9 These are, however, doses aver-

5 See National Council on Radiation Protection and Measurements (NCRP), 1987, Ionizing Radiation Exposure of the Population of the United States (Washington DC: NCRP No 93). 6 Gywneth Cravens, Power to Save the World: the Truth about Nuclear Energy (New York, Alfred A Knopf, 2007) 79. 7 A gray being the absorption of one joule of energy by one kilogram of matter. The term was defined in 1975 in honour of Louis Harold Gray (1905–65), the British physicist and pioneer of the science of radiobiology, who used a similar concept, ‘that amount of neutron radiation which produces an increment of energy in unit volume of tissue equal to the increment of energy produced in unit volume of water by one röntgen of radiation’, in 1940. 8 Named after the Swedish medical physicist Rolf Maximilian Sievert (1896–1966). 9 Source: Report of the UN Scientific Committee on the Sources and Effects of Radiation to the General Assembly (New York, 2000), Table 4.

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Radiological Protection 233 aged over the entire world population, and hence perhaps not so comforting to those living near nuclear sites as the bare figures might suggest. There are arguments that low levels of radiation can indeed be beneficial, by energising the body’s natural DNA repair mechanisms, thereby reducing the risks of cancer (the idea of radiation hormesis). This is, however, an unproven theory and regulatory approaches are in general based on a linear model, relating risk directly to the dose, and with no safe threshold level, reflecting the view that even at low doses radiation may act as a mutational initiator of tumours.10 This model originally derived from studies on survivors following the Hiroshima and Nagasaki atomic bomb explosions, which indicated a roughly linear correlation between dose received and the risk of cancer. Much more information exists on the effects of such acute exposure (such as the 86,500 Japan atom bomb survivors and emergency workers attending the Chernobyl accident) than chronic exposure,11 and studies based on incidents of cancer are problematic because of other chemical hazards and factors such as smoking, alcohol and diet which may be contributory causes. An authoritative and influential source of knowledge in this field is the National Research Council (NRC), which advises the US Government on the relationship between exposure to ionising radiation and human health, with its reports on the Biological Effects of Ionizing Radiation, BEIR V (1990) and BEIR VII, Phases 1 and 2.12 The BEIR VII Report (2006) did not accept either the hypothesis that low doses are substantially more harmful or substantially less harmful that would be estimated by a linear no-threshold (LNT) model and concluded that the current scientific evidence is consistent with a linear, no-threshold dose-response relationship between ionising radiation and the development of cancer in humans. The most significant policy implication of this no-threshold approach is that, since there can be no situation of zero risk, some degree of risk must be accepted at any level of protection. The essential ways in which exposure can be limited are by minimising the time of exposure, increasing the distance between the source and the exposed individual, provision of appropriate shielding, and containment of the radioactive materials. A more fundamental question is whether the activity causing the exposure should be undertaken at all, that is whether it is justified by the benefits which arise from it. Naturally for medical procedures, extremely high directed doses may be required in order to kill tumours or cancerous cells. Hence there are three key components of radiological protection: 1. the justification of a practice, as doing more good than harm; 2. the optimisation of protection, by maximising the margin of good over harm; and 3. the use of dose limits, to provide an acceptable standard of protection even for the most highly exposed individuals as, effectively, a long-stop. The subject of radiological protection is a scientifically complex one, and the object of this chapter is simply to explain the basis instruments and concepts, rather than their technical detail. The first ‘Radiation Protection Standards’ were proposed by the British X-ray and Radium Protection Committee (later the International Commission on Radiological 10

Ibid, para 67. Though there are now some studies of chronic exposures, for example nuclear workers, and those living close to the Techa River in Russia, who were exposed to radioactive discharges from the secret Mayak plutonium production plant, northwest of Chelyabinsk. See the discussion in UNSCEAR 2006 Report to the UN General Assembly with Scientific Appendices, Effects of Ionizing Radiation, Vol I (New York, 2008). 12 Health Risks from Exposure to Low Levels of Ionizing Radiation: BEIR VII, Phase 2, National Research Council of the National Academies (Washington DC, National Academies Press, 2006). See nap.edu. 11

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234 Radiological Protection Protection or ICRP) and the US Roentgen Ray Society in the 1920s. Following the end of World War II, research into the effects of radioactivity grew dramatically. As with other fields of nuclear law, the co-operative international dimension is important. The highly-respected work of the UN Scientific Committee on the Effects of Atomic Radiation13 (UNSCEAR) has already been noted, but reference also needs to be made to the ICRP, the International Atomic Energy Agency (IAEA), the Nuclear Energy Agency (NEA) and the Euratom Community.14 This is a field where the various international agencies tend to work closely and harmoniously, resulting in common standards and generally avoiding unnecessary duplication of work.

INTERNATIONAL COMMISSION ON RADIOLOGICAL PROTECTION ICRP The ICRP was established in 1928 as a Commission15 linked to the International Congresses of Radiology (the professional society of radiologist physicians), but is now financially supported by a number of international organisations and governments.16 It is an independent registered charity in the UK, with its headquarters in Stockholm and since 1950 its remit has extended beyond medical applications of radiation. As a purely advisory body, it has no power to impose its recommendations, but in reality these are highly influential and underlie much of the current legislation worldwide. It has a main Commission and five standing Committees, dealing with radiation effects, doses, protection in medicine, the application of ICRP recommendations, and protection of the environment. Its recommendations were originally published as papers in various scientific journals, but since 1959 it has had its own series of publications. The most important of these are the general Recommendations for a System of Radiological Protection, the most recent version being ICRP 103, issued in 2008 and replacing the previous Recommendations of 1990. 13 UNSCEAR was established by the General Assembly of the United Nations in 1955. Its mandate is to assess and report levels and effects of exposure to ionising radiation. Governments and organisations throughout the world rely on the Committee’s estimates as the scientific basis for evaluating radiation risk and for establishing protective measures. See www.unscear.org. 14 Other relevant sources of recommendations are the World Health Organization and the International Labour Organization. See, eg, the WHO Report on Depleted Uranium: Sources, Exposure and Health Effects available at www.who.int/ionizing_radiation/env/du/en. In 1949, the ILO published what is probably one of the first sets of practical international standards on radiation protection which were incorporated into the ‘Model Code of Safety Regulations for Industrial Establishment’. These provisions were revised and considerably extended in 1957 and were incorporated as Pt II in the ILO Manual of Industrial Radiation Protection. In 1960 the ILO adopted Convention 115, on protection of workers against ionising radiation, which was later supplemented and amended. For those countries which operate to later standards such as the Euratom Basic Safety Standards, the ILO Convention has in practice largely been superseded, but it remains of significance in other countries which are not bound by equivalent international instruments. A full description of the ILO’s important past and current activities in this area is available at www.ilo.org/public/english/protection/safework/hazardwk/radiprot/ilorad.htm. In respect of the Americas, the Pan American Health Organization (PAHO) has developed a radiological health programme since 1960: see www.paho.org. The Food and Agriculture Organization (FAO) assists in preparedness and response to the threat of radioactive contamination of food and the environment, sharing UN responsibility in planning response to actual, potential or perceived threats, working in particular with the IAEA through its Special Emergency Programmes Advisory Service: see www.fao.org/emergencies/home0/hazard_and_emergency_types/ nuclear/en. 15 Originally called the International X-ray and Radium Protection Committee. 16 See Bo Lindell, H John Dunster and Jack Valentin, International Commission on Radiological Protection: History, Policies, Procedures (Oxford, ICRP, 1998) available at www.icrp.org/about.asp.

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International Commission on Radiological Protection 235 Other important current general publications include: ICRP 63: Principles for Intervention for Protection of the Public in the Event of a Radiological Emergency (1993) ICRP 65: Protection Against Radon-222 at Home and at Work (1994) ICRP 75: General Principles for the Radiation Protection of Workers (1998) ICRP 77: Radiological Protection Policy for the Disposal of Radioactive Waste (1998) ICRP 81: Radiation Protection Recommendations as Applied to the Disposal of Long-Lived Solid Radioactive Waste (2000) ICRP 82: Protection of the Public in Situations of Prolonged Radiation Exposure (2000) ICRP 96: Protecting People Against Radiation Exposure in the Event of a Radiological Attack (2006) ICRP 105: Radiological Protection in Medicine (2008) The ICRP is the body which has developed many of the core concepts and approaches in this area. It developed a distinction between ‘practices’ and ‘interventions’. A practice is a human activity that is undertaken by choice but which increases overall exposure, and as such must be controlled. An intervention is an action against exposures that already exist, for the purpose of reducing exposures. Both interventions and practices are required to be justified as giving rise to more good than harm. Further, in both cases protection is to be optimised, by keeping doses as low as is reasonably achievable, economic and social factors being taken into account. In some cases (notably medical treatment) it is the same person who suffers the exposure and who obtains the benefit. However, in others the practice may benefit the wider community but result in above-average exposure for certain individuals: here some dose or risk limitation is required. The ICRP has also developed the distinction between three types of exposure: occupational exposure, medical exposure and public exposure. In its new 2008 Recommendations, the ICRP has moved on from the basic distinction of practices and interventions in the 1990 Recommendations, towards an approach based on exposure situations, distinguishing planned, emergency and existing exposure situations, and applying the fundamental principles of justification and optimisation to all three. The 2008 Recommendations also provide an approach for developing a framework to demonstrating radiological protection of the environment, which is likely to become an increasingly important issue. It is important to appreciate that the dose limits recommended by the ICRP for occupational exposure and public exposure (there are no such limits for medical exposure) are not to be regarded as acceptable limits to which an operator of a practice may work. They are regarded by the ICRP as in fact being close to the point where the degree of risk could legitimately be described as unacceptable. The most onerous and effective requirement is to optimise exposure, which may require exposure to be reduced well below the dose limit. For public exposure the dose limits are in fact set at values less than the total dose received from all sources, on the basis that the fact that higher levels are received from naturally-occurring radiation does not justify failure to control and reduce those exposures that are within human control. The ICRP recognises that its recommendations are relied on by international agencies, national regulators and operating managements and their advisors— accordingly it seeks to avoid making frequent changes, with intervals of 10 to 15 years generally being applied before recommendations are reviewed.

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236 Radiological Protection Article III of the statutes of the IAEA gives it power to establish or adopt standards of safety for protection of health and minimisation of danger to life and property in connection with peaceful uses of ionising radiations. There are three main types of standards: basic safety standards, specialised regulations, and codes of practice.17 In addition, the IAEA publishes various manuals, guides and reports. These standards are generally based on ICRP recommendations (see above) and are approved by the IAEA Board of Governors. They are recommendations and as such have no legal force, but are regarded as authoritative and are followed in national regulations. Many of the standards are adopted as the Safety Series. At the top of the hierarchy of standards are the overarching Safety Fundamentals,18 with beneath them standards dealing with Thematic Areas (such as legal infrastructure,19 emergency preparedness,20 management systems,21 site evaluation,22 radiation protection,23 radioactive waste management,24 decommissioning25 and transport26) and Facilities and Activities (such as design and operation of nuclear power plants, research reactors, fuel cycle facilities, and waste treatment and disposal facilities). Safety Series publication No 115 is the International Basic Safety Standards for Protection against Ionizing Radiation and for the Safety of Radiation Sources.27 Most of the requirements of the Basic Safety Standards are qualitative, but they also refer to quantitative limits. They generally apply to practices and interventions carried out in a state that chooses to accept the Standards, or are carried out by the IAEA, or undertaken with the assistance of the Food and Agriculture Organization (FAO), IAEA, International Labour Organization (ILO), Pan American Health Organization (PAHO) or World Health Organization (WHO), or are carried out under any bilateral or multilateral arrangement whereby the parties request the IAEA to provide the application of standards. They are not written as detailed legislation, but rather as a practical guide for public authorities, employers and workers, specialised radiological protection bodies, enterprises and health and safety committees. They should be interpreted to take account of local situations, technical resources, the scale of the installation, and other relevant factors. In 1960, when the first standards were approved, the decision was taken to base them, to the extent possible, on the recommendations of the ICRP, thereby establishing a long-lived synergy. At the time of writing, the IAEA Basic Safety Standards are in the course of revision. A review was undertaken in 2006, and a technical meeting in July 2007 made recommendations for revision. Draft 1.0 of the revised BSS was put out for consultation and review by committees in 2008, and over 1,000 comments were 17 Relevant important examples are the Code of Conduct on the Safety and Security of Radioactive Sources (2004) and the Code of Practice on the International Transboundary Movement of Radioactive Waste (1990, INFCIRC/386). 18 SF-1 Fundamental Safety Principles (2006). 19 GS-R-1 Legal and Governmental Infrastructure for Nuclear, Radiation, Radioactive Waste and Transport Safety (2000). Various standards under this cover matters such as organisation and staffing, regulatory inspection, documentation and regulatory control. 20 GS-R-2 Preparedness and Response for a Nuclear or Radiological Emergency (2002). 21 GS-R-3 The Management Systems for Facilities and Activities (2006). 22 NS-R-3 Site Evaluation for Nuclear Installations (2003). 23 SS115 International Basic Safety Standards for Protection against Ionizing Radiation and for the Safety of Radiation Sources (1996). 24 WS-R-2 Predisposal Management of Radioactive Waste (2000). 25 WS-R-5 Decommissioning of Facilities Using Radioactive Material (2006); WS-R-3 Remediation of Areas Contaminated by Past Activities and Accidents (2003). 26 TS-R-1 Regulations for the Safe Transport of Radioactive Material (2005). 27 Vienna, 1996. The Standards were jointly sponsored by the FAO, IAEA, ILO, OECD/NEA, PAHO and WHO, which demonstrates the very considerable inter-agency co-operation in this area.

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Nuclear Energy Agency 237 made on the draft.28 The current status of all IAEA Safety Standards is provided on the IAEA website, showing where revisions are in progress.29 Radiological protection is, of course, an important component of many of the international treaties on nuclear safety. So, for example, the 1994 IAEA Convention on Nuclear Safety requires each Contracting Party to take the appropriate steps to ensure that in all operational states the radiation exposure to the workers and to the public caused by a nuclear installation shall be kept as low as reasonably achievable and that no individual shall be exposed to radiation doses which exceed prescribed national dose limits (Article 15). The 1997 IAEA Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Disposal requires appropriate measures to be taken to ensure that during the operational lifetime of a spent fuel or radioactive waste management facility, the radiation exposure of the workers and the public are kept as low as reasonably achievable, economic and social factor being taken into account, and that no individual is exposed, in normal situations, to radiation doses which exceed national prescriptions for dose limitation which have due regard to internationally endorsed standards on radiological protection (Article 24(1)).

NUCLEAR ENERGY AGENCY The Nuclear Energy Agency has the task by Article 11 of its statute of promoting the elaboration and harmonisation of legislation governing nuclear energy in member states, in particular in relation to protection of public health and prevention of accidents. As with IAEA recommendations, they are non-binding. Whilst in principle there could be overlap between the work of the NEA and IAEA, it has been pointed out that in practice there is a sort of ‘tacit agreement’ by which certain areas have been traditionally addressed by one organisation or another.30 The NEA has a number of committees and working groups, including its Committee on Radiation Protection and Public Health, and Expert Groups on subjects such as Best Available Techniques, ICRP Recommendations, Occupational Exposure and Nuclear Emergencies.31 The output of publications, both general and highly technical, is massive and cannot be addressed in detail here. Significant initiatives include the development since 1990 of a forum for improving the efficiency and effectiveness of nuclear emergency management, with the preparation and conduct of the International Nuclear Emergency Exercise (INEX) series.32 The NEA has also published various useful reports thinking more broadly about current legal and regulatory challenges in the field of radiation protection.33 28

See www-ns.iaea.org/standards/review-of-the-bss.htm. www-ns.iaea.org/downloads/standards/status.pdf. 30 Fabrizio Nocera, The Legal Regime of Nuclear Energy (Antwerp and Oxford, Intersentia, 2005) 401. 31 See www.nea.fr/html/rp/welcome.html. 32 See, eg, Experience from the Third International Nuclear Emergency Exercise (INEX 3) on Consequence Management (2007) available online at www.oecdnea.org/html/rp/reports/2007/nea6163-inex3.pdf and Strategy for Developing and Conducting Nuclear Emergency Exercises (2007) available at www.nea.fr/html/rp/reports/2007/ nea6162-emergency.pdf. 33 See Radiation Protection in Today’s World: Towards Sustainability (2007) available at www.nea.fr/html/rp/ reports/2007/nea6165-rp.pdf; Environmental Radiological Protection in the Law: A Baseline Survey (2007) available at www.nea.fr/html/rp/reports/2007/nea6172-law.pdf. 29

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238 Radiological Protection

EURATOM The Euratom Treaty imposes on the Community a duty to ‘establish uniform safety standards to protect the health of workers and of the general public and ensure they are applied’ (Article 2(b)). Chapter III of the Treaty deals with health and safety. Article 30 requires basic standards to be laid down for the protection of the health of workers and the general public against the dangers arising from ionising radiation. This expression means: (a) maximum permissible doses compatible with adequate safety; (b) maximum permissible limits of exposure and contamination; and (c) the fundamental principles governing the health surveillance of workers. These basic standards are to be worked out by the Commission after having obtained the opinion of a group of persons appointed by the Scientific and Technical Committee from among scientific experts, in particular experts in public health; the Council establishes the standards, on a proposal from the Commission, by a qualified majority (Article 31). Article 33 obliges Member States to lay down the appropriate provisions to ensure compliance with the standards. It is possible for Member States to set stricter limits than those set by the Community,34 though the Member State should refrain from doing so until the Commission been provided with a draft and has had a three month period to comment upon them.35 Additionally, there are a number of supplementary obligations. Any Member State in whose territories ‘particularly dangerous experiments’ are to take place shall take additional health and safety measures, on which it shall first obtain the opinion of the Commission; the assent of the Commission is required where the effects of such experiments are liable to affect the territories of other Member States (Article 34). Each Member State is to establish the facilities necessary to carry out continuous monitoring of the level of radioactivity in the air, water and soil and to ensure compliance with the basic safety standards; the Commission has the right of access to such facilities and may verify their operation and efficiency (Article 35). Information on these checks is to be periodically communicated to the Commission (Article 36). Each Member State must provide to the Commission such general data relating to any plan for the disposal of radioactive waste in whatever form as will make it possible to determine whether the implementation of such plan is liable to result in the radioactive contamination of the soil, water or airspace of another Member State (Article 37).36 The scope of Articles 34 and 35 became a controversial issue in respect of the resumption of French nuclear tests in French Polynesia in 1995–96.37 In July 1995, a month after France announced the resumption of testing, the 34 In Case C-376/90 Commission v Belgium [1992] ECR I-6153 it was held that the dose limits laid down in the directive are to be regarded as a form of minimum harmonisation and that Member States are entitled to set stricter limits. 35 See Art 33, third and fourth paras. Recommendation 91/444/Euratom ([1991] OJ L238, 31–3 reminds Member States of these requirements and of the importance of harmonisation and the width of the ‘provisions’ which have to be communicated in draft, including legislation, circulars, emergency plans, training programmes and programmes for informing the general public. 36 This provision is discussed further in ch 12 on waste management. 37 The highly controversial tests, which outraged large sections of the international community, had three main scientific rationales: (1) to test the effects of ageing on France’s older warheads; (2) to test a new submarine-based warhead, the TN-75; and (3) most importantly, to complete the collection of empirical data needed to allow reliable future computer simulation of tests, which would allow France to sign the Comprehensive Test Ban Treaty. Some French commentators, however, have suggested that the decision was partly motivated by the desire of President Chirac to demonstrate both French independence and his own Gaullist credentials. The decision led to

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Basic Safety Standards 239 European Parliament asked the Commission to ensure that Articles 34 and 35 would be observed.38 France gave some information to the Commission initially, but refused to give further information. Jacques Santer, then the President of the Commission, informed the European Parliament on 6 September 1995 that the Commission was not in a position to state whether Article 34 was engaged or not. The Commission adopted a final position on the issue on 23 October 1995. It argued that Article 34 applied to both civil and military experiments, a position later found by the European Court to be incorrect in the cases against the UK relating to military activities.39 It sought to clarify the meaning of the words ‘particularly dangerous experiment’, stating that an experiment was to be regarded as particularly dangerous if it presented a perceptible risk of significant exposure of workers or the general public to ionising radiation, and that a nuclear test could indeed be such an experiment. However, the Commission concluded that on the basis of information received from the French government, the tests did not present a perceptible risk of significant exposure and would not result in the basic standards being breached.40 Article 38 requires the Commission to make recommendations to the Member States with regard to the level of radioactivity in the air, water or soil. In cases of urgency, the Article allows the Commission to issue a directive requiring the Member State concerned to take all necessary measures to prevent infringement of the basis standards and to ensure compliance with regulations, within a period laid down by the Commission. Failure to comply allows the Commission or any Member State to bring the matter before the European Court of Justice forthwith, by way of a summary procedure in derogation from the normal procedural requirements of Articles 141 and 142. Article 39 requires the Commission to set up a health and safety documentation and study section within the framework of the Joint Nuclear Research Centre established under Article 8. The legislation of the Community on radiological protection can perhaps best be categorised as falling into the following areas: (a) (b) (c) (d)

the Basic Safety Standards (BSS) and radiation protection; radiological emergencies; the measurement and monitoring of levels of radioactivity; and the protection of food and agricultural products.

BASIC SAFETY STANDARDS The original Basic Safety Standards were laid down by Directive 59/221/Euratom. These were based on the recommendations of the Committee of Experts provided for by Article 31. The Committee in turn based its approach primarily on the work of the ICRP. The essential principles have not changed, but the details have evolved to reflect developments widespread condemnation of France, demonstrations and riots against French property, and a boycott of French products and services, notably in Australia, New Zealand and Japan. The French aircraft manufacturer, Dassault, lost a $370 million contract with Australia, and order for about 50,000 cases of Beaujolais were reportedly cancelled. France announced a premature end to the tests after the sixth test, on 22 February 1995. 38 Pitcairn Island, inhabited by 85 British subjects, was 900 km away from the test sites. 39 See ch 3. 40 This aspect was subject to an unsuccessful challenge before the European Court by three Polynesian citizens: Case T-219/95R Danielsson v Commission [1995] ECR II-3051, which failed on locus standi grounds. The decision is discussed further in ch 8.

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240 Radiological Protection in radiological protection, and the Directive has been amended several times, though often after very long delays following the relevant changes in ICRP recommendations. In 1980, the Directive was re-written as Directive 80/836/Euratom, bringing it into line with ICRP recommendations of 1977 and introducing the concepts of justification and optimisation of exposure. Further changes were made in 1984 by Directive 84/467/Euratom, which changed certain dose limits (to the lens of the eye) in order to conform to further ICRP recommendations.41 In 1993, following much consultation, a proposal was presented by the Commission to revise Directive 80/836/Euratom.42 These proposals led to the current BSS Directive, 96/29/Euratom, which came in to effect on 13 May 2000. The revised Directive reflects the development of scientific knowledge and in particular ICRP Recommendation No 60. Its implementation is the subject of Commission Communication 98/C 133/03,43 which contains a detailed commentary on its Articles. The main features of the BSS Directive may be summarised as follows: 1. It applies to all practices (defined as human activity that can increase the exposure of individuals to radiation from an artificial source, or from the processing of natural radionuclides, except in the case of emergency exposure) which involve a risk from ionising radiation, namely the production, processing, handling, use, holding, storage, transport, import to and export from the Community, and disposal of radioactive substances (Article 2(1)(a)). It also applies to any work activities which involve the presence of natural radiation sources and lead to a significant increase in exposure to workers or the public (Article 2(2)), and to any intervention in the case of radiological emergencies or in cases of lasting exposure resulting from the after-effects of a radiological emergency or a past or old practice or work activity (Article 2(3)).44 It does not apply to exposure to radon in dwellings or to natural radioactivity from cosmic radiation or radionuclides present in the undisturbed earth’s crust (Article 2(4)). There are, however, Commission Recommendations dealing with the protection of the public against indoor exposure to radon,45 and the protection of the public against exposure to radon in drinking water supplies.46 2. These practices must be subject to reporting (Article 3(1)), save for certain specifically exempted practices at low levels of activity and/or quantities (specified at Article 3(2)). 3. Prior authorisation must be required for specified practices, including operation and decommissioning of any facility of the nuclear fuel cycle, deliberate addition of radioactive substances to medicinal products or consumer goods, deliberate administration of radioactive substances to persons for the purposes of medical diagnosis, treatment or research,47 and the use of X-rays or radioactive sources for industrial radiography or processing of products (Article 4(1)).48 Prior authorisation may be required for other practices. 41 The changes, and the implementation of the 1980 directive generally, were the subject of Communication 85/C 374/03 from the Commission ([1985] OJ C-347, 9). 42 COM(93)349. 43 [1998] OJ L133, 3. 44 As to the effect of the directive in relation to radioactively contaminated land, see ch 11. 45 Recommendation 90/143/Euratom. 46 Recommendation 2001/928/Euratom. 47 Authorisation is also required for similar veterinary activities, in so far as radiation protection of human beings is concerned. 48 Dir 2003/122/Euratom deals with the control of high-activity sealed radioactive sources (HASS), and is considered further in ch 8 dealing with security.

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Basic Safety Standards 241 4. Disposal, recycling or reuse of radioactive substances or materials containing such substances arising from regulated practices are to be subject to prior authorisation, subject to the ability for competent authorities to set clearance levels below which the substance or material may be released from the requirements of the Directive (Article 5).49 5. All new classes or types of practice must be justified in advance of first being adopted or first approved, by their economic, social or other benefits in relation to the health detriment they may cause (Article 6(1)). This important requirement is discussed separately below. Existing practices may be reviewed as to justification whenever new or important evidence about their efficacy or consequences is acquired (Article 6(2)). Communication 98/C 133/03 suggests that if an existing practice should be considered unjustified, a transitional period could still be tolerated on the basis of a carefully weighted balance between economic, social or other benefits and the health detriment. 6. In the context of optimisation, all exposures shall be kept as low as reasonably achievable, economic and social factors being taken into account (Article 6(3)(a)). Communication 98/C 133/03 emphasises that the techniques for judging the need for further reductions in exposure are very diverse; they can include formal aids to decisionmaking such as cost-benefit analysis, but are more usually based on professional judgement. The principle is to be applied at all stages, from design, through construction and operation, to final decommissioning. 7. The sum of the doses from all relevant practices shall not exceed the dose limit laid down under Title IV for exposed workers, apprentices and students and members of the public (Article 6(4)). These limits do not apply to medical patients, individuals such as relatives and friends voluntarily helping in the comfort and support of such patients, or to volunteers in medical research programmes. However, there is separate legislation dealing with health protection of individuals against dangers of ionising radiation in relation to medical exposure. Directive 97/43/Euratom50 deals with this issue and requires the exposure of the individual to be justified as showing a sufficient net benefit: this applies both to new types and practices and to individual medical exposures (Article 3). Doses due to medical exposure (other than radiotherapy) must be kept as low as reasonably achievable, and in the case of radiotherapy exposures of target volumes shall be individually planned, keeping doses to non-target tissues as low as reasonably achievable (Article 4). Written protocols must be established and medical physics experts involved (Article 6). Steps must be taken with a view to avoiding unnecessary proliferation of radiological equipment, and such equipment must be inventorised, tested and kept under strict surveillance when in use (Article 8).51 8. The deliberate addition of radioactive substances to foodstuffs, toys, personal ornaments and cosmetics, and the import and export of such goods, is prohibited (Article 6(5)). These are considered as not justifiable under any circumstances. 9. The effective dose limit for exposed workers is 100 mSv in a consecutive five year period, subject to a maximum effective dose of 50 mSv in any one year (Article 9(1)). Separate 49 Subject to following the basic criteria used in Annex I and taking into account any other technical guidance issued by the Community. Communication 98/C 133/03 emphasises that in view of the internal market a harmonised approach to the development of clearance levels is highly desirable and that technical guidance will be provided. For example, in 1988 radiological protection criteria were issued for recycling materials from the dismantling of nuclear installations (Radiation Protection No 43, Luxembourg 1988). 50 Replacing Dir 84/466/Euratom. 51 For a case on incomplete transposition of the predecessor directive 84/466/Euratom, see Case C-21/96 [1997] ECR I-5481 Commission v Kingdom of Spain (Sixth Chamber, 9 October 1997).

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10.

11.

12.

13.

52

dose limits are set for the lens of the eye (150 mSv a year), skin (500 mSv a year) and hands, forearms, feet and ankles (500 mSv a year). Special protection is required for pregnant women (Article 10) and apprentices and students (Article 11). Specially authorised exposures may be allowed, subject to various constraints, in exceptional circumstances (Article 12). The Directive does not affect the general obligations relating to the protection of those at work, for example Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work. In the event of conflict, the Euratom Directive is given priority over EC Directives.52 If a Member State wishes to adopt dose limits stricter than those in the Directive, it must inform the Commission and other Member States (Article 53). The issue of outside workers, who may be subject to exposure in several different controlled areas in succession, whether in the same Member State, or a number of Member States, is dealt with by Directive 90/641/Euratom. Monitoring systems must afford equivalent protection to outside workers as for workers employed on a permanent basis. The limit for an effective dose for members of the public is 1 mSv a year (Article 13(1)), which was a reduction from the previous figure of 5 mSv in the 1980 Directive. Separate limits apply for doses to the lens of the eye (15 mSv) and skin (50 mSv)—a factor of 10 below the limits for exposed workers. The limits are intended to protect the most highly exposed individuals, in the case of the public known as the ‘reference group’, where exposure is both relatively uniform and is representative of the most exposed individuals. Article 14 requires optimisation to be applied to exposure of the population as a whole, not just individuals. Articles 15 and 16 deal with the estimation of effective doses, providing values and relationships in Annexes II and III, which derive from the work of the ICRP. Various requirements are imposed as to measures for restricting exposure, such as classifying and delineating controlled areas in workplaces, supervision, categorisation of exposed workers, information and training (Articles 17–22). Article 17(a) requires prior evaluation of the radiological risk to exposed workers. There are also requirements as to the assessment of exposure by monitoring the workplace and individuals and medical surveillance (Articles 24–37). Special arrangements are required for the monitoring of air crew who may be subject to elevated levels of cosmic radiation (Article 42). On basic principles, each Member State shall create the conditions necessary to ensure the best possible protection of the population based on the principles set out in Article 6 (Article 43). This involves the examination and approval of plans for proposed installations and their siting, requiring adequate protection against exposure or contamination liable to extend beyond the perimeter before an installation is accepted into service, and examining and approving plans for the discharge of radioactive effluents (Article 44). Realistic and appropriately frequent estimates of doses for the population as a whole and for specially affected reference groups must be made (Article 45). Commission Recommendation 2000/473/Euratom indicates that there is consensus among Member States as to the adequacy of current monitoring programmes and gives recommended requirements for monitoring networks, sampling media,53 types of measurements and periodicity, treatment of data, and reporting to the Commission.

Art 232(2) EC Treaty. That is airborne particulates, surface water, water intended for human consumption, milk, mixed diet foodstuffs. 53

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BSS Directive and Norm 243 14. Intervention in cases of radiological emergencies and lasting exposure from past practices must be considered against the principles of justification and optimisation (Article 48). In the case of a radiological emergency resulting from practices, the distribution of dispersed radioactive substances must be assessed and the corresponding possible exposures assessed (Article 49). 15. Account must be taken of the fact that radiological emergencies may occur in or outside of the Member State’s territory which may affect it (Article 50(1)). Appropriate implementation plans must be drawn up at national and local level, and co-operation must be sought with other Member and non-Member States in relation to emergencies on its own territory which may affect other states (Article 50(2) and (4)). Plans should include intervention levels, indicating when intervention is necessary. Plans must be tested at regular intervals. The appropriate intervention must be implemented in case of an emergency (Article 51). 16. Where a Member State identifies a situation leading to lasting exposure resulting from the after effects of a radiological emergency or past practice, they shall if necessary and to the extent of the exposure risk involved, ensure that the area is demarcated, arrangements for monitoring of exposure are made, any appropriate intervention is implemented, ‘taking account of the real characteristics of the situation’, and access to relevant land or buildings is regulated (Article 53).54

PROPOSED REVISION OF BSS DIRECTIVE AND NORM Work is currently underway on a revised BSS Directive, with the intention of completing a draft directive by late 2009 and then seeking the Opinion of the Group of Experts established by Article 31 of the Euratom Treaty. This work will incorporate new recommendations of the ICRP published in 2007 as ICRP Publication 103, and ongoing work by the IAEA. It will seek to bring together other relevant directives on medical exposures (97/43/Euratom), high activity sealed sources (2003/122/Euratom), outside workers (90/641/Euratom) and public information (89/618/Euratom). One important aspect of this work is the increased focus on sources from NORM55 on which knowledge has improved since the BSS was last revised.56 It is likely that the regulatory framework for NORM will be harmonised, which will bring a substantial number of industries within control.57 Other important extensions of the BSS regime are likely to include general requirements regarding radon exposure in dwellings and workplaces, with a requirement for national Action Plans, and requirements as to radionuclide concentrations in building materials, whether natural materials derived from igneous origins such as granite, or materials incorporating by-products or residues from NORM industries, such as fly ash or gypsum.

54

See further ch 11 dealing with radioactively contaminated land. See also the discussion earlier in the chapter. 56 See European Commission Services considerations with regard to natural radiation sources in the BSS Directive (16 January 2009). 57 The indicative list, based on existing IAEA guidance, includes extraction of rare earths, production of thorium compounds, oil and gas production, titanium dioxide pigment production, production of phosphate fertilisers, cement production, coal-fired power plants, phosphoric acid production, primary iron production, tin, lead and copper smelting, and ground water treatment. 55

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IMPLEMENTATION OF THE BSS DIRECTIVE IN THE UK The protection of workers and the public from hazards of ionising radiation relies fundamentally on the general duties applying to employers under the Health and Safety at Work, etc. Act 1974,58 overlaid by the Ionising Radiations Regulations 1999 (IRR).59 The IRR are made both under the Health and Safety at Work, etc. Act section 15 and under section 2(2) of the European Communities Act 1974, and as such are health and safety regulations, contravention of which is an offence under section 33(1)(c) of the Health and Safety at Work, etc. Act. Attention to the health and safety impacts of radioactive substances in the workplace can be dated back to at least 1925, when the Annual Report of the Chief Inspector of Factories and Workshops for that year60 referred to a new industrial illness, first noted in the USA, of necrosis of the jaw and aplastic anaemia, affecting female employees using luminous paint that contained radium salt and thought to be caused by licking the paint brush to a fine point.61 So far as the 1980 BSS was concerned this was initially implemented in a somewhat piecemeal fashion, by the Ionizing Radiations Regulations 1985,62 with justification and optimisation being the subject of an Approved Code of Practice. Standards and procedures were based in part on the work of the National Radiological Protection Board which from April 2005 became the Radiation Protection Division of the Health Protection Agency.63

THE IONISING RADIATIONS REGULATIONS 1999 The Ionising Radiations Regulations 199964 came into force on 1 January 2000. A key requirement is that a radiation employer (that is an employer who in the course of a trade, business or other undertaking carries out work with ionising radiation) shall not, except in accordance with a prior authorisation granted by the Health and Safety Executive (HSE) to carry out specified practices (regulation 5(1)). These practices are the use of equipment intended to produce X-rays for the purpose of industrial radiography, the processing of products, research, or the exposure of persons for medical treatment, or the use of accelerators (that is apparatus in which particles are accelerated and which emits ionising radiation with an energy higher than 1 MeV). Advance notice must be given of all work with ionising radiation (regulation 6) save for work carried out at nuclear licensed sites and the low-activity types of work listed in Schedule 1. Before a new activity involving work with ionising radiation is commenced, the employer must make a suitable and sufficient risk assessment for the purpose of identifying the measures he needs to take to restrict the 58 That is to ensure so far as reasonably practicable the health and safety of employees (s 2(1)) and to conduct the undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in employment are not exposed to risks to their health or safety (s 3(1)). 59 SI 1999 No 3232. For Northern Ireland, see the IRR (Northern Ireland) 2000 SR 2000 No 375. 60 Cmd 2714. 61 Eddie Crooks, The Factory Inspectors: A Legacy of the Industrial Revolution (Stroud, Tempus Publishing, 2005) 179. 62 SI 1985 No 1333. 63 See www.hpa.org.uk. 64 SI 1999 No 3232.

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The Ionising Radiations Regulations 1999 245 exposure of the employees or other persons (regulation 7). Employers must also take all necessary steps to restrict so far as is reasonably practicable the extent to which employees and others are exposed, principally by means of engineering controls and design features and warning devices, secondly by systems of work and further by personal protective equipment (regulation 8).65 Other specific requirements deal with personal proactive equipment (regulation 9), dose limitation (regulation 11), contingency planning (regulation 12), radiation protection advisors (regulation 13), information and training (regulation 14), designated areas and local rules for such areas (regulations 16 to 19), designation and monitoring of classified employees who are likely to receive an effective dose of over 6 mSv per year (regs 20 to 26), and controls over radioactive sources and other substances (regs 27 to 33). An essential practical source of information on the operation of the Regulations is Radiation Protection News, published by the HSE on its website.66 This refers to the many Codes of Practice which apply in this area67 and the work of the IRR 99 Guidance Working Group of the HSE which considers difficult issues of interpretation, such as the application of the many definitions used in the Regulations. These include, for example, what is meant by a ‘radiation employer’ in circumstances of sub-contracting, where a number of employers may be involved on a single site.68 It also contains details of HSE prosecutions, enforcement incidents, other problems and lessons to be learnt from these: prosecutions have included, as well as large employers such as BNFL, small companies using X-rays for routine industrial purposes, the Science Museum in respect of storage of radioactive substances in a public gallery,69 hospitals for failing to minimise exposure during procedures, for losing sources, or for failing to report such incidents,70 and in one case a veterinary practice for allowing its equipment to be used to X-ray persons.71 Other problems have arisen from the unintentional presence of radioactive sources in metal scrap, which may require closure and decontamination of foundries at a cost of millions of pounds.72 Activities such as the restoration of vintage civil and military aircraft may engage the Regulations due to contact with instrument dials luminised with radium paint.73 At a practical level, one concern of the HSE is that radiation employers do not become over-reliant on external radiation protection advisors; management involvement is required and employers should not become divorced from day-to-day issues.74

65 See Nuclear Safety Directorate, Technical Assessment Guide: Guidance on the demonstration of ALARP (T/AST/005). 66 The publication was formerly called Radiation Protection Advisor, see www.hse.gov.uk/radiation/rpnews. 67 In particular, HSE Approved Code of Practice: Work with Ionising Radiation, though there are numerous other guidance documents and information sheets covering specific issues. Bodies such as the Institute of Physics and Engineering in Medicine and the British Veterinary Association also produce good practice guidance which may be relevant. Obviously the ACOP has a special legal status not enjoyed by these other materials. 68 See Issue 30, Radiation Protection News. See also Issue 23, dealing with agency workers. 69 See Issues 18 and 19, Radiation Protection Advisor. 70 See, eg, Issue 25 Radiation Protection News (Royal Free Hospital fined £45,000 in 2001 in respect of loss of source). In the past HSE specialist inspectors have been disappointed with levels of compliance of NHS Trusts: see Issue 23 Radiation Protection News (2003) listing common failings. 71 Issue 27 Radiation Protection News. 72 Ibid. 73 Issue 21, Radiation Protection News. 74 Issue 29, Radiation Protection News. See also the revised HSE Statement on RPAs (2007): Issue 30 Radiation Protection News.

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JUSTIFICATION: CASES Justification has proved to be the most legally controversial aspect of the BSS, so far as the UK is concerned, and has given rise to litigation. A focus of attention has been the Thermal Oxide Reprocessing Plant (THORP) at Sellafield.75 The first case was R v Inspectorate of Pollution, ex p Greenpeace Ltd (No 2).76 This was a challenge to variations granted by HMIP to allow testing of the new THORP process by BNFL. Her Majesty’s Inspectorate of Pollution (HMIP) and Ministry of Agriculture, Fisheries and Food (MAFF) had concluded that the radiological impact of the emissions from THORP would be very small. Brooke J, who gave permission for judicial review, declined to impose a stay on implementation of the variations to prevent testing since there was no cross-undertaking in damages from Greenpeace; a decision upheld by the Court of Appeal.77 One ground of the substantive challenge was the absence of justification. Otton J held that the low levels of the discharges involved, according to the evidence of HMIP and MAFF, met this argument and that it was not necessary to go into the wider social and economic issues arising. Also, Otton J held that in any event, the justification requirement had been satisfied, in part at least by the need for THORP having been considered at the stage of planning permission. It must, however, be remembered that the case concerned an application for variation of an existing authorisation to allow temporary testing only. The main authorisation process for THORP was the subject of further challenge. That challenge came in R v Secretary of State for the Environment, ex parte Greenpeace Ltd,78 in which Greenpeace and Lancashire County Council sought to quash the decision to grant authorisations for the disposal of radioactive waste from THORP. These authorisations had been the subject of consultation, including on policy issues such as the justification for nuclear fuel reprocessing generally and for THORP in particular, and the non-proliferation and security implications of an increasing stockpile of plutonium. The substantive hearing (leave having been given by Laws J) was before Potts J who identified two separate issues relating to justification: (a) whether there was a legal requirement to consider justification; and (b) whether the finding that the relevant activities were justified was irrational. On the first of these issues, Greenpeace referred, as in the previous challenge, to the requirement for justification as set out in Directive 80/836/Euratom and the Government’s own Guide to the Administration of the Radioactive Substances Act 1960. They also referred to the place of justification in the system of radiological protection recommended by the ICRP in ICRP 60, and to Re Ionising Radiation Protection, Commission v Belgium,79 where Advocate General Jacobs had stated in his opinion that the ICRP principles are reflected in the Directive. However, the question for Potts J was whether justification must be considered in exercising powers of authorisation and variation under the 1993 Act, which was silent on the issue. Potts J held that the express language of the 1960 and 1993 Acts was not to be construed by reference to the guidance or policy statements in the Department of the Environment’s Guide so as to require justification. However, the argument that on principles of Community law the 1993 Act was to be construed consistently 75 76 77 78 79

See generally on THORP, chs 1 and 12. R v Inspectorate of Pollution, ex p Greenpeace Ltd (No 2) [1994] 4 All ER 329. R v Inspectorate of Pollution, ex p Greenpeace [1994] 4 All ER 321. R v Secretary of State for the Environment, ex p Greenpeace Ltd [1994] 4 All ER 352. Re Ionising Radiation Protection, Commission v Belgium Case C-376/90 [1993] 2 CMLR 513 at 524.

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Justification: Cases 247 with the requirements of the Directive was stronger. This raised difficult issues as to the relationship between Articles 6 and 13 of the Directive, whether the requirement of justification related to a type of activity in general rather than an activity at a specific site, and whether the principle is applicable to a group of sources of exposure (for example, at Sellafield) or only to practices in the broader sense of generic human activities.80 Potts J felt some unease at dealing with these issues that might be thought better dealt with by the European Court of Justice, but none of the parties had suggested the matter be referred (no doubt because of everyone’s wish to have a speedy determination of the issues). Article 30 of the Euratom Treaty, with its concentration on basic standards, sat uneasily in Potts J’s view with Articles 6 and 13 of the Directive. Nevertheless, he reached the following conclusions: 1. Article 13 of the Directive makes reference to Article 6(a) and thus includes justification as a matter to which Member States must have regard; Article 13 would make no sense unless such a purposive approach were adopted. 2. The argument of Counsel for the Secretary of State and MAFF was incorrect in suggesting that justification related to a type of activity in general rather than the carrying on of a particular activity at a specific site. What was required to be justified was thermal oxide reprocessing activities at Sellafield and the effect of that practice on particular individuals in particular circumstances. The inquiry and Report of Parker J at the planning stage had not performed this exercise, nor had it purported to do so; likewise the ensuing Parliamentary process. This aspect is contrary to the position taken by Otton J in the previous challenge (see above) and, it is submitted, is the better view. 3. Similarly, Potts J rejected the submission by Counsel for BNFL that a distinction should be drawn between ‘source’ and ‘practice’ within the context of the Directive. The operation of THORP was the practice (that is the human activity) requiring to be justified; the ‘source’ within that practice was Sellafield. 4. The Ionising Radiations Regulations 1985 did not (contrary to the submission of Counsel for BNFL) implement the whole of the Directive, which remained a relevant consideration in construing the 1993 Act. On that basis Potts J concluded that justification was a legal requirement and that the Ministers had erred in law in concluding that it was not. There was nothing in sections 13 and 16 of the 1993 Act to prevent those sections being construed so as to require the justification exercise to be carried out prior to the grant of authorisation. The second question, having concluded that justification was required, was whether it had in fact been carried out, notwithstanding the Minister’s error of law. Greenpeace argued that the Ministers had failed to consider all relevant information in that they had not checked BNFL’s assertions as to future contracts and viability, they had not insisted on seeing a report prepared for BNFL by Touche Ross on the future viability of THORP, and they did not consider possible alternatives to THORP such as dry storage. Consideration of these issues involved detailed examination of the authorisation process and the decision document. Effectively, the conclusion of the Ministers had been that THORP was a facility which BNFL’s customers would use, that it would provide substantial financial benefit to BNFL and that it would provide a significant number of jobs for local people. Potts J held that the Ministers were entitled to reach this conclusion on the material available to them; also that 80

See [1994] All ER 352, 365–6.

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248 Radiological Protection they were entitled to reach that conclusion without seeing the Touche Ross report, which was an internal BNFL document. In terms of alternatives to reprocessing, the Ministers concluded that dry storage was not a true alternative, merely delaying the decision as to what to do with spent fuel. Potts J found that they had approached the matter correctly. Overall, Potts J held that the Ministers had acted correctly in considering first the human issues related to acceptability of risk, and then examining the wider issues of justification as if they were relevant, even though the Ministers (incorrectly) believed they were not relevant: they had in fact weighed the benefits and detriments and were entitled to reach the conclusion that the balance came down on the side of justification. The issue of justification was again the subject of challenge in R v Secretary of State for Environment, Food and Rural Affairs, ex p Friends of the Earth Ltd and Greenpeace Ltd.81 In this case the Court of Appeal had to consider the application of the principle to the substantive decision in October 2001 that the proposed practice by BNFL of manufacturing mixed oxide fuel (MOX) at Sellafield was justified. The Government’s conclusion was that the economic benefits were sufficient to justify the ‘very minor radiological detriments’ which would result from the manufacture of MOX. The problem faced by the Environment Agency in 1996 when BNFL applied for the variations to the discharge authorisations which were necessary to operate the plant was that by then BNFL had virtually completed the construction of the plant, at a capital cost of some £300 million. The Agency referred the decision on to the Secretaries of State in view of its political and strategic significance, but in so doing commented on the unsatisfactory situation as they saw it, whereby it was unable to take into account the economic aspect of justification of the already incurred costs. The Agency had no control over the stage at which the application for authorisation was submitted. Almost three years later, the Government arrived at its decision, which was immediately challenged by Friends of the Earth and Greenpeace. The essence of the challenge was that in carrying out its assessment of the economic case as part of the justification exercise, the costs already incurred in constructing the plant should have been brought into account. The Government had accepted the conclusion of the consultants advising it that operation of the MOX plant would yield a substantial net economic benefit in excess of £100 million at present value; further it would support significant levels of local employment (up to 480 jobs). The Government did not consider it appropriate to put the sunk costs previously incurred onto the negative side of the balance sheet. Friends of the Earth submitted that this gave rise to two main problems: first that the justification exercise became an arbitrary one, depending on when the application happened to be submitted; and secondly this would be inconsistent with the generic nature of justification of ‘practices’ rather than specific plant. The Court of Appeal rejected both these arguments. Contrary to the first instance judge, they held that it was not correct to ignore capital costs in all circumstances. However, sunk costs were a different matter. Lord Justice Simon Brown quoted from a corporate finance textbook: Forget sunk costs. Sunk costs are like spilled milk: they are past and irreversible outflows. Because sunk costs are bygones, they cannot be affected by the decision to accept or reject the project and so they should be ignored.

The Court held that the question of justification was to be addressed at the date of the decision, and there was nothing in Article 6.1 that required a Member State to disapply 81 R v Secretary of State for Environment, Food and Rural Affairs, ex p Friends of the Earth Ltd and Greenpeace Ltd [2001] EWCA Civ 1847; [2002] Env LR 24.

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Justification: Cases 249 standard economic principles on sunk costs. Indeed, the Court went so far as to say that it would most likely be irrational to take such costs into account. The decision leaves a lingering taste of unease, which later information on the economics of the plant have done little to dispel.82 Certainly the approach could not be faulted on normal economic decision making principles, where the question is whether an investment bank or government should commit funds to a project which has already incurred costs. But if the issue is whether the overall economic benefits of a project outweigh its environmental detriments, to ignore sunk costs may lead to a massively distorted result. The Court of Appeal itself acknowledged this, in saying that the policy underlying Article 6.1 would best be served by early decision making, and that late decisions coupled with sunk costs could result in unprofitable schemes being approved. The decision illustrates the unsatisfactory and rather ad hoc way in which major projects in the UK are subject to economic and environmental appraisal and the problems arising from lack specific legislation on justification, an omission which was rectified by legislation introduced in 2004, considered in the next section. Justification arose as an issue in the military context in the case of Marchiori v Environment Agency.83 There was a challenge to authorisations granted by the Environment Agency for the discharge of liquid wastes from the Atomic Weapons Establishment (AWE) on the basis that they could not be justified having regard to the humanitarian and international law objections to the use of nuclear weapons. The approach taken by the Agency in the Decision Document was that ‘the practice of designing, constructing, maintaining and dismantling nuclear weapons at AWE is justified in the light of the Government’s defence policy’. The Court of Appeal judgment considers the development of the principle of justification and the approach taken by the Agency in coming to its decision, the argument for the claimant being that the Agency was by law obliged to treat the maintenance of the UK Trident nuclear weapons programme as a given or axiomatic detriment, rather than as a given benefit whose moral or legal merits lay beyond the Agency’s remit to determine. On the basis of longstanding authority in Chandler v DPP 84 the Court rejected any suggestion that Government decisions on matters such as the national nuclear deterrent should be subject to review by the courts on the merits:85 Taking all these materials together, it seems to me, first, to be plain that the law of England will not contemplate what may be called a merits review of any honest decision of government upon matters of national defence policy. Without going into other cases which a full discussion might require, I consider that there is more than one reason for this. The first, and most obvious, is that the court is unequipped to judge such merits or demerits. The second touches more closely the relationship between the elected and unelected arms of government. The graver a matter of State and the more widespread its possible effects, the more respect will be given, within the framework of the constitution, to the democracy to decide its outcome. The defence of the realm, which is the Crown’s first duty, is the paradigm of so grave a matter. Potentially such a thing touches the security of everyone; and everyone will look to the government they have elected for wise and effective decisions. Of course they may or may not be satisfied, and their satisfaction or otherwise will sound in the ballot-box. There is not, and cannot be, any expectation that the unelected judiciary play any role in such questions, remotely comparable to that of government. 82 83 84 85

See ch 1. Marchiori v Environment Agency [2002] EWCA Civ 3. Chandler v DPP [1964] AC 763. See para 38 per Laws LJ, Morland J and Thorpe LJ agreeing.

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250 Radiological Protection The consequences which followed from this were that if the merits of Trident were not justiciable, being a matter of defence policy which is within the constitutional framework for the Government alone to decide, then the Agency could not be criticised for doing precisely what it did, namely to treat the criticisms of Trident as outside its remit, and regard its status as a benefit as axiomatic for the purposes of the justification principle.86

THE JUSTIFICATION OF PRACTICES INVOLVING IONISING RADIATION REGULATIONS 2004 The decision of Potts J in the second Greenpeace case that justification was legally required as part of the authorisation process, raised difficult practical issues. The conclusions of the Government’s Review of Waste Management Policy 87 referred to the decision, but barely hinted at these difficulties. The outcome of the review was proposals for a more flexible approach to authorisation, without any legislative changes, so that applications might be made earlier, possibly at the same time as seeking planning permission, and justification could be considered before major capital investment was committed. This, however, was not a tenable position in legal terms, and on 2 August 2004 the Justification of Practices Involving Ionising Radiation Regulations 200488 came into force to implement the Article 6 requirements. The Regulations apply to practices to the extent to which the BSS Directive applies to them (regulation 2). Part 2 requires the justification of ‘new’ classes or types of practice (that is where the class or type of practice was not carried out in the UK before 13 May 2000, and has not been found to be justified). No person may carry out a practice resulting in exposure to ionising radiation unless it is has been justified (regulation 4(4)).89 Existing practices (those carried out in the UK before 13 May 2000 and/or already found to be justified) may be carried out unless the most recent justification decision is that it is not justified (regulation 5). The justifying authorities are the Secretary of State, the Scottish Ministers, a Northern Ireland department and the National Assembly for Wales (regulation 6).90 Justification decisions made before the entry into force of the Regulations, which were made in express terms by such authorities, are to be treated as justification decisions for these purposes (regulation 8).91 Parts 3 and 4 deal with the process of application and deter86

Ibid, para 42. Cm 2919 (1995). 88 SI 2004 No 1769. 89 Transitional arrangements apply under reg 7 to allow continuation of practices where an application for justification was made within six months of the entry into force of the Regulations, until determination of the application. 90 The authorities operate under a Concordat on the implementation of the Regulations (JRC01/05) which involves a Justification Liaison Group to provide communication and coordination. Whilst recognising the ability of the national authorities to make their own decisions, the JLG will endeavour, wherever possible, to agree a common position and to resolve any disagreements. 91 Copies of decisions are available on the public register kept under the Regulations by DEFRA, with copies maintained by the other national authorities. Existing practices include enrichment of uranium by centrifuge, manufacture of uranium metal and oxide fuel for power reactors, mixed oxide fuel for power reactors and uranium fuel for research or materials testing reactors, operation of magnox, advanced-gas cooled and pressurised water power stations, reprocessing of uranium metal and of uranium oxide fuel, manufacture of radioisotopes using nuclear reactors and accelerators, types of radiation processing of foods and products, use of radiation to sterilise materials, use of sealed sources and X-rays for analysis, leak detection and similar purposes, uses of 87

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Justification of Practices 251 mination: applications can be made for the consideration of new practices (regulation 9) and for the review of existing practices (regulation 10).92 In addition, the justifying authority may review an existing class or type of practice if new and important evidence about its efficacy or consequences is acquired or there has been a justification decision that it is not justified (regulation 10(4)). Also an application may be made for a determination of whether a practice belongs to a new or existing class or type. Justification decisions may be made subject to conditions, and where the decision is that an existing practice is not justified, then a date must be specified after which persons must cease to carry on the process. Part 5 deals with information, consultation and publicity; an inquiry or other hearing into the application may be held if it seems expedient to the justifying authority. Part 6 implements the absolute prohibition in the BSS Directive of adding radioactive substances to personal ornaments, toys or cosmetics. Part 8 contains provisions on enforcement (allowing the service of contravention notices) and on offences; these include for the purpose of investigating possible breaches, the same powers of entry, inspection and compelling information as the Environment Agency has under section 108 of the Environment Act 1995 (regulation 23 and Schedule 1). Guidance on the operation of the Justification Regulations is provided by DEFRA.93 This explains what justification involves and that, for example, where a practice generates radioactive wastes, the detriments arising from their management will need to be considered. Decisions are taken at national government level (rather than by the Environment Agency or SEPA) because the issues are not only technical but also involve wider social and economic issues. It is important to note that the fact that a practice is justified does not allow it to be operated: it is the authorisations required under the Radioactive Substances Act and Ionising Radiations Regulations which provide the control over how the practice is undertaken. The Guidance also notes that the term ‘practice’ will include a wide range of activities and that in the context of the nuclear industry there will be many ancillary activities involving fuel manufacture and waste management: such activities are regarded by the ICRP as being an integral part of the main practice and that it is wrong to regard them as free-standing practices requiring justification in their own right.94 Similar considerations apply to decommissioning of practices, which are the inevitable consequences of the original practice and should not be required to undergo separate justification—even if it is clear that such issues had not been considered originally or if the original practice is no longer justified.95 This means, according to the Guidance, that proposals concerning the management of radioactive wastes and the decommissioning and remediation of nuclear sites do not need separate justification, though the manner in which they are carried out will, of radioluminous paint for luminising timepieces, use in smoke and fire detectors, use of X-rays in security screening, radioactive tracers in medical, industrial and environmental applications, use of radiation in medical diagnosis and treatment and health screening, and transport of radioactive material in accordance with the relevant international codes. 92 There is no standard form for applications, which may be made in writing or, preferably, by means of electronic communication. The onus is on the applicant to provide sufficient information and there is guidance on what information is required, including full explanation of the sources used and the proposed precautions, an appraisal of the benefits and detriments, an assessment of the health detriments and an indication of the expected extent of the practice: see The Justification of Practices Involving Ionising Radiation Regulations 2004: Guidance on their application and administration (DEFRA May 2008) para 45. 93 The Justification of Practices Involving Ionising Radiation Regulations 2004: Guidance on their application and administration (May 2008) available at www.decc.gov.uk.. 94 Ibid para 21. 95 Ibid, para 22.

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252 Radiological Protection course, be subject to control.96 This approach seems debatable however, at least in circumstances where there may be alternative ways of undertaking the decommissioning or remediation, which may give rise to different exposures and have different economic, social or other benefits. The Guidance also emphasises the underlying principle, inherent in the use of the words ‘classes and types of practices’, that justification is to be applied generically rather than at the level of the individual uses of a practice. An example of a broad class or type of practice is the use of X-ray equipment or radioactive sources for the purpose of industrial radiography; within that class there are various narrower classes or types of application involving fixed or portable equipment. The benefits and detriments of the different practices that make up the class or type are likely to be broadly similar, and any desired limitations on the scope of the class or type of practice can be achieved by the imposition of conditions under regulation 11(1).97 The Guidance points out that it is in the interests of the applicant to make application at the earliest practicable time and before significant expenditure has been made.98 Of particular interest, given the Court of Appeal decision in Friends of the Earth, discussed above, is the statement that in considering economic factors the justifying authorities would not necessarily ignore sunk costs incurred before the application, unless these were generic to the type or class of practice, for example, generic research and development costs.99 The decision on justification will be issued as a statutory instrument.100 Details of all applications and decisions are given on the register maintained by DEFRA.101 The types of practices which are subject to the justification process vary enormously. At one level there are substantial applications for the justification of disposal of waste in the context of decommissioning operations at nuclear sites such as Sellafield and the Magnox stations in 2006.102 On the other hand, there is the 2005 application made for justification of the undeniably useful novel practice of placing a radioactive sealed source smoke detector in a toaster.103 One application which is of particular note is that made on 4 June 2008 by the Nuclear Industry Association for nuclear new build.104 This application, by the UK trade association for the nuclear industry, set out the case on how the benefits of the candidate new nuclear reactor designs (security of supply and carbon emission reduction) would outweigh any potential radiological health detriments. On 30 October 2008, using his statutory powers under regulation 16 of the Justification Regulations, the Secretary of State requested further information on a number of matters of detail from the applicant. A consultation document on the application was issued in December 2008 which closed in March 2009.105 The Government has set up the Justification Co-ordination Committee to advise on consideration of the application, membership being made up of the Department for Energy and Climate Change (DECC), the statutory consultees for the justification process (the Health and Safety Executive, Food Standards Agency, Health Protection Agency, Environment Agency, SEPA and Department of the Environment, Northern Ireland), the 96 97 98 99 100 101 102 103 104 105

Ibid, para 23. Ibid, para 28. Ibid, para 53.x Ibid, para 58. Ibid, para 59. www.defra.gov.ukf. See www.defra.gov.uk. www.defra.gov.uk./ See further, ch 5. www.decc.gov.uk/en/content/cms/consultations/open/nuclear/nuclear.aspx.

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Monitoring of Radioactivity Levels 253 Devolved Administrations, the Department for Transport and the Department of Health.106 Serious concern has been expressed as to the process for justifying new nuclear reactors in some quarters, in that information on waste and spent fuel management and on the full health impacts of radioactive discharges will not be available until after the decision has been made, and it has been suggested that the power under regulation 17 of the Justification Regulations should be used to hold a public inquiry into the application.107 At the time of writing the intention is that there will be further consultation on a draft decision before the final decision is issued early in 2010.

MONITORING OF RADIOACTIVITY LEVELS Article 35 of the Euratom Treaty requires Member States to establish the facilities necessary to carry out continuous monitoring of the level of radioactivity in the air, water and soil and to ensure compliance with the Basic Standards. Article 36 requires periodic communication to the Commission of the results, to keep it informed of levels of radioactivity to which the public is exposed. The form of such information is to some extent standardised by Commission recommendations.108

EMERGENCY PREPAREDNESS The Chernobyl accident in 1986 was a catalyst for international action on nuclear incidents. In September 1986 the IAEA adopted the Convention on Early Notification of a Nuclear Accident, which entered into force on 27 October the same year. The Convention established a notification system for international transboundary releases of radioactivity which could be of radiological safety significance for another State, requiring States to report the time and location of the accident and other necessary data to assess its implications, such as meteorological conditions, environmental monitoring and the predicted behaviour of the release.109 Competent authorities and points of contact must be made known. The facilities and activities covered by the Convention include nuclear reactors, nuclear fuel cycle facilities, radioactive waste management facilities, transport and storage, manufacture and use of radioisotopes,110 though other types of accidents may be notified with a view to minimising the radiological consequences.111 China, France, Russia, the UK and the USA as nuclear weapons states have also declared their intent to report accidents involving nuclear weapons. Notification may be direct to the states that are or may be physically affected, or through the IAEA. 106 Minutes of meetings of the Committee are available via the DECC website at www.berr.gov.uk/energy/ sources/nuclear/whitepaper/actions/justification/page45386.html. 107 blogs.reuters.com/great-debate-uk/2009/05/26/justification-of-new-nuclear-power-in-the-uk/. 108 See Recommendations 2000/473/Euratom and 2004/2/Euratom. For a useful survey of national legislation on environmental radiological protection, see Nuclear Energy Agency, Environmental Radiological Protection in the Law: A Baseline Survey (NEA No 6172 (2007)). 109 INFCIRC/335. See further General Conference document, Measures to Strengthen International Cooperation in Nuclear, Radiation and Waste Safety (GC(44)/INF/4) Annex 1. 110 Art 1. 111 Art 3.

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254 Radiological Protection Chernobyl also highlighted shortcomings in the European Community’s ability to provide a rapid and co-ordinated response to such emergencies. This led to the adoption of Decision 87/600/Euratom on early exchange of information between Member States in the event of a radiological emergency112 and to Directive 89/618/Euratom on informing the general public about health protection measures to be applied and steps to be taken in the event of a radiological emergency. The Directive defines what is meant by a radiological emergency, that is an accident involving facilities or activities referred to in Article 2(2) in which a significant release of radioactive material occurs or is likely to occur, or the detection of abnormal levels of radioactivity which are likely to be detrimental to public health, or other accidents from which a significant release of radioactive material occurs or is likely to occur. The significance of releases is to be judged by reference to whether they are likely to result in members of the public being exposed to doses in excess of those prescribed under Community Directives, that is the Basic Safety Standards Directive. Member States must ensure that the population likely to be affected in the event of an emergency is given prior information about the health protection measures applicable to it and about the action it should take in the event of such an emergency (Article 5) which must include the elements set out in Annex I,113 must be permanently available and must be updated as necessary. Further information must be given without delay when an emergency occurs, covering the points in Annex II (Article 6).114 These measures are transposed in the UK by the Radiation (Emergency Preparedness and Public Information) Regulations 2001.115 These implement not only the directive on emergency preparedness but also the provisions on emergencies in the BSS Directive, outlined above. The Regulations apply to any work with ionising radiation which involves having on premises radioactive substances containing more than specified quantities of radionuclides or fissile material, transporting material by rail, or transporting or conveying material though a public place other than by standard means such as road, rail, sea or air.116 Before relevant work is carried out for the first time or transport is undertaken for the first time, a risk assessment must be carried out by the operator or carrier to demonstrate that all hazards with the potential to cause a radiation accident have been identified and that the nature and magnitude of risks has been evaluated (reg 4(1)). Where such assessment shows a radiation risk exists, the operator or carrier must take all reasonably practicable steps to prevent 112 [1980] OJ L246, 1. The so-called ‘Ecurie’ system requires notification and information to be provided when a Member State decides to take measures of a widespread nature to protect the public in the event of a radiological emergency, including measures taken, recommendations issued, and the results of any ongoing monitoring. An agreement between Euratom and non-Member States in 2003 extended the system to a number of then candidate countries, and to Switzerland ([2003] OJ C102). 113 These include basic facts about radioactivity and its effects, the types of emergency covered and their consequences, emergency measures envisaged in the event of an emergency and action to be taken by the public in the event of an emergency. Successful infraction proceedings were brought against France in respect of failure to comply with a number of the Articles of the Directive in Case C-177/03 Commission v France (First Chamber, 9 December 2004). 114 This includes information on the type of the emergency and where possible, its characteristics, advice on protection measures appropriate to the type of emergency (eg restriction on consuming foodstuffs, hygiene, evacuation, distribution and use of protective substances (such as iodine tablets)), and co-operation with instructions or requests by the competent authorities. 115 SI 2001 No 2975. See Guide to the Radiation (Emergency Preparedness and Public Information) Regulations 2001 (HSE L126). 116 Reg 3 and schs 2–4. The provisions on quantities and exemptions are complex and in some cases depend on the dispersibility of the material and the packaging in which it is contained. The operator or carrier will need to identify the quantities of radionuclides or fissile material and compare them with the relevant thresholds.

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Emergency Preparedness 255 any accident and limit the consequences of any accident which does occur (regulation 4(2)). Any material change in the work must be the subject of a further assessment (regulation 5). Operators must prepare emergency plans designed to secure, so far as reasonably practicable, the restriction of exposure to ionising radiation and the health and safety of persons who may be affected by reasonably foreseeable emergencies (regulation 7). Carriers must prepare equivalent plans where it is reasonably foreseeable that a radiation emergency may arise in the transport of the radioactive substances (regulation 8). Consignors of radioactive substances for transport must co-operate by supplying such information as is necessary for the carrier to prepare the plan (regulation 8(4)). Local authorities in whose area there are situated relevant premises and where the assessment of the operator shows that it is reasonably foreseeable that a radiation emergency may arise must prepare an ‘off-site emergency plan’ (regulation 9) containing prescribed information and addressing each reasonably foreseeable identified emergency. This plan must be drawn up before the operator carries out any relevant work and must have regard to the principles set out in Schedule 8, Part I. All emergency plans must be reviewed and tested by the operator, carrier and local authority at suitable intervals not exceeding three years (regulation 10). Operators and carriers who have prepared plans must take reasonable steps to put it into effect without delay when a radiation emergency occurs or where an event occurs which could reasonably be expected to lead to a radiation emergency; they must also notify such occurrences to the HSE without delay (regulation 13). Special provisions apply in respect of employees who may be subject to emergency exposures (that is those which exceeds normal dose limits under the Ionising Radiations Regulations 1999), in terms of training, dosimetry and monitoring (regulation 14).117 Operators and carriers are responsible for ensuring that members of the public who are in the area where they are likely to be affected by an emergency are supplied in an appropriate manner with the relevant information (regulation 16 and Schedule 9) and that this is reviewed and revised at least every three years. The decision on the area which is likely to be affected is for the HSE (see regulation 16(1)(a)). All local authorities118 (not just those with relevant premises in their area) are to prepare and update arrangements to supply information and advice in the event of an emergency (regulation 17). These may include incidents in other countries with radiological consequences in the UK, or fallen nuclear powered satellites. Enforcement and offences in respect of the duties under the Regulations are dealt with under the Health and Safety at Work Act, etc. 1974 (regulation 19). The Government co-ordinates policy at national level for dealing with nuclear emergencies,119 through the Nuclear Emergency Planning Liaison Group (NEPLG)120 which brings together the relevant emergency services and other organisations, and has issued NEPLG Consolidated Guidance for those involved in the development of off-site emergency plans.121 In respect of nuclear emergencies overseas which may affect the UK, there is a Radioactive Incident Monitoring Network (RIMNET) which was originally introduced as part of the national response plan following Chernobyl. The current phase or iteration, RIMNET 3, has been in operation since 2005 and is designed to monitor radioactivity resulting from an overseas accident at 92 monitoring sites around the UK, which supply 117

These duties extend to employers of persons who intervene in emergencies, ie the emergency services. Local authorities for this purpose are the London Fire and Emergency Planning Authority; in areas where there is a fire and civil defence authority, that authority; otherwise county councils (or district councils or Welsh county borough councils if there is no county council). 119 www.berr.gov.uk/energy/sources/nuclear/key-issues/emergency/response/page17944.html. 120 www.berr.gov.uk/energy/sources/nuclear/key-issues/emergency/neplg/page31040.html. 121 www.decc.gov.uk. 118

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256 Radiological Protection routine hourly readings.122 Bilateral early notification arrangements are in place with the Danish, Dutch, French, Irish, Norwegian and Russian governments, as well as the normal channels of notification from the EC and IAEA.

EMERGENCY FOOD PROTECTION MEASURES One of the main effects of the Chernobyl accident in 1986 was the dispersion of radioactive material which contaminated food and foodstuffs across large parts of Europe. There was at that time little EC legislation to deal with such problems, and the BSS Directive in force did not address doses contained in food.123 Despite this, elements of a regime to restrict imports of food from affected countries was introduced quite rapidly,124 as was Recommendation 86/156/Euratom125 on coordination of national measures on agricultural products, relying on the legal base of Article 30 of the Euratom Treaty. Further measures were foreshadowed by Commission outline communication COM(86)327 in terms of a proposal for maximum permitted levels of radioactive contamination of food and feedingstuffs following a radiological emergency, which became Regulation 3954/87/Euratom.126 This Regulation provides for the adoption of Regulations by the Commission when it receives information indicating that maximum permissible levels of radiation set out in the Annex to the Regulation are likely to have been breached, thereby rendering effective the maximum permitted levels by prohibiting the marketing of affected food and feedingstuffs. This is by way of short-term interim emergency action: the Commission must then consult the Group of Experts under Article 31 of Euratom, and must within three months draw up a proposal for consideration by the Council, which takes a decision based on qualified majority voting. In Case C-70/88 European Parliament v Council,127 the so-called Chernobyl II case, it was held that the Regulation was to be regarded as a measure designed to protect the public and did not fall within the scope of Article 100a (now 95) dealing with internal market harmonisation: the effect on the internal market was an incidental consequence. To date, the powers under Regulation 3954/87 have not been invoked. However, the UK, in common with other Member States, did introduce internal restrictions on food production following Chernobyl, for example restrictions on the movement and slaughter of sheep from some upland areas in Cumbria, North Wales, Scotland and Northern Ireland under 122

www.defra.gov.uk. See IEEP, Manual of Environmental Policy: the EU and Britain, ed Dr Marc Pallemaerts, (Leeds, Maney Publishing, 2005) 8.4-2 124 See Reg 3955/87/Euratom, as amended, on agricultural imports from third countries after Chernobyl. The European Court held that the fixing of maximum levels of radioactive contamination in this way was within the powers of the Community: Case 62/88 European Parliament v Council [1990] ECR I-1527. The Regulation was replaced in 1990 by Reg (EC) No 737/90 which has in turn been extended (Reg (EC) No 686/95) and amended (Reg (EC) No 806/2003). Reg (EC) No 1609/2000 establishes a list of products excluded from Reg 737/90 and Council Recommendation of 14 April 2003 on the protection and information of the public with regard to exposure resulting from continued caesium contamination of certain wild food products warns of the risks of continuing contamination of edible wild products such as mushrooms, berries, game and fish ([2003] OJ L99). Reg (EEC) No 2219/89 provides the conditions under which food and feedingstuffs may be exported following a nuclear accident of radiological emergency. 125 [1986] OJ L118. 126 See also Reg 944/89/Euratom laying down maximum permitted levels in ‘minor foodstuffs’ and Reg 770/90/Euratom laying down maximum permitted levels of contamination of feedingstuffs. 127 European Parliament v Council [1991] ECR I-4529. 123

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Emergency Food Protection Measures 257 powers in the Food and Environmental Protection Act 1985. A maximum level of 1,000 Becquerels per kilogramme of radiocaesium is applied to sheep meat affected by the accident. Emergency orders define geographical areas, termed ‘Restricted Areas’ within which controls must be applied to prevent sheep with levels of contamination above the limit entering the food chain. These areas were originally large and have progressively been reduced as monitored levels of radioactivity have fallen and only limited parts of Cumbria, South West Scotland and North Wales remain affected.128 One of the controversial issues raising possible questions of compliance with the EC Regulation was the levels of technetium-99 found in the 1990s in lobsters on the Cumbrian coast, well in excess of the intervention levels set by the Regulation, the principal known source being the Sellafield site which at that time discharged technetium-99 during the reprocessing of Magnox fuel. The Commission, however, did not choose to use its Regulation 3954/87 powers, apparently on the basis that the situation was not an ‘emergency’ within the Regulation.129 However, pressure by environmental groups to investigate the presence of technetium and other radionuclides in salmon and other seafood in Irish Sea has continued. In 2003 the Food Standards Agency, in conjunction with SEPA, completed a survey to determine the concentration of technetium-99 in farmed salmon in Scotland and Northern Ireland, comparing the results with wild fish surveyed routinely in the same coastal waters. The results indicated that the levels of radioactivity in farmed salmon were similar to those in wild fish and that consumption of these fish did not pose health risks.130

128 See Food Standards Agency, Post-Chernobyl Monitoring and Controls Survey Reports: UK Overview available at http://www.food.gov.uk/news/newsarchive/2008/jun/chernobyl. 129 IEEP, Manual of Environmental Policy: the EU and Britain, ed Dr Marc Pallemaerts, 8.4-4. 130 See Food Standards Agency Number 39/03 at www.food.gov.uk/science/surveillance/fsis2003/fsis392003.

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8 Safeguards and Security The huge potential destructive power of atomic energy is a threat which mankind has had to live with since December 1938, when nuclear fission was discovered in Nazi Germany by the scientists Otto Hahn and Felix Strassmann at the Institute for Chemistry in Berlin. So obvious was the potential for military domination by those possessing nuclear weapons that within three years programmes on military research were under way in Canada, Germany, Great Britain, Japan, the Soviet Union and the U S. In 1940, two young scientists, refugees from Germany working at Birmingham University, Otto Frisch and Rudolf Pieirls, wrote their memorandum, On the Construction of a Super-bomb; Based on a Nuclear Chain Reaction in Uranium, setting out the viability of construction a nuclear bomb and the likely effects of such a weapon.1 The proof of the military potential of atomic weapons came in August 1945 in Hiroshima and Nagasaki. Yet those bombs soon came to seem insignificant with the post-war development of nuclear arsenals by the US, USSR and to a lesser extent by France and the UK, and later China, India, Isreal and Pakistan. As President Eisenhower put it in his ‘Atoms for Peace’ speech to the UN General Assembly in December 1953, ‘The dread secret and the fearful engines of atomic might are not ours alone’. In particular, the creation of the hydrogen or thermonuclear bomb,2 utilising nuclear fission, meant that there were no longer inherent limits on the destructive power that could be derived from a single bomb, other than the practical constraints of size and weight.3 The development of nuclear weapons stockpiles from the 1950s to the 1980s meant that by 1985 when Mikhail Gorbachev came to power in what was then the Soviet Union, there were around 50,000 nuclear bombs and warheads worldwide, with a combined explosive force equivalent to one and half million Hiroshima explosions, and including thermonuclear weapons with power measured in terms of millions of tons (megatons) of TNT.4 Yet even that situation was not 1 This memorandum led to the British Government becoming the first to pursue actively the possibility of creating an atomic bomb with the creation of the MAUD Committee, which in 1941 reported that the creation of such a bomb was practicable and ‘likely to lead to decisive results in the war’. The project could not be pursued within the means available in wartime Britain, and was subsumed within the US work: see Douglas Holdstock and Frank Barnaby (eds), The British Nuclear Weapons Programme 1952–2002 (London, Frank Cass, 2003) 12. 2 For a near-contemporaneous account of the administrative history of the US H-bomb programme, see James R Shepley and Clay Blair, Jr, The Hydrogen Bomb—The Men, The Menace, The Mechanism (London, Jarrolds, 1955). 3 The largest thermonuclear bomb, tested by the USSR in 1961, but never put into service, the so-called Tsar Bomba, had a yield of 50 megatons, equivalent to 10 times the amount of all explosives used in World War II, including the Hiroshima and Nagasaki atomic bombs. 4 See Richard Rhodes, Arsenals of Folly: The Making of the Nuclear Arms Race (London, Simon & Schuster, 2008) ch 4. It is both astonishing and sad now to read the optimistic assessment of the effects of a hydrogen bomb explosion in the UK offered to its citizens by the Government in 1957 in its pamphlet, The Hydrogen Bomb (HMSO, 1957, 9d net). This includes advice that ‘woollen clothes would be less likely to catch fire than cotton’, that lace curtains in windows would greatly increase the risk of fire, that whitewashing windows could ‘block some eighty per cent of the rays’ and that people caught in the open by the blast should ‘fall flat on the ground, with the

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Arms Limitation 259 as bad as might have been feared during the 1960s, when it was widely believed that by the turn of the century there could be as many as 30 nuclear weapons states. Many nations, such as Argentina, Australia, Canada, Greece, Indonesia, Libya, Norway, Sweden, Switzerland, Taiwan and Turkey, all at one time had programmes for nuclear weapons development, and many others had or have the know-how and a sufficient industrial base to construct weapons. Those fears have not come to pass, largely as a result of sustained international efforts to secure non-proliferation and avoid the diversion of fissile material from civilian to non-peaceful uses. However, the threat of extremist states or terrorist groups obtaining even crude nuclear capability means that the need for vigilance has in no way diminished.5 In an increasingly volatile and unstable world, the nature of the risk has changed from that of the annihilating nuclear exchange of superpowers to the use of nuclear material as another weapon in the terrorist’s armoury, with the possibility of radioactive material being combined with conventional explosives in a so-called ‘dirty bomb’. In 2005, UN Secretary General Kofi Annan was quoted as saying, ‘Nuclear terrorism is still often treated as science fiction—I wish it were’.6 In December 2008 the US Congress Commission on the Prevention of Weapons of Mass Destruction published a major report which clearly repeated that stark warning.7 The issues of safeguarding nuclear material and ensuring its physical security have therefore become a central part of nuclear law.

THE NUCLEAR TEST-BAN AND ARMS LIMITATION TREATIES At the time of the Cuban missile crisis in 1962, the four nuclear powers were France, the Soviet Union, the UK and the US. All had successfully tested nuclear weapons, most recently France in 1960. China was to follow, with its first test in 1964. One way in which the US in particular saw the possibility for limiting the spread of nuclear capability was to restrict nuclear testing (though in fact both Israel and South Africa built nuclear weapons without any testing).8 The limitation of nuclear tests had been the subject of inconclusive discussions at the UN during the 1950s. One step forward came with the Antarctic Treaty (Washington, 1 December 1959) which agreed that Antarctica should be used for peaceful purposes only and prohibited military activities, including specifically any nuclear explosions, in the area south of 60 degrees south latitude. The levels of fallout from nuclear tests were of growing concern and on 5 August 1963 the Limited Test Ban Treaty was signed in Moscow by the UK, the USA and the Soviet Union as the original parties. They undertook head and face covered, if possible close to the wall of a substantial building, or in a nearby ditch or gutter’. Three years earlier, in 1954, the US had tested at Bikini Atoll its first lithium-deuteride-fueled thermonuclear device called ‘Shrimp’ in the Castle Bravo test, producing a 15 megaton yield, the largest yield ever tested by the US. This produced a four-mile diameter fireball, and vaporised a crater 250m deep and 6,500 feet in diameter in the solid atoll rock: see Richard Rhodes, Dark Sun: The Making of the Hydrogen Bomb (New York, Simon & Schuster, paperback edn, 2002) 541–2. 5 See Jonathan Schell, The Seventh Decade: The New Shape of Nuclear Danger (New York, Metropolitan Books, 2007). 6 See David Lowry, ‘Nuclear’s Inherent Insecurities’ in D Elliott (ed), Nuclear or Not? (Basingstoke, Palgrave MacMillan, 2007) 133–4. 7 World at Risk: the Report of the Commission on the Prevention of WMD Proliferation and Terrorism (New York, Vintage Books, 2008) available at documents.scribd.com/docs/15bq1nrl9aerfu0yu9qd.pdf. 8 South Africa dismantled its small number of relatively crude weapons in the early 1990s following the removal of Cuban forces from Angola at the end of the Cold War.

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260 Safeguards and Security to prohibit, prevent and not carry out nuclear test explosions in the atmosphere, including outer space, underwater, or in any other environment if the explosion causes radioactive debris to be present outside the territorial limits of the testing state.9 The treaty did not prohibit underground tests, though the parties did indicate their long-term intention to conclude a treaty resulting in the permanent banning of all nuclear test explosions, including those underground.10 It was never signed by France or China, the other two main nuclear powers. There followed a series of further regional and other measures such as the Treaty on the Exploration and Use of Outer Space (London, Moscow, Washington, 27 January 1967) which prohibited military installations and weapons testing on the moon and other celestial bodies and the placing of nuclear weapons on such bodies or in orbit; the Treaty on the Prohibition of Nuclear Weapons in Latin America and the Caribbean (Mexico City, 14 February 1967); the Treaty on Prohibition of the Emplacement of Nuclear Weapons on the Sea-bed, Ocean-floor and Subsoil (London, Moscow, Washington, 11 February 1971); the South Pacific Nuclear Free Zone Treaty (Rarotonga, 6 August 1985); the Treaty Declaring Africa a Nuclear Free Zone (Pelindaba, 23 June 1995); and the Treaty on the Southeast Asia Nuclear Weapon-free Zone (Bangkok, 15 December 1995). None of these measures could, of course, in themselves mitigate the seemingly inexorable arms race between the US and the Soviet Union from the 1950s to the 1980s, when, for example, in the 1950s the US predicated a scenario of literally thousands of bombers, each with nuclear weapons, simultaneously attacking targets across Russia, leaving aside the land and submarine based ballistic missiles that were later developed and constantly improved in their destructive efficiency. A major breakthrough was the Comprehensive Nuclear Test Ban Treaty (New York, 10 September 1996) negotiated between 1994 and 1996 and adopted by a large majority of the UN General Assembly.11 The point of the treaty, as its preamble recognises, is that cessation of all nuclear weapons test explosions will constrain the development and qualitative improvement of nuclear weapons and end the development of new types of weapons, thereby contributing to nuclear disarmament and non-proliferation. Each state party undertakes not to carry out any nuclear weapon test explosion and to prohibit explosions at any place under its jurisdiction or control. An important aspect is verification as to compliance under Article IV of the Treaty; it was scepticism as to verification which was the regular stumbling-block to acceptance of the comprehensive ban during the Cold War years.12 Whilst the treaty has been signed by 178 states and ratified by 144, it requires ratification by all 44 Annex 2 countries to come into force. A number of significant states with nuclear weapons capability have not yet ratified, including China, India, Israel, 9 It may be noted that during the 1960s the use of peaceful nuclear explosions for civil engineering purposes was under serious consideration for projects including a new canal through Nicaragua (the Pan-Atomic Canal), creating underground aquifers in Arizona, and blasting an artificial harbour in Alaska. The project came to nothing, but a number of test explosions were undertaken between 1961 and 1973 in Colorado, Nevada and New Mexico. There was an equivalent but much larger Soviet programme, Nuclear Explosions for the National Economy, which undertook 156 explosions between 1965 and 1989 for purposes such as geological exploration, creating underground storage voids for natural gas, creating channels and dams (including the Chagan test in Kazakhstan in 1965 which led to complaints from the US and Japan under the partial test ban Treaty), coal mining and crushing ores in open pit mines. 10 A comprehensive nuclear test ban had been agreed in principle in 1960, but President Khruschev had walked out of the summit where the treaty was due to be signed following an incident when a US spy plane had been detected and shot down over the Soviet Union. 11 See www.ctbto.org. 12 Verification is both by geophysical technologies (eg seismology, hydroacoustics and radionuclide monitoring) to detect signs of testing, and by on-site inspections of facilities.

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Arms Limitation 261 Pakistan, North Korea and the US.13 However, neither the US nor Russia has tested a nuclear weapon since the early 1990s.14 Nuclear tests have taken place in India and Pakistan during the 1990s and in North Korea in 2006. The reduction in the major Cold War nuclear arsenals has proceeded under series of treaties since the signature of the Interim Agreement on Offensive Arms (SALT I) and the Anti-Ballistic Missile Treaty (ABM) in 1972. These instruments were essentially intended to freeze the numbers of strategic ballistic missile launchers and submarine-based missiles at existing levels. The SALT II Treaty of 1979 continued that progress and was the first treaty to envisage real arms reductions as opposed to an arms freeze; new missile programmes were banned, though each side retained capabilities which they regarded as of particular importance (for the US the Trident and cruise missile programmes). There were serious setbacks to further progress when the Soviet Union invaded Afghanistan in 1979, and ultimately President Reagan withdrew from SALT II in 1986, the US Senate never having ratified the treaty. However, the Reykjavik Summit between Gorbachev and Reagan in October 1986, though adjourned without a successful outcome, led to further talks. In December 1987 the US and Soviet Union signed the Intermediate-Range Nuclear Forces (INF) Agreement, to eliminate intermediate range (300 to 3,400 miles) missiles, which was particularly important in the European theatre, where there had been substantial deployment of US ground-based cruise and Pershing missiles and Soviet SS-20s. This agreement led to significant numbers of missiles being removed and destroyed. Attention then turned to longer range strategic missiles, leading to the Strategic Arms Reduction Treaty (START) which capped the numbers of warheads and ballistic missiles. The START I Treaty was signed in July 1991, shortly before the disintegration of the Soviet Union. It sought to ensure parity in maximum numbers of missiles and other weapons systems, and as well as involving the decommissioning of nuclear weapons it also entailed the destruction of large numbers of B-52 bombers. START II was signed in January 1993 and banned the use of multiple independently targetable re-entry vehicles (MIRVs), that is multiple warheads on a single missile. However, START II was not ratified by the Russian Duma during the 1990s for a variety of reasons including the US interventions in Kosovo and Iraq, and became bound up with controversy over the ABM Treaty and the US wish to develop a national missile defence system, which in 2002 led to the US withdrawing from the ABM Treaty and Russia announcing it would no longer be bound by START II. In May 2004, the US and Russia signed the Treaty on Strategic Arms Reductions (SORT) or the Moscow Treaty, which commits each party to reducing the number of operationally deployed warheads to between 1,700 and 2,200 each by 2012. The Treaty is, however, relatively weak compared with START II: it does not commit the parties to destruction of warheads but simply their non-deployment; there are no provisions for verification; it expires in 2012, and either party may withdraw on three months’ notice. Nonetheless, there have been substantial reductions in US deployed and reserve warheads since 2004, when President George W Bush directed that the entire US nuclear stockpile be halved, a goal which was achieved in 2007. The destructive capability of the warheads remaining at launch-ready 13

The US Senate rejected ratification on 13 October 1999. The lack of development of new weapons means that the remaining stockpiles are ageing and require maintenance and testing by simulations and other means. In the US this is dealt with by the Stockpile Stewardship and Management Program at the US Department of Energy National Laboratories. Under the Presidency of GW Bush the controversial Reliable Replacement Warhead (RRW) Program was introduced to enable the development of new weapons without physical testing, using computer simulations. 14

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262 Safeguards and Security status on both sides obviously remains massive, however. President Obama was a strong advocate of further reductions in weapons stockpiles before he was elected president,15 and since taking office has pursued initiatives for an agreement with Russia on substantial reductions in the context of renewal of the START Treaty.16 In May 2009, in his celebrated speech in Prague, Obama set out his vision of ‘a world without nuclear weapons’ which is worth setting out as it gives a strong indication of the future agenda for the US in a number of important respects: So today, I state clearly and with conviction America’s commitment to seek the peace and security of a world without nuclear weapons. I’m not naive. This goal will not be reached quickly—perhaps not in my lifetime. It will take patience and persistence. But now we, too, must ignore the voices who tell us that the world cannot change. We have to insist, ‘Yes, we can’. Now, let me describe to you the trajectory we need to be on. First, the United States will take concrete steps towards a world without nuclear weapons. To put an end to Cold War thinking, we will reduce the role of nuclear weapons in our national security strategy, and urge others to do the same. Make no mistake: As long as these weapons exist, the United States will maintain a safe, secure and effective arsenal to deter any adversary, and guarantee that defense to our allies— including the Czech Republic. But we will begin the work of reducing our arsenal. To reduce our warheads and stockpiles, we will negotiate a new Strategic Arms Reduction Treaty with the Russians this year. President Medvedev and I began this process in London, and will seek a new agreement by the end of this year that is legally binding and sufficiently bold. And this will set the stage for further cuts, and we will seek to include all nuclear weapons states in this endeavor. To achieve a global ban on nuclear testing, my administration will immediately and aggressively pursue US ratification of the Comprehensive Test Ban Treaty. After more than five decades of talks, it is time for the testing of nuclear weapons to finally be banned. And to cut off the building blocks needed for a bomb, the United States will seek a new treaty that verifiably ends the production of fissile materials intended for use in state nuclear weapons. If we are serious about stopping the spread of these weapons, then we should put an end to the dedicated production of weapons-grade materials that create them. That’s the first step. Second, together we will strengthen the Nuclear Non-Proliferation Treaty as a basis for cooperation. The basic bargain is sound: Countries with nuclear weapons will move towards disarmament, countries without nuclear weapons will not acquire them, and all countries can access peaceful nuclear energy. To strengthen the treaty, we should embrace several principles. We need more resources and authority to strengthen international inspections. We need real and immediate consequences for countries caught breaking the rules or trying to leave the treaty without cause. And we should build a new framework for civil nuclear cooperation, including an international fuel bank, so that countries can access peaceful power without increasing the risks of proliferation. That must be the right of every nation that renounces nuclear weapons, especially developing countries embarking on peaceful programs. And no approach will succeed if it’s based on the denial of rights to nations that play by the rules. We must harness the power of nuclear energy on behalf of our efforts to combat climate change, and to advance peace opportunity for all people. But we go forward with no illusions. Some countries will break the rules. That’s why we need a structure in place that ensures when any nation does, they will face consequences. 15

New York Times, 2 October 2007: ‘Obama to urge elimination of nuclear weapons’. The Guardian, 6 February 2009: ‘Obama seeks nuclear disarmament deal with Russia: Hillary Clinton to head US efforts to reduce warheads to about 1,000’. 16

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Arms Limitation 263 The START Treaty expires in December 2009 and the Obama administration’s intention is to secure a renewal treaty in order to maintain continuity in verification programmes and achieve agreement on further nuclear arms reductions. The US criteria include retaining a nuclear deterrent, the ability to extend that deterrent to allies as an ‘umbrella’, the ability to modernise the US arsenal, and to build and deploy missile defence systems.17 One issue is the current imbalance between US and Russian capabilities in terms of tactical nuclear warheads, Russia currently holding around ten times more such warheads than the US. The fact remains however that: The conditions that might make the elimination of nuclear weapons possible are not present today and establishing such conditions would require a fundamental transformation of the world political order.18

The extent to which disarmament will proceed thus remains debatable. The Russian stockpile size is uncertain because there is no accurate count of tactical nuclear weapons within the vast infrastructure of facilities. Reports have suggested that Russia is in fact modernising its nuclear weaponry in response to concerns over the eastward expansion of NATO and the US proposals for a new missile defence and interception system based in Poland and the Czech Republic. China appears to be steadily improving its nuclear strike capability in both qualitative and quantitative terms. Arms reduction presents its own problems in terms of safely disposing of the weapons material. In respect of the former Soviet Union, nuclear weapons based in the newlyindependent states of Belarus, Ukraine and Kazakhstan were returned to Russia. In fact about half of fuel in US nuclear reactors now comes from low-enriched uranium converted from decommissioned nuclear weapons, which is purchased from Russia as part of the ‘Megatons to Megawatts’ Program.19 The UK and France are now both entirely reliant on submarine-base missiles systems, and have gradually reduced numbers of warheads stockpiled; neither country intends to dispense with its nuclear deterrent. The UK, however, has declared, in April 1995, that it no longer produces fissile material, highly enriched uranium (HEU) and plutonium for weapons purposes. It therefore relies on its existing military stockpile of 3.2 tonnes of plutonium and 22 tonnes of HEU. Since the 1998 Strategic Defence Review the UK’s deterrent has been the Trident missile based system, currently based on four Vanguard-class ballistic missile submarines, each of which can carry up to 16 missiles, each with up to 12 independently targetable warheads.20 The missiles are supplied by the US under the Polaris sales agreement from a jointly maintained pool shared with the US Atlantic squadron, and are fitted with warheads manufactured in the UK. Exchange of design information is facilitated 17 Hudson Institute, START Treaty Renewal and America’s Strategic Posture (2 July 2009) availavle at www.hudson. org/files/publications/START_2009.pdf. 18 Ibid, para III(b)(iv). 19 The Program implemented the 1993 US–Russia Agreement to convert high-enriched bomb grade uranium from dismantled Russian nuclear weapons to low-enriched uranium (LEU) for fuel, the respective governments setting up government-owned corporations to undertake the activity (the US Enrichment Corporation and Techsnabexport (‘Tenex’)). As of December 2008, 350 metric tons of bomb-grade HEU had been recycled into 10,160 metric tons of LEU, equivalent to 14,010 nuclear warheads eliminated. By 2013 it is anticipated that 500 metric tonnes (equivalent to 20,000 warheads) will have been converted. For further details, see www.usec.com/ megatonstomegawatts.htm. 20 In 1998 it was announced that each submarine would carry no more than 48 warheads in total. See further Fact Sheet 4: The Future of the UK’s Nuclear Deterrent—at www.fas.org/nuke/guide/uk/doctrine/sdr06/ FactSheet4.pdf.

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264 Safeguards and Security by the 1958 US–UK Mutual Defence Agreement, which was signed after the UK’s first nuclear test, and which also provides for the transfer of nuclear weapons parts to the UK and the barter of special nuclear materials.21 The current Trident D5 missiles are expected to remain in service till at least 2042. Plans are in hand to replace the current Vanguard boats as they reach the end of their life expectancy some time after 2020. The UK has made a commitment to non-weapons state parties to the Non-Poliferation Treaty (NPT) which respect their own non-proliferation obligations under the NPT that it will not use nuclear weapons against them, except in the event of an invasion or any other attack on the UK, its dependent territories, armed forces or other troops, its allies or a state towards which it has security commitments, carried out or sustained by such nuclear non-weapon state in association or alliance with a nuclear-weapon state.22 The UK has expressed itself to be committed to the acceleration of disarmament among weapons states.23

LEGALITY OF NUCLEAR WEAPONS Detailed consideration of the public international law implications of the use of nuclear weapons is beyond the scope of this work. The issue of the lawfulness of their use has been the subject of intense legal academic and practical discussion since the first bombs fell on Hiroshima and Nagasaki, and reference should be made to the many books and articles on the subject.24 In 1996 the International Court of Justice delivered an advisory opinion on ‘The Legality of the Threat or Use of Nuclear Weapons’ in response to a request by the UN General Assembly framed as a question: ‘Is the threat or use of nuclear weapons in any circumstances permitted under international law?’25 The Court was split on the question. The majority position was that there is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons. States would be obliged to take international environmental law into account in deciding what was necessary and proportionate in the pursuit of military objectives, but the use of nuclear weapons was not prohibited by environmental treaties or by customary international environmental law. While holding that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, in particular the principles and rules of humanitarian law, the Court did not feel able to conclude definitively that the threat or use of such weapons would be lawful or unlawful ‘in an extreme circumstance of self-defence, in which the very survival of a State would be at 21 In 2004 the Agreement was extended until 2014. It has been suggested in an Opinion of 2004 by Rabinder Singh QC and Professor Christine Chinkin that it is strongly arguable that the treaty is in breach of the NonProliferation Treaty: see www.basicint.org/nuclear/MDAlegal.htm. 22 UK Declaration on Security Assurances made on 6 April 1995 by the Permanent Representative to the Conference on Disarmament. 23 Lifting the Nuclear Shadow: Creating the Conditions for Abolishing Nuclear Weapons (Foreign and Commonwealth Office, January 2009) available at www.fco.gov.uk/resources/en/pdf/pdf1/nuclear-paper. 24 See, eg, Jonathan Granoff, ‘Nuclear Weapons, Ethics, Morals, and Law’ [2000] Brigham Young University Law Review 1413 available at www.nuclearfiles.org/menu/key-issues/ethics/issues/political/weapons_ethics.pdf. Laurence Boisson de Chazournes and Philippe Sands (eds), International Law, the International Court of Justice and Nuclear Weapons (Cambridge, Cambridge University Press, 1999). Charles J Moxley Jr, Nuclear Weapons and International Law in the Post Cold War World (Austin & Winfield, University Press of America, 2000). Ingrid Detter, The Law of War (2nd edn) (Cambridge, Cambridge University Press, 2000). Eric Koppe, The Use of Nuclear Weapons and the Protection of the Environment during International Armed Conflict (Oxford, Hart Publishing, 2008). 25 ICJ Reports 1996, 226.

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The Non-Proliferation Treaty 265 stake’. This critical ruling was made on the basis of the president’s casting vote, the 14 judges being equally split. It has been pointed out that there are many uncertainties in the Court’s disposition of the case, some aspects of which were ‘more than a little enigmatic’.26 The President of the Court, Mohammed Bedjaoui, issued a colourfully-written declaration explaining his casting vote in which he stated that he could not ‘sufficiently emphasise that the Court’s inability to go beyond this statement of the situation can in no way be interpreted to mean that it is leaving the door ajar to recognition of the legality of the threat or use of nuclear weapons’.27 The Advisory Opinion was considered by the Scottish High Court of Justiciary in The Lord Advocate’s Reference No 1 of 2000 in the context of prosecution of anti-nuclear demonstrators for malicious damage to naval craft and equipment moored at the Coulport Trident submarine base.28 Whilst holding that rules of customary international law were part of Scots law, the Court also held that the rules of international humanitarian law referred to in the Advisory Opinion related to wartime but not to times of peace, and also that the continuing deployment of nuclear weapons as a deterrent in times of peace was not a threat under international law. These aspects of the decision have been the subject of strong criticism.29 The approach was, however, supported by the Court of Appeal in R (Marchiori) v Environment Agency, in which the Court found nothing in the ICJ’s Advisory Opinion to support the conclusion that the UK’s policy on the trident deterrent is repugnant to humanitarian principles of international law.30

THE NON-PROLIFERATION TREATY The growth of peaceful uses of nuclear energy originally went hand-in-hand with military applications. It is perfectly possible to develop nuclear weapons without a civil nuclear industry, using simply uranium enrichment technology, nor is the low-enriched fuel from normal power reactors particularly effective or suitable for weapons use. However, the ability to enrich uranium or separate plutonium through the use of civilian technology undoubtedly presents one route to producing fissile material that could be used for non-peaceful purposes. A particular concern is the diversion of relatively small amounts of plutonium or enriched uranium from facilities handling bulk quantities of fissile material, by which over time enough material to make a number of weapons could be accumulated. The issue is not only the movement of radioactive material itself, but also the technology and components which are necessary to transform it. The problems which could arise from technology development and transfer were recognised as states began to co-operate in the nuclear energy field. In the US, the Atomic Energy 26 See article by Professor Christopher Greenwood QC ‘The Advisory Opinion on Nuclear Weapons and the contribution of the International Court to International Humanitarian Law’ (1997) 316 International Review of the Red Cross, 65 available at www.icrc.org/web/eng/siteeng0.nsf/htmlall/section_review_1997_316?opendocument. 27 ICJ Reports 226, 270. 28 2001 JC 143. 29 See Ronald King Murray QC (former Lord Advocate and High Court Judge) in Douglas Holdstock and Frank Barnaby (eds), The British Nuclear Weapons Programme 1952–2002 (see n 1 above) 28–30; Charles J Moxley Jr, ‘The Unlawfulness of the UK’s Policy of Nuclear deterrence—the Invalidity of the Scots High Court’s Decision in Zelter’ (2001) Juridical Review, Part 6, 319–43. 30 R (Marchiori) v Environment Agency [2002] EWCA Civ 3, para 47. See also Hutchinson v Newbury Magistrates’ Court [2000] EWHC QB 61, paras 8, stressing that the ICJ opinion itself made clear that it did not intend to pronounce on the practice of deterrence.

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266 Safeguards and Security Act 1946, passed at the very dawn of the Cold War, emphasised the need for strict control over the technology, the raw materials and, of course, the weapons themselves. A strict ban was imposed on the release of nuclear technology to other powers.31 At the same time the US proposed a detailed system for international control of nuclear energy through the UN,32 a proposal which met resistance from the USSR and was not followed through at the time. By the 1950s matters had moved on. The commercial potential was also becoming apparent, and following President Eisenhower’s ‘Atoms for Peace’ speech to the UN General Assembly on 8 December 1953, the US instituted a programme to supply equipment and know-how to countries with less advanced research. Under this initiative, the US was to provide many overseas universities with research reactors, on the basis that the recipients would agree to forego military applications, and that the fuel would be returned to the US for reprocessing. At the time of creation of the European Nuclear Energy Agency in 195733 the OECD adopted its Convention on the Establishment of a Security Control in the Field of Nuclear Energy (Paris, 20 December 1957). This Convention aimed to ensure that the joint enterprises, materials and facilities involved were not diverted to military use. It was ultimately superseded by controls developed by the IAEA and Euratom Community (see below) and by the NPT. The Treaty on the Non-Proliferation of Nuclear Weapons (London, Moscow, Washington, 1 July 1968) was a huge step forward. The US and Soviet Union saw it as in their interests to limit the spread of nuclear weapons globally,34 and the NPT was based on the belief, expressed in its Preamble, that the proliferation of nuclear weapons would seriously enhance the danger of nuclear war and the consequent ‘devastation that would be visited on all mankind’. The basis of the NPT rested on a distinction between the five state parties (China, France, the Soviet Union, the UK and the US) which in 1968 had nuclear weapons, and other states. The five weapons states undertook not to transfer nuclear weapons or explosive devices to any other recipient, or to assist, encourage or induce any non-nuclear weapon state to manufacture or otherwise acquire such weapons (Article I). Non-weapons states undertook not to receive the transfer of weapons, nor to manufacture such weapons or to seek or receive assistance to do so (Article II). Further, non-weapons states undertook to accept safeguards arrangements to be concluded with the IAEA to verify that nuclear energy was not being diverted from peaceful uses to nuclear weapons; such acceptance is the pre-condition for the provision of fissionable material or relevant equipment to such states (Article III). In return, states agree to facilitate in the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy (Article IV). Those states with weapons agreed by Article VI to pursue negotiations in good faith on effective measures relating to the cessation of the nuclear arms race and a treaty on ‘general and complete disarmament’—a goal which is clearly still some very long distance away. 31 The Act formulated the novel concept of data (in this case concerning manufacture and utilisation of nuclear weapons, the production of fissionable materials, and the use of such materials in nuclear power production) which was ‘born secret’ or ‘classified at birth’ and in respect of which, uniquely in US law, the Constitutional right of free speech was abrogated unless there was specific declassification. 32 The proposal, known as the Baruch Plan, was that the US turn over control of its enriched uranium stocks, including those in existing weapons, to a new UN body, and that all countries worldwide would be prohibited from possessing their own nuclear weapons. 33 See ch 2. 34 A critical factor for the Soviet Union was West Germany’s eventual willingness, after initial reluctance, to agree not to acquire nuclear weapons.

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The Non-Proliferation Treaty 267 In May 1995, the NPT was extended indefinitely, on the basis of a programme of Principles and Objectives for disarmament globally, against a background of concern and resentment that weapons states are not doing enough to satisfy their obligations under Article VI.35 Currently 187 States are parties to the NPT. These include South Africa, which joined in 1993, having announced that it had destroyed its small cache of weapons two years earlier, and the former Soviet countries such as Ukraine and Belarus, which renounced the weapons stationed within their territories upon independence. Some non-weapons state members such as Germany, Italy, the Netherlands and Turkey have US weapons on their soil under declared NATO arrangements. A number of countries possess nuclear weapons and either never joined, or have left, the NPT. These are India, Israel, North Korea and Pakistan. Clearly, countries which have developed nuclear weapons since the conclusion of the NPT and remain outside its framework represent one particular problem. However there have also been instances of countries which are parties to developing weapons programmes on a clandestine basis. The problem is that this may not involve international diversion of material. Both Iran and Iraq accepted safeguards at declared facilities, while setting up equipment elsewhere to enrich uranium to weapons grade, probably using indigenous uranium. North Korea attempted the same feat using research reactor facilities. This has led to a substantial re-think of the safeguards system (discussed below). Another problem is that of the state which obtains the capability to produce weapons grade material in facilities developed under safeguards, and then simply withdraws from the Treaty. The matter would then probably become one for the UN Security Council. There are, apart from the NPT itself, voluntary mechanisms to restrict the supply of uranium and nuclear technology. The Zangger Committee36 (also called the Non Proliferation Treaty Exporters Committee) was established between 1971 and 1974, following informal meetings between 15 supplier states, chaired by Swiss Professor Claude Zangger. Its role was to reach a common understanding on the definition of ‘equipment or material especially designed or prepared for the processing, use or production of special fissionable material’ under the NPT and to consider procedures for exports of relevant material; it produces an updated list (the Trigger List) of items which require the application of safeguards to the recipient facility if exported. The Nuclear Suppliers Group37 (NSG, sometimes called the London Group or London Suppliers Group) was created in 1974 following the Indian weapons test, and brought in France, which though a major nuclear supplier was not then a party to the NPT. The NSG has established Guidelines for transfers of nuclear technology for peaceful purposes, including in 1992 Guidelines dealing with nuclear-related dual use equipment which could make a significant contribution to unsafeguarded nuclear fuel cycle activity.38 The system is a voluntary one however, and ultimately cannot prevent transfer being made, for example the transfer by Russia of nuclear fuel to India in 2001 which clearly contravened Russia’s commitments as a member. Another important player, given the significance of Australia as an exporter of uranium, is the Australian Safeguards and Non-Proliferation Office39 (ASNO) which operates an accounting system that tracks uranium on a worldwide basis from its export to its reprocessing or storage as waste. 35 36 37 38 39

For further details see www.nti.org/db/disarmament/index.html. www.zanggercommittee.org. www.nuclearsuppliersgroup.org. See IAEA Document INFIRCIRC/254. www.asno.dfat.gov.au.

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268 Safeguards and Security The general principle in nuclear weapons states is that safeguards apply under a so-called ‘voluntary offer agreement’ whereby the state offers to make facilities available for inspection. Thus in France, the UK and USA, all civil nuclear facilities are subject to safeguards in this way. In China all imported nuclear power plants are under safeguards, together with the Shaanxi centrifuge enrichment plant imported from Russia. In Russia itself, civil nuclear facilities have not generally been made subject to safeguards, though this may change. India and Pakistan represent particularly problematic cases in that they are not parties to the NPT and have both a civil nuclear industry and nuclear weapons. In 1974, in ‘Operation Smiling Buddha’, India exploded a nuclear device which it had produced with plutonium produced by a research reactor in violation of agreements with Canada and the US, which had supplied the technology and the fuel. International nuclear assistance to India was rapidly terminated, but India by then had the capability to go on producing fissile material for weapons, and it is estimated currently to have approximately 500 kg of plutonium and about 11.5 tonnes of reactor grade plutonium in spent fuel, which could be reprocessed for weapons use. Since 2005 the US has been working towards a position whereby India could be brought within the nuclear trade community.40 As well as providing commercial opportunities, the ability of India to expand its economy through nuclear power rather than fossil fuels has significant implications for global warming initiatives, given that India is forecast to be the world’s third largest consumer of energy by 2030. Further, whereas currently only four of India’s 22 existing or planned nuclear reactors are subject to any form of safeguards, an agreement could bring significant numbers of further civilian facilities under inspection. The US initiative involves an umbrella agreement on reporting and inspection of India’s declared civil nuclear facilities to ensure the separation of civil and military programmes and stocks of fissionable material. The approach is based on the IAEA’s existing facility-specific safeguards agreement (see below) but with a number of important ‘Indiaspecific’ modifications. An essential precondition of the Agreement is that international cooperation arrangements are concluded to allow India to obtain access to nuclear fuel supplies. This means in practice that the arrangements would have to be endorsed by the Nuclear Suppliers Group, which agreed in September 2008 to waive its restrictions on exports to India, prompting public celebrations there.41 The IAEA Board of Governors approved the umbrella agreement in August 2008 and a safeguards agreement was signed between the IAEA and the Government of India in February 2009. Various countries, including Canada, France and the US, have signed co-operation agreements with India, which is thought to require between 25 and 30 new reactors. There are concerns about these arrangements, in particular that supply of civilian fuel to India could free up more of India’s otherwise limited domestic supplies for weapons production, unless the safeguards arrangements are clear at the outset and are adequate.42 The nuclear situation in Pakistan has been bound up with global politics.43 Pakistan has long been viewed by the US as a strategically important country in terms of an obstacle to Soviet expansion. Going back to the 1950s the US collaborated with the Pakistani govern40 The US-India Peaceful Atomic Co-operation Act 2006 provides the conditions for possible US nuclear trade with India. 41 The Times, 8 September 2008. 42 See DG Kimball, F McGoldrick and L Scheinman, IAEA-Indian Nuclear Safeguards Agreement: A Critical Analysis (Arms Control Association, 2008) available at armscontrol.org/node/3205/print. 43 See L Weiss, Turning a Blind Eye Again? The Khan Network’s History and Lessons for US Policy (Arms Control Association, 2005) available at armscontrol.org/node/1769/print. For a full account, see William Langewiesche, The Atomic Bazaar (New York, Farrar, Strauss and Giroux, 2007).

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The Non-Proliferation Treaty 269 ment to use bases in remote northern Pakistan for surveillance. Industrial and military assistance was provided on and off until 1979, when it was terminated as a result of Pakistan importing nuclear enrichment technology, contrary to US foreign assistance and arms control legislation. Assistance was restored as part of the US support for the Mujahideen during the Soviet occupation of Afghanistan, and during the 1980s the US effectively turned a blind eye to development of military nuclear capability. In an extraordinary chapter of nuclear history, the Pakistani scientist Abdul Qadeer Khan illegally obtained centrifuge designs and lists of suppliers of components from a uranium-enrichment facility in the Netherlands where he had worked in the 1960s, and having been appointed Director of Pakistan’s nuclear programme, proceeded to procure the necessary equipment from suppliers throughout Europe and more widely. By 1987 Pakistan had a nuclear bomb. Khan proceeded to assist other countries with similar ambitions to obtain critical components for their own clandestine programmes, by selling off surplus centrifuges and other equipment. In a distinctly non-virtuous circle, the proceeds assisted Pakistan in funding its own further weapons expansion, in particular the procurement of missiles systems. Following the terrorist outrage of 11 September 2001, US and Pakistan relations warmed when Pakistan gave assistance and support to the US in its invasion and search for bin Laden in Afghanistan. Probably following US pressure, Khan was forced to retire and placed under house arrest, but was not made available for questioning by the IAEA. In February 2009, Khan was freed from house arrest after the Chief Justice of the Islamabad High Court ruled his detention was unlawful.44 The other, not unrelated, problem is that of rogue states which are parties to the NPT yet develop military programmes on a clandestine basis. Iraq’s nuclear weapons ambitions were probably set back in 1981 when Israeli F-16 jets dropped 16 tonnes of high explosive on its nearly completed and French-supplied Osiraq research reactor southeast of Baghdad, and were decisively terminated by the first Gulf War. Libya was planning a secret enrichment facility for nuclear weapons until 2003, when a shipment of 1,000 high-speed centrifuge components manufactured in Malaysia was intercepted on board a German cargo ship on its way to Tripoli. The subsequent IAEA investigation revealed, among other alarming disclosures, that Libya had been able to obtain a Pakistani–Chinese nuclear weapon design on the international black market. Iran has pursued a clandestine uranium enrichment programme for 18 years, supported by the smuggling activities of AQ Khan, and continues to bring suspicion upon itself in respect of its underground enrichment facility at Natanz and its heavy water research reactor project at Arak. The UN Security Council has demanded Iran suspend all enrichment and reprocessing activities together with work on all heavy water related projects,45 but the intransigence of Russia and China in the Council has prevented more decisive action. In June 2008, a joint proposal for discussions with Iran was tabled by China, France, Germany, Russia, the UK, US and EU.46 Failing any resolution by such means, the real risk is that Israel may feel driven into taking direct preemptive action, as it did in September 2007, when Israeli warplanes destroyed an industrial facility near al-Kibar in Syria, which was identified by the CIA as an almost completed 44

The Times, 7 February 2009. Resolution 1747 of 24 March 2007; see also Board Resolution GOV/2006/14 and Security Council Resolution 1737 (2006). 46 IAEA, INFCIRC/730. This is the so-called EU-3+3 (ie the three EU countries plus China, Russia and the US). The EU’s hopes of brokering a solution are detailed by Oliver Meier, The EU’s Nonproliferation Efforts: Limited Success (Arms Control Association, 2008) available at armscontrol.org/node/2981/print. 45

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270 Safeguards and Security nuclear reactor which had been secretly under construction since 2001 with North Korean assistance, and which was modelled on one used by North Korea to produce weapons grade plutonium.47 It now appears that Iran has accumulated sufficient fissile material to produce a crude nuclear bomb with similar capacity to the one which destroyed Nagasaki.48 It is also now generally accepted that North Korea has become a full nuclear weapon state, with the ability to deploy a limited number of nuclear warheads by missile against South Korea, Japan and US military and airforce bases in the region.49 The country has two operating reactors at its Yongbyon Nuclear Scientific Research Centre, both capable of producing plutonium. In 1993, North Korea announced its intention to withdraw from the NPT, at which time it was believed to have enough reprocessed plutonium for 10 bombs. However, it then agreed to abandon its plutonium production programme in return for arrangements under the 1994 Agreed Framework by which the US and South Korea would provide it with light water reactors, which would make clandestine plutonium production more difficult. Soon after this Agreement was signed, however, control of the US Congress passed to the Republican Party, which opposed the arrangement. Difficulties in funding and delays in implementing the programme led to North Korea recommencing its former programme in 2002. In January 2003 the North Korean government again announced its withdrawal from the NPT and in October 2006 announced the completion of a successful nuclear test. An underground nuclear test and provocative launches of short-range missiles over the Sea of Japan in May 2009 have led to unanimous condemnation of North Korea’s actions by the UN Security Council, including China,50 and to South Korea announcing it would join the Proliferation Security Initiative, a multinational effort by 94 countries, described below, to prevent the export of nuclear weapon materials and missile components by countries such as North Korea by boarding of vessels and interdiction of subject weapons and materials.51

THE PROLIFERATION SECURITY INITIATIVE In May 2003, it was announced that the US would lead a new initiative, the Proliferation Security Initiative, aiming to stop shipments of biological, chemical or nuclear weapons to terrorists and to countries suspected of seeking to develop weapons of mass destruction.52 The participants include France, Germany and the UK. The Proliferation Security Initiative does not confer any additional rights to interdict shipments than already exist under international law, but aims to promulgate common principles to encourage participating states to take advantage of those rights.

47 See LS Spector and A Cohen, Israel’s Airstrike on Syria’s Reactor: Implications for the Non-Proliferation Regime (Arms Control Association, 2008) available at armscontrol.org/node/3095/print; B Ramberg, Should Israel Close Dimona? The Radiological Consequences of a Military Strike on Israel’s Plutonium Production Reactor (Arms Control Association, 2008) available at armscontrol.org/act/2008_05/Dimona. 48 The Times, 3 August 2009. 49 See The Times, 24 April 2009, ‘North Korea can build nuclear missiles’. 50 Resolution 1874 (2009) 51 See The Times, 27 May 2009, ‘US calls for international front to bring maverick nuclear power back into line’. 52 www.state.gov/t/isn/c10390.htm.

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IAEA Safeguards 271

IAEA SAFEGUARDS The IAEA system of safeguards is what underpins the NPT. Shortly after the IAEA came into being, it applied the first ad hoc safeguards in 1959 to natural uranium fuel being supplied by Canada to Japan for a small research reactor. In 1961 the first formal safeguards agreement was developed for reactors of less that 100 MW,53 these being the predominant technology being exported at that time. The system was extended to all reactors in 1964,54 then to reprocessing plants55 and to fuel fabrication facilities.56 Under ‘barter’ arrangements arising from the1958 US/UK Mutual Defence Agreement, civil plutonium supplied by the UK to the USA was capable of being used in nuclear weapons; however in 1964 the US undertook not to do so. The original IAEA system was item-specific, whereas following conclusion of the NPT in 1970, the IAEA formulated its comprehensive safeguards system.57 The item-specific safeguards agreements remain relevant in respect of a limited number of foreign-supplied facilities in the nuclear weapons states of India, Israel and Pakistan, which are not parties to the NPT. As indicated above, the NPT does not require the five nuclear-weapons states to accept safeguards; however, all of them have concluded so-called Voluntary Offer Agreements (VOAs) under which they offer material or facilities from which the IAEA may select to apply safeguards. These may be applied, for example, to test new methods, or to give some assurance to non-nuclear weapon states that at least some facilities in weapons states are being inspected, or because it is sometimes more efficient to verify transfers of material between the weapons state and some other state in that way. The Comprehensive Safeguards regime is designed to be suitable for application to both simple and complex nuclear fuel cycles, that is reactors, conversion, enrichment, fabrication and reprocessing. On entry into force of the Agreement with the state, the state must declare to the IAEA all nuclear material and facilities subject to safeguards, and to keep that declaration updated. Nuclear material accountancy is used to monitor changes in the quantities of source and special material present in a facility over time. The focus is on the materials such as plutonium-239, and uranium-233 and -235, which are most relevant to nuclear weapons manufacture. Impetus was provided to strengthen the safeguards system in the 1970s when India detonated its bomb, leading to the creation of the Standing Advisory Group on Safeguards Implementation, which advises the Director-General. Again in the 1990s, the discovery of a clandestine weapons programme in Iraq led to new efforts to strengthen the system. The outcome was the Model Additional Protocol approved in May 1997,58 which requires greater information to be provided by states, greater access to be provided to inspectors, and most significantly, goes beyond declared activities to enable the IAEA to investigate and assess whether a state is engaging in undeclared nuclear activities.59 These additive 53

INFCIRC/26. INFCIRC/66. 55 INFCIRC/66 Rev 1. 56 INFCIRC/66 Rev 2. 57 INFCIRC/153 (corrected). This stipulates what should be contained in an agreement in accordance with Article III.1 of the NPT, including matters such as national systems of accounting of nuclear material, information to be provided, rights and immunities of inspectors, measures for verification of non-diversion, non-application to material used in non-proscribed military activities, finance and dispute resolution. 58 INFCIRC/540. 59 The IAEA has some special inspection powers under INFCIRC/153, para 73, but has invoked them only infrequently: in 1992 in relation to Romania (at Romania’s request) and in 1993 in respect of North Korea. 54

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272 Safeguards and Security measures apply on top of normal safeguards.60 However, a procedure has been provided for ‘integrated safeguards’ to be applied to states agreeing to the Additional Protocol, where the IAEA is satisfied there has been no diversion of material or undeclared activity. This allows for a reduction in the number of scheduled routine inspections of facilities such as lightwater reactors and low-enriched uranium plants and have been applied to, for example, Australia, Bulgaria, Hungary, Indonesia, Japan, Norway, Peru and Uzbekistan. The IAEA publishes Annual Safeguards Statements, the most recent at the time of writing being that for 2007.61 In 2007 safeguards were applied for 163 states which had agreements in force; of these 82 had both Comprehensive Agreements and Additional Protocols in force. Some 30 non-weapon states under the NPT had not brought Comprehensive Safeguards agreements into effect.62 Most state parties to the NPT do not in fact have nuclear facilities or only very limited quantities of nuclear material (for example, depleted uranium, which may be used in shielding for radiation sources in hospitals). For such states there is a Small Quantities Protocol, which requires the submission of an initial report, and notification of any decision to build a nuclear facility.63

EURATOM SAFEGUARDS The issue of safeguards has always been an important aspect of the law relating to the European Atomic Energy Community. The role of the Community was stated in the Treaty as being to create the conditions necessary for development of nuclear industries within the Member States. This task included ensuring to all users a regular and equitable supply of ores and nuclear fuels,64 and for this purpose the Treaty created an Agency, under the supervision of the Community, with a right of option to acquire source materials and special fissile materials produced within Member States and the exclusive right to conclude contracts relating to the supply of ores, source materials or special fissile materials65 coming from outside the Community.66 A further duty placed upon the Community by the Treaty was to make certain, by appropriate supervision, that nuclear materials are not diverted to purposes other than those for which they are intended.67 It may be noted that this does not mean that Member States were prohibited from using such materials for non-peaceful purposes, as a Member State would be entitled to declare the intended use of certain materials is for military purposes. The French Parliament in 1956, shortly before conclusion of the Treaty, had made it a precondition that France must have the right to develop nuclear weapons. Article 84 makes it clear that safeguards may not extend to 60 For further discussion on the changing nature of the regime, see IAEA, IAEA Safeguards: Staying Ahead of the Game (Vienna, July 2007). www.iaea.org/Publications/Booklets/Safeguards3/safeguards0707.pdf. 61 www.iaea.org/OurWork/SV/Safeguards/es2007.html. The 2008 statement was released to the IAEA Board of Directors in May 2009 but is released only when authorised by the Board. www.iaea.org/NewsCenter/News/2009/ sgreport2008.html. 62 These consist mainly of African states, but also include Saudi Arabia. 63 For further details see IAEA, Overview of Safeguards Requirements for States with Limited Nuclear Material and Activities (June 2006) available at www.iaea.org/Publications/Booklets/Safeguards3/safeguards0806.pdf. 64 Art 2(d). 65 The terms ‘ores’, ‘source materials’ (uranium and thorium) and ‘special fissile materials’ (plutonium-239, uranium-233 and -235) are defined by Art 197. 66 Chapter VI. See below on the work of the Supply Agency. 67 Art 2(e).

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Euratom Safeguards 273 materials intended to meet defence requirements which are in the course of being specially processed or which are thereafter placed or stored in a military establishment in accordance with an operational plan. Thus the Treaty was not designed as an instrument of nonproliferation. However, the existence of a robust system to ensure that nuclear materials are not diverted is today more important than ever, to ensure that such materials do not fall into the hands of criminal organisations, terrorist groups or rogue states. Chapter VII of the Euratom Treaty deals with safeguards. By Article 77, the Commission is required to satisfy itself that, in the territories of Member States, ores, source material and special fissile materials are not diverted from their intended uses as declared by the users, and that any safeguarding obligations assumed by the Community under an agreement with a third state or international organisation are complied with. Under Article 78, any person setting up or operating an installation for the production, separation or other use of source materials or special fissile materials or for the processing of irradiated nuclear fuels must declare to the Commission the basis technical characteristics of the installation, and the Commission must approve the techniques to be used for the chemical processing of irradiated material, to the extent necessary for attaining the objectives of Article 77. Article 79 requires that operating records must be kept in order to permit accounting for ores, source materials and special fissile materials. Other provisions relate to inspection and sanctions for infringement (which may range from a warning through to withdrawal of the material from the installation). The Community is a party in its own right to the IAEA’s 1998 Additional Protocol system referred to above. Since the Euratom Treaty was negotiated, there has been a considerable increase in nuclear fuel activity within Europe, so that there is a mature industry, with spent fuel being reprocessed in France and the UK and the resulting plutonium being fabricated into fuel elements in Belgium, France and the UK. The EU stockpile of civilian plutonium exceeds 500 tonnes and continues to grow annually as a result of reprocessing spent fuel and material being declared surplus to defence requirements and being brought within safeguards once converted into oxide form.68 In the event that any country should pursue the option of directly disposing of spent fuel in a repository without prior reprocessing, this would present further very significant challenges for the safeguards system.69 Commission Regulation 2005/302/Euratom deals with the application of these requirements. It amended previous regulations in order to take into account the changes required by the Additional Protocol, and sought to improve effectiveness in the light of the increasing quantities of nuclear materials being produced, used, carried and recycled in the Community (recital 2). The Regulation draws the same distinction as the IAEA system between nuclear-weapon states (France and the UK) and other states. Article 3 fleshes out the requirement to declare the basic technical characteristics of installations. On the basis of the information submitted, the Commission must adopt particular safeguard provisions by way of Commission decision addressed to the person or undertaking concerned (Article 6) which must include matters such as the relevant material balance areas, measurement points, procedures for record keeping, frequencies and procedures for taking physical inventories, containment and surveillance measures, and arrangements for sample-taking. Chapter III deals with the detailed procedures for nuclear material accountancy. Chapter 68 See W Gmelin, ‘Safeguarding Plutonium: A Continuing Challenge’ (Luxembourg, September 2000; paper presented to International Conference on the Future of Plutonium, Brussels, 2000). 69 See W Hilden, W Gmelin, W Kloeckner, H Nackaerts, ‘Euratom Safeguards for the Direct Disposal of Spent Fuel in Geological Repositories’, Proceedings of EURADWASTE99, Luxembourg, 1999 (EUR 19143 EN).

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274 Safeguards and Security IV covers the issue of transfer of source materials and special fissile material (essentially plutonium-239 and uranium-235 and -238) between states and stipulates when advance notification is required. Such notification is required if source materials or special fissile materials are exported to a third country, or shipped between a weapons Member State and non-weapons Member State, subject to a threshold of one effective kilogram.70 Special provisions apply to the processing of waste, which requires advance notification.71 Requirements may be applicable to ‘small holders’ of nuclear material,72 for example, universities, research institutions and analytical laboratories, or where materials are used for purposes such as shielding, alloys, catalysts or sensing components: it is possible for the user to make a request for derogation under the form at Annex IX of the Regulation. Chapter VI contains specific provisions applicable in the territories of the nuclear weapons states. For France and the UK essentially the Regulation does not apply to installations or nuclear materials which have been assigned to meet defence requirements by the state; however, some provisions apply to installations which have dual military and civil use, with exceptions for reasons of national security.73 It does mean, however, that all civil installations in the UK are subject to mandatory safeguards, unlike the voluntary system which applies under the IAEA regime described above. Article 37 provides for the adoption of Guidelines on the application of the Regulation by the Commission, by way of Recommendation, which as such are non-binding. Such Guidelines have been provided by Commission Recommendation 2006/40/Euratom and include details on the form and content of site declarations, and how to deal with matters such as co-located buildings, materials accountancy and operating records. The development of safeguards at the technical and practical level is assisted by the work of the European Safeguards Research and Development Association, which includes representatives of commercial organisations, regulators, academic institutions, the Commission and the IAEA.74 It will be appreciated that the application of safeguards is a highly demanding task, in terms of attention to detail, cost and technical resources. Investment has been made in dedicated safeguards laboratories at Sellafield and La Hague and despite the highly automated nature of the process, at such facilities virtually constant inspector presence is required. In 2002 a comprehensive review of the European Safeguards Office was conducted by the High-Level Expert Group appointed by the Commission.75 This report emphatically endorsed the continued importance of robust safeguards, but acknowledged differences of views as to whether this should be the responsibility of the Community or of national control organisations. The Expert Group concluded that the Euratom Treaty should remain the basis for ‘control of conformity’, that is ensuring that operators of facilities maintain internal material accounting and control systems conforming to the appropriate level. It also concluded that the European Safeguards Office had too often failed to distinguish between the ‘need to know’ and ‘nice to know’, resulting in unnecessary levels of intrusion and excessive operational costs, applying safeguards to many trivial activities which could be the proper subject of derogation. It recommended that the Office should 70

Art 20. Art 31. 72 There is no precise definition of a ‘small holder’ but the HSE has provided some guidance: see www.hse.gov.uk/nuclear/safeguards/derogation.htm. 73 Art 34(3). 74 ESARDA, esarda2.jrc.it/about/index.html. 75 Final version, 15 February 2002. 71

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The Euratom Supply Agency 275 work to a more focused mission statement based on ensuring that users keep nuclear materials falling under the treaty in a secured and accountable manner.

THE EURATOM SUPPLY AGENCY Closely related to nuclear safeguards are the activities of the Euratom Supply Agency, an independent body supervised by the Commission, which ensures equal access to resources and a common nuclear material supply policy throughout the Community. The ESA operates under Chapter VI of the Euratom Treaty (Supplies).76 This chapter implements the general obligation imposed on Community institutions by Article 2(d) of the Treaty to ensure that all users in the Community receive a regular and equitable supply of ores and nuclear fuels.77 Whilst at the time the Treaty was developed it was expected that uranium might become in short supply, this has proved not to be the case. The ESA can control imports of ores and source materials from outside the Community (see Chapter VI, Section III);78 so, for example, when Sweden joined the Community in 1994, it was required to reduce its uranium imports from Russia. This was in pursuance of the informal policy adopted by the ESA that there should be ceiling of around 20 per cent on any single uranium-producing region, in order to assure diversity and security of supply. The ESA also has the right to acquire by option special fissile materials produced in Member States; however, such materials and fertile wastes are to be left in the possession of the producer so that he may store them with the Agency’s authorisation or use them within the limits of his own requirements, or make them available on certain terms to undertakings within the Community.79 By Article 75 the provisions of Chapter VI do not apply to commitments relating to the processing, conversion or shaping80 of ores, source materials, or special fissile materials, where the material is to be returned to the original undertaking after processing or conversion;81 in that case the existence of the commitment must be notified to the Commission, which may prevent processing being undertaken outside the Community if it considers that conversion or shaping cannot be carried out efficiently and safely and without the loss of material to the detriment of the Community. Generally the ESA’s function in such commercial matters, while appearing to be substantial on the face of the Treaty, tends to be strictly formal. Undertakings are generally left to conclude their own contracts, which the ESA endorses after the event.

76 See Council Decision 2008/114/Euratom establishing Statutes for the Euratom Supply Agency ([2008] OJ L41). The powers of the Agency and the considerable discretion it enjoys in their exercise have been confirmed by a number of court decisions: see Joined Cases T-458/93 and T-523/93 Empresa Nacional de Urãnio SA v Commission (1995) ECR-II 2459; Joined Cases T-149/94 and T-181/94 Kernkraftwerke Lippe-Ems GmbH v Commission (1997) ECR-II 161. 77 Case C/7/71 Commission v France [1971] ECR 1003, para 22. 78 See Rules of the Supply Agency determining the manner in which demand is to be balance against the supply or ores, source materials and special fissile materials ([1960] OJ O32, amended at [1975] OJ L193). 79 Art 62(2). 80 Processing, conversion and shaping also include the enrichment of uranium: Joined Cases C-123/04 and C-124/04 Industrias Nucleares do Brasil SA, Siemens AG v UBS AG and Texas Utilities Electric Corporation, para 46. 81 It is not necessary that it be returned in exactly the same form as it was supplied, provided it is commensurate in terms of quality and quantity: Joined Cases C-123/04 and C-124/04 Industrias Nucleares do Brasil SA, Siemens AG v UBS AG and Texas Utilities Electric Corporation, para 56.

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276 Safeguards and Security

SAFEGUARDS IN THE UK: GENERALLY There are substantial quantities of fissile material subject to safeguards in the UK.82 This includes separated plutonium stored at Sellafield, with further material arising from the processing of Magnox and AGR spent fuel. Some of the material is owned by BNFL’s foreign customers and is held to their order. There is also the possibility of reducing the stockpile of military plutonium by recycling for peaceful purposes, so bringing it within the safeguarded fuel cycle.83 All civil nuclear facilities and civil nuclear material in the UK are subject to Euratom safeguards. In addition, the UK has entered into Voluntary Offer arrangements with the IAEA, whereby (like other weapons states who are parties to the NPT) it has made available civil nuclear facilities, and certain installations at Sellafield and Capenhurst are designated for inspection by the IAEA. The UK Safeguards Office is part of the Nuclear Directorate of the HSE and is responsible for overseeing implementation of the IAEA and Euratom requirements, working with the Euratom and, where relevant, IAEA inspectors. It also works with safeguards officials in the Department for Business Enterprise and Regulatory Reform (DBERR) on policy issues,84 and there is a Memorandum of Understanding between the Department and the HSE on the subject. Essentially the HSE’s task is to ensure that the safeguards requirements are properly understood, that the measures applied are effective, and that measures do not result in unnecessary commercial advantage to the UK organisations involved.

IAEA SAFEGUARDS IN THE UK Following conclusion of the NPT, the UK made a tripartite Agreement with the IAEA and Euratom, which entered into force on 14 August 1978.85 Essentially this Agreement recognised that the UK was willing to offer an opportunity for the application of similar safeguards in the UK as would apply to non-nuclear states, subject to exclusions for national security reasons, and that the Community, exercising its own safeguards functions, was mindful of the need to avoid unnecessary duplication of activity. The UK is required to 82 The Stock of civil plutonium and uranium has in the past been published in the libraries of Parliament on an annual basis, and from 2008 are simply published on the HSE website. As at the end of 2007, holdings were: 108 tonnes of civil unirradiated plutonium, 1437 kg of civil high enriched uranium, and 94,600 tonnes of civil depleted, natural and low enriched uranium in the civil nuclear fuel cycle. See www.hse.gov.uk/nuclear/safeguards/ civilplut07.htm. 83 The UK position was stated in 1998 at INFCIRC/570, in which it stated that following the Strategic Defence Review, it was concluded that substantial quantities of material held for military use outside safeguards was no longer required for national security reasons, that material such as 0.3 tonnes of weapons-grade plutonium held at Aldermaston would be moved to civilian storage facilities and placed under Euratom safeguards and made available for IAEA inspection, as well as non-weapons grade plutonium (4.1 tonnes) and uranium (9,000 tonnes) which were similarly surplus to military requirements. It was also stated that reprocessing at Sellafield of spent fuel arising from the tritium-producing defence reactors at Chapelcross would now be conducted under safeguards. 84 The UK Safeguards Support Programme provides BERR with technical advice. BERR is also involved with international safeguards-related organisations, in particular the European Safeguards Research and Development Association and the Institute of Nuclear Materials Management. www.berr.gov.uk/whatwedo/ energy/non-proliferation/nuclear/safeguards/page40737.html. 85 INFCIRC/263.

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IAEA Safeguards in the UK 277 provide the Community and Agency with a Facilities List86 containing source and special fissionable materials, though with the right for the UK to omit or withdraw facilities from the list at any time for national security reasons.87 On the other hand, if material becomes available for inclusion within the Agreement because its exclusion for national security reasons is no longer required (for example, former military plutonium has been converted into a form where it is no longer sensitive in security terms) the UK is to notify the Community and the Agency.88 It is agreed the safeguards will be applied so as to avoid hampering economic and technological development, to avoid undue interference in peaceful nuclear activities, to be consistent with prudent management practices, to protect commercial and industrial secrets, and to ensure optimum cost-effectiveness.89 Part II of the Agreement specifies the measures and procedures to be applied and makes clear that material accountancy is of fundamental importance.90 It is agreed that the Agency, in carrying out its verification activities, will make full use of the Euratom safeguards system.91 Detailed provisions deal with inventories, inspections, reports and provision of design information, and there are a large number of technical definitions dealing with the various aspects of the process.92 The Agency selects from the Facilities List and designates those facilities to which it wishes to apply routine inspections.93 Currently, the UK facilities designated and inspected by IAEA are parts of the Sellafield site, such as plutonium stores and storage ponds containing separated plutonium products from the reprocessing of irradiated fuel, and the Urenco Capenhurst gas centrifuge enrichment facility. Further detail on the processes of inspection and verification is provided by Subsidiary Arrangements made under the main Agreement, and by the Protocol appended to the Agreement, which focuses particularly on the respective roles of the Agency and the Community, and provides for information to be collected by the Community and the provided to the Agency. The developments in IAEA safeguards described above, in particular the 1997 Model Additional Protocol, are reflected in the Additional Protocol agreed between the UK, IAEA and Euratom, which entered into force on 30 April 2004.94 The provisions of the 1978 Agreement apply to the Additional Protocol, though in case of conflict the provisions of the Additional Protocol apply.95 The purpose of the UK Additional Protocol is to contribute to increasing the IAEA’s capacity to detect undeclared nuclear activities in non-weapons states: as such it does not affect activities which are purely for the UK’s purposes or are undertaken in co-operation with, or in relation to, one of the other four weapons states. The UK is required to provide the Agency with a declaration on various matters which might potentially enhance the weapons capability of non-nuclear weapons states (NNWS). These include, for example:96 the location and description of nuclear fuel cycle-related research

86 The term includes reactors, conversion plant, fabrication plant, reprocessing plant, separation plant, storage installations, and any facility where nuclear material in amounts of more than one effective kilogram is customarily used (Art 92(2)(I)). 87 Art 1. 88 Art 14. 89 Arts 5, 6 and 7. 90 Art 29. 91 Art 31. 92 Art 92(2). 93 Art 78. 94 INFCIRC/263/Add. 1. 95 Art 1. 96 See Art 2(a) for the full details.

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278 Safeguards and Security and development activities97 carried out anywhere, or in co-operation with, or otherwise relevant to, a NNWS; specified activitieswhere these involve links to the nuclear fuel cycle operations in a NNWS;98 source material exported to a NNWS; material processed or used for a NNWS; and specified equipment99 which might have nuclear uses exported from the UK to a NNWS. The UK agrees to provide access to the Agency to relevant locations in order to undertake specifically defined activities,100 though the Agency’s activities relate only to resolving questions and inconsistencies arising from the information provided or increasing capability to detect undeclared nuclear activities in a NNWS, and not simply to mechanistically or systematically seek to verify the information.101 The Additional Protocol is implemented by the Nuclear Safeguards Act 2000 and the Nuclear Safeguards (Notification) Regulations 2004.102 The Nuclear Safeguards Act gives the Secretary of State the power to require any person to provide him with the information he needs to comply with the UK’s obligations under the IAEA Additional Protocol, which overrides any other obligation as to secrecy or restriction on disclosure of such information, whether statutory or otherwise.103 IAEA inspectors are given rights of entry into relevant locations in the UK for the purpose of carrying out their functions under the Additional Protocol.104 The Nuclear Safeguards (Notification) Regulations require persons carrying out specified activities for the purposes of the Additional Protocol to notify the Secretary of State.

EURATOM SAFEGUARDS IN THE UK The Safeguards Regulation 2005/302/Euratom, as a regulation, is binding in its entirety and is directly applicable in the UK and binding upon those to whom it is addressed. The information and pre-notifications which must be submitted to the Commission under Regulation 302/2005 are in practice transmitted to the Directorate for Transport and Energy of the Commission via the UK Safeguards Office. Some 160 UK facilities are subject to Euratom inspection, which occurs at very frequent intervals at some facilities, such as at Sellafield and at enrichment plants, and less frequently at facilities such as power stations. The key obligations of the operator of an installation falling under the Regulation are: 1. To declare the basic technical characteristics of the installation using a standard form questionnaire, to be submitted as far as possible in electronic form (Article 3). 97 These activities include conversion of nuclear material, enrichment, fuel fabrication, reactors, reprocessing of fuel, and processing of intermediate or high-level waste containing plutonium, highly-enriched uranium, or uranium-233 (Art 18(a)). 98 See Annex I, which covers activities such as the manufacture of centrifuge rotor tubes or the assembly of gas centrifuges, the manufacture or assembly of laser-based systems, the manufacture or upgrading of heavy water or deuterium, the manufacture of flasks for irradiated fuel, the manufacture of reactor control rods, and the manufacture of criticality safe tanks and vessels. 99 See Annex II, which includes reactors and reactor equipment, zirconium tubes, nuclear grade graphite, materials for reprocessing irradiated fuel elements such as chopping machines and dissolvers, storage vessels, separation plant such as gas centrifuges, suspension bearings, gaseous diffusion barriers, vacuum systems and laser systems. 100 Arts 5 and 6. 101 Art 4. 102 SI 2004 No 1255. 103 Section 2. 104 Section 5.

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Euratom Safegurds in the UK 279 2. To communicate annually an outline programme indicating the provisional dates for taking an inventory, and to communicate the full programme for that work at least 40 days before taking the inventory (Article 5). 3. To maintain a system of accountancy and control for nuclear materials and to maintain operating and accounting records to be retained for at least five years (Articles 7–9). 4. To provide various reports, including accounting reports (Article 10), inventory change reports (Article 12), material balance reports (including details of any material unaccounted for) and a physical inventory listing (Article 13), and special reports on unusual occurrences and on losses or delays applying to material in transit (Articles 14, 15, 22). 5. To give advance notification of exports of source or special fissile materials to a third country, or shipments from a non-weapon state to a weapon state, or vice versa (Article 20). 6. To give advance notification of processing campaigns of material (Article 31) and of shipments, exports or imports of conditioned waste (Article 32). These obligations do not apply to installations or parts of installations in the UK which have been assigned to meet defence requirements, or to nuclear materials assigned for that purpose (Article 34). An example of how the Euratom safeguards regime may affect facilities in the UK is provided by the adoption by the Commission in 2004 of a directive under Article 82 of the Treaty105 in respect of irradiated material stored at Sellafield. The following quotation from Commission Release IP/04/419 (30 March 2004) explains the situation: BNFL manages a number of facilities at the Sellafield site in the UK. Most of them, including the one involved in the present case (B30), process spent nuclear fuel. Pursuant to the Euratom Treaty, these installations are subject to Community inspections consisting of checking accounting records of the nuclear material held by the operators and comparing them with the results of onthe-spot inspections. The ultimate aim of the inspections is to ensure that the nuclear material used is not diverted from peaceful uses, i.e. the generation of nuclear energy for non-military uses. However, for a number of years, the Commission’s inspection services have informed BNFL that the nuclear material held in B30 could not be inspected properly, in contravention of Articles 79 and 81 of the Euratom Treaty. It is irradiated fuel stored in a pond. In accounting terms, it is impossible to determine accurately the quantities of material stored and on-the-spot inspections cannot take place because of the high level of radiation and poor visibility in the part of the facility concerned. Recognising the technical difficulties preventing an immediate solution, the Commission has regularly requested BNFL, the last time in March 2003, to submit an overall plan setting out the measures needed to put an end to the situation. However, despite its commitments, BNFL has so far failed to come up with a formal action plan or adopt the measures needed to put an end to the infringement once and for all. Formally, the Commission today adopted a Directive under Article 82 of the Euratom Treaty enjoining the UK to present to the Commission before 1 June 2004 an overall plan ensuring adequate accounting for the nuclear material in question, as well as physical access to the facilities concerned. In addition, the UK authorities are required to submit to the Commission every six months a report on progress with implementing the plan. Should the UK authorities fail to meet these obligations within the deadlines set, the Commission could impose penalties directly on BNFL. 105 This allows the Commission to issue a directive calling upon a Member State to take, within a specified time, all measures necessary to bring an infringement to an end.

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280 Safeguards and Security In a Written Answer on 4 October 2004, the Secretary of State acknowledged that poor visibility in the pond caused by the material in it was hindering verification.106 Further, by Decision 2006/626/Euratom,107 in September 2006 a formal written warning under Article 83108 was issued to British Nuclear Group, relating to infringements of safeguards provisions, concerning the adequacy of accounting and reporting procedures in place at Sellafield. The Commission’s Communication summarising activities under Title II of Euratom during 2007109 notes that negotiations continued with the operators of Sellafield over the shortcomings that formed the basis of the warning and also that progress in the case of the directive under Article 82 concerning pond B30 was being monitored. Decision 2006/626/Euratom has in fact been contested by BNG on a number of bases, including lack of competence of the Commission, procedural shortcomings, manifest error of assessment, proportionality and legitimate expectations.110

EXPORT CONTROLS The UK applies export controls to ensure that exports of nuclear items to non-weapons states can be made only for legitimate non-explosive uses.111 The items subject to such control include all those on the Trigger List of the Zangger Committee (see above) and by the Nuclear Suppliers Group, including dual-use items.112 This does not of course mean that such items cannot be exported at all, rather that a licence will only be forthcoming if peaceful use is assured.

IMPORT CONTROLS For reasons of safety and security, certain nuclear materials are goods which do not fall within the Open General Export licence which allows goods to be imported to the UK. Unless such materials are consigned from another EU Member State an individual import licence will be required, which must now (since March 2007) be obtained from the Office of Civil Nuclear Security. The materials for which a licence will be required are uranium ore concentrates, plutonium, uranium-233, enriched uranium-233 and -235, natural uranium ores, mixtures, compounds and alloys containing these materials, and spent or irradiated fuel elements.113 106

Hansard HC col 1856 (4 October 2004 W). [2006] OJ L255, 5–6. 108 Art 82 provides for a warning as the least severe level of sanctions that the Commission may impose on a person or undertaking infringing the safeguards regime; more serious sanctions involve the withdrawal of financial benefits or technical assistance, the placing of the undertaking under the administration of a person or board appointed by the Commission and State, and the total or partial withdrawal of source materials of special fissile materials. 109 COM/2008/0417 (final), para 3.1. 110 Case T-121/06 British Nuclear Group Sellafield v Commission, [2006] OJ C154, 19–20. 111 See the Export of Radioactive Substances (Control) Order 2006 No 1846 as amended by the Export of Radioactive Substances (Control) (Amendment) Order 2009 No 585. 112 See lists at INFCIRC/209/Rev. 1/Mods 1 and 2; INFCIRC/254/Rev 1/Part 1/Mods 1, 2 and 3; INFCIRC/ 254/Rev 1/Part 2. 113 See www.hse.gov.uk/nuclear/ocns/licensing.htm, from where the relevant application forms can be downloaded. 107

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Fissile Materials Cut-off Treaty 281

FISSILE MATERIALS CUT-OFF TREATY For some time the US has been calling for a treaty to prohibit the further production of weapons grade plutonium or uranium. President Clinton called for such a convention in a speech to the UN in 1993, and a convention is indeed being negotiated in the UN Conference on Disarmament following UN General Assembly Resolution 48/75L, though progress has been slow, in particular in respect of disagreements over verification procedures. The US has concerns that international verification would require an inspection regime that would compromise the core security interests of key signatories, and there are also concerns about the practicability of applying verification to older plants built with military purposes in mind, which were never designed for safeguards inspections. In 2004 President George W Bush proposed that there should be a ban on assistance by the NSG for the construction of new enrichment and reprocessing plants in countries not yet possessing those facilities. In reality there seems doubtful benefit to be gained from a treaty which does not bring within it those states which are probably actively engaged in producing material for use in weapons, that is India, Isreal, North Korea and Pakistan. The UK has declared that it no longer produces fissile material for use in nuclear weapons. However in the absence of a Treaty there is no means of internationally verifying such a statement.

SECURITY: GENERALLY There is no doubt that if anti-Western terrorist groups had the capability to use nuclear weapons they would do so. The risk that nuclear weapons technology and the necessary materials to make a crude or improvised nuclear device that could fall into the wrong hands has been highlighted by the nuclear black-market established by the Pakistani atomic scientist AQ Khan (see above). More immediately, there is the threat that radioactive materials or waste could be combined with normal explosive to produce a ‘dirty bomb’ or ‘radiological dispersion device’, which could cause serious problems, not just of health but also of economic and social disruption, if detonated in a city. The nuclear materials for such a bomb would not have to be of weapons-grade, and could potentially be sourced from numerous facilities such as industry, research and hospitals which hold radioactive substances such as caesium. The Director-General of the IAEA at the time of writing, Mohamed ElBaradei, has consistently warned of the potential vulnerabilities and of the vital and urgent need to strengthen nuclear security, rather than wait for some ‘watershed’ nuclear security event.114 The IAEA regards nuclear security as being the ways and means of preventing, detecting and responding to sabotage, theft and unauthorised access to or illegal transfer of nuclear material and other radioactive substances, and their associated facilities.115 Security in this sense has assumed equal prominence to the safety rules on health and environmental protection which were previously the main focus of regulation. The IAEA has an Office of Nuclear 114 See, eg, www.iaea.org/NewsCenter/News/2005/securityconf.html and www.iaea.org/NewsCenter/Statements/ 2005/ebsp2005n003.html. 115 See IAEA, Illicit Nuclear Trafficking (2008, STI/PUB/1316).

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282 Safeguards and Security Security which is responsible for co-ordinating its Nuclear Security Plan and which provides assistance to states in implementing nuclear security.116 The international community has responded to these challenges with a significant number of initiatives. These include the so-called Nunn-Lugar Cooperative Threat Reduction Program117 to secure and destroy weapons and nuclear materials in the former Soviet Union, which provides funding and expertise from the US defence budget for Russia and other former Soviet States,118 the G8 Global Partnership Against the Spread of Weapons and Materials of Mass Destruction119 and the Global Initiative to Combat Nuclear Terrorism,120 the creation by the IAEA of a Nuclear Security Fund to support implementation of activities to prevent and detect nuclear terrorism,121 and the US Global Threat Reduction Initiative122 which aims to minimise as quickly as possible the amount of nuclear material available to terrorists by securing, removing, relocating or disposing of relevant materials and equipment as quickly as possible. UN Security Council Resolutions 1373 (2001) and 1540 (2004) deal with the threat of nuclear terrorism and call for national, regional and international co-operation in these matters as well as action by states to criminalise terrorist activities, deny assistance or safe haven to terrorist groups, and improve physical protection measures, border controls and measures to combat illicit trafficking of nuclear and other relevant material.

THE CONVENTION ON THE PHYSICAL PROTECTION OF NUCLEAR MATERIAL There is no single international legal instrument that addresses nuclear security in a comprehensive manner. The IAEA Convention on the Physical Protection of Nuclear Material (Vienna, 3 March 1980, entered into force on 8 February 1987)123 represents probably the main international legal instrument in this field and has over 120 parties. It gave legal force to the previous IAEA Recommendations on the subject, which have been the subject of subsequent revision,124 and was part of the international movement in the 1970s and 80s to address the threat of nuclear proliferation. Euratom is a party to the Convention.125 The 1980 Convention applied to nuclear material (plutonium and enriched uranium) used for peaceful purposes while in international transport. Each state party undertook to take appropriate steps to ensure as far as practicable that nuclear material is protected at levels 116

IAEA, ‘IAEA Nuclear Security Plan for 2006–2009’ www-ns.iaea.org/security/NSP_2009.htm. Based on a 1992 US law, sponsored by Senators Sam Nunn and Richard Lugar. See www.nunn-lugar.com. 118 For example, the management of spent fuel from the 200 or more nuclear submarines built by Russia during the Cold War: Charles Krupnick, Decommissioned Russian Nuclear Submarines and International Cooperation (Jefferson, North Carolina, McFarland & Co, Inc, 2002). 119 CNS, ‘Global Partnership Resource Page’ cns.miis.edu/research/globpart. 120 G8 Summit 2006, ‘Global Initiative to Combat Nuclear Terrorism’ en.g8russia.ru/docs/7.html. 121 IAEA, ‘Nuclear Security Fund’ www-ns.iaea.org/security/nsf.htm. 122 www.iaea.org/NewsCenter/News/2004/GTRI_Initiative.html. This work would include ‘repatriation’ of Russian origin HEU fuel and US-origin research reactor fuel previously supplied to numerous states, the conversion of cores of civil research reactors using HEU to low enriched fuel, and to identify other nuclear and radiological materials not yet covered by existing threat reduction efforts. 123 INFCIRC/274 Rev 1 May 1980. 124 INFCIRC/225, September 1975; INFCIRC/225 Rev 4 April 1999. 125 See Case 1/78 [1978] ECR 2151 Community competences in the field of physical protection, emphasising the links between the subject matter of the Euratom Treaty and of the Convention. 117

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Convention on Nuclear Terrorism 283 described in Annex I.126 The Annex sets out various levels of security, for example, storage with secure areas, storage under constant surveillance, storage in areas protected by guards, depending on the categorisation of material, unirradiated plutonium, uranium-233 and -235 above threshold quantities receiving the highest level categorisation. The Convention’s scope was limited, in that the position of states during negotiation was that physical protection of material at domestic level should remain a domestic responsibility and not be subject to binding international standards. However, in the climate of heightened concern after September 2001, the need for such an international regime has been promoted, in particular by the US, and became more widely accepted. On 8 July 2005 the State Parties to the Convention adopted by consensus an Amendment containing fundamental changes to strengthen the Convention, by making it legally binding to establish and maintain an appropriate physical protection regime for nuclear facilities and material in peaceful domestic use, storage and transport,127 and providing for expanded co-operation on design, maintenance and improvement of protection systems, rapid measures to locate and recover stolen or smuggled nuclear material, to mitigate radiological consequences of sabotage, and to prevent and combat relevant offences,128 including acts of sabotage against civil nuclear facilities . The Amendment will enter into force on ratification by two-thirds of state parties to the 1987 Convention.

CONVENTION FOR THE SUPPRESSION OF ACTS OF NUCLEAR TERRORISM In 2005 the UN General Assembly adopted the International Convention for the Suppression of Acts of Nuclear Terrorism,129 which opened for signature that year and entered into force in July 2007. It provides a definition for acts of nuclear terrorism,130 including possessing radioactive material or making or possessing a device with intent to cause death, personal injury or substantial damage to property or the environment, or damaging a nuclear facility so as to release radioactive material with the same intent. It requires either prosecution or extradition of offenders and co-operation between parties by way of sharing information, and assisting in investigations and extradition proceedings. The Treaty also makes provision as to the application of IAEA safeguards to seized material, and for the safe handling of such material.131 It also requires parties to make every effort to adopt appropriate measures to ensure the protection of radioactive material, taking into account recommendations of the IAEA.132

126

Art 3. New Art 2A. This will involve applying, insofar as reasonable and practicable, 12 Fundamental Principles of Physical Protection, set out at Art 2A(3), such as maintaining an appropriate legislative framework, a competent authority, identifying responsibilities of licence holders, ensuring an effective security culture, evaluating threats, defence in depth, quality assurance, contingency plans etc. 128 Including new offences added by the Amendment such as smuggling and sabotage. 129 UNGA Resolution 59/290 (2005). 130 Art 2. 131 Art 18. 132 Art 8. 127

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284 Safeguards and Security

IAEA GUIDANCE The IAEA has published a considerable amount of non-binding guidance on the issue of security, including its Code of Conduct on the Safety and Security of radioactive Sources,133 Guidance on the Import and Export of Radioactive Sources,134 the physical protection of nuclear material and nuclear facilities,135 physical protection objectives and fundamental principles,136 and Regulations for the Safe Transport of Radioactive Waste.137 The IAEA has also introduced a series of guidance publications, the Nuclear Security Series, which covers technical matters such as border monitoring equipment, forensics support, monitoring radioactive material in international postal services, and engineering safety aspects of nuclear power plants against sabotage.138

SECURITY IN THE UK The Department of Energy and Climate Change and the Office for Civil Nuclear Security within the Nuclear Directorate of the HSE have responsibility for the security of the UK’s civil nuclear sites.139 In the context of possible new nuclear build, the January 2008 White Paper on Nuclear Power140 noted that many respondents to consultation had raised concerns about the security of new plants and the transport of associated materials: however the Government’s conclusion was that new stations would pose very small risks in view of the regulatory framework in place. Certainly there would seem to be easier ways for terrorists to get their hands on dangerous material than from a new generation of power stations, where security measures can be inbuilt from the outset and in which the fuel would need considerable further treatment before it could be used in weapons.141 Attention has also been devoted to the possibility of terrorist attacks on nuclear facilities, by crashing aircraft or other means.142 The Office of Civil Nuclear Security (OCNS) is now part of the HSE. It was until April 2007 part of DBERR.143 Security obligations are placed on site operators to have in place approved site security plans144 covering matters such as fencing, CCTV, turnstile access, 133

INFCIRC/663. Ibid. 135 INFCIRC/25/Rev 4. 136 GC(45)/INF/14. 137 Safety Series No TS-R-1. 138 IAEA, ‘Nuclear Security Series’ www-ns.iaea.org/security/nuclear_security_series.htm. 139 See HSE, The State of Security in the Civil Nuclear Industry and the Effectiveness of Security regulation April 2007 to March 2008 (Director of Civil Nuclear Security, 2008). 140 ‘Meeting the Energy Challenge’ Cm 7296. 141 See Sustainable Development Commission, Nuclear Paper 6: Safety and Security, March 2006. 142 See the report of the Parliamentary Office of Science and Technology, Terrorist Attacks on Nuclear Facilities (July 2004, No 222). Restrictions on flying aircraft over specified nuclear power station sites and other nuclear installations are imposed by the Air Navigation (Restriction of Flying) (Nuclear Installations) Regulations 2007 No 1929, as amended by SI 2008 No 3169. 143 There is a Memorandum of Understanding and Agreement between the HSE and DBERR on civil nuclear security: see www.hse.gov.uk/nuclear/ocns. 144 These are approved by the OCNS on behalf of the Secretary of State under the Nuclear Industries Security Regulations 2003 (see below). 134

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Security in the UK 285 guards, personnel-vetting, and incident response. For obvious reasons such arrangements are not publicised. The OCNS obtains information for the Joint Terrorist Analysis Centre as to the appropriate level of threat and requires operators to respond accordingly. It also provides a security vetting and clearance service for permanent employees and contractors working on nuclear sites. The nature of the work of OCNS can be gathered from its published annual reports, and it also provides non-statutory guidance to the civil nuclear industry on information security.145 Under the Atomic Energy Authority Act 1954, a police force was established to protect nuclear material at specified sites and to escort sensitive nuclear material in transit. This body was known as the UKAEA Constabulary. It was funded by the nuclear sites licensees and overseen by a non-statutory police authority with no legal standing and no direct accountability to the Secretary of State. The Energy Act 2004, Part 1, Chapter 3, created the Civil Nuclear Police Authority as a new body to oversee a reconstituted Civil Nuclear Constabulary (CNS) which took over on 1 April 2005. The primary function of the CNS is the protection of licensed nuclear sites which are not used wholly or mainly for defence purposes, and safeguarding nuclear material in Great Britain and elsewhere; related and connected functions may also be assigned to it by the Police Authority and the Secretary of State may give directions to the Police Authority as to the assignment of such functions.146 Members of the CNS have the same powers and privileges as police constables at the places and in the circumstances specified in section 56, for example at and within 5 kilometres of nuclear sites, and at any other places where it appears expedient to be in order to safeguard nuclear material in transit. These include stop and search powers in connection with terrorism under the Terrorism Act 2000.147 Owners and occupiers of nuclear sites and those with an interest in, or custody and control of, nuclear material in transit are required to pay charges for the service of the CNS to the Police Authority.148 Section 77 of the Anti-Terrorism, Crime and Security Act 2001 deals with regulation of security of the civil nuclear industry and authorises the making of security regulations about specified matters. Uranium enrichment and related equipment, software and information were added to those matters by section 77 of the Energy Act 2004. The Nuclear Industries Security Regulations 2003,149 as amended, make provision for the protection of nuclear material,150 whether on site or in transit, against the risks of theft or sabotage, as well as the protection of sensitive information such as site security arrangements.151 Part 2 deals with security of nuclear premises,152 and requires there to be an approved security plan covering the matters listed in regulation 4(2). Relevant personnel requiring vetting must be defined in the plan and must be approved by the Secretary of State. Relevant security incidents and occurrences must be reported.153 Part 3 covers the security of transport of nuclear material, which must be carried only by carriers approved to carry the relevant 145 Finding a Balance: Guidance on the Sensitivity of Nuclear and Related Information and Its Disclosure www.hse. gov.uk/nuclear/ocns/publications.htm. 146 Energy Act 2004, s 52. 147 Ibid, s 57. 148 Ibid, s 60. 149 SI 2003 No 403. These regulations replaced the Nuclear Generating Stations (Security) Regulations 1996 No 665. 150 Prescribed and defined by reg 3. 151 These regulations were subject to review in 2006–07 and were found to be fit for their current purpose: OCNS, The State of Security in the Civil Nuclear Industry and the Effectiveness of Security Regulation (2007). 152 Defined in reg 2(1). 153 Reg 22.

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286 Safeguards and Security category of material,154 and subject to an approved transport security statement describing the procedures and arrangements to be adopted.155 Part 4 imposes requirements relating to the security of sensitive nuclear information. The Nuclear Installations Security (Amendment) Regulations 2006156 ensure complete coverage of these requirements over any person who has possession or control of sensitive information and is involved in activities on or in relation to a nuclear site or nuclear premises, or in the enrichment of uranium or connected activities, whether in the UK or elsewhere, or who has control of enrichment equipment or software. Part of the intention behind the amendment was that this would cover the Nuclear Decommissioning Authority and those of its contractors and consultants not already subject to security regulation and also uranium enrichment technology and software held off a licensed nuclear site, which were not previously covered by the 2003 Regulations. Those to whom the regulation applies must maintain appropriate security standards to minimise risk of loss, theft, or unauthorised disclosure of sensitive nuclear information or uranium enrichment equipment or software. The Uranium Enrichment Technology (Prohibition on Disclosure) Regulations 2004157 made it an offence to make unauthorised disclosure of uranium enrichment technology of software to any person anywhere in the world, with the intention of assisting or enabling any person to undertake a specified activity,158 or being reckless as to whether that might be the consequence. The Explanatory Memorandum to the regulations suggested that there was a need to end uncertainty as to whether those persons making unauthorised disclosures of this proliferation-sensitive technology could always be successfully prosecuted under UK law and that the Regulations address this by means of a system of authorisations issued by the OCNS allowing disclosures which would not jeopardise national security. The international context of these Regulations, which was undoubtedly a factor in bringing in the restrictions, was the realisation of the extent of the activities of AQ Khan, described previously, in disseminating enrichment know-how which he had originally obtained from a commercial installation in the Netherlands. There are reciprocal obligations as to ensuring security of nuclear material and of classified information in the Agreement entered into between Germany, the Netherlands and the UK on Collaboration in the Development of the Gas Centrifuge Process for Producing Enriched Uranium,159 and the later Agreements entered into between France, Germany, the Netherlands and the UK on Collaboration in Centrifuge Technology160 and between Germany, the Netherlands, the UK and the US regarding the Establishment, Construction and Operation of a Uranium Enrichment Plant in the US.161 In relation to those sensitive sites for which a permit is required under section 2 of the Nuclear Installations Act 1965, that is the extraction of plutonium or uranium from irradi154 The categories are set out in the Schedule to the Regulations and to some extent reflect the categorisation under the IAEA Convention on Physical protection of Nuclear Material, though the categories are not identical. 155 Reg 16. 156 SI 2006 No 2815. 157 SI 2004 No 1818. 158 That is treating uranium to enrich it, manufacturing enrichment equipment, adapting equipment to make it capable of enrichment, or testing the working of enrichment equipment. 159 Almelo, The Treaty of Almelo Annex II (Cmnd 4793, 4 March 1970). See the illuminating and detailed exchange in 1979 between Tam Dalyell MP and the Under Secretary of State for Energy, Norman Lamont, as to how under these arrangement AQ Kahn could have been allowed to work at the Dutch Urenco enrichment facility in 1972 without security clearance and make off to Pakistan in 1975 with highly sensitive information: Hansard HC Deb vol 976 cols 554–71 (18 December 1979). 160 Cardiff, Cm 6680, 12 July 2005, Articles VI and VII. 161 Washington, Cm 5009, 24 July 1992, Articles VI and VIII.

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Nuclear Terrorism Generally 287 ated matter, or the treatment of uranium to increase the proportion of uranium-235, the security provisions of Schedule 1 (as amended) may be made applicable by order. Such sites are deemed to be prohibited places for the purposes of the Official Secrets Act 1911,162 and only specified persons (police constables, revenue and customs officers, IAEA safeguards inspectors, and HSE nuclear inspectors) may exercise rights of entry.163 Orders applying these provisions have been made in relation to Sellafield and Urenco (Capenhurst) Limited.164 In the case of military nuclear installations, such as the Atomic Weapons Establishment, nuclear submarine facilities and other relevant defence establishments, security is provided by the Ministry of Defence Police (MDP).165 The force is part of the MoD Police and Guarding Agency, which was formed in 2004 by the merger of the MDP and MoD Guard Service. Within MoD land, constables have the full powers of normal police constables, and powers outside of the MoD estate in certain circumstances, for example when escorting nuclear weapons convoys. Responsibility is shared in some cases with the armed forces’ own security units, for example at HM Naval Base Clyde, with the Fleet Protection Group Royal Marines. Bye-laws have been made for some sites under the Military Lands Act 1892, for example the Atomic Weapons Establishment (AWE) Aldermaston Byelaws 2007,166 prohibiting various activities in protected areas. In Tabernacle v Secretary of State for Defence,167 the Court of Appeal considered these bye-laws in the light of Articles 10 (freedom of expression) and 11 (freedom of peaceful assembly) of the European Convention on Human Rights, and in relation to the Aldermaston Women’s Peace Camp, which had been peacefully protesting in the vicinity of the site for 23 years. The bye-laws’ prohibition on camping in controlled areas was held to violate those rights in the absence of substantial and objectively justifiable reasons of national security, public safety or the prevention of crime and disorder.

NUCLEAR TERRORISM GENERALLY The issue of security of radioactive materials clearly is wider than simply at nuclear licensed sites. Since 1 January 2006, the National Counter Terrorism Security Office acts as security adviser to the Environment Agency and SEPA in their functions under the Radioactive Substances Act 1993. The document ‘Security Requirements for Radioactive Sources’ provides detailed information for radiation and security professionals on the specific security measures to be applied to sources and the more general requirements for site protection where radiological sources are based; it applies to sources used in hospitals, industry and mobile equipment such as for radiography and well-logging. The document is classified as 162

Schedule, para 3(1). Schedule, para 3(2). 164 Nuclear Installations (Applications of Security Provisions) Order 1971 No 569 and Nuclear Installations (Application of Security Provisions) Order 1993 No 687. See also the Official Secrets (Prohibited Places) Order 1994 No 968, listing BNFL (Sellafield), BNFL (Capenhurst) and Urenco (Capenhurst) and UKAEA’s sites at Harwell and Windscale as prohibited places for the purposes of s 3 of the Official Secrets Act. 165 See the Ministry of Defence Police Act 1987, as amended by the Anti-Terrorism, Crime and Security Act 1987. With regard to AWE, jurisdiction was extended to former Crown property belonging to or under the control of a contractor by the Atomic Weapons Establishment Act 1991, s 4. See modpoliceofficers.co.uk. 166 SI 2007 No 1066. 167 Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23. 163

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288 Safeguards and Security ‘restricted’ and hence is not publicly available. As part of a review of the protective security of hazardous substances which concluded in 2007, which for security reasons has not been published, the Environment Agency has managed a Government-subsidised programme to dispose of more than 9,000 disused radioactive sources from schools, hospitals, museums, universities and other sites.168 The Anti-terrorism, Crime and Security Act 2001 section 47 made it an offence to knowingly cause a nuclear explosion, to develop or produce, or participate in the development and production of a nuclear weapon, or to possess a nuclear weapon. These offences are punishable, not surprisingly, by life imprisonment. ‘Nuclear weapon’ includes a nuclear explosive device that is not intended for use as a weapon. The provisions apply to acts done outside the UK if done by a UK person. These prohibitions do not apply to acts authorised by the Secretary of State (which may be proved in proceedings by certificate) or to acts done in the course of an armed conflict (section 48). The prohibition on causing a nuclear explosion will cease to have effect on the coming into force of the offence of knowingly causing a nuclear weapon test explosion or any other nuclear explosion created by section 1 of the earlier Nuclear Explosions (Prohibition and Inspections) Act 1998.

168 ‘Review of the Protective Security of Hazardous Substances’ available at security.homeoffice.gov.uk/ news-publications/publication-search/general/lord-wests-statement-haz-chem?view=Binary.

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9 Use of Radioactive Substances INTRODUCTION The Radioactive Substances Act 1993 (the 1993 Act) distinguishes at the outset three types of substances, materials and equipment: (a) radioactive material—defined by section 1; (b) radioactive waste—defined by section 2; and (c) mobile radioactive apparatus—defined by section 3. Radioactive material and mobile radioactive apparatus are subject to a system of registration under the 1993 Act if they are to be used lawfully. This chapter deals with this system of registration. The separate controls over the transport of radioactive substances are dealt with in chapter ten and radioactive waste in chapter twelve. Radioactive waste is subject to control over both its disposal and its accumulation; authorisation is required for both activities by sections 13 and 14 respectively of the 1993 Act. It is important to be aware that the systems for registration of use of material and authorisation for disposal and accumulation of waste have historically been closely linked. As described below, the registration system for radioactive materials was drafted with the control of the resulting waste very much in mind. Also, the two systems share common provisions on appeals, enforcement and offences. The relationship between controls over radioactive materials, radioactive waste and the licensing system applicable to nuclear installations should also be noted; this relationship is described in this chapter and in chapter four dealing with the site licensing procedures for nuclear installations. Since 1948 radioactive substances have, as described below, been dealt with by specific legislation, the Radioactive Substances Acts. However, it is now proposed to bring the regulation of radioactive substances within the general regime for environmental permitting introduced by the Environmental Permitting (England and Wales) Regulations 2007.1 In view of this transitional stage, the approach taken in this chapter (and in chapter twelve on radioactive waste management, to which the same point applies) will be to describe the existing system and then indicate how it appears the proposed new system will operate.

1

SI 2007 No 3538.

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290 Use of Radioactive Substances

RADIOACTIVE SUBSTANCES AND ISSUES RELATING TO THEIR USE Whilst many radioactive substances and wastes may be associated with the nuclear industry in some form, whether in power generation, fuel production and reprocessing, or in defence applications, radioactive materials are also used in, and radioactive wastes are produced by, many other types of operations and premises. These include research laboratories, schools, universities, hospitals and clinics, and many types of manufacturing and service industries. According to the Environment Agency, across England and Wales over 4,000 organisations make use of radioactive materials.2 Particularly familiar are medical applications such as the use of X-rays in diagnostic procedures and the use of radiotherapy in the treatment of certain types of cancer. Medical research and diagnosis frequently make use of the technique of introducing radioactive tracers which may subsequently be distinguished from non-radioactive substances in the material tested. More routinely, radiation can be used to sterilise syringes, other surgical materials and even food for patients on special diets; similar applications arise in the dental and veterinary fields. In industry, the use of radiation provides a highly effective means of monitoring wear and tear inside machinery. Such radiographic techniques are likely to save considerable time, avoiding the unnecessary dismantling of parts, and also saving money where a part might otherwise be replaced prematurely. Industrial processes in the paper, steel, mineral and coal industries all make use of such monitoring and measurement procedures. Drinks manufacturers use gauges containing radioactive sources to control the filling of cans and bottles. There are additionally potential agricultural applications involving pest control and the irradiation of food to slow down deterioration in the product prior to consumption and thus lengthen shelf-life. Radiation is also widely used for security purposes, to scan baggage and freight at airports and docks. Radioactive substances may also be used in lightning conductors, fire alarm systems and emergency lighting devices in many types of premises, such as places of entertainment, and industrial or commercial premises. With such varied applications, it is clear that radioactive substances will be present in significant quantities on sites up and down the country. Given the inherent hazards associated with radioactive materials, it is not surprising that their use is subject to stringent regulation. Loss of control of radioactive sources is a serious matter. If improperly disposed of as waste, workers or members of the public may be exposed to ionising radiation. In recent years there has in addition been a growing concern that radioactive materials may fall into the hands of criminals or terrorist groups, which may use them against the population.3 The seriousness of the consequences of lax practices with radioactive materials is most graphically demonstrated by the Goiânia incident in 1987 in Brazil. A small radioactive source containing caesium-137, less than two inches square in size, used for medical radiotherapy was scavenged from an abandoned hospital in the town of Goiânia. The men who removed the equipment containing the source then attempted unsuccessfully to dismantle it, suffering radiation burns which led to one of them subsequently having to have an arm amputated. The source and its casing were then sold as scrap. It was broken up and dust from the source, which was of an unusual and attractive glowing blue, was a cause of fascination to the family of the junk-yard owner, 2 Environment Agency, ‘Radioactive substances users’ available at www.environment-agency.gov.uk/business/ sectors/32481.aspx. 3 See further ch 8, on security.

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Radioactive Substances 291 who in some cases painted it onto their skin.4 Fragments of the source the size of rice grains were distributed to several families. Two of the workers who hammered open the casing later died of radiation poisoning, as did the six-year-old niece of the scrapyard owner. Some 112,000 people were examined for radioactive contamination, with 244 being found to have significant levels of radioactive material present bodily, in 129 cases internally. Some suffered very high internal and external contamination owing to the way they had handled the caesium chloride powder, such as daubing their skin and eating with contaminated hands, and via contamination of buildings, furnishings, fittings and utensils. An extensive clean-up effort of people, buildings, vehicles and personal property had to be undertaken. The problem was compounded by heavy rain, which had fallen at the time of the incident, which dispersed and deposited radioactive material in the environment, particularly on roofs. The incident is fully described in a major report by the IAEA.5 Both criminal and public civil proceedings followed against the medical authorities and doctors who had abandoned the source.6 As well as use in industry and medicine, some consumer products contain radioactive substances. The issue of applying regulatory control to such products was considered by an Expert Group established by the European Commission in a report in 2007.7 In this sense, ‘consumer products’ was taken as meaning manufactured products or appliances in which radionuclides are deliberately8 incorporated and which can be supplied to members of the public9 without special surveillance and control. Smoke detectors are an obvious example, but there are others such as items with luminised paint applied, such as clocks, watches and compasses; items containing gaseous tritium light sources such as torches and telephones; electronic devices such as voltage surge protectors; thoriated items such as camera lenses; and some types of tiles and tableware containing uranium. From time to time ‘novel products’ may emerge such as ‘glowrings’ (key rings containing gaseous thorium light sources). Prior authorisation for the addition of radioactive substances in producing such goods is required under the Basic Safety Standards Directive 96/29/Euratom, which will involve the process of justification, and the goods themselves will be regulated under Directive 2001/95/EC on general product safety. The addition of radioactivity to toys is prohibited under the Basic Safety Standards Directive and Directive 88/378/EEC on the safety of toys. A similar prohibition applies to cosmetic products. The report provides guidelines for the process of authorisation, based on matters such as the dose arising from the use and disposal of the product, whether it is designed to secure optimisation of doses, the standards of construction (durability and resistance to misuse), labelling and product information. For novel products, thorough risk assessment will be required. In addition there are international standards for a limited number of consumer products.10 4

The source was in the form of caesium chloride salt, which is highly soluble and readily dispersable. The Radiological Accident in Goiânia (Vienna, IAEA, 1988) available at www-pub.iaea.org/MTCD/publications/ PDF/Pub815_web.pdf. 6 Marie-Claude Boehler, ‘Reflections on Liability and Radiological Nuclear Accidents’ (1997) 59 Nuclear Law Bulletin 13; (2000) 66 Nuclear Law Bulletin 23 available at www.nea.fr.html/law/nlb. 7 European Commission, ‘Radiation Protection 147, Guidelines for the Regulatory Control of Consumer Products Containing Radioactive Substances in the EU’ (2007) available at www. ec.europa.eu/energy/nuclear/ radiation_protection/doc/publication/147.pdf. 8 Thus excluding items such as building materials, spa waters and minerals which may contain amounts of naturally-occurring radiation. 9 Thus excluding items which are not sold to members of the public but are intended for specialist or commercial use in public places, eg exit signs containing gaseous tritium sources in theatres, aircraft, etc. 10 Radiation protection Standards for Gaseous Tritium Light Devices (NEA/OECD, 1973); Recommendations for Ionization Chamber Smoke Detectors (NEA/OECD, 1977); Radioluminescence for Time Measurement Instruments (ISO 3157:1991(E). 5

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THE STATUTORY BACKGROUND: THE RADIOACTIVE SUBSTANCES ACTS 1948 AND 1960 To understand the current basis of control it is helpful to describe the development of legislation on radioactive substances, as the legal framework has stayed relatively stable over the decades, though as described later, the modernisation agenda which has to some extent transformed environmental regulation in recent years is now starting to affect the control of radioactive substances. The first statute to provide reasonably comprehensive control over radioactive substances was the Radioactive Substances Act 1948. This Act allowed the Minister of Supply (later the Prime Minister or First Lord of the Treasury, and subsequently the Minister of Science and Secretary of State for Education and Science) to make orders prohibiting or regulating the import and export of radioactive substances. The definition of ‘radioactive substance’ was a straightforward one, referring to any substance consisting of or containing any radioactive chemical element, whether natural or artificial. Further clarification was provided in that ‘substance’ was defined to mean any natural or artificial substance, whether in solid or liquid form, or in the form of a gas or vapour, and also to include any manufactured article, or an article subjected to any treatment or process (section 12). The sale and supply of substances containing more than the prescribed quantity of a radioactive element were also controlled when they were intended to be taken internally by, injected into, or applied to, any human being. Various exemptions applied to registered pharmacists, medical practitioners, proprietors of hospitals and similar institutions, to wholesale dealings, and so on. The use of irradiating apparatus for therapeutic purposes was also controlled. These controls were ultimately superseded and repealed by the Medicines Act 1968, which provided general controls over medicinal products. The appropriate minister was empowered by section 5 of the 1948 Act to make safety regulations applying to premises or places where radioactive substances were manufactured, used, stored or treated, or where irradiating apparatus was used, to secure that radioactive waste products were disposed of safely, and to prevent injury to employees and the public from ionising radiations. Regulations could also cover the transport of radioactive substances and the structure and layout of the relevant premises. Before making such regulations, the minister or ministers were required to consult an Advisory Committee appointed under section 6 of the Act. The Atomic Energy Authority, constituted under the Atomic Energy Authority Act 1954 also had an important role in research, advice and the distribution of information. The 1948 Act was seen by the post-war Labour Government, which introduced it, as marking a critical point in the use of radioactivity; as the Minister of Health (Aneurin Bevan) noted when moving the Bill’s Second Reading, the need for legislative safeguards was not accepted by everyone. The only controls which existed at that stage were of an advisory nature—for example, the safety code of the X-ray and Radium Protection Committee appointed by the Medical Research Council—and these were not universally accepted. The Minister said: The primary purpose of the Bill is to secure protection for the health of work-people and of the public generally against the harmful effects of undue exposure to dangerous radiation . . . The further and much more ample need for the Bill arises from the fact that we are now on the verge of a vastly extended use of radioactivity. Basic nuclear research has produced its most dramatic achieve-

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The Statutory Background 293 ment in the atomic bomb, but of course, there has been amazing progress in other branches of physics, and in industry and medicine, and the powers of apparatus used and the quantities of radioactivity available have increased enormously.11

Examples of this ‘amazing progress’ that Aneurin Bevan referred to included the enormously increased power of apparatus such as particle accelerators and X-ray sets, and ‘artificial radioactive substances’, which were becoming available as the by-products of nuclear research, for use for therapeutic purposes. In introducing the Bill, the Minister also drew attention to the fact that it gave ministers novel and unusual powers. These powers were regarded as justified to protect workers and the public; in particular, there were concerns that the public might be harmed by the unrestricted addition of radioactive substances to products such as soap and face cream. The powerful Advisory Committee— including representatives from the Medical Research Council, the Royal Society, the Physical Society, the Royal Medical Colleges, the Faculty of Radiologists, the Department of Scientific and Industrial Research, the British X-ray and Radium Protection Committee, the British Employers Federation and the TUC—was intended to provide a safeguard against any abuse of ministerial powers by scrutinising any draft regulations. In fact, the regulation-making powers were used very little; regulations on the carriage of radioactive substances by road, for example, were not made until 1974. At the stage of enacting the Radioactive Substances Act 1948, the issue of controlling radioactive wastes was regarded as something of an afterthought, though their environmental significance was certainly recognised: The regulations also deal with effluents where radioactive substances are produced, such as raising the heights of chimneys or dealing with the treatment or the segregation of effluents where they are pouring into rivers or where they are being poured out on land. This, I am informed by the experts, is an extremely important aspect of it, because the by-products from these piles and indeed many of the elements with which they get into contact, can be quite considerably radioactive for a considerable time, and unless proper protection is given, very serious dangers might result.12

By the time of the passage of the Radioactive Substances Act 1960, attention had shifted more closely to the management of radioactive wastes, due partly to the work of the expert panel of the Radioactive Substances Advisory Committee, which was appointed in 1956 to consider the issue. The report of that Panel was incorporated into the White Paper entitled ‘The Control of Radioactive Wastes’,13 which was accepted by the Government and embodied in the Radioactive Substances Bill. Temporary provision had been made in the Atomic Energy Act 1954, and the Nuclear Installations (Licensing and Insurance) Act 1959, to deal with some forms of waste, but these needed to be put onto permanent and more general footing. The 1960 Act instituted the two-fold system of first registration for users of radioactive material (section 1) and for mobile radioactive apparatus (section 3); and secondly, authorisation for the disposal (section 6) and accumulation (section 7) of radioactive waste. However, it was clear from the outset that the registration system was not an end in itself, but rather a means for the better control of radioactive waste. This was clear from subsection 1(5) of the Act, which stated that in exercising the registration system the registering authority was to regard exclusively the amount and character of the radioactive waste likely to arise from the keeping or use of radioactive material in the premises in 11 12 13

Hansard HC vol 451 cols 555–6. Hansard HC vol 451 col 558. Cmnd 884 (1959).

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294 Use of Radioactive Substances question. That the registration system was not intended to provide general control over all aspects of the rise of radioactive material is clear from debates. In introducing the Bill at its second reading, the Parliamentary Secretary to the Minister of Housing and Local Government (Sir Keith Joseph) referred to the potential for greater quantities of radioactive waste to be produced by greater numbers of users of radioactive substances, and indicated the main reasons for registration as: [F]irst, to prevent uses or processes which might throw up excessive or uncontrolled waste, and, secondly, to know in advance of all potential sources of waste and thus help the planning of disposal, which is the main object of the Bill.14

The requirement of registration was also seen as a means by which ‘persistently careless or deliberately cheese-paring users’ of radioactive substances could be prevented from causing radioactive contamination by having their registration withdrawn.15 Whereas the 1948 Act was an enabling statute and utilised a wide definition of ‘radioactive substances’, a narrower and more complex definition had to be adopted in the 1960 Act to avoid bringing under the Act‘a great variety of familiar articles—wood, bricks, granite, and even, in certain circumstances, Hon Members of this House’.16

THE ENFORCING AUTHORITY FOR RADIOACTIVE SUBSTANCES One of the key principles underlying the 1960 Act, and the White Paper preceding it, was that control should be central rather than local. This decision appears to have been partly a function of the risks involved: long-term genetic hazards as well as the immediate public health risks with which local enforcement authorities were more familiar.17 There was also the pragmatic reason that adequately qualified people were in short supply, and it was doubtful whether local authorities, water authorities and sewerage authorities would be able to obtain sufficient competent staff to operate on equal terms with the employees of hospitals, factories and research establishments producing waste; nor was any single authority likely to have sufficient problems to justify the employment of a full-time expert.18 Accordingly, the 1960 Act placed control in England and Wales in the hands of the Minister of Housing and Local Government (later to become the Secretary of State for the Environment), in association with the Minister of Agriculture, Fisheries and Food for the authorisation of waste disposal from nuclear installations. In Scotland, control was placed with the Secretary of State for Scotland. In the course of debate, the question was raised as to whether the inspectorate to administer the 1960 Act might be merged with the inspectors appointed by the Minister of Power under the Nuclear Installations (Licensing and Insurance) Act 1959. The Government investigated that possibility but concluded that it would not be a wise course on the basis that different specialisms would be required; inspectors under the 1959 Act were principally radio-physicists, whereas those under the 1960 Act dealing with radioactive wastes would mainly be radio-chemists.19 14 15 16 17 18 19

Hansard HC vol 619 cols 323–4. Hansard HC vol 219 col 877; quoting the Report of the Expert Panel. Hansard HC vol 619 col 327. Hansard HC vol 619 col 324. Hansard HL vol 219 col 875; citing the report of the Expert Committee. Hansard HC vol 322 col 369.

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The Enforcing Authority 295 In fact, the inspectorate under the 1960 Act became known as the Radiochemical Inspectorate. Upon the subsequent creation of Her Majesty’s Inspectorate of Pollution (HMIP), the Radiochemical Inspectorate became part of HMIP, comprising a branch under the Chief Inspector, Radioactive Substances, Dr FS Feates. The First Annual Report of HMIP referred to the Secretaries of State for the Environment and for Wales looking to HMIP for technical and policy advice relating to the implementation of the 1960 Act,20 HMIP being responsible for authorisation and registration in England, whilst in Wales, those functions were undertaken by the Welsh Office with the support of HMIP. It was not until the 1960 Act was amended by the Environmental Protection Act 1990 that reference was made on the face of the legislation to the appointment of a chief inspector with specified functions. As from 1 April 1996, the functions of HMIP were taken over by the Environment Agency in England and Wales, and by SEPA in Scotland. In the case of the Environment Agency, those functions include those of the chief inspector for England and Wales appointed under section 4 of the Radioactive Substances Act 1993.21 Similarly, the functions of the chief inspector for Scotland under section 4 of the 1993 Act are transferred to SEPA.22 The 1993 Act was consequently amended to replace references to the chief inspector with references to the appropriate Agency.23 The general environmental duties of the Environment Agency are set out in sections 4 to 8, and those of SEPA in sections 31 to 35 of the 1995 Act. Section 39 places both Agencies, in certain circumstances, under a further duty to take into account the likely costs and benefits of the exercise and non-exercise of their statutory powers. For the Environment Agency, section 5 distinguishes between pollution control and non-pollution control powers and functions, making general provision in relation to the Agency’s pollution control functions. Subsection 5 provides that the Agency’s pollution control powers are exercisable for the purpose of preventing or minimising pollution of the environment, or remedying or mitigating its effects. This would appear to be a broader duty on the regulator than was previously applicable to HMIP or the Minister under the Radioactive Substances Act 1993, which made no reference to pollution of the environment and under which authorisations were granted simply subject to such conditions or limitations as HMIP or the Minister ‘think fit’. In the absence of a definition of ‘pollution of the environment’ in the 1995 Act, it is, however, uncertain how the duty is to be interpreted for the purposes of the 1993 Act. For SEPA, the focus of the Agency’s functions and powers is on pollution control. Section 33 of the 1995 Act provides a single statutory purpose for all SEPA’s pollution control powers,that is preventing or minimising pollution of the environment, or remedying or mitigating its effects. As with the Environment Agency, this duty appears to be broader than the duty under which HMIP or the Minister operated in issuing authorisations under the Radioactive Substances Act 1993. The Environment Agency operates a Memorandum of Understanding signed in 2002 with the Health and Safety Executive,24 as to the regulation of radioactive substances at non-nuclear sites, to avoid duplication of effort and potentially conflicting demands as between radioactive substances regulation and those matters for which HSE is responsible, 20 21 22 23 24

1987–88, 23. See Environment Act 1995, s 2(1)(e). Ibid, s 21(1)(e). Ibid, s 120, sch 22, para 200. www.hse.gov.uk/aboutus/howwework/framework/f-2001-3.htm.

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296 Use of Radioactive Substances such as the Ionising Radiation Regulations and relevant general health and safety at work regulations. This deals with matters such as operational liaison, enforcement, sharing information on incidents of concern, such as lost, damaged or leaking materials, and on imputs to international work.

THE MEANING OF ‘RADIOACTIVE MATERIAL’ ‘Radioactive material’ is defined by subsection 1(1) of the 1993 Act to mean anything which is not waste and which is either: (a) a substance to which the subsection applies; or (b) an article made wholly or partly from, or incorporating, such a substance. Subsection 1(2) provides that subsection (1) applies to two descriptions of substance: (a) substances containing specified elements, listed in tabular form in Schedule 1, such that, the number of becquerels of the element divided by the weight of the substance in grams is greater than a specified number; these numbers vary depending on whether the substance is in solid, liquid or gaseous form; and (b) substances possessing radioactivity which is wholly or partly attributable to a process of nuclear fission or other process of subjecting a substance to bombardment by neutrons or ionising radiations, not being a process occurring in the course of nature, or in consequence of disposal of radioactive waste or by way of contamination (in which case the material would probably be radioactive waste under section 2). Schedule 1 lists eight elements, giving in each case the relevant level of activity expressed in becquerels per gram (Bq/g) for solid, liquid and gas or vapour. The substances are: —actinium; —lead; —polonium; —protoactinium; —radium; —radon (gas only, since the substance occurs only as a gas); —thorium; and —uranium. The Secretary of State is given power by subsection 1(5) to vary Schedule 1 by adding, altering or deleting entries; to date no such amendment has been made. Originally the intention was to define radioactive material as any material rendered radioactive by artificial means, or, naturally occurring radioactive material which, as a result of any process, contained greater levels of radioactivity than would occur in nature. This definition was, however, seen as defective in that it would be difficult to establish precisely what the levels of radioactivity in the parent substance would have been, hence the decision to specify particular substances and levels.25 The levels in the table were set at about one tenth of the levels regarded as capable of being ingested for a lifetime without harm. In relation to limb (b) of 25

Hansard HL vol 220 col 208.

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Definition of ‘Mobile Radioactive Apparatus’ 297 the definition, the Secretary of State may prescribe de minimis levels, though no substances have been so far prescribed under this provision. It will be appreciated that the definition is a wide one, in the sense that any article, however large, which contains a relevant substance, or is made wholly or partly from such a substance, will constitute radioactive material for the purposes of the 1993 Act. It is not envisaged that the definition will change significantly when the 1993 Act is replaced by the environmental permitting regime (EPR) some time in 2010.

DEFINITION OF ‘MOBILE RADIOACTIVE APPARATUS’ Section 3 defines ‘mobile radioactive apparatus’ to mean any apparatus, equipment, appliance or other thing which is radioactive material (see above) and: (a) is constructed or adapted for being transported from place to place, or (b) is portable and is designed or intended to be used for releasing radioactive material into the environment or introducing it into organisms. The definition as set out originally in the 1960 Act referred simply to limb (a), but was amended by the Environmental Protection Act 1990 to cover portable apparatus more clearly.

PROHIBITION ON USE OF RADIOACTIVE MATERIAL Section 6 imposes a general prohibition on any person keeping or using, or causing or permitting to be kept or used, on any premises used for the purpose of an undertaking carried on by him, radioactive material of any description, knowing or having reasonable grounds for believing it to be radioactive material. The prohibition does not apply where: (a) the relevant person is registered under section 7 in respect of the premises (see below); (b) he is exempted from registration (see below); or (c) the radioactive material consists of mobile apparatus in respect of which he is either registered under section 10 or is exempt from the need of registration. There are a number of aspects of the section 6 prohibition which merit separate mention: 1. It applies to the keeping and use of radioactive material on ‘premises’; this term is defined by section 47 to include any land, whether covered by buildings or not, including any place under ground and any land covered by water. It may not apply to public places such as the highway.26 However, in the case of mobile apparatus, section 9 may provide an alternative means of prosecution. 2. The prohibition relates to premises used for the purposes of an undertaking. By section 47, this term includes any trade, business or profession; in relation to a public or local authority. It includes any of its powers or duties, and in relation to any other body of persons, any of its activities. It was clearly the Government’s intention that research 26

Tower Hamlets L.C v Manzoni and Walder (1984) 148 JP 123.

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298 Use of Radioactive Substances

3.

4.

5.

6.

7.

laboratories would be covered.27 Indeed, part of the problem leading to the 1960 Act arose because research laboratories were not governed by factories legislation.28 Whilst the prohibition applies to the persons carrying on the undertaking, others who cause an offence to be committed by their act or default may also be subject to prosecution (section 37). The prohibition applies to the keeping and use of material. The natural meaning of those words is modified by subsection 47(3) so that no account is to be taken of radioactive material used or kept in, or on, any railway vehicle, road vehicle, vessel or aircraft if the vehicle, vessel or aircraft is on premises in the course of a journey, or if the material is kept on a vessel as fuel. The 1960 Act was not intended to regulate the transport of radioactive material, which was left to other legislation.29 Nor was the 1960 Act intended to cover the means of propulsion of nuclear powered vessels, leaving the possible implications of this for future regulation, if necessary. The prohibition covers situations where the person carrying on the undertaking uses or keeps radioactive materials, or causes or permits them to be used or kept. The distinction here between ‘permit’ and ‘cause’ is relevant, given that two distinct offences are apparently envisaged. To ‘permit’ something is generally considered to be ‘looser and vaguer’ than to ‘cause’.30 The term ‘cause’ does not imply any intention or negligence and its meaning should be approached in an everyday commonsense way; the outcome of the action which it is said caused the material to be used or kept need not have been foreseeable.31 To ‘cause’ the keeping or use of radioactive material therefore implies some degree of positive participation or control on the part of the defendant.32 Somebody can only be said to have ‘caused’ another person to have undertaken a particular course of action when he either knew or deliberately chose not to know what was being done.33 To ‘permit’ an act to occur requires either express or implied permission for that act. Some knowledge of the facts constituting the offence is necessary to establish permitting, although turning a blind eye, or allowing a course of action during which the commission of an offence would be likely, but not caring whether such an offence occurs or not, is sufficient.34 The section 6 prohibition applies only where the person carrying on the relevant undertaking knew that the material in question was radioactive material, or had reasonable grounds for such belief. To make out an offence, the prosecution would also need to prove that the defendant either had requisite knowledge,35 or that he had reasonable grounds for believing and actually believed.36 Knowledge may be imputed to the person who turns a blind eye and there is authority to suggest that where a person deliberately does not make enquiries because he does not wish to know the results; this may constitute actual knowledge of the facts in question.37 In the case of a company, the relevant 27 28 29 30 31 32 33 34 35 36 37

Hansard HL vol 219, col 910. Hansard HL vol 219, col 884. Hansard HL vol 220, cols 1073–4. McCleod v Buchanan [1940] 2 All ER 179, 187, per Lord Wright. Alphacell Ltd v Woodward [1972] AC 824; Empress Cars (Abertillery) Ltd v Environment Agency [1999] 2 AC 22. McCleod v Buchanan [1940] 2 All ER 179, 187, per Lord Wright. James & Son v Smee; Green v Burnett [1955] 1 QB 78. Ibid. Gaumont British Distributors Ltd v Henry [1939] 2 QB 711. R v Banks [1916] 2 KB 621. Knox v Boyd [1941] JC 82; Mallon v Allon [1964] 1 QB 385, 394.

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Registration of Users of Radioactive Material 299 knowledge or grounds of belief must be related to an individual sufficiently senior to be equated with the ‘directing mind’ or ‘will’ of the company.38 This element of the offence may be of importance where, for example, a person receives metal or other materials which, unknown to him, have at some point been exposed to radiation. It has been known for radioactive metal to be imported unwittingly from the former Soviet bloc countries and elsewhere.39 These essential features of the prohibition of the use of radioactive material will not change under the environmental permtting regime (EPR): such use will be one form of a ‘radioactive substances activity’ which will constitute the operation of a ‘regulated facility’ and as such will be prohibited except under and to the extent authorised by an environmental permit.

REGISTRATION OF USERS OF RADIOACTIVE MATERIAL Application for registration is made under section 7 to the appropriate Agency. It must include the information specified at subsection 7(2) and be accompanied by the charge prescribed under the appropriate charging scheme made under section 41 of the Environment Act 1995. The information required includes details of the premises, the undertaking using the material, a description of the radioactive material and the maximum quantity likely to be kept or used on the premises at any one time, and the manner of proposed use.40 As from 1 April 2006 all applications are handled centrally from the Agency’s office in Sheffield. The appropriate Agency is required to send a copy of the application to each local authority in whose area the premises are situated (subsection 7(3)). Similarly, where a certificate of registration is granted it is to be copied to the relevant local authorities (subsection 7(8)). In both cases, however, the Secretary of State may direct otherwise on grounds of national security (section 25). Failure to determine an application within four months, or such longer period as may be agreed, constitutes deemed refusal (subsection 7(5)). Registration is in respect of the specified premises and in respect to the keeping and use on those premises of specified material;41 in other words only the specified material may be kept on the specified premises. The registration involves furnishing the successful applicant with a certificate containing all material particulars of the registration or giving sufficient information to allow them to be ascertained.42 The procedures for registration will be replaced by the general requirements applicable to environmental permits. These are discussed below.

CONDITIONS Registration may be subject to conditions or limitations, which may include requirements: (a) in respect of the premises, or any associated apparatus or equipment; (b) the furnishing 38 39 40 41 42

Tesco Supermarkets v Nattrass [1972] AC 153; R v Boal [1992] 1 QB 591. See, eg, P&O Nedlloyd BV v Arab Metals Co [2006] EWHC 2433 (Comm), discussed in ch 10 on transport. The various forms can be downloaded from www.environment-agency.gov.uk/business/sectors/36794.aspx. Subsection 7(4). Subs 7(8)(a).

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300 Use of Radioactive Substances of information with regard to removal of radioactive material; and (c) prohibition on sale or supply of radioactive material unless appropriately labelled and marked (subsection 7(6)). Except in respect of conditions of the type mentioned at (b) and (c) above, the Agency in determining whether to impose conditions may have regard only to the amount and character of radioactive waste likely to arise (subsection 7(7)). However, this restriction does not apply in relation to high-activity sealed sources (HASS) and sources regarded as presenting similar hazards—here conditions may (indeed must) be imposed to ensure physical security of the source while in storage, use and transfer.43 An appeal procedure to the Secretary of State under sections 26 and 27 is available in various circumstances, including occasions where an application for registration is refused or the conditions or limitations attached to the registration are disputed. For what are termed Category 5 sources, which are certain sealed sources,44 there is a system of registration with fixed standard conditions.45 This is dependent upon calculating the A/D-value, which is based upon the activity of the radionuclide involved and the number of sources to be held. The fixed conditions include requirements to have in place appropriate management systems to maintain equipment and avoid sources being lost, damaged or stolen, the management, training and supervision of staff, keeping of records, producing an accident management plan, suitable marking of sources, and notification of damage or loss of sources.46 Environment Agency officers make use of the Agency’s Radioactive Substances Act Guidance (RASAG) in carrying out their regulatory work.47 This guidance is published in stages: Chapter 1 deals with Registrations, Chapter 3 with Authorisations for the disposal of waste, Chapter 3 with Exemption Orders and Chapter 4 with Generic Issues. The Agency has consulted on the application of Best Available Techniques (BAT) to the regulation of radioactive substances.48 The Radioactive Substances Act is not explicit on how its objectives of achieving an optimal level of protection and keeping exposures as low as is reasonably achievable, are to be attained. The use of BAT is seen as consistent with the objectives and with other environmental protection regimes. Whilst most obviously applicable in respect of discharges of radioactive waste to the environment and the setting of discharge limits,49 it is clear that the Agency views the concept of BAT as also being opposite to the keeping and use of radioactive substances, for example applying techniques to keeping sources secure, to minimise waste, and in the application of appropriate management systems and techniques. The Agency has also consulted on the application of Radioactive Substances Regulation Fundamental Principles to the use of radioactive materials.50 The Agency envisages a number of general ‘fundamental principles’ which would be applied in regulating radioactive substances and a number of principles of radioactive substance management, for example that the user should produce a strategy for management, should use 43

Subs 7(7A), inserted by SI 2005 No 2686, reg 9(b). For example, certain gauges used in combine harvesters and for checking fire extinguishers. 45 See Form RSA1fGA: Guidance to Applicants (revised June 2007) Fixed Condition Registration—Category 5 Sources. 46 See Form RSA1fGRH: Guidance to Registration Holders Fixed Condition Registration—Category 5 Sources. See also information sheet irp8 produced by the Agency and HSE on controlling risk of loss at www.hse.gov.uk/ pubns/irp8.pdf. 47 This can be accessed at www.environment-agency.gov.uk/business/sectors/39773.aspx. 48 Radioactive Substances Regulation Environmental Principles, Assessment Guide No 1: Assessment of Best Available Techniques (Consultation Draft, June 2008). 49 See further ch 12. 50 Radioactive Substances Regulation: Environmental Principles (Consultation Draft, June 2008). 44

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Breaches of Condition 301 BAT to minimise waste and to characterise substances, and that substances should be stored applying BAT. The Environment Agency established a ‘Small Users Liaison Group’ (SULG) in 1995 as a forum for such users and the Agency to discuss matters of mutual interest.51 ‘Small users’ in fact include some very large companies, as well as NHS Trusts, universities and small and medium-sized enterprises and organisations such as the Institute of Physics and Engineering in Medicine, the Society for Radiological Protection, and the Association of University Radiation Protection Officers.

BREACHES OF CONDITION Failure to comply with a limitation or condition attached to a registration or to which an exemption is subject is an offence: subsection 32(1)(b). The maximum penalties are a fine of up to £20,000 and six months’ imprisonment on summary conviction, and an unlimited fine and up to two years’ imprisonment in the Crown Court. Section 36 makes the normal provision for directors and senior officers to be prosecuted personally, and section 37 allows for the prosecution of any other person due to whose act or default the offence was committed. In England and Wales, proceedings relating to any offence under the Act may only be instituted by the Secretary of State or the Agency, or by or with the consent of the Director of Public Prosecutions (section 38). There are a number of recent examples of prosecutions under these provisions, which illustrate the types of problems which can occur in practice and the wide range of companies which make use of radioactive sources. In many cases companies have taken a seemingly quite casual attitude to the custody of radioactive sources used in equipment such as gauges, failing to appoint competent persons as required by registrations, and failing to keep records. This has in some cases resulted in radioactive materials being lost or being consigned to the normal waste stream in incinerators, scrapyards or landfill sites. The levels of fines in some of the cases suggest that the criminal courts do, fortunately, in the light of the very serious consequences that can follow from dispersal of even a small radioactive source, regard breaches of these requirements as a serious matter rather than a technicality: In 1998, Tyseley Waste Disposal were fined £120,000 by Birmingham Crown Court for failing to prevent the loss of two radioactive sources used to gauge amounts of material in an old incinerator during the course of its demolition.52 In 2001, Dunlop was fined £24,000 by Coventry magistrates, following the unauthorised removal of two sources from its premises, and failure to have a trained person in charge of the sources.53 In 2001, Vitafibres, a polyester cladding manufacturer, was fined £35,000 by Rochdale magistrates for three offences involving loss of gauges containing americium-241, when these were not removed from machines which were sent for scrapping.54 51 52 53 54

For further details see www.environment-agency.gov.uk/business/sectors/36922.aspx. ENDS Report 281, August 1998. ENDS Report 318, July 2001, 51. Ibid.

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302 Use of Radioactive Substances In 2003, Cleansing Services Group was fined £30,000 relating to the keeping of unauthorised sources of radioactive material at its site near Sandhurst. The prosecution was part of a series of offences which resulted in fines totaling £250,000 imposed by Gloucester Crown Court following a serious fire at the facility.55 In 2003, Ford was fined £42,000 by Grays magistrates after losing a paint spray gun containing polonium-210 and failing to report the loss immediately.56 In 2004, the Irish Bonding Company, a subsidiary of Guinness, was fined £7,000 by Belfast magistrates for failing to keep secure an americium-241 source, used in a gauge to monitor levels in cans and bottles. The source was found to be missing and was presumed to have been inadvertently consigned to landfill.57 In 2004, the Royal Free Hampstead NHS Trust was fined £45,000 and ordered to pay £45,619 costs by City of London magistrates, for offences under the 1993 Act and health and safety legislation, after losing a caesium rod used in cancer treatment.58 In 2006, Aston Manor Brewery was fined £10,000 by Birmingham magistrates after losing an americium-241 source used in a level gauge; the source had probably entered the scrap metal chain as stainless steel and been melted down.59

EXEMPTION FOR NUCLEAR SITES By section 8(1) of the 1993 Act, a licensee holding an extant nuclear site licence is exempted from the need for registration in relation to any premises situated on the site covered by that licence and in respect of the keeping and use of radioactive material of every description. The exemption applies while the nuclear site licence is in force and during any subsequent period of responsibility. The concept is therefore that control over radioactive materials kept and used on the site is exerted by the site licence. By subsection 8(2), the exemption may, however, be made subject to certain conditions by means of a direction given by the relevant Agency, where the Agency is of the view that if registration under section 7 was required, it would have imposed conditions. It may be noted however that this does not require the Agency to seek to impose conditions relating to the protective security of HASS on nuclear sites, because the requirements relating to site security under the HASS Regulations60 do not apply to premises which are, or are part of, a nuclear site.61

SPECIFIC EXEMPTIONS By section 8(4) of the 1993 Act an exemption from registration applies in respect of the keeping and use on premises of clocks and watches which are radioactive material, although 55 56 57 58 59 60 61

ENDS Report 347, December 2003, 59. ENDS Report 339, April 2003, 61. ENDS Report 352, May 2004, 59. ENDS Report 351, April 2004, 58. ENDS Report 381, October 2006, 56. SI 2005 No 2686. Reg 6(2). Security in respect of nuclear sites is discussed at ch 8.

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Specific Exemptions 303 this exemption does not extend to premises on which clocks or watches are manufactured or repaired by processes involving the use of luminous material. The list of exemptions is increased considerably by a number of statutory instruments made by the Secretary of State under subsection 8(6) or its predecessor, subsection 2(6) of the Radioactive Substances Act. Exemptions are applied to such things as ‘substances of low activity’, smoke detectors, gaseous tritium light devices, electronic valves and prepared uranium and thorium compounds. Relevant orders62 are as follows (similar orders have been issued in relation to exemptions for Scotland and Northern Ireland): The Radioactive Substances (Exhibitions) Exemption Order 1962 (SI 1962 No 2654) The Radioactive Substances (Storage in Transit) Exemption Order 1962 (SI 1962 No 2646) The Radioactive Substances (Phosphatic Substances, Rare Earths, etc.) Exemption Order 1962 (SI 1962 No 2648) The Radioactive Substances (Lead) Exemption Order 1962 (SI 1962 No 2649) The Radioactive Substances (Uranium and Thorium) Exemption Order 1962 (SI 1962 No 2710) The Radioactive Substances (Prepared Uranium and Thorium Compounds) Exemption Order 1962 (SI 1962 No 2711) The Radioactive Substances (Geological Specimens) Exemption Order 1962 (SI 1962 No 2712) The Radioactive Substances (Schools, etc.) Exemption Order 1963 (SI 1963 No 1832) The Radioactive Substances (Precipitated Phosphate) Exemption Order 1963 (SI 1963 No 1836) The Radioactive Substances (Electronic Valves) Exemption Order 1967 (SI 1967 No 1797) The Radioactive Substances (Smoke Detectors) Exemption Order 1980 (SI 1980 No 953), as amended by SI 1991 No 477 The Radioactive Substances (Gaseous Tritium Light Devices) Exemption Order 1985 (SI 1985 No 1047) The Radioactive Substances (Luminous Articles) Exemption Order 1985 (SI 1985 No 1048) The Radioactive Substances (Substances of Low Activity) Exemption Order 1986 (SI 1986 No 1002), as amended by SI 1992 No 647 The Radioactive Substances (Hospitals) Exemption Order 1990 (SI 1990 No 2512), as amended by SI 1995 No 2395 and by SI 2000 No 1973 The Radioactive Substances (Natural Gas) Exemption Order 2002 (SI 2002 No 1177) The Radioactive Substances (Testing Instruments) (England and Wales) Order 2006 (SI 2006 No 1500) One problem is that the various Orders do not have any common system of conditions and limitations. In some cases, the person exempt must still comply with certain conditions and limitations, for example, record-keeping and notification as to stolen, lost or damaged sources, or as to proper disposal of the source when it becomes waste.63 In others there are 62 The older orders made under the Radioactive Substances Act 1960 have effect as if made under the 1993 Act: Interpretation Act 1978, s 17(2)(b). 63 See, eg, the Radioactive Substances (Testing Instruments) (England and Wales) Order 2006 (SI 2006 No 1500), Arts 3(3) and 4(3) and Sch 2 (Class 2 Sources) and Art 6(2) and Sch 3 (Class 1 Sources).

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304 Use of Radioactive Substances no conditions. Chapter 3 of RASAG64 covers the exemptions in detail, summarising their key features and dealing with points of interpretation and application arising under them, for example how to interpret numerical limits in orders such as that relating to phosphatic substances. RASAG regards the exemption orders as intended to reduce the administrative burden by exempting trifling uses where the use of the substance is justified or is unavoidable, and where the hazards are negligible, or can be made so be observance of conditions in the Order, which effectively provide ‘codes of safe practice’.65 The terms of each exemption must be examined carefully to see if it is applicable, since many contain detailed conditions and limitations. The exemptions were reviewed on behalf of HMIP in 1987 and found to be in accordance with current radiological protection criteria, and again by the Department of Environment, Transport and the Regions, to satisfy itself that they complied with the Basic Safety Standards Directive when this came into force in 2000. No changes were deemed necessary.66 However, under the Government’s ‘Better Regulation Agenda’ a review of the exemption orders was initiated in 2006 to identify possible options for a new suite of orders and in due course to draft such orders. The review is intended to be completed in 200967 and in August 2009 details of the proposed new exemptions regime and draft regulations were issued for consultation.68 The modernised suite of exemptions is intended to provide common definitions and conditions for all the exemptions, to provide sound numerical values based on international standards and supported by radiological impact assessments, compatibility with the revised Basic Safety Standards Directive, and the provision of as much detail as possible in supporting guidance rather than legislation.

HIGH ACTIVITY SEALED SOURCES Directive 2003/122/EURATOM on the control of high-activity sealed radioactive sources and orphan sources (the HASS Directive) aims to make HASS subject to strict control from the time they are ready for sale or are imported into the Community until they are placed in a facility for long-term storage or disposal, or exported permanently from the EU. The measure can be seen in the context of concern to ensure safe custody of materials which could be used for harmful purposes. The following recitals to the Directive make its objectives clear: (8) Although the legal requirements deriving from existing legislation at Community and at national level ensure basic protection, high-activity sources still imply considerable potential risks for human health and for the environment and therefore need to be subject to a strict control from the time they are manufactured to the time they are placed in a recognised installation for their long-term storage or disposal. (9) Prevention of radiological accidents and injuries requires the location of each high-activity source to be known, recorded and verified from the time the source is manufactured or imported into the Community to the time it is placed in a recognised installation for its long-term storage or disposal or it is exported from the Community. Changes in the situation of a high-activity source, e.g. its location or use, should also be recorded and notified. Physical or financial obstacles should 64 65 66 67 68

April 2005, see above under Conditions. Ibid, para 3.4. Ibid, paras 4.2–4.4. www.defra.gov.uk/environment/radioactivity/government/legislation/exemption.htm. www.decc.gov.uk/en/content/cms/consultations/exemptions/exemptions.aspx.

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High Activity Sealed Sources 305 not hinder any appropriate reuse, recycling or disposal of such sources when disused under any reasonably foreseeable circumstances. (10) Cases of unintentional exposure should be notified to the competent authority. (11) Movements within the Community of high-activity sources make it necessary to harmonise the control of and information on such sources through the application of minimum criteria. (12) Experience shows that, despite the existence of an appropriate regulatory framework, control of high-activity sources may nevertheless be lost. Furthermore, the existence of orphan sources resulting from past activities requires that specific initiatives be undertaken. (13) Accordingly, it is necessary to provide for the identification, marking and recording of each high-activity source as well as for the specific training and informing of all those involved in activities relating to the use of sources. However, the marking of existing high-activity sources by engraving or stamping by persons other than the manufacturer could be problematic and should be avoided. It is also advisable to provide appropriate training and information for those who may deal accidentally with orphan sources. (14) It is also necessary to provide for suitable means of dealing with orphan high-activity sources for international cooperation and exchange of information in this area, for inspection and, finally, for making financial provision for cases in which the original holder either cannot be identified or, even if identified, is found to be insolvent.

These objectives are addressed by requiring prior authorisation for any practice involving an HASS, ensuring that adequate arrangements have been made for safe management of HASS (including when they become disused) before authorisation is given, requiring adequate provision to be made by way of financial security or other means for safe management of HASS when they become disused, ensuring that appropriate issues are addressed in the conditions of authorisations, record-keeping by users and competent authorities, and provision by member states for the recovery of orphan sources and to deal with any radiological emergency arising from orphan sources. A high-activity source is defined as a sealed source containing a radionuclide whose activity at the time of manufacture or, if this is not known, of the first placing on the market is equal to or exceeds the relevant activity level specified in Annex I to the Directive. The HASS Directive is transposed by the High-Activity Sealed Radioactive Sources and Orphan Sources Regulations 2005.69 These Regulations require existing holders of registrations to apply for a variation of their registration where they intend to keep or use a HASS after 1 January 2006.70 In respect of the powers of the Agency and SEPA under the 1993 Act or other relevant legislation,any of these powers may be exercised in respect of prevention of unauthorised access to, or loss or theft of HASS (or any sealed sources which are in the Agency’s opinion of similar level of potential hazard) and including matters relating to the security of sites where such sources are held, notwithstanding that the control or pollution is not the primary or only purpose for which the powers are exercised.71 This avoids arguments that use of powers simply to ensure security might be ultra vires. In exercising its powers, the appropriate Agency must, where it is considered appropriate, inspect the premises and consult the police regarding proposed security measures and have regard to advice received.72 The Agencies must ensure that the records required by the HASS Directive are kept as to authorised 69

SI 2005 No 2686. Reg 3. See Environment Agency Operational Instruction 369_05 v. 6, which provides guidance on determining what is an HASS and on the system of regulation generally. 71 Reg 5. 72 Reg 6. 70

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306 Use of Radioactive Substances holders and the details of the source, and establish a system of inspections to ensure compliance with the Directive’s requirements.73 Article 6 of the Directive sets out what is required of holders of HASS, in that the holder must: (a) ensure that suitable tests, such as leak tests based on international standards, are undertaken regularly in order to check and maintain the integrity of each source; (b) regularly verify, at specific intervals which may be determined by Member States, that each source and, where relevant, the equipment containing the source, is still present and in apparently good condition at its place of use or of storage; (c) ensure that each fixed and mobile source is subject to adequate documented measures, such as written protocols and procedures, aimed at preventing unauthorised access to or loss or theft of the source or its damage by fire; (d) promptly notify the competent authority of any loss, theft or unauthorised use of a source, arrange for a check on the integrity of each source after any event, including fire, that may have damaged the source and, if appropriate, inform the competent authority thereof and of the measures taken; (e) return each disused source to the supplier or place it in a recognised installation or transfer it to another authorised holder unless otherwise agreed by the competent authority, without undue delay after termination of the use; (f) ascertain that, before a transfer is made, the recipient holds appropriate authorisation; (g) promptly notify the competent authority of any incident or accident resulting in unintentional exposure of a worker or a member of the public.

Further effect is given to the requirements of the HASS Directive by separate statutory Directions (the HASS Directions 2005) for England, Scotland and Wales, given to the Environment Agency and SEPA under section 23 of the Radioactive Substances Act.74 These require the relevant Agency to exercise its powers in effecting or varying registrations concerning HASS, to ensure that the registration complies with the requirements of the Directive and covers the matters specified in Article 3(2), namely: (a) (b) (c) (d) (e) (f) (g)

responsibilities; minimum staff competencies, including information and training; minimum source, source container and additional equipment performance criteria; requirements for emergency procedures and communication links; work procedures to be followed; maintenance of equipment, sources and containers; and adequate management of disused sources, including agreements regarding the transfer, if appropriate, of disused sources to a supplier, another authorised holder or a recognised installation.

The Directions also require the Agency to satisfy itself that adequate security measures are in place and to attach appropriate conditions on security to registrations, and to enable it to be adequately informed of individual transfers of sources.75 73

Reg 7. September 2005 available at www.defra.gov.uk/environment/radioactivity/government/legislation/pdf/ hass-directions2005.pdf. See also the HASS (Scotland) Directions 2005 available atwww.scotland.gov.uk/ Publications/2005/09/-18 and the HASS (Wales) Directions 2005 available at new.wales.gov.uk/docrepos/40382/ epc/epq/highactivitysealedsources_e.pdf?lang=en. 75 Arts 5 and 6. 74

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Prohibition of Use of Mobile Apparatus 307 Section 30A of the 1993 Act (inserted by the HASS Regulations, regulation 16) deals with the issue of orphan sources by requiring the appropriate Agency make provision to recover any orphan source76 and to draw up any appropriate plans and measures. The Agency may recover reasonable expenses incurred in such recovery and disposal from the holder of the source (that is the person who is or is required to be registered or authorised in respect of it) or from the occupier or owner of the premises where the source is located.77 The relevant national ministerial body may if it thinks fit make available sums to the appropriate Agency, where the costs exceed or are likely to exceed any reasonable provision made, and financial assistance is needed to enable recovery and disposal.78 Upon coming into force of the EPR in relation to radioactive substance regulation, it is envisaged that these requirements will be reproduced as a discrete part of the Schedule to the revised Environmental Permitting Regulations which will make provision in relation to radioactive substances activities.

PROHIBITION OF USE OF MOBILE APPARATUS Section 9 prohibits any person from: (a) keeping, using, lending or letting on hire mobile radioactive apparatus of any description; or (b) causing or permitting mobile radioactive apparatus of any description to be kept, used, lent or let on hire unless he is either registered under section 10 or is exempt from registration. The prohibition applies only to the activities referred to at subsection 9(2), that is testing, measuring or investigating the characteristics of substances or articles, or releasing quantities of radioactive materials into the environment, or introducing such material into organisms. As with section 6, breach of the prohibition is an offence under section 32. Like section 6, the prohibition includes causing and permitting as separate elements (see above). However, unlike section 6, the prohibition of section 9 does not require knowledge or grounds for belief as to the character of the apparatus as radioactive; presumably because this will generally be obvious, whereas the radioactive nature of material may not be at all apparent.

REGISTRATION OF MOBILE APPARATUS Application for registration must be made to the appropriate Agency under section 10. It must specify the relevant apparatus and the purpose for which it is to be used, and must be accompanied by the appropriate fee under the relevant charges scheme. As with registration 76 Orphan source bears the same meaning as in the HASS Directive, ie ‘a sealed source, the activity level of which, at the time of its discovery, is above the exemption level referred to in Ar 3(2)(a) of Dir 96/29/Euratom, and which is not under regulatory control, either because it has never been under regulatory control or because it has been abandoned, lost, misplaced, stolen or transferred, without proper notification of the competent authority, to a new holder or without informing the recipient’. 77 Subs 30A(2). 78 Subs 30A(5).

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308 Use of Radioactive Substances of keeping and use under section 7, a copy of the application and the certificate of registration must be sent to the relevant local authorities—in this case each authority in whose area it appears that the apparatus will be kept, or will be used for releasing radioactive material (subsection 10(3) and 10(5)). This obligation, as with a section 7 registration, is also subject to the national security restriction under section 25. Failure to determine the application within the prescribed period of four months, or such longer period as may be agreed, constitutes a deemed refusal under subsection 10(4). The registration can be unconditional, refused, or subject to such conditions and limitations as the appropriate Agency thinks fit. In the event of refusal of an application or disputes over conditions or limitations, an appeal procedure is available under sections 26 and 27. Again, the use of mobile radioactive apparatus for the specified purposes will become a radioactive substances activity which will require an environmental permit.

EXEMPTIONS FROM REGISTRATION OF MOBILE APPARATUS Exemptions from the requirement for registration can be made under subsection 11(1). Orders making exemptions apply to certain types of valves and testing instruments. These are as follows, with similar orders having been made for Scotland and Northern Ireland: The Radioactive Substances (Electronic Valves) Exemption Order 1967 (SI 1967 No 1797). The Radioactive Substances (Testing Instruments) (England and Wales) Order 2006 (SI 2006 No 1500).

RELATIONSHIP OF REGISTRATION UNDER SECTIONS 7 AND 10 Given that mobile radioactive apparatus is, by definition, a sub-set of radioactive material, there is potential for overlap and confusion between the requirements of these provisions. However, it is clear that registration of mobile apparatus under section 10 does not involve identifying all premises and areas where it may be used, and that the presence of registered or exempt mobile apparatus on premises does not require registration under section 7 (subsection 6(c)). The Government regarded any restriction on where mobile apparatus could be used as involving a contradiction in terms and potential for administrative overload; the idea was that in registering mobile apparatus the Minister would satisfy himself that the apparatus was of a nature and construction ‘as to produce no predictable waste hazard wherever it was used’.79 It would also plainly be absurd if premises containing mobile apparatus which was exempt were themselves subject to the requirement registration by virtue of the radioactive material within the mobile apparatus, and a Government amendment was passed to ensure this would not be the case.80

79 80

Hansard HL vol 220 col 1074. Hansard HL vol 220 col 790.

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Cancellation and Variation of Registration 309

CANCELLATION AND VARIATION OF REGISTRATION Registration under sections 7 and 10 may at any time be cancelled or varied by adding, revoking or varying limitations or conditions (section 12). These powers are exercisable with or without any application having been made to the Agency.81 Cancellation or variation is effected by notice given to the person to whom the registration relates; where a copy of the certificate of registration has been sent to a local authority, a copy of the notice must be sent to the local authority also. From the operator’s point of view, cancellation of the registration will carry with it the added obligation of disposing of the source safely to an authorised recipient at its own expense. Appeal against cancellation or variation lies to the Secretary of State under sections 26 and 27. These powers are capable of use in a systematic way as well as in relation to a specific registration. For example, during October 1995, a process of cancellation of registrations associated with the use of radioactive attachments to lightning conductors was initiated by HM Inspectorate of Pollution in England and Wales, and by HM Industrial Pollution Inspectorate in Scotland. In what amounted to action against a class of radioactive material, the use of the regulator’s power to cancel was based on the availability of non-radioactive alternatives so that the continued use of radioactive sources was no longer justified. A few thousand of these devices were originally installed on industrial and commercial buildings in England, Scotland and Wales at the top of lightning conductor rods. The specific powers of cancellation and variation will be replaced by the general equivalent powers applicable to environmental permits.

DISPLAY OF CERTIFICATE OF REGISTRATION AND RETENTION OF RECORDS For a section 7, but not a section 10 registration, section 19 requires that a person to whom the registration relates exhibits copies of the certificate in suitable places on the premises. Failure to do so is an offence under section 33, carrying a penalty of up to £5,000 in the magistrates’ court and an unlimited fine in the Crown Court. Clearly, however, in current security conditions, the selection of a suitable place should involve ensuring that the certificate is not available to be read by those who might wish to make unlawful use of the information on what sources are being kept on the premises. For both section 7 and section 10 registrations, the appropriate Agency may use powers under section 20 to require the retention of records and the continuing availability of these documents for inspection by the regulator. Such requirements may be imposed by notice. The records in question are those required to be kept by conditions attached to the registration and may include ‘site records’ relating to the condition of the premises on which the relevant activities are carried on, or where the mobile apparatus is kept. Retention may be required for a specified period after the relevant activities cease to be carried on. It is an offence under section 33 to fail to comply with this requirement; record-keeping in this particular context is an important matter and not just a formality, and the perceived seriousness of the offence is indicated by penalties which include the possibility of imprisonment (up to three months in the 81

Subs 12(1A), inserted by SI 2005/2686, reg 11.

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310 Use of Radioactive Substances magistrates’ court and up to two years in the Crown Court), a sentence which is not available as a penalty for contravening section 19. The records required to be kept now include source transfer records relating to the transfer of control of HASS as required under the HASS Regulations.82

ENFORCEMENT NOTICES Section 21 provides enforcement powers to the appropriate Agency to regulate the activities of an operator registered under either section 7 or section 10. The necessary trigger for action by the Agency is its opinion that a person holding a registration under section 7 or section 10 is failing, or is likely to fail, to comply with any condition in its registration. The Agency is then entitled to issue an enforcement notice setting out the matters constituting the breach and specifying the steps to be taken to remedy this together with the period within which they are to be taken. A copy of the notice must also be served on the relevant local authority if a certificate of registration has previously been sent to that authority. An example of use of an enforcement notice is the service of a notice by the Environment Agency on Gordon Laboratory Group in 2008, where issues relating to deficient management arrangements were identified during an inspection and where on re-inspection it appeared that little had been done to remedy these shortcomings.83 A key aspect of the enforcement notice procedure concerns the accuracy with which matters are specified on the face of the notice. The most widely accepted test on the precision of the content of an enforcement notice relates to planning enforcement notices and is whether the notice tells the recipient ‘fairly what he has done wrong and what he must do to remedy’.84 It is very likely that the same test should be applied to notices served under section 21. An appeal procedure to the Secretary of State against enforcement notices is contained in sections 26 and 27. The Secretary of State may, on appeal, cancel or affirm the notice, either in its original form or with such modifications as he thinks fit (subsection 27(5)). This power can, no doubt, be used to cure some defects in notices, but it should not be possible to cure fundamental defects that make the notice a nullity. If a person fails to comply with any requirements of a notice served on him under section 21 he is guilty of an offence under subsection 32(1). Penalties in the magistrates’ court amount to a fine not exceeding £20,000, or to imprisonment for a term not exceeding six months or both; in the Crown Court, to an unlimited fine, or imprisonment for up to five years or both. There is no daily incremental fine under the 1993 Act for continued non-compliance with an enforcement notice following conviction.

PROHIBITION NOTICES A prohibition notice under section 22 may be served where the appropriate Agency believes that continuation of the relevant activity involves an imminent risk of pollution of the 82 83 84

Section 20 as amended by SI 2005 No 2686, reg 14(a) and 14(b). For the HASS Regulations, see above. ENDS Report 401, June 2008, 23. Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196, at p 226, per Upjohn LJ.

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Charges 311 environment or of harm to human health. The fact that the operator may be complying in full with any limitations or conditions of his registration is irrelevant. Section 22 sets out the details that must appear on the face of the notice; this includes a direction that the registration, either in whole or in part as specified on the face of the notice, ceases to have effect until the notice is withdrawn. The provisions relating to events following the service of a prohibition notice are identical to those for the service of an enforcement notice (see above). An appeal procedure to the Secretary of State is provided under sections 26 and 27, while provisions for sending a copy of the notice to the relevant local authority apply under subsection 22(6). Additionally, the criminal offence provision under section 32 for failure to comply with the terms of a prohibition notice carries the same penalties as for the breach of an enforcement notice.

CHARGES Fees for registration are now fixed by reference to a charges scheme made under the Environment Act 1995 (subsections 7(1)(c) and 19(1)(c) of the 1993 Act, as amended). Section 41 of the 1995 Act allows the Agency to prescribe the charges to be paid in relation to ‘environmental licences’ by charging scheme. Section 56 of the 1995 Act defines ‘environmental licences’ to include registrations under the Radioactive Substances Act (RSA) 1993. Charge schemes made under subsection 41(2) of the 1995 Act may relate to the grant, variation and subsistence of authorisations, and a wide discretion is provided as to how the scheme is to be framed, though schemes must be submitted to the Secretary of State for approval under section 42. The scheme includes three types of charges, for application, variation and subsistence and structures these within bands depending on the type of premises, for example, the Sellafield site, other nuclear sites and similar sites, and other users.85 The fees also cover the costs attributable to the Food Standards Agency86 and are invoiced to operators quarterly in arrears.

APPEALS Section 26 provides a right of appeal to the Secretary of State against: (a) (b) (c) (d) (e)

refusal of application for registration under section 7 or section 10 (deemed or actual); attachment of limitations or conditions to registration; variation of registration, otherwise than by revoking a limitation or condition; cancellation of registration; and service of an enforcement or prohibition notice under section 21 or section 22.

The right of appeal is conferred on ‘the person directly concerned’ (that is the applicant or holder of the registration) in cases (a) to (d) and the person on whom the notice is served 85 Full details of the current scheme are available at www.environment-agency.gov.uk/business/regulation/ 38805.aspx. 86 This is relevant to the FSA’s functions in respect of authorisations to dispose of radioactive waste rather than the registration of radioactive materials.

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312 Use of Radioactive Substances in case (e). The appeals procedure is dealt with by section 27, which allows the Secretary of State to refer the appeal to an inspector appointed for that purpose. Either party may require that the appeal be in the form of a hearing, which maybe held in private if, and to the extent that, the person holding it so determines (subsection 27(2)). The effect of bringing an appeal is dealt with by subsection 27(6); in the case of cancellation of registration, the cancellation is suspended until the determination of the appeal unless the Secretary of State directs to the contrary; but otherwise, the validity of the decision or notice in question is not affected, again unless the Secretary of State directs otherwise. The Radioactive Substances (Appeals) Regulations 199087 provide further detail as to appeals procedure and in particular: (a) provide a general time limit of two months for bringing an appeal, or such longer period as may be allowed by the Secretary of State; for appeals against cancellation of registration, the period is 28 days (regulation 3); (b) prescribe the matters to accompany the written notice of appeal (regulation 2); (c) deal with the action to be taken by the Secretary of State on receipt of an appeal (regulation 4); (d) provide a framework and timetable for appeals to be determined by written representatives (regulation 5); (e) provide a procedure for the fixing of hearings, including publicity by newspaper advertisement (regulation 6); and (f) require the Secretary of State’s determination to be notified in writing and for the reasons to be given, together with a copy of the inspector’s report if a hearing took place (regulation 7).

POWERS OF THE SECRETARY OF STATE The Secretary of State occupies a highly influential position in the administration of the 1993 Act.88 It has already been pointed out that appeal procedures to him are available under sections 26 and 27 where applications for registration under section 7 or section 10 are refused, limitations or conditions to such registrations are disputed, and cancellations or certain variations in the terms of a registration are made. In addition, under section 23, the Secretary of State is empowered to give directions to the appropriate Agency on a variety of matters including applications for registration under section 7 or section 10, the service of notices under sections 21 or 22, and the provision of specified written particulars to relevant local authorities of activities carried on pursuant to registrations. An example of a use of this power are the HASS Directions 2005, made by the Secretary of State, Scottish Ministers and the Welsh National Assembly, requiring the Environment Agency and SEPA to comply with the provisions of Council Directive 2003/122/Euratom on the control of high-activity sealed radioactive sources and orphan sources. Under section 24, the Secretary of State also has the power to require certain applications for registration to be determined by him; he may then cause a local inquiry to be held in respect of that application. Under section 25, the Secretary of State may direct the appropriate Agency to restrict knowledge of applications for registration under section 7 or section 10 on grounds of national secur87

SI 1990 No 2504. The functions of the Secretary of State so far as exercisable in relation to Wales were (with a few exceptions, ie ss 1(5), 8(6), 11(1), 15 and 25) transferred to the National Assembly for Wales by the National Assembly for Wales (Transfer of Functions) Order 1999 No 672. Under the Scotland Act, since the Radioactive Substances Act 1993 is a matter of devolved competence, the reference to the Secretary of State is to be read as referring to the Scottish Ministers (Scotland Act 1998, s 117). In respect of Northern Ireland the directing power lies with the Department of the Environment for Northern Ireland: s 23(5). 88

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Powers of Entry, Inspection, etc 313 ity. The effect of such a direction is to prevent the Agency from sending a copy of specified information contained in, or relating to, registrations or to applications for registration to any local authority under any provision of either section 7 or section 10. In principle, the powers of the Secretary of State are extended under section 40 of the Environment Act 1995. This section empowers the Secretary of State to exercise considerable control over any activity of the Agencies, including those that apply under the Radioactive Substances Act 1993. This is to be achieved by giving them directions as to the carrying out of any of their functions (subsection 40(1)), with which the relevant Agency must comply (subsection 40(8)).

POWERS OF ENTRY, INSPECTION, ETC Powers of entry and inspection which were formerly contained in section 31 of the 1993 Act are now to be found in the Environment Act 1995, sections 108 to 110, and are the general (and substantial) powers applying to the Environment Agency and SEPA.

ACCESS TO INFORMATION A number of separate issues arise in relation to public access to information on activities regulated by the 1993 Act. Given the concern and suspicion with which the public tends to view issues involving radioactive substances, and the need for care in making available potentially harmful information in the security context, this matter is of considerable practical importance. Section 39 of the Radioactive Substances Act 1993 requires the regulator to keep copies of applications, documents issued (such as certificates of registration) and of records of convictions. These provisions were added originally to the 1960 Act by Part V of the Environmental Protection Act 1990. Circular 21/90 (Local Authority Responsibilities for Public Access to Information under the Radioactive Substances Act 1960, as amended by the Environmental Protection Act 1990), taken with Circular 22/92, explain the provisions on public access to information and give guidance to local authorities on their obligations in this area. The appropriate Agency is required to keep copies of: (a) all applications made to it under any provision of the Act; (b) all documents issued by the appropriate Agency under any provision of the Act; (c) all other documents sent by the appropriate Agency (or the Chief Inspector) to any local authority in pursuance of directions of the Secretary of State; and (d) specified records of convictions under the Act or under Regulations made under the Act.89 The Agencies are under a duty to make copies of these documents available to the public subject to trade secrecy90 or national security restrictions. In particular, the Secretary of State may direct that public knowledge of these matters should be restricted on grounds of national security; the Secretary of State may also direct that knowledge of applications for registration should be restricted on national security grounds.91 In addition, local authorities are required to make available to the general public copies of all the documents sent to 89 90 91

Radioactive Substances (Records of Convictions) Regulations, SI 1992 No 1685. See the provisions restricting disclosure of trade secrets at s 34. Subs 25(1).

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314 Use of Radioactive Substances them by the appropriate Agency unless they have been directed that a particular document or part of a document must not be made available for inspection.92 Subject to the relevant restrictions, the public has the right to inspect copies of documents required to be made available under section 39 at all reasonable times and, on payment of a reasonable fee, to be provided with a copy of any such documents.93 Documents required to be made available to the public need not be kept in documentary form and can be provided electronically.94 Information which is not covered by section 39 may, of course, be subject to a request under general freedom of information legislation, that is the Environmental Information Regulations 200495 or the Freedom of Information Act 2000. However, both regimes are subject to exemptions relating to security, which may well be relevant so far as the detail of the presence and use of radioactive materials are concerned.

APPLICATION TO CROWN The starting point in relation to Crown Immunity for the provisions of the 1993 Act is set out in subsection 42(1) to the effect that subject to certain exemptions, the Act binds the Crown. In other words, subject to any section 42 exemptions, an operator operating mobile radioactive apparatus or keeping or using radioactive material on land owned by the Crown, will need either a section 7 or section 10 registration, or will require an exemption from registration under either section 8 or section 11. Additionally, subject to a section 42 exemption, the same requirement for registration would apply where the Crown is the relevant operator. The main exemption giving immunity to the Crown is provided in subsection 42(2). The Act does not bind the Crown in relation to any premises (whether or not owned by the Crown) if they are occupied: (a) on behalf of the Crown for naval, military or air force purposes or for the purposes of the Secretary of State at the Ministry of Defence; or (b) by or for the purposes of a visiting force. Of these possibilities for immunity, (a) is the more likely to be contentious. While it seems reasonably clear that premises occupied and operated by personnel in the armed services or employees of the Ministry of Defence will come within (a), the legal position of premises occupied by a private contractor operating under a commercial contract with the Ministry of Defence (for example, at atomic weapons establishments or naval dockyards) is not so clear. To obtain immunity from the provisions of the 1993 Act under (a) above, such a contractor would need to show that the site at which his activities involving radioactive material or mobile radioactive apparatus were conducted, was occupied: (a) on behalf of the Crown for armed service purposes; or (b) for MoD purposes. In the absence of any definitions in the 1993 Act of ‘on behalf of the Crown’ or ‘for the purposes of and any case law on the interpretation of the subsection’, a contractor should probably work on the assumption that the Act does apply to its activities. Registration under section 7 or section 10 would therefore be necessary, subject to any available exemptions under section 8 or section 11. 92 93 94 95

Subs 39(2). Subs 39(5). Subs 39(4). SI 2004 No 3391.

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Relationship to Other Legislation 315 Subsection 42(3) also provides that where the Crown contravenes any provision in the 1993 Act, it will not be criminally liable. Some limited sanction is available to the appropriate Agency in that it can apply to the High Court (in England and Wales) or the Court of Session (in Scotland) for a declaration from the Court that the act or omission constituting a contravention by the Crown is unlawful. Any benefit enjoyed by the Crown under subsection 42(3) does not extend to persons ‘in the public service of the Crown’ who will be subject to the provisions of the 1993 Act in the same way as any other persons with no association with the Crown (subsection 42(4)).

RELATIONSHIP TO OTHER LEGISLATION The provisions on using radioactive materials may potentially overlap with other EPRs, for example where radioactive sources are used as part of an overall activity falling within the Environmental Permitting (England and Wales) Regulations 2007.96 By section 40 of the 1993 Act, for the purpose of the operation of various specified statutory provisions, no account is to be taken of the radioactivity possessed by any substance or article: the specified provisions under Schedule 3, however, do not include modern regimes such as the Environmental Permitting Regulations. It is therefore possible that in principle there could be some degree of overlap between the conditions imposed on the environmental permit and those applying to the registration of radioactive materials used on the premises (or those affecting the exemption under which the materials are used) though clearly duplication of regulatory control would be undesirable. However, it may be noted that in respect of installations which are subject to environmental permitting because they fall within the EC’s integrated pollution prevention and control regime (and hence the permitting authority must use its powers to secure compliance with the IPPC Directive)97 that the IPPC Directive98 in defining the term ‘substance’, which in turn informs the definition of ‘pollution’, excludes expressly radioactive substances within the meaning of the Euratom Basic Safety Standards Directive.99

ENVIRONMENTAL PERMITTING The Environmental Permitting (England and Wales) Regulations 2007100 were intended to make a move towards new and streamlined approach to environmental regulation, by bringing together, within a common framework, historically different regimes. The initial regimes were waste management licensing and pollution prevention and control in respect of industrial processes. In 2009 proposals were put forward for the Environmental Permitting Programme 2 (EPP2), bringing within the system other types of control, including radioactive substances regulation. An initial consultation paper was published in 96 97 98 99 100

SI 2007 No 3538. Ibid, sch 7, para 5. Dir 96/61/EEC. Ibid, Art 2(1). SI 2007 No 3538, in force on 6 April 2008.

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316 Use of Radioactive Substances February 2009,101 and on draft guidance and draft regulations in May 2009.102 The new regime seems likely to take effect in 2010, with a new set of Environmental Permitting Regulations to replace those of 2007. Existing RSA registrations and authorisations will, under transitional provisions, become environmental permits as at the date the new regulations come into force. Detailed examination of the procedural aspects of the EPR is beyond the scope of this work, and indeed would be premature until the detail has been finalised and the new regulations made, but the main features of the regime can be described as follows. It will lead to a strengthening of regulatory control, as it will incorporate the significant advances in the drafting of the relevant powers which have occurred in other fields of control since 1960 when the current RSA regime was established. 1. Requirement for environmental permit The operation of a ‘regulated facility’ is prohibited, except under and in accordance with an environmental permit. The categories of regulated activities will include ‘radioactive substances activities’, which will cover those matters for which an authorisation or registration was required under the RSA 1993, namely, the keeping and use of radioactive substances, the accumulation or disposal of radioactive waste, and the keeping or use of mobile radioactive apparatus for certain purposes. Provision is made for exemptions from the requirement for a permit. 2. Permits The Regulations deal with the grant of environmental permits, the content and form of permits, the imposition of conditions, and the subsistence of permits. The EPR regime contains detailed provisions on public participation in permitting decisions. Provision is made for the variation, transfer, revocation and surrender of permits. The provisions on surrender may be of particular relevance, as they will provide a modernised and more sophisticated regime which will potentially allow for partial surrender, for the imposition of requirements to return the site to a satisfactory state on or after revocation, and for the consideration of the pollution risk presented by a site as a requirement of the surrender process. There is a general requirement to return the site of the regulated facility to ‘a satisfactory state, having regard to the state of the site before the facility was put into operation’: however, this will not apply to permits authorising the operation of a regulated facility for a radioactive substances activity at a nuclear site. 3. Standard rules The environmental regulator may prepare standard rules for regulated facilities of particular types, following appropriate consultation processes. These may include standard permit conditions, against which there is no right of appeal. 4. Appeals There is a standard appeals framework applying to refusals of permits, conditions imposed, and other regulatory and enforcement actions. 5. Enforcement and offences Provision is made for service of enforcement notices, suspension notices (suspending permits where there is a risk of serious pollution), and for various offences (in particular the carrying on of a regulated activity without a permit, or the contravention of the conditions of a permit). These offences carry a maximum penalty of a £50,000 fine and imprisonment for a term of 12 months on summary conviction, and to an unlimited fine and imprisonment for five years on conviction on indictment. The only defence is that the acts alleged to constitute the offence were done in an emergency to avoid danger to human health and where all reasonably practicable steps were taken to minimise 101 102

www.defra.gov.uk/corporate/consult/env-permitting/index.htm. www.defra.gov.uk/corporate/consult/env-permitting-guidance/index.htm.

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Environmental Permitting 317 pollution and where particulars of the act were furnished to the regulator as soon as was practicable. General power applies to use civil injunctions to secure compliance where it appears that criminal prosecution would be an inadequate remedy. 6. Public registers Common provisions apply as to the information to be contained on public registers maintained by the regulator and the exclusion of information from such registers on the grounds of national security and commercial confidentiality. The exclusion of information giving the details and location of radioactive sources is of particular importance to preserve security from criminal attack or misappropriation.103 7. Powers of the regulator Substantial powers are provided to take steps considered necessary to prevent or remedy pollution from regulated facilities, and to recover the cost of those steps from the operator. Such powers could be used, for example, to clean up any radioactive contamination caused by a breach of permit conditions. 8. Crown application The Regulations are generally binding on the Crown, which may not be criminally liable, but may be the subject of a declaration of unlawfulness by the High Court. The Regulations, however, will not bind the Crown in relation to radioactive substances activities carried on at premises occupied on behalf of the Crown for naval, military or air force purposes, or for the purposes of the Ministry of Defence, or occupied by or for the purposes of visiting armed forces. 9. Specific provision for radioactive substances activities The EPR regime works by way of general provisions which are supplemented or modified by specific provisions set out in the Schedule applying to the relevant activities. There will be such a Schedule dealing with radioactive substances activities. This will provide definitions of material terms such as ‘nuclear site’, ‘radioactive material’, ‘radioactive waste’ and ‘radioactive substances activity’. Another function of the Schedule is to impose on the regulator the duty to exercise its functions so as to ensure compliance with the relevant provisions of Community law, in particular the Basic Safety Standards Directive and the HASS Directive, as already described. The Schedule will also carry through existing specific requirements on the posting of permit conditions on premises, as described above.

103

See further ch 8.

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10 Transport and Transboundary Movements INTRODUCTION According to the World Nuclear Organisation, about 20 million packages of all sizes containing radioactive materials are routinely transported annually worldwide on roads, railways and ships.1 Since 1971, there have been over 20,000 shipments of used nuclear fuel and high-level wastes, but the vast majority (around 95 per cent) of consignments relate to material which is not fuel-cycle related and is used in medicine, agriculture, manufacturing, research, testing and exploration.2 There are two main aspects to this which are dealt with in this chapter. The first is the question of the conditions of such transport (that is the safety of the means of transport). The second is whether movement itself is controlled, that is whether transport of certain materials is allowed at all between states. With regard to the first issue, movement of material between the relatively limited number of specialised facilities used in the nuclear fuel cycle is an inevitable incident of nuclear power, and as might be expected, considerable effort has been put into securing the safety of such transport. The same principles, however, also apply to transport of other radioactive materials for non-fuel cycle related purposes, such as research, medicine, industry and agriculture, which is much more widespread. The principal assurance of safety lies in design of the packaging to allow for impact, heat or pressure from accidents and to shield radiation (as well, of course, as to protect the goods from damage in transit). This involves impact testing (the current IAEA standard requires testing by dropping the container 9 metres onto a completely unyielding surface—itself a hypothetical concept); fire testing (a completely engulfing fire of 800 degrees centigrade for 30 minutes); immersion testing at various depths; and tests relating to specific modes of transport, that is marine accidents and rail crashes. Low activity material can be drummed and transported in normal industrial containers, but specialised packaging is required for other materials: Type A packages are used for medium activity materials such as medical or industrial isotopes; Type B packages for high level waste and used fuel; and Type C packages for small amounts of high activity material (such as plutonium) which are transported by aircraft. Minimising handling and re-packaging is an important consideration, and hence containers will often be dual purpose flasks which are suitable both for transport and long-term storage. Other important considerations are the appropriate marking of packages and the training of the personnel 1 Transport of Radioactive Materials (February 2008) available at www.world-nuclear.org/info/inf20.htm. Some 3 million of these are shipped in the USA: see further the US Nuclear Regulatory Commission website at www.nrc.gov/materials/transportation.html. 2 See the World Nuclear Transport Institute (WNTI) website, another very useful source of information at www.wnti.co.uk/nuclear-transport-facts/what-is-transported-and-how.

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Introduction 319 involved in handling and transport. In the case of uranium fuel assemblies the arrangements must be such as to prevent the assemblies becoming critical, by means of the design of the packaging and the layout and number the assemblies. As would be expected, the relevant technical standards are voluminous and highly technical, and no attempt is made to provide a detailed summary at a technical level in this chapter. As explained below, a very high degree of standardisation of requirements worldwide has been achieved in this field through the work of the IAEA and its incorporation into domestic requirements and adoption by the relevant international transport bodies and regional transport organisations. On the second issue, many types of radioactive materials for beneficial uses are moved around the world routinely, without exciting controversy, provided appropriate precautions are taken for their safety and security.3 The same cannot be said of materials which are either radioactive wastes, or which could be regarded as such (that is spent fuel), or which are linked with nuclear power or nuclear weapons. The nuclear industry is highly international. Sources of supply for uranium, the mines of Australia, central Asia, Canada and South Africa, are in some cases geographically remote from the industrial locations where fuel is manufactured and the power station where it is used. This ‘front end’ of the industry therefore involves substantial shipments of uranium ore concentrate, uranium hexafluoride, uranium dioxide powder and fuel assemblies of ceramic uranium dioxide pellets. These materials though, of course, care must be taken with them, are generally of relatively low activity, and their movement has not typically provoked much opposition. The position is very different for material in the ‘back end’ of the fuel cycle. Once fuel has passed through the nuclear reactor, it can be either put into long-term storage under suitable conditions, or it can be reprocessed to extract usable fission products from it, leaving highly active residues to be disposed of as waste. The spent fuel and vitrified high-level wastes are intensely radioactive and require shielding, but are in a stable solid form and present relatively low risk of dispersion. Plutonium presents high risks due both to its radioactivity and toxicity. The shipment of back end materials on a large scale began in the 1960s, as nuclear power became an important source of energy. It involves the transport of spent fuel to reprocessing facilities (currently mainly located in the UK and France) and in due course the return of separated plutonium, mixed oxide fuel and vitrified high-level wastes to the country of origin. If the nuclear industry is to expand, as it certainly will in countries such as China, if not in the West, then there will be a continued need for movement of such material; indeed there are suggestions that new reactor designs will require more highly enriched uranium as fuel. Movement of back-end fuel cycle material and radioactive wastes is a recurrent focus of anti-nuclear protest in many countries. In France, Germany and Switzerland, protestors have often sought to block the transport of material by rail or road,4 and Greenpeace has a consistent record of seeking to impede shipments of waste by sea.5 The UK has had its share of controversy in this regard. In 1998, there was widespread publicity over the proposal for 3 An example is cobalt 60 sources, which are used worldwide for medical, industrial and humanitarian purposes, for which there is a growing need, and which are manufactured in very few countries. 4 Recent examples are the blockage of a plutonium convoy in Chalon-sur-Saône in France in 2003, the death of a young activist, Sebastien Briat, in France in 2004 who was hit by a train carrying waste from France to Germany, having chained himself to the track. Protests also occurred in 2007 in St Petersburg over the import of radioactive waste from the Netherlands into Russia. 5 For example, the protest in 1999 when shipment of MOX fuel to Japan from France and the UK commenced, the protest in 2003 in Australia as to shipment of spent fuel rods to France reprocessing, and the episode in 2007 when Scandinavian activists sought to board a ship carrying waste from Sweden to Sellafield.

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320 Transport and Transboundary Movements the Dounreay nuclear plant in Scotland to receive around 5 kilogrammes of highly enriched uranium from the former Soviet State of Georgia, for conversion into medical isotopes, which prompted an outcry from local residents and from Friends of the Earth, with the predictable suggestion that Britain was being used as a ‘nuclear dustbin’.6 In 2002, Greenpeace protested (and threatened legal proceedings for an injunction) in respect of re-shipment to the UK of 250 kilogrammes of MOX fuel which had been rejected by the Japanese nuclear company Tokyo Electric after it transpired that safety data had been falsified. In 2007, it was reported that radioactive waste from Dounreay, exported from Scotland to Peru in 1998 to be used to manufacture gas mantles, had been returned to Caithness since it could not in fact be used, processed or disposed of in Peru, an operation thought to have cost the Nuclear Decommissioning Authority some £1.7 million. In 2008, plans to export radioactive metal from the decommissioning of nuclear submarines from Rosyth in Scotland to a smelter in Sweden run by the Swedish waste company Studsvik (with the radioactive slag then being returned to the UK for disposal as low-level waste) came under criticism from local councils because of the perceived risks of transport by sea as opposed to dealing with the waste in the UK. One aspect which is of growing concern to the nuclear industry is the denial of transport, whereby carriers (or ports, or labour unions) are not willing to accept certain radioactive materials. The basis of this may be concerns over insurance,7 or regulatory impositions which may delay other cargoes, or adverse public attention. For example, a ship operator may be concerned as to the requirements for segregation in stowage for some radioactive materials, or that ports of call may create difficulties over receiving such cargoes or even allowing the ship into port, or that stevedoring unions may refuse to handle them. Security considerations mean that the length of time that radioactive material may remain in temporary storage during transit is increasingly limited, and that the facilities for such storage must be secure and appropriately guarded. In some cases denial may be based on misperceptions as to the problems presented by the material. The issue is of sufficient concern that the IAEA and International Maritime Organisation (IMO) are seeking to address it, with the IAEA setting up a Steering Committee on Denial of Shipments for that purpose in 2006.8

SAFETY OF TRANSPORT INTERNATIONAL REGULATION: GENERALLY The issue of legally binding and non-binding international instruments concerning the safe transport of radioactive materials was considered by the General Conference of the IAEA in 1997 following the adoption of the Joint Convention on the Safety of Spent Fuel 6 This was part of the programme to deal safely with, and ensure the security of, weapons-grade material left in the former Soviet Union and its satellite states. 7 Particularly given the lack of international consensus on the precise terms of nuclear liabilities and insurance: see ch 6. See WNTI Information Paper No 1, Radioactive Materials Transport: Industry Experience—‘The lack of an international consensus on nuclear liability coverage makes movement from regions covered by one form of legislative insurance coverage to that covered by another, unsettling to ocean carriers and transporters’. 8 See L Green (Secretary General of WNTI), Sustaining Shipments (2007 paper to PATRAM 2007, Miami, available on WNTI website).

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Safety of Transport 321 Management and on the Safety of Radioactive Waste Management.9 The IAEA Secretariat Report, Safety of Transport of Radioactive Material,10 was produced at the request of the Board and contains a compendium of the global and regional instruments and regulations then in effect. This makes the important point that rules on radioactive substances transport may be seen in the context of the regulation of the carriage of dangerous goods more generally. Detailed laws on the transport of substances such as gunpowder can be traced back as far as 1776 in the UK, but it was not until the growth of intermodal international transport after World War II that it was realised that regulations needed to be harmonised, with a substantial growth in the worldwide movement of goods such as petroleum, explosives, petrochemicals, acids and radioactive substances.11 In 1953 the UN Economic and Social Committee appointed a Committee of Experts12 to develop a universal system of recommendations on the transport of dangerous goods applicable to all modes of transport, which could both be used internationally and also adopted for domestic purposes. Various recommendations were adopted over the years, and in 1994 the Committee’s recommendations were reformatted and published as Model Regulations: they are commonly known as ‘the Orange Book’ and are subject to a biennial revision cycle. One of the first tasks of the Committee was to formulate a substance classification system based on hazards presented by the materials; this has become the basic foundation of all systems of rules to control the transport of dangerous goods. Class 7 of the nine-class system which was developed was radioactive material, and although the nature of radioactive material requires some differences of approach to other hazardous classifications (for example packaging) it is important to understand that radioactive material should be regarded simply as one class of dangerous goods, and that its integration into the overall system of control is desirable in order to ensure consistency of approach. Thus from the outset there has been co-operation between the work of the Economic and Social Council (ECOSOC) Committee of Experts and the IAEA. In July 1959 the ECOSOC Committee informed IAEA through the UN that it desired that IAEA, which had been created two years earlier, be entrusted with the drafting of recommendations on the transport of radioactive material, on the understanding that the recommendations would be consistent with the principles adopted by the Committee. It was recognised that radioactive materials were being traded and transported on a worldwide basis, and that consistent global standards were important. The IAEA accordingly established and published its Regulations for Safe Transport of Radioactive Materials (Safety Series No 6) in 1961, which have been subject to regular revision in the light of technical advances and operational experience.13 The underlying purpose and philosophy, however, remains the same: to provide an acceptable level of control over hazards presented by the transport of radioactive material, by whatever mode, avoiding over-complexity so far as possible. Though termed ‘Regulations’, these have the status simply of a UN Recommendation, but by 1969 had been adopted by almost all 9

See further ch 12. GOV/1998/17, 30 April 1998. 11 See the useful overview provided by the World Nuclear Transport Institute, Radioactive Materials Transport: The International Safety Regime. 12 Sometimes referred to as the UN Committee of Experts on the Transport of Dangerous Goods, or CETDG. In 2001, the Committee was amalgamated with the Committee dealing with a Globally Harmonised System on the Classification and Labelling of Chemicals, and now operates as the Sub-Committee of Experts on the Transport of Dangerous Goods (SCETDG). 13 Since 1996 this work has been entrusted to the IAEA’s Transport Safety Standards Advisory Committee (TRANSSAC) with general oversight provided by the Advisory Committee on Safety Standards (ACSS), and there is a two-year revision cycle. Further detail is provided by the WNTI overview document referred to above. 10

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322 Transport and Transboundary Movements international organisations concerned with transport and were being used by many states worldwide for their own purposes.14 They have also now been integrated into the ECOSOC Committee’s Model Regulations, as well as remaining a stand-alone document in the IAEA Safety Standards Series.15 They provide a consistent and technically reliable way of ensuring compliance with the various international transport safety conventions discussed below, and the standards they set out are applied by designers and operators of transport packaging. In 1998, the General Conference of the IAEA formally recognised that compliance with regulations which take account of the Regulations was ‘providing a high level of safety during the transport of radioactive material’.16 The current Regulations are the 2005 edition, Safety Standards Series No TS-R-1. It is beyond the scope of this chapter to seek to describe the technical standards which they set, but they deal with general requirements (Section III); activity limits and material restrictions (Section IV); requirements for control and transport (Section V); packaging (Section VI); test procedures (Section VII); and approval and administrative requirements (Section VIII). The protection provided rests substantially on the design of packing to accommodate the hazards of the material under the various normal and abnormal conditions which may arise in transport. Primary responsibility for preparing the package for transport lies with the consignor. The packaging requirements depend on the activity of the material and the hazards it presents. They range from excepted packages (which have minimal requirements), through normal industrial packages (IP-1, IP-2 and IP-3, used for low specific activity material and surface contaminated objects), Type A packages (used for relatively small but significant quantities of material such as medical radioisotopes), Type B packages (used for materials exceeding certain activity levels, such as unencapsulated isotopes, industrial sources, fresh MOX fuel, used fuels and vitrified residues), Type C packages (used for transporting higher activity materials by air),17 and Fissile packages (for materials capable of sustaining a nuclear chain reaction). The Regulations also contain requirements as to radiation protection, emergency response, quality assurance, hazard communication and emergency response, marking and labelling. Details of a consignment so as to provide the necessary information are to be given in the transport documents. Following revision in 1996, the Regulations incorporate the IAEA’s Basic Safety Standards. Special provision is made for the transport of uranium hexafluoride, which is used in uranium enrichment processes and presents particular problems in view of its toxicity and the large quantities in which it is routinely shipped. Competent authority approval is required for packages containing more than one kilogramme of uranium hexafluoride. By the time of the revision of the UN Regulations into their 13th edition in 2005/2006, the issue of the potential vulnerability of radioactive substances in transit to terrorist activity, either as a target, or being stolen, or used as a makeshift weapon, was firmly on the agenda. This is reflected in a new set of security measures in Chapter 1.4, relating to the security of transit sites, training of personnel in security, and co-operation between those involved to exchange security-related information. There are additional requirements for 14 See, eg, the Australian Radiation Protection and Nuclear Safety Agency’s 2008 Code of Practice for the Safe Transport of Radioactive Material: www.arpansa.gov.au/Publications/codes/rps2.cfm. See also the website of STUK, the Finnish Radiation and Nuclear Safety Authority at www.stuk.fi/en_GB/. 15 For details of the ongoing work of the IAEA in this regard, see www-ns.iaea.org/tech-areas/radiation-safety/ transport.htm. 16 Resolution GC(42)/RES/13. 17 Type B packages can be used for transporting by air material of lower activity and with a limited risk of dispersion (Low Dispersion Material, or LDM).

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Safety of Transport 323 ‘high consequence’ dangerous goods, which include radioactive material in greater than specified quantities, carried in Type B or C packaging, whereby a security plan allocating responsibilities and stating measures and procedures must be put in place. Details of the full range of the published, draft and proposed safety standards on the transport of radioactive material can be found on the IAEA website.18 In addition to the Regulations, these include: —Advisory Material for the IAEA Regulations Safety Guide (TS-G-1.1, 2002); —Planning and Preparing for Emergency Response to Transport Accidents involving Radioactive Material Safety Guide (TS-G-1.2, 2002); and —Radiation Protection Programmes for the Transport of Radioactive Material Safety Guide (TS-G-1.3, 2007). As is explained below, the IAEA Regulations have fed through into the relevant Conventions dealing with different modes of transport, and in some cases into regional agreements on transport. An important symbiosis has developed between the review and the updated of these instruments, which are now generally on a two year cycle. As at the time of writing the main instruments were as follows:19 —UN Recommendations for the Transport of Dangerous Goods (2007 15th revised edition);20 —IAEA Regulations for the Safe Transport of Radioactive Material TS-R-1 (2005 edition);21 —IMO International Maritime Dangerous Goods Code (IMDG Code) (2007 edition);22 —IMO International Code for the Safe Carriage of packaged Irradiated Nuclear Fuel, Plutonium and High-level Radioactive Wastes on Board Ships (INF Code) (2000 edition);23 —ICAO Technical Instructions for the Safe Transport of Dangerous Goods by Air (2009–2010 edition); —IATA Dangerous Goods Regulations (DGR) (2008 edition);24 —UNECE European Agreement concerning the Carriage of Dangerous Goods by Road (ADR) (2009 edition);25 —OTIF Regulations concerning the International Carriage of Dangerous Goods by Rail (RID) (2007 edition);26 —UNECE European Agreement concerning the International Carriage of Dangerous Goods by Inland Waterways (ADN) (consolidated version, 2009);27 and —UPU Universal Postal Convention and Regulations (2005 edition). In some cases, in particular ADR and RID, these agreements have been adopted as legislation by the European Community: 18

IAEA, ‘Transport of radioactive material’ available at www-ns.iaea.org/standards/documents/default.asp. A useful source of the up to date position is the website of the World Nuclear Transport Institute www.wnti.co.uk/nuclear-transport-facts/regulations. 20 www.unece.org/trans/danger/publi/unrec/rev15/15files_e.html. 21 www-pub.iaea.org/MTCD/publications/PDF/Pub1225_web.pdf. 22 www.imo.org/Safety/mainframe.asp?topic_id=158. 23 www.imo.org/TCD/mainframe.asp?topic_id=354. 24 www.iata.org/ps/publications/dangerous-goods-regulations-dgr.htm. 25 ECE/TRANS/202, vols I and II available at www.unece.org/trans/danger/publi/adr/adr_e.html. 26 www.otif.org/index.php?id=143&L=2. 27 ECE/TRANS/203, vols I and II available at www.unece.org/trans/danger/publi/adn/adn2009/English/ ADN2009_vol1_e.pdf. 19

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324 Transport and Transboundary Movements —Directive 94/55/EC on approximation of laws with regard to the transport of dangerous goods by road (as amended); and —Directive 96/49/EC on the approximation of laws with regard to the transport of goods by rail (again as amended)

Carriage by Sea There have been regular shipments of nuclear fuel and separated high-level wastes by sea over many years, for example shipments of used fuel from Japan to Europe for reprocessing and return of vitrified high-level wastes to Japan, and regular coastal voyages in Sweden to move casks from coastal power stations to a centralised interim storage facility. There are some five purpose built ships designed to carry used fuel and waste transport flasks, owned by Pacific Nuclear Transport Limited, and conforming to standards set by the IMO. The company is owned by International Nuclear Services Limited (itself owned 51 per cent by Sellafield Limited and 49 per cent by the Nuclear Decommissioning Authority)28, Japanese utilities and Areva. Radioactive materials carried by sea fall within the UN Convention Law of the Sea (UNCLOS) regime. Nuclear powered ships or normal ships carrying radioactive materials on a peaceful basis enjoy the general right of innocent passage through territorial seas (Article 17) but may be required to follows designated sea lanes (Article 22) and by Article 23 must carry documents and observe special precautionary measures established for such ships by international agreements. In particular, the SOLAS international regime (Safety of Life at Sea, established following a conference convened after the loss of the Titanic in 1912) includes rules on the carriage of dangerous goods, dealt with in particular by Chapter VII of the SOLAS Convention 1974, which prohibits the carriage of dangerous goods by sea except in accordance with the Convention’s provisions, and requires member states to issue detailed instructions for the safe packaging and stowage of dangerous goods. The regime adopts the same classification system as the ECOSOC Committee’s and hence Class 7 covers radioactive material. After the SOLAS Conference in 1960, work commenced on a uniform international code for the carriage of dangerous goods by sea, through the auspices of the International Maritime Organisation, working in consultation with the ECOSOC Committee. The resulting uniform code was adopted by the IMO and became known as the International Maritime Dangerous Goods (IMDG) Code, which can be used as the basis for member states complying with their obligations under Chapter VII of the SOLAS Convention 1974. Until 2001 the IMDG Code was not mandatory and its legal status was dependent on the approach adopted by the legal system of each country. However, in 2001 the Code was made mandatory under SOLAS, with the exception of certain provisions which remained as recommendations. The IMDG Code deals with radioactive material in Class 7, and follows the principles contained in the IAEA Regulations. The Code sets out in detail the requirements for carriage of goods in each class, and has been regularly amended: it has been reformatted and aligned with the UN Model Regulations and with the other international modal codes for air and road transport. In 1993 the IMO adopted as a non-binding instrument the Code for Safe Carriage of Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes in Flasks on board 28

On the NDA, see ch 11.

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Safety of Transport 325 Ships (the INF Code) which had been developed by a joint IMO/IAEA/UNEP (United Nations Environment Programme) working group.29 Work then began in 1998 with a view to making the INF Code mandatory and the amendments to SOLAS to make it mandatory entered into force in 2001, with the Code having mandatory status from 1 January 2004. The INF Code imposes additional requirements for ships carrying INF, beyond those generally applicable under SOLAS. There are three classes of ship: INF 1, INF 2 and INF 3 which must be used depending on the type and quantity of material being carried: only Class INF 3 ships, which are purpose built, can be used to carry irradiated nuclear fuel or high-level radioactive waste.

Carriage by Air Materials such as radiopharmaceuticals, which have relatively low activity and short halflives are usually carried by aircraft. The operation of commercial civil aircraft is governed by the Chicago Convention on International Civil Aviation of 1944. The International Civil Aviation Authority is tasked with adoption of international standards, measures, practices and procedures dealing with the safety of air navigation and flight safety. Annex 18 of the Convention establishes international standards and recommended practices for the safe transport of dangerous goods by air, and is based on the recommendations of the ECOSOC Committee of Experts and the IAEA Regulations. Technical Instructions issued by the International Civil Aviation Organization (ICAO) Council have mandatory status under the Convention, and contracting parties are required to notify ICAO of any variation from the Technical Instructions in their domestic regulations. Part 2 of the Technical Instructions states the detailed requirements on the carriage of radioactive material by air. Before the development of the Technical Instructions, the carriage of dangerous goods by air was for many years carried out in accordance with the Restricted Articles Regulations (RAR) drawn up by the International Air Transport Association (IATA). In 1983 when the ICAO Technical Instructions were introduced, the RAR were redesignated as the IATA Dangerous Goods Regulations and aligned closely with the Technical Instructions; in that form they continue in use by carriers as a practical manual.

Road Transport Within Europe, the main work done on regional agreements on the land transport of dangerous goods is that of the United Nations Economic Commission for Europe (UNECE), through its Inland Transport Committee. Of central importance is the European Agreement Concerning the International Carriage of Dangerous Goods by Road (ADR) which signed in 1957 and entered into force in 1968, together with the Technical Annexes developed by the Committee’s Working Party. The ADR requirements are again based on the classification and recommendations of the ECOSOC Committee of Experts, though generally with significantly more detailed provisions. The international carriage of dangerous goods by road on the territories of contracting states is authorised so long as the goods do not fall into a prohibited category and the conditions in the Annexes are complied with. The provisions of the ADR dealing with radioactive material are consistent with the IAEA 29

IMO Assembly Resolution A.748(18).

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326 Transport and Transboundary Movements Regulations and deal with packaging, labelling, transport documents, vehicle construction, equipment and operation. Annex A contains requirements on packaging and labelling which must be followed by the consignor, and Part B deals with matters for which the carrier is responsible. There is a link with EC law, in that the requirements of the ADR’s Annexes have been annexed to Directive 94/55/EC on approximation of laws with regard to transport of dangerous goods by road and thus apply to transport both within and between Member States. Relevant issues are the segregation of radioactive materials from other materials, the appropriate labelling and vehicle placarding, and the testing of packages under both normal and accident conditions.

Rail Transport The first convention on the movement of international goods traffic by rail in Europe came into force in 1893 and contained provisions on goods which would only be accepted under certain conditions. The Regulations Concerning the International Carriage of Dangerous Goods by Rail (RID) had their origin with the Central Office30 established by that early convention. The RID are now applicable through the Convention Concerning International Carriage by Rail 1980 (COTIF) and form Annex I of the Uniform Rules under COTIF. As well as western and eastern Europe, COTIF now extends into the parts of Middle East and North Africa, since the signatories include Morocco, Syria, Tunisia and Turkey. There is collaboration through a sub-group with the UNECE Working Party on Transport of Dangerous Goods, and as with the ADR, the requirements of RID have been annexed to an EU Directive (Directive 96/49/EC) and in that way gain legal force with respect to the transport of dangerous goods by rail within the territory of EU member states. Also, there has been a process of assimilation of the requirements of the IAEA Regulations into RID, so far as the transport of radioactive substances is concerned.

Inland Waterways Regulation of the carriage of goods on Europe’s inland rivers and waterways dates back to the 1868 Treaty of Mannheim, dealing with traffic on the River Rhine. Regulations for the Carriage of Dangerous Substances on the Rhine (ADNR) were developed under that regime. The UNECE produced technical annexes on European provisions concerning the International Carriage of dangerous Goods by Inland Waterways (ADN), the provisions of which are aligned with the IAEA Regulations for the safe transport of radioactive material. During the 1990s work commenced on preparation of a European Agreement concerning International Carriage of Dangerous Goods by Inland Waterways, envisaged as having the same legal status as the ADR. This led to the ADN being adopted in 2000 as a legal instrument by UNECE and the Central Commission for the Navigation of the Rhine. The ADN includes Technical Annexes, which reflect the IAEA Regulations so far as the carriage of radioactive material is concerned.

30

Based in Berne in Switzerland and funded by contracting party contributions based on track mileages.

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UK Transport Regulations 327

Post International postal services are regulated by the Universal Postal Union, a specialised agency of the UN, and by the Universal Postal Convention of 1964. The Convention prohibits the forwarding by post of goods which by the nature of their packing may expose officials to danger, and explosive, flammable or other dangerous substances. However, it is possible for duly authorised consignors to forward certain radioactive materials by post under conditions laid down in the Detailed Regulations first drawn up in 1967. Article 121 of the Detailed Regulations deals with carriage by post of radioactive material whose contents and make up comply with regulations of the IAEA; such materials are to be admitted for carriage by post subject to the prior consent of the competent authority of the State of origin. Such items must be provided with a special label, bearing the words ‘Radioactive Material’, and should show the name and address of the sender and a conspicuous request for return of the items in the event of non-delivery. The IAEA Regulations contain provisions on packages allowed to be consigned by post, based on the very limited activity of the excepted material.

UK TRANSPORT REGULATIONS

The Radioactive Material (Road Transport) Act 1991 Provisions relating to the transport of radioactive material by road are to be found in the Radioactive Material (Road Transport) Act 1991. It applies to England, Scotland and Wales but, with the exception of section 8, does not extend to Northern Ireland. The definition of ‘radioactive material’ in subsection 1(1) of the 1991 Act is expressed in purely quantitative terms (material with a specific activity in excess of 70 kilobecquerels per kilogram), or by reference to orders made by the Secretary of State for Transport. The Radioactive Material (Road Transport) (Definition of Radioactive Material) Order 200231 has been made under this provision and provides for a much lower threshold specific activity of 0.1 kilobecquerels per kilogram. A number of other important definitions are provided in section 1. Packaging is defined in subsection 1(2) in very broad terms by reference to a wide range of packaging components including not only receptacles but absorbent materials, shielding and insulation; the term ‘radioactive package’ is defined both in terms of the radioactive material and the packaging enclosing it, where the material has been consigned for transport by road. No distinction is drawn between waste and other types of material in this regard. The point is that radioactive substances are potentially hazardous as a source of radioactivity, whether or not they may be considered as raw materials or as substances ready for disposal. The Secretary of State for Transport has broad powers under section 2 to make regulations which he believes to be necessary or expedient to avoid injury to human health, or damage to property or the environment arising out of the transport of radioactive material, and to give effect to relevant international regulations for the safe transport of radioactive 31

SI 2002 No 1092.

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328 Transport and Transboundary Movements material published by the IAEA. The central importance of IAEA regulations in this field has already been discussed. The powers provided under section 2 are extensive and may relate to various aspects of any packaging, the preparation, transport and delivery of radioactive packages, the keeping of records and the provision of information. The regulation-making powers were extended by amendments made by the Road Safety Act 2006 to allow regulations to cover enforcement matters such as inspection, removal and retention of records, the answering of questions (including making declarations of truth as to their answers), the provision of facilities and assistance to inspectors, and the imposition of requirements by inspectors. The Carriage of Dangerous Goods Regulations are the current regulations made under these provisions, and are discussed below. Policing the Radioactive Material (Road Transport) Act 1991 is largely conducted by ‘examiners’ and ‘inspectors’.32 Inspectors and examiners have the power to prohibit the driving of a vehicle used to transport radioactive packages under circumstances set out in subsection 3(1). These include occasions where the vehicle or radioactive package transported by the vehicle fails to comply with any regulations made under section 2, or where the vehicle has been involved in an accident or where a radioactive package, or material within it, has been lost or stolen. An inspector also has the power to prohibit the transport of any radioactive package, or the use of a packaging component for the packaging of radioactive materials if the package or packaging component fails to comply with any regulations made under section 2. Where a prohibition is imposed under section 3, an inspector or examiner must ‘forthwith’ give notice of that prohibition to the person in charge of the vehicle, the package, or the packaging component, whichever is relevant to the prohibition (subsection 3(5)). The notice must specify the reason for the prohibition, whether it applies absolutely or for a specified purpose, and whether it is temporary or permanent in its effect. Use of the term ‘forthwith’ implies that the notice must be given as soon as possible in the circumstances.33 There may, however, be a degree of latitude, in that failure to act forthwith may not necessarily invalidate the action if the person subject to the action did not suffer any detriment from the failure.34 Any prohibition comes into force as soon as the notice has been given appropriately (subsection 3(6)). In imposing a prohibition, an inspector or examiner also has the power to direct in writing (subsection 3(4)) that the person in charge of the relevant vehicle takes it to a specified place under specified conditions; the prohibition clearly does not apply while movement of the vehicle complies with the direction. Prohibitions under section 3 may be removed under subsection 3(7) by an inspector or examiner, as appropriate; notice of the removal of the prohibition must be given to the person in charge of the vehicle, or package or packaging component, whichever has been the cause of the prohibition. Any person who contravenes or fails to comply with the 1996 Regulations or future regulations made under section 2, or who contravenes a prohibition under section 3 or fails to comply with the direction under subsection 3(4), is guilty of an offence. Inspectors are also empowered to serve enforcement notices under section 4 where a person has failed or is likely to fail to comply with regulations made under section 2 relating to the manufacture, or requiring the maintenance, of packaging components. The notice must contain a statement of the inspector’s opinion concerning the failure to comply, a list of the 32 Inspectors are appointed under s 1(3) of the Act, whereas examiners are appointed under the Road Traffic Act 1988, as modified. 33 Re Southam, ex p Lamb [1881] 19 ChD 169 at 173. 34 Hillingdon LBC v Cutler [1968] 1 QB 124.

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UK Transport Regulations 329 failures or likely failures, the steps that need to be taken to remedy matters, and the time within which the remedy must be applied. Anyone who fails to comply with an enforcement notice is guilty of an offence. The powers of inspectors and examiners under section 4 are augmented by further powers under section 5 which permit entry into any vehicle used to transport radioactive packages so that they may determine whether any vehicle or any radioactive package carried by that vehicle fails to comply with regulations made under section 2. These powers also extend to a determination of whether any radioactive package or its contents have been lost or stolen and whether the vehicle or any radioactive package contained in it has been involved in an accident. For an inspector only, there is the additional power under subsection 5(1)(b) to enter premises to ascertain whether there is on the premises any radioactive package, packaging component or vehicle used to carry radioactive packages which fails to comply with the 1996 Regulations or future regulations made under section 2. If necessary, entry of a vehicle or premises may be secured by a warrant signed by a justice of the peace. Powers of entry include the power to seize anything which an inspector or examiner has reasonable grounds for believing is evidence in relation to an offence (subsection 5 (4)). Any person who intentionally obstructs an inspector or examiner is himself guilty of an offence (subsection 5(5)). Entry by inspectors or examiners is expressly confined to ‘all reasonable hours’. This would certainly include a time during normal business hours,35 but the question of what is a reasonable hour will necessarily depend upon the circumstances and is, therefore, a question of fact. A court is likely to give a wide latitude to inspectors in this regard where there are serious issues of safety or security that may be involved, and where those powers may well involve a vehicle on the public highway. In relation to the power given to inspectors to enter premises, it should be pointed out that ‘premises’ is not defined in the Act. In previous cases, it has been construed in such a way as to indicate a whole property which may be subject to a single occupation or a single ownership, whichever is applicable in the circumstances.36

The Carriage of Dangerous Goods Regulations The Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 200937 (the CDG Regulations) provide a comprehensive code in relation to the carriage of dangerous goods (including radioactive materials) by road and rail.38 Originally control was provided by the Radioactive Material (Road Transport) (Great Britain) Regulations 199639 made under section 2 of the Radioactive Material (Road Transport) Act 1991 (see above) with radioactive material being largely ‘carved out’ of the general CDG Regulations and the Carriage of Dangerous Goods by Road Regulations 199640 which similarly had only very limited application to material falling within the 1991 Act. The CDG Regulations also implement a number of EC requirements, in particular in this context Article 5 of Title II (Prior Information) of Directive 89/618/Euratom on informing 35

Davies v Winstanley [1930] 144 LT 433. Cadbury Bros Ltd v Sinclair [1934] 2 KB 389. 37 SI 2009 No 1348. 38 The Regulations are explained and amplified in the HSE Carriage of Dangerous Goods Manual, available at www.hse.gov.uk/cdg/manual/adrcarriage.htm. 39 SI 1996 No 1350. 40 SI 1996 No 2095. 36

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330 Transport and Transboundary Movements the general public about health protection measures to be applied and steps to be taken in the event of a radiological emergency; and Title IX, Section 1 (intervention in cases of radiological emergency) of the Basic Safety Standards Directive 96/29/Euratom.41 The Regulations draw extensively on the definitions used in ADR, RID and ADN, the scope of which is deemed by regulation 3(a) to include national as well as international carriage. Essentially the approach adopted by the new CDG Regulations, rather than spelling out the detailed requirements in the domestic regulations (as was the case with the predecessor regulations)42 is simply to provide that no person may carry dangerous goods, or cause or permit dangerous goods to be carried, where that carriage is prohibited by ADR or RID, including where that carriage does not comply with any applicable requirement of ADR or RID (regulation 5). The general provisions of Part 2 of the Regulations do not apply in relation to the carriage of Category I/II and Category III nuclear material (as defined by the Nuclear Industries Security Regulations 2003)43 to the extent that it requires compliance with the security provisions of the ADR. The requirements of Schedule 2 must be complied with in relation to radiological emergencies (regulation 24(2)). A ‘radiological emergency’ is defined by regulation 24(4) to mean a situation arising during the course of the carriage of a consignment that requires urgent action in order to protect workers, members of the public or the population (either partially or as a whole) from exposure. As mentioned above, these provisions implement requirements of Community law on radiological emergencies and intervention to prevent or reduce exposures. The requirements involve the provision of specified information to the public who may be affected by an such an emergency, including endeavouring to enter into an agreement with the local authority in the relevant area for the dissemination of the information, the monitoring of certain persons who assist in an emergency and may be exposed to radiation, the preparation of a plan setting out written emergency arrangements, immediate notification of the police and competent authority upon a notifiable event occurring, initiation of emergency arrangements, and providing assistance in the intervention made in connection with the emergency.

Transport by Road: Offences The seriousness of the potential offences that may be committed under the Radioactive Material (Road Transport) 1991 Act, going as they do to the safety and security of the public, is reflected in the level of penalties that are applicable under section 6. The offences under the Act are triable either way. In the Crown Court, the maximum penalty is an unlimited fine and imprisonment for up to two years, or both; on summary conviction, the maximum penalty is £5,000 and up to two months imprisonment, or both. Section 6 contains the familiar provision relating to potential director or senior officer liability where an offence has been committed by a body corporate. The prosecution would need to prove the consent, connivance or neglect of any director, manager, secretary or other similar officer, or any person who purports to act in any such capacity. In relation to offences by persons 41

See further, ch 7. The Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2007 No 1573. 43 See ch 8. Category I is strategic special nuclear material (ie uranium-235, uranium-233 and plutonium-239) above certain quantities, Categories II and III are lower quantities, of moderate and low strategic significance respectively. 42

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UK Transport Regulations 331 who fail to comply with any regulations under section 2, contravene a prohibition, or fail to comply with a direction under section 3, the courts may order the destruction or disposal of any relevant radioactive material and require the guilty party to meet the reasonable cost of carrying out destruction or disposal (subsection 6(4)). An example of a significant prosecution under the road transport provisions is the conviction of AEA Technology in 2006 for an incident which occurred in 2002 when a flask used to transport a cobalt 60 source from a hospital in Leeds to Windscale for disposal was found to be leaking radioactivity which could have delivered a dose exceeding the occupational exposure limit of 1 mSv/hour. A shield plug was missing from the bottom of the flask, allowing a ‘pencil-straight’ beam of radiation to escape during the three hour journey.44 Forms had been ticked to indicate that safety checks had been taken when in fact they had not. AEA pleaded guilty at Leeds Crown Court to six charges under the Health and Safety at Work, etc. Act 1974, the Ionising Radiations Regulations (IRR) 1999 and the regulations then in force under the Radioactive Material (Road Transport) Act 1991,45 and was fined £250,000, with a further £151,323 in costs. The judge indicated that if the radiation had caused harm, the fine would have been ‘measured in the millions’. The case aroused significant media interest at the time;46 however, it is fair to point out that the safety record for transporting radioactive materials in the UK since the 1950s has been very good. The Health Protection Agency in 2006 undertook a survey of all ‘occurrences’ involving such material since 1958, and found that most recorded events had not resulted in any significant health effects for workers or members of the public.47

Liability and Insurance At common law, a consignor of goods impliedly warrants that they are fit to be carried normally and are not dangerous, unless the carrier is aware that this is the case when accepting the goods.48 The consignor will be liable for all damage resulting from this breach of warranty.49 These common law requirements are of course in practice superseded by the arrangements needed to comply with the statutory requirements and by detailed conditions of carriage.50 Liability for nuclear occurrences relating to material being carried is of course within the Nuclear Installations Act regime, as are the arrangements for the insurance of such material, the law here being described in chapter six. Consignors will need to insure 44

ENDS Report 374, March 2006, 48–9. The offences were: (1) failing to ensure health and safety of employees contrary to s 2(1) HSWA 1974; (2) failing to conduct the undertaking so as to ensure that persons not in its employment were not exposed to risks contrary to s 3(1) HSWA; (3) failing to take all necessary steps to restrict, so far as reasonably practicable, the extent to which employees and others were exposed to radiation, contrary to reg 8 of the IRR 1999; (4) failing to ensure that radiation levels were adequately monitored, contrary to reg 19 of the IRR; (5) causing the package to be transported without determining the Transport Index, contrary to reg 14 of the Radioactive Material (Road Transport) Regulations 1996; and (6) failing to ensure that requirements for package inspection were satisfied before shipment, contrary to reg 31(2) of the 1996 Regulations. 46 See The Times, 18 February 2006, ‘Blunder left trail of lethal radiation’. 47 See BERR, Meeting the Energy Challenge (Cm7296, January 2008), para 2.114. 48 See C Burley Ltd v Stepney Corporation [1947] 1 All ER 507. 49 Farrant v Barnes (1862) 11 CBNS 553; Williams v East India Co (1802) 3 East 192; Great Northern Railway Co v LEP Transport & Depository Ltd [1922] 2 KB 742; Bamfield v Goole and Sheffield Transport Co Ltd [1910] 2 KB 94. 50 For a case involving a dispute between carrier and customer/recipient of scrap metal which it transpired was irradiated, see P&O Nedlloyd BV v Arab Metals Co and others [2006] EWHC 2433 (Comm); [2006] EWCA Civ 1717. 45

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332 Transport and Transboundary Movements both against third party liability for non-nuclear damage and against radiological damage falling within the Paris, Vienna and Brussels Conventions and, where appropriate, the Price-Anderson Act.

Transport of Radioactive Material by Rail Irradiated fuel flasks and other radioactive materials are carried on the UK rail network, though the number of organisations involved has decreased in recent years, the main carriers now being English and Scottish and Welsh Railways, Freightliner, Direct Rail Services (a subsidiary of BNFL) and the Ministry of Defence. Such movements, in particular those bound for Sellafield, have been the cause of concern to local residents of towns such as Preston and Lancaster through which they pass.51 In 2001 the Nuclear Trains Investigation Committee of the Greater London Authority published a report scrutinizing the transport of radioactive material from the reactors in the south-east (at that time Dungeness, Bradwell and Sizewell) to Sellafield.52 This was critical of some aspects of emergency planning, trackside security and the lack of consideration as to alternative routes bypassing the capital. Similar concerns were expressed in 2006 by the then Mayor of London, Ken Livingstone, as to movements of waste from any new nuclear power stations built in the south-east of England.53 The governing regulations are now the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009, described above in the context of road transport, and which implement RID Directive 96/49/EC on the approximation of laws with regard to the transport of dangerous goods by rail. Control was originally provided by requirements in the British Railways Board’s List of Dangerous Goods and Conditions of Acceptance by Rail on Freight Services and Parcels Services, which provided that the materials had to comply with the IAEA Regulations for the Safe Transport of Radioactive Material. On privatisation of the rail industry, new statutory controls over the carriage by rail of all dangerous goods (including radioactive materials) were provided by the Carriage of Dangerous Goods by Rail Regulations 1994. These Regulations did not include details corresponding to the RID Agreement and proposed EC Directive, but the Regulations were structured so as to allow later amendment to implement those requirements. The requirements as to the information given on placards (new UN numbers), labelling to show the value of the critical safety index (relevant to the accumulation of packages), segregation of fissile material, and requirements for the carriage of uranium hexafluoride have all become more stringent as new iterations of the RID have been assimilated. As well as the CDG Regulations, other railway specific legislation may be relevant, for example the Railways (Accident Investigation and Reporting) Regulations 2005. Railway Group Standards, formulated as part of the privatisation process, will also be relevant, and require the consignor to provide confirmation of various matters by way of notice of movements, the compliance with statutory requirements, and that wagons have been appropriately decontaminated. It is for the train operating company to hold a certificate of approval for the packaging used, and to ensure safe marshalling and passage of the consignment. 51 Greenpeace publishes a timetable of nuclear waste trains on its website at www.greenpeace.org.uk/blog/ nuclear/your-local-nuclear-waste-trains-a-timetable. 52 GLA, Scrutiny of the transportation of nuclear waste by train through London (October 2001). 53 Greater London Authority Press Release 509, 12 October 2006 available at www.london.gov.uk/view_press_ release.jsp?releaseid=9528.

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UK Transport Regulations 333 Guidance on the security of dangerous goods carried by rail has been published by the Department of Transport, which details what should be contained in the security plan for high consequence dangerous goods.54 The Department for Transport and HSE operate a Memorandum of Understanding on matters of mutual concern in relation to the carriage or radioactive material by rail, setting out respective responsibilities, working arrangements, liaison arrangements for incidents, and establishing a joint review committee.55

Transport by Sea In the UK the IMDG Code is implemented through the Merchant Shipping (Dangerous Goods and Marine Pollutants) Regulations 1997,56 which are enforced by the Maritime and Coastguard Agency,57 and by the Dangerous Substances in Harbour Areas Regulations 1987,58 which are enforced by the HSE.59 The latter regulations include requirements relating to notification of the entry of dangerous substances to harbour areas, marking and navigation of vessels, handling dangerous substances and emergency arrangements.,

Transport by Air The UK requirements on the transport of dangerous goods by air are contained in the Air Navigation (Dangerous Goods) Regulations,60 which apply to all aircraft registered in the UK, wherever operating, and to foreign-registered aircraft operating in the UK. Essentially such goods may only be carried with the approval of the Civil Aviation Authority and in accordance with the Technical Instructions of the ICAO. As a matter of practice, most operators use the IATA Dangerous Goods Regulations (which are compatible with the ICAO Technical Instructions) as an operating document, though it is the Technical Instructions which have legal effect. Useful guidance is provided by the CAA Safety Regulation Group in CAP 668, Transport by Air of Dangerous Goods, Munitions of War, Sporting Weapons and Animals.61 An operator must hold a permanent approval from the CAA before it can transport dangerous goods by air. Operators which carry radioactive materials must have a quality assurance programme relating to the transport and in-transit storage of such materials, in accordance with the IAEA Regulations. Acceptance checks must be undertaken to ensure that the packaging is fit to be transported and that associated documents are complete and accurate. There are requirements as to stowage, including for radioactive materials which emit radiation during transit (denoted by a half white and half yellow label) minimum separation distances between the package and passengers and crew. In general, the CAA has not imposed any UK-specific requirements that are additional to the internationally accepted standards in the Technical Instructions. One exception relates to the carriage of certain types of high-activity radioactive material over the UK, where it is felt that the potential for contamination in the event of a catastrophic incident justifies 54 55 56 57 58 59 60 61

Department of Transport, Guidance for the Security of Dangerous Goods by Rail (June 2005). www.hse.gov.uk/aboutus/howwework/framework/f-2001-3.htm. SI 1997 No 2367 as amended by SI 2004 No 2110. See Marine Guidance Note MGN.37(M). SI 1987 No 37. HS(R)27: A Guide to Dangerous Substances in Harbour Areas Regulations 1987. The Air Navigation (Dangerous Goods) Regulations 2002 No 2786, as amended. September 2004.

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334 Transport and Transboundary Movements further precautions. Accordingly the UK has filed a Government variation to the Technical Instructions, GB-06, requiring an operator to notify the Dangerous Goods Office of the CAA at least two working days before an overflight carrying material exceeding certain activity levels.62 Accidents and incidents involving dangerous goods must be reported to the Dangerous Goods Office of the CAA, and in addition, where radioactive materials are lost or their packing appears to be leaking or damaged, there also has to be notification of the police and Environment Agency, and in some cases the HSE or Secretary of State, depending on whether the problem arose during transport.63 In addition to the Air Navigation requirements, the transport of radioactive material by air and associated ground handling operations, will engage the more general requirements of the Ionising Radiation Regulations 1999, the Radioactive Substances Act 1993 and the Radiation (Emergency Preparedness and Public Information) Regulations 2001, all of which are discussed elsewhere. There is a Memorandum of Understanding between the HSE and the CAA’s Safety Regulation Group as to exercise of their respective functions with regard to dangerous goods in transit, including temporary storage, at aerodromes.

TRANSBOUNDARY WASTE MOVEMENTS

Generally The controversial nature of shipments of used nuclear fuel for reprocessing, and the return of the recovered and waste products of reprocessing has been discussed at the start of this chapter. To put the matter in a commercial context, of the major nuclear countries, only Britain and France have developed and retained significant reprocessing capacity. There has been demand therefore for such services from countries using US-designed reactors, following cessation of reprocessing in the US in 1977 because of concerns as to nuclear proliferation. For many years Japan sent its spent fuel for reprocessing in the UK and France under contracts with BNFL and Cogema, prior to the commissioning of its own reprocessing plant at Rokkasho-mura. Germany has also been dependent on foreign reprocessing facilities, though its policy on reprocessing versus long-term storage has varied over the years. Canada, whilst a major player in the nuclear power industry, has no domestic spent fuel reprocessing industry. The break-up of the Soviet Union added a further level of complexity to the situation. In July 2001 Russia passed legislation authorising the import and reprocessing of spent fuel, largely at the instigation of the Ministry for Atomic Energy which saw the opportunity for profitable overseas contracts with countries such as China, Japan, South Korea, Spain, Switzerland and Taiwan, assisting the country’s budget deficit to as much as US$21 billion, as well as providing much needed funds for its own nuclear decontamination programme. As well as the technical regulations and recommendations based on the safe transport and carriage of dangerous goods, there is a body of international, regional and EC law dealing with transboundary movement of hazardous wastes. In general, however, these regimes have excluded radioactive wastes, on the basis that they are governed by more specific 62

See CAP 668, para 3.4. Approximately 400 incident reports are received each year in the UK, many of which are minor in nature and require no action: see www.caa.co.uk/default.aspx?catid+1219&pagetype=90. 63

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Transboundary Waste Movements 335 systems. The UNEP Basel Convention of 1989 on the Control of Transboundary Movements of Hazardous Wastes and their Disposal does not include radioactive waste in its annexes specifying wastes covered, and specifically excludes from its scope ‘wastes which, as a result of being radioactive, are subject to other international control systems, including international instruments, applying specifically to radioactive materials’ (Article 1(3)). It has been pointed out that this wording, in particular the term ‘international control systems’, is open to interpretation, and that it is arguable that some radioactive wastes which are excluded from the pertinent IAEA systems (for example, due to their low level of radioactivity) should be controlled under the Basel Convention.64 There is nothing to suggest however, that the ‘international control systems’ in question must be identical to the Basel system. The Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management65 Article 27 establishes some mandatory requirements on transboundary movement. Contracting Parties involved in transboundary movement are to take the appropriate steps to ensure that such movement is undertaken in a manner consistent with the provisions of the Convention and relevant binding international instruments. The requirements of Article 27(1) applying to transboundary movements of spent fuel or radioactive waste are that: (i) a State of origin must take appropriate steps to ensure that movement is authorised and takes place only with prior notification and consent of the State of destination; (ii) movement through States of transit is subject to international obligations relevant to the particular modes of transport; (iii) a State of destination shall consent to a movement only if it has the administrative and technical capacity, as well as the regulatory structure, needed to manage the spent fuel or radioactive waste; (iv) a State of origin shall authorise the movement only if it can satisfy itself in advance as to compliance with requirement (iii); and (v) a State of origin shall take appropriate steps to permit reentry into its territory of a transboundary movement which cannot properly be completed, unless an alternative safe arrangement can be made. There is also a total ban by Article 27(2) on shipment of spent fuel or radioactive waste to a destination south of latitude 60 degrees south for storage or disposal. Importantly, by Article 27(3) these provisions expressly do not prejudice or affect the right of a party to export spent fuel for reprocessing, or the right of a party to which such spent fuel is exported for reprocessing to return to the State of origin, or provide for the return of, radioactive waste or other products resulting from reprocessing operations. In September 1990 the IAEA adopted a Code of Practice on International Transboundary Movement of Radioactive Waste, which has advisory status. This affirms the sovereignty of states to prohibit the movement of radioactive waste in, through and from its territory and urges states to ensure that movement of such wastes takes place only with prior notification and consent of the Sending, Receiving and Transit States. Chapter 22 of Agenda 21, adopted by the UN Conference on Environment and Development in 1992 includes a call for states to strengthen their efforts to implement the IAEA Code of Practice. At the time of negotiating the Basel Convention, the IAEA was working on the Code of Practice, which embodied most of the principles of the Basel Convention, albeit in weaker form. A number of negotiating parties to the Basel Convention had argued that the Convention should apply to radioactive waste, but as indicated above, the final decision was that it be excluded where 64 See K Kummer, International Management of Hazardous Wastes; the Basel Convention and Related Legal Rules (Oxford, Clarendon Press, 1995) 53 and 85. 65 See further ch 12.

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336 Transport and Transboundary Movements covered by other international control systems. The term ‘control system’ is obviously and deliberately broader than simply binding legal instruments and thus could, on that basis, include the IAEA systems.

European Community Regulation The main concern of the Community has been in the area of controlling the shipment of radioactive waste and radioactive substances, as part of the task of protecting the health of workers and of the general public (Euratom Treaty, Article 2(b)), particularly in the light of removal of barriers to movement of goods within the internal market. There are two main measures: Directive 2006/117/Euratom dealing with radioactive waste and spent fuel, and Regulation 93/1493/Euratom dealing with shipments of radioactive substances.

The Directive on Supervision and Control of Shipments of Radioactive Waste and Spent Fuel When the original EC Waste Shipments Directive 84/631/EEC was introduced it did not include radioactive waste. However, serious concern arose in 1988 following the ‘Mol/Transnuklear’ affair involving alleged illegal movements of radioactive waste between West Germany and the reprocessing centre at Mol in Belgium.66 This led to a resolution of the European Parliament calling for comprehensive Community Rules. At the same time, the IAEA published its Code of Practice on International Transboundary Movements of Radioactive Waste, which all Member States accepted. The outcome was agreement of Directive 92/3/Euratom. The Directive applied to shipments of radioactive waste between Member States and into and out of the Community (but not, as was originally proposed, internal movements within Member States) where the relevant quantities and concentrations exceeded the levels laid down in Article 4(a) and (b) of the BSS Directive. ‘Radioactive waste’ was defined simply to mean any material which contains or is contaminated by radionuclides and for which no use is foreseen. The Directive did not apply to the return of sealed sources by their users to their suppliers, so long as the sealed source does not contain fissile material (Article 13). Nor did it affect the right of a Member State to which waste is exported for processing, to return the waste after treatment to the country of origin, or to return waste or other products of irradiated nuclear fuel reprocessing (Article 14). In November 2004 the Commission adopted a proposal on the supervision and control of shipments of radioactive waste and spent fuel,67 which it was proposed would replace Directive 92/3/Euratom, so as to improve consistency with the relevant international requirements and extend the scope of control to spent fuel being sent for reprocessing as opposed to disposal. This proposal became Directive 2006/117/Euratom, which revokes and replaces Directive 92/3 from 25 December 2008, though the 1992 Directive continues to govern operations governed by authorisations submitted or approved before 66 See L Hancher, ‘The Transnuklear Scandal: A Case Study in European Regulation’ (1990) 53 Modern Law Review 669. Waste had been described as low level when it was in fact high level and had been inappropriately stored and in some cases dumped. The case involved bribery and fraud and involved significant parts of the West German nuclear industry and the huge Belgian Mol nuclear complex. Two of the suspects committed suicide; others were convicted in the Belgian courts of offences including falsification of papers and accepting bribes. 67 COM (2004) 716.

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Transboundary Waste Movements 337 25 December 2008.68 The recitals indicate that the need to replace the 1992 Directive stem from a number of sources: one was the need to clarify, to simplify and to address situations that had been omitted in the past; another was to guarantee consistency with other Community and international provisions, in particular the Joint Convention, to which the Community had acceded on 2 January 2006. Further, the new Directive was intended to address concerns of Member States and users of the 1992 Directive, arising from the Fifth Phase of SLIM (Simpler Legislation for the Internal Market) initiative. An important extension of the regime is that the 1992 Directive was applied in practice only to shipments of spent fuel for which no further use was intended, thus being ‘radioactive waste’ for the purposes of the Directive. The exclusion of control over spent fuel being sent for reprocessing was not seen as defensible in radiological terms and the new Directive covers all shipments of spent fuel accordingly. This was a source of some concern to the UK government in 2006 when the Directive was being negotiated, because the NDA at that time hoped to secure a substantial amount of reprocessing business and it was feared that bringing spent fuel within the regime might lead to Member States politically opposed to reprocessing causing costly delays by refusing to allow shipments to pass through their territory and territorial waters. However, the UK dropped its objection because, first, it was clear that all imports of spent fuel to the NDA under existing contracts would be completed before the new regime took effect and it seemed unlikely that a substantial amount of new business would materialise and, secondly, amendments to the draft had been secured to safeguard the free passage of ships through territorial waters and limit the grounds upon which objections could be made by States of Transit.69 The Directive applies to all transboundary shipments of radioactive waste or spent fuel, where the country of origin, or of destination or any country of transit, is a Member State of the Community and where the quantities and concentrations of the consignment exceed the levels laid down in the BSS Directive 96/29/EC Article 3(2)(a) and (b). It does not apply to shipments of disused sources70 to a supplier or manufacturer of sources, or to a recognised installation;71 nor to shipments of radioactive materials recovered, through reprocessing, for further use; nor to waste containing only naturally occurring radioactive material that does not arise from practices. Articles 2 to 4 contain a number of commercially important reservations. The Directive does not affect the right of a country or undertaking to which waste is shipped for processing to return the waste after treatment to its country of origin, or where spent fuel is shipped for reprocessing, to return radioactive waste recovered from the reprocessing operation (Article 2). Nor does it affect the right of a Member State in accordance with its own fuel cycle policy to export spent fuel for reprocessing (Article 3),72 or the right to return safely to the country of origin shipments of waste or spent fuel which were not duly authorised or radioactively contaminated waste or material containing a radioactive source, where this was not declared as radioactive waste by the country of origin (Article 4). This last aspect is an implicit recognition of the

68

Dir 06/117/Euratom, Art 22(1). See evidence of Government to House of Commons European Scrutiny Committee (3rd Report of Session 2006–2007, HC 41-iii). 70 A disused source is a sealed source (as defined in the BSS Directive) which is no longer used or intended to be used for the practice for which authorisation was granted: see Art 5(15). 71 A recognised installation is a facility which is authorised by the competent authorities of the country concerned for interim storage, or long-term storage, or disposal of sealed sources (Art 5(16)). 72 See recital (7). 69

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338 Transport and Transboundary Movements problems which have been encountered by shipments of metal wastes from Eastern Europe in particular, which have been found to contain radioactive materials.73 Chapter 2 deals with Intra-Community Shipments. An application must be made to the authority of the State of origin and transmitted to the authority of the State of destination and any States of transit. Any refusal of consent by the State of destination or of transit should be notified within two months, as should any conditions attached to consent. Such objections must be based on national, Community or international legislation applicable to transport, or to the management of waste or spent fuel (Article 9(3)).74 There is a presumption of consent if no objection is made within the relevant period.75 Nothing in the Directive should imply that a Member State has to accept shipments of radioactive waste and spent fuel for final treatment or disposal, except in the case of re-shipment.76 Once the necessary consents have been given, the authority of the State of origin may proceed to authorise the shipment. Chapter 3 deals with Extra-Community Shipments, that is imports into the Community, transit through the Community, and exports out of the Community, and apply equivalent procedures for notification, consent and authorisation. Exports from the Community will now require the consent of the country of destination. By Article 16 exports are prohibited to destinations south of latitude 60 degrees south, or to states which are parties to the Partnership Agreement between the Community and the African, Caribbean and Pacific Group of States (the Cotonou APC-EC Agreement), or to a country which in the opinion of the State of origin lacks the administrative and technical capacity and regulatory structure to manage the waste or fuel safely as required by the Joint Convention. Article 18 requires the use of a standard document for all shipment within the scope of the Directive. This document has been established by the Advisory Committee Procedure under Article 21: Commission Decision 2008/312/Euratom of 5 March 2008.77

Regulation on Shipments of Radioactive Substances Regulation 93/1493/Euratom deals with shipments of radioactive substances between Member States. The Regulation was originally seen as an urgent stop-gap measure to ensure adequate controls with the removal of internal frontier controls as part of the Single Market; however, the current intention appears to be to retain the Regulation as a separate measure, rather than incorporating controls into revisions to the Basic Safety Standards Directive. Since the Regulation is directly applicable, no changes to UK law have been made to implement it. It applies, by Article 1, to shipments between Member States of sealed 73 See recital (3) referring to the Resolution of 22 May 2002 on the establishment of national systems for surveillance and control of the presence of radioactive materials in the recycling of metallic materials in the Member States ([2002] OJ C119, 7). 74 Recital (8) says that objections should not be arbitrary and that the directive should not prejudice rights and obligations under international law, in particular, air, maritime and river navigation rights. 75 The former procedure under the 1992 Directive by which Member States could opt out of the automatic procedure (as the UK did) has been discontinued as imposing an unjustified administrative burden and creating uncertainty: see recital (9). 76 Recital (7). Recital (15) states that radioactive waste should, as far as is compatible with its safe management, be disposed of in the state in which it was generated, but that it is recognised that states should promote agreements between themselves in order to facilitate the safe and efficient management of waste or spent fuel from states that produced it in small quantities and where the establishment of appropriate facilities would not be justified from a radiological point of view. 77 [2008] OJ L107.

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Transboundary Waste Movements 339 sources (defined by the BSS directive as a source incorporated in other materials, or in a sealed container, so as to prevent dispersion of radioactivity under normal use) and other relevant sources (that is radioactive substances intended for direct or indirect use of the ionising radiations they emit for medical, veterinary, industrial, commercial, research or agricultural applications). Article 3 applies controls for the purpose of radiation protection in a non-discriminatory manner. Article 4 requires a holder of sealed sources who intends to carry out a shipment to obtain a prior written declaration by the consignee to the effect that the consignee has complied with applicable national provisions implementing the BSS Directive and any other relevant national requirements for the safe storage, use and disposal of that class of source. Standard documents for the declaration are set out in Annex I to the Regulation, and must be used. The declaration must be sent by the consignee to the competent authority of the Member State to which the shipment is to be made, which must confirm with a stamp that it has taken note of the declaration. This document must then be sent by the consignee to the holder of the substances. The declaration may refer to more than one shipment, provided that the sealed sources to which the declaration relates have essentially the same physical and chemical characteristics, do not exceed the levels of activity set out in the declaration, and the shipments are to be made from the same holder to the same consignee and involve the same competent authorities. The declaration is valid for a period of not more than three years from the date of stamping by the competent authority. By Article 6, shipments are to be notified on a quarterly basis to competent authorities in the State of destination.

Implementation of Community Requirements in the UK Being a Regulation, 93/1493/Euratom is directly applicable in the UK without transposing legislation. The shipment of radioactive waste was formerly governed by the Transfrontier Shipment of Radioactive Waste Regulations 199378 which implemented Directive 92/3/Euratom. The Government issued a consultation document on the transposition of Directive 2006/117/ Euratom in February 2008, including draft regulations.79 These new regulations, The Transfrontier Shipment of Radioactive Waste and Spent Fuel Regulations 2008,80 came into force on 25 December 2008. The main changes are that the new regulations extend the scope of the 1993 Regulations to include spent nuclear fuel for re-processing,81 as well as shipments of radioactive waste. Part 2 of the Regulations creates offences relating to the transfrontier shipment of radioactive waste or spent fuel above the quantities and concentrations laid down in the Directive, without an authorisation granted by the Environment Agency (in England and Wales), the Scottish Environment Protection Agency (in Scotland) or the Chief Inspector appointed under the Radioactive Substances Act 1993 (in Northern Ireland). They do not apply to:

78

SI 1993 No 3031. DEFRA, ‘Consultation on the transposition of Council Directive 2006/117/Euratom’ available at www.defra. gov.uk/corporate/consult/radwaste-shipments/index.htm. 80 SI 2008 No 3087. 81 ‘Spent fuel’ is defined at reg 3 to mean: ‘nuclear fuel that has been irradiated in and permanently removed from a reactor core; spent fuel may either be considered as a usable resource that can be reprocessed or be destined for final disposal with no further use foreseen and treated as radioactive waste’. 79

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340 Transport and Transboundary Movements (a) a shipment of disused sealed sources to a supplier or manufacturer of radioactive sources or to a recognised installation; (b) a shipment of radioactive materials recovered for further use through reprocessing; or (c) a shipment of waste that contains only naturally occurring radioactive material that does not arise from practices (that is human activity that can increase the exposure of individuals from a natural radioation source where natural radionuclides are processed for their radioactive, fissile or fertile properties). The Regulations set out the administrative procedures relating to such authorisations, and to consents required by competent authorities relating to granting the authorisations. Imports to the destinations prohibited under the Directive may not be authorised (regulation 8). Recipients of consignments from outside the UK must notify the competent authority within 15 days (regulation 9) and those holding an authorisation who have consigned material to outside the UK must likewise notify the UK competent authority of its arrival (regulation 10). Shipments must be accompanied by the standard documentation set out in Commission Decision 2008/312/Euratom (regulation 11). Provision is made for appeals against refusal of consent or against conditions attached (regulation 14). Part 3 deals with the procedures and penalties in respect of unlawful shipments. Schedule 1 deals with intra-Community trade. It requires applications to be transmitted to the other Community authorities concerned, but provides for the issue of the consent if no reply is received from the relevant competent authority within two months or three months if that authority requests an extension.

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11 Decommissioning and Radioactively Contaminated Land INTRODUCTION All nuclear facilities, whether power stations, research reactors, defence facilities (such as nuclear submarines), or fuel cycle production and reprocessing, will at some point reach the end of their life and will be subject to closure and decommissioning. This will entail the safe management and ultimate disposal of radioactive wastes remaining within the facility, decontamination and dismantling of the facility itself, clearance and site remediation. How and within what timescale this process proceeds will depend on the nature of the facility itself, for example, whether it is a nuclear reactor or a fuel-processing facility, but also on policy and legal factors, for example the choice of decommissioning strategy and the criteria for assessing at what point levels of radioactivity within the site are acceptable to regard decommissioning as completed and the site available for other use. The levels of radioactivity within different components of the plant will be highly variable, ranging from the removed nuclear fuel, through to steel components which have been exposed to irradiation, decontamination products from the wash-out of processing facilities, down to large quantities of mildly contaminated concrete and other materials. The difficulty of the exercise will also be affected by whether the radioactive sources have remained contained, or whether there have been releases into soil or groundwater, and how well the activities on and condition of the site have been documented. The first nuclear power stations were generally designed with a life of around 30 years, though some in the UK and elsewhere have been maintained in operation in excess of this period. Newer plants have a longer design life, of up to 60 years in some cases. Worldwide, there is a growing body of experience on decommissioning. The IAEA estimates that around the world over 350 nuclear installations, including research and medical facilities as well as power stations, are approaching or have reached the end of their operational life or have already closed and are now awaiting decommissioning. There is accordingly a very significant market for the technical and engineering services required. A summary of work which has taken place or is ongoing is provided by the World Nuclear Association’s Information Sheet on Decommissioning.1 Leaving aside the UK (discussed below) projects include the partial dismantling of EDF’s gas-cooled reactors at the Chinon, Bugey and St Laurent stations; decommissioning of the UP1 reprocessing plant at Marcoule by the French Atomic Energy Commission; the conclusion of the initial phases of decommissioning at Spain’s 1

World Nuclear Association, ‘Decommissioning Nuclear Facilities’ www.world-nuclear.org/info/inf19.html.

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342 Decommissioning and Radioactively Contaminated Land Vandellos-1 gas graphite reactor (closed after a turbine fire in 1990); immediate dismantling of the Greifswald power station in the former East Germany and the Neideraichbach power station in Bavaria; ongoing decommissioning of the Magnox reactor at Tokai-1 in Japan; and some 31 projects in the USA, where two different approaches, ‘DECON’ (immediate dismantling and early site release) and ‘SAFSTOR’ (placing the facility into a safe storage configuration for 40 to 60 years prior to dismantling).2 In some cases, sites have now been restored and released for alternative uses. International co-operation is important in this area. In 2007 the IAEA launched the International Decommissioning Network to promote the sharing of experience; it also develops Safety Standards on the subject,3 and supports a number of international demonstration projects.4 It is in the interests of the international community to ensure that decommissioning is undertaken in a timely and effective manner, both in terms of nuclear safety and in terms of safeguarding nuclear material from falling into the wrong hands. A major project, co-ordinated by the IAEA, is under way to decommission and remediate a number of sites in Iraq, many of which suffered substantial damage during the Gulf Wars and in some cases have been subject to looting of materials; this has included the drafting of a new nuclear law to provide the basis for regulating decommissioning and other radiological activities.5 The UK is a significant contributor to the US–Russian Programme to deal with the disposition of weapons grade plutonium declared surplus to requirements by the Russian Federation, and to the work on decommissioning the Chernobyl plant.6 The safe decommissioning of former Soviet nuclear submarines is another important area of international co-operation, which has yielded beneficial results.7

APPROACHES TO DECOMMISSIONING The IAEA has stated the objective of decommissioning in the following terms: The principle objective of decommissioning is to place a facility into such a condition that the decommissioned facility poses no unacceptable risk to the public, the workers or the environment . . . The key objectives associated with the development and implementation of decommissioning strategies are:

2 ‘DECON’ projects include Shippingport, Pennsylvania (the world’s first large scale nuclear power plant, opened in 1957), Fort St Vrain, Colorado (the only US high temperature gas cooled reactor), Yankee Rowe (Massachusetts), Maine Yankee, and Big Rock Point (Michigan). ‘SAFSTOR’ projects include Three Mile Island 2 and San Onofre 1 (California). See www.nrc.gov/reading-rm/doc-collections/fact-sheets/decommissioning.html. 3 Important Safety and Technical Reports in the IAEA series include: Decommissioning Techniques for Research Reactors (Technical Reports Series No 373, 1994); Safe Enclosure of Shutdown Nuclear Reactors (Technical Reports Series No 375, 1995); Safe Enclosure of Nuclear Facilities During Deferred Decommissioning (Safety Reports Series No 26, 2003); Standard Format and Content for Safety Related Decommissioning Documents (Safety Reports Series No 45, 2005); Decommissioning Strategies (Safety Reports Series No 50, 2007); Financial Aspects of Decommissioning (TECDOC Series No 1476, 2005); Managing the socioeconomic impact of the decommissioning of nuclear facilities (Technical Report Series 464, 2008); Safety Assessment for the Decommissioning of facilities using radioactive material (WS-G5.2 Safety Guide, 2009). 4 IAEA, ‘IAEA Decommissioning Activities’ available at goto.iaea.org/decommissioning. 5 IAEA, ‘Project on the Iraq former nuclear complex’ available at www-ns.iaea.org/projects/iraq. 6 See www.berr.gov.uk/whatwedo/energy/non-proliferation/global-threat-reduction/portfolio/decommissioningcee-fsu/index.html. 7 See further ch 8.

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Convention Obligations 343 (a) To ensure the continued safety of the public and the workforce and the protection of the environment. (b) To reduce health hazards through proper planning of associated tasks. (c) To achieve an appropriate balance in the use of environmental, social and economic resources, both now and in the future. (d) To remove facilities, material, equipment and sites from regulatory control wherever possible.8

There are three basic approaches to decommissioning which have been categorised by the IAEA:9 1. Immediate dismantling. This is the preferred strategy of the IAEA, whereby dismantling, processing and removal of material takes place shortly after permanent cessation of operational activities, normally within two years. 2. Deferred dismantling. This involves placing the facility in a safe condition for a period of some years, possibly 50 years or more, before dismantling. The rationale for deferred dismantling can be awaiting closure of other units on the same site, to allow a coordinated approach, especially where common systems are shared. 3. Entombment. Here the radioactive contaminants are encased in a structurally longlasting material to allow for decay of the radioactive elements to acceptable levels. The facility will become designated as a near surface waste disposal site. This approach is not suitable for facilities containing long-lived isotopes which are not suitable for nearsurface disposal.

CONVENTION OBLIGATIONS Under the IAEA Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management10 the Contracting Parties have a number of obligations relating to measures after closure and decommissioning. By Article 17 steps must be taken to ensure that after closure, relevant records of the design and inventories are preserved, that active or passive institutional controls such as monitoring are carried out, and that necessary intervention measures are taken if an unplanned release of radioactive materials into the environment is detected. By Article 26, steps shall be taken to ensure the safety of decommissioning, in terms of qualified staff and adequate financial resources, radiation protection measures are implemented with regard to occupational exposure of workers and to any releases, that emergency preparedness arrangements are in place, and that records of relevant information are kept. Euratom ratified the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management on 2 December 2006.

EU DEVELOPMENTS For some years there has been a focus within the Commission on the question of decommissioning of nuclear facilities, which has gained added impetus with the accession of East European states. However, to date there is no binding legislation specifically on the subject. 8

Decommissioning Strategies for Facilities using Radioactive Material (Safety Reports Series No 50, 2007) para

2.1. 9 10

Ibid, paras 2.2–2.4. Vienna 1997, in force June 2001.

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344 Decommissioning and Radioactively Contaminated Land Since 1979 the Commission have conducted successive five-year research programmes on decommissioning, with the objective of establishing technical approaches that are safe, socially acceptable and economically affordable. In November 2002 the Commission published its Communication on Nuclear Safety in the European Union,11 which focused on decommissioning as a problematic issue. The Commission noted that a significant number of nuclear installations in the EU were coming to the end of their active lives, and that the EU had requested the closure of eight nuclear reactors in what were then candidate accession countries, between 2002 and 2009.12 At the same time, a number of the major nuclear states in western Europe had announced moratoria on the construction of new nuclear power plants. These facts were regarded as underlining the need for clear provisions at Community level to be put in place in order to fund decommissioning, to guarantee that such closures could be achieved to the highest safety standards. Standards drawn up under the aegis of the IAEA were regarded as making an important contribution to improving nuclear safety, but are not legally binding and could not, in the view of the Commission, always be directly applied to the technological realities of the European nuclear industry. There were significant variations between states on the amount of decommissioning funds required and how these were regulated, and in some case there were concerns as to the adequacy of funds and the misuse of funds. On 30 January 2003 the Commission published a package of legislative proposals including a proposal for a Directive on the safety of nuclear installations, including decommissioning.13 In particular, in relation to the decommissioning of nuclear facilities, the Explanatory Memorandum noted that if the process did not start as planned, or was carried out inadequately, or abandoned for lack of funds, there would be severe implications for waste management and radiological safety, so that one of the fundamental objectives of the Euratom Treaty would not be met. The draft Directive defined the Community rules for the establishment, management and use of decommissioning funds to be created from contributions by operators of nuclear installations during their operation, meeting the minimum criteria set out in the Annex to the proposed Directive, and to be allocated to a body with legal personality separate from that of the nuclear operator. This fund must be able to guarantee the availability and sufficiency of resources so that the decommissioning operations could be carried out in conditions which protect the general public and the environment from ionising radiation. The proposal was warmly endorsed by the European Parliament, but not by all Member States. An amended proposal for a Directive was published on 8 September 2004,14 noting that the European Parliament viewed the creation of minimum standards on the funding of decommissioning as imperative, not only from a radiological protection point of view, but also because divergent methods could lead to distortions of competition within the internal market for electricity. The Explanatory Memorandum stated that, to meet these expectations, it would be necessary to include a provision which guaranteed the availability of financial resources and their assignment to decommissioning, but that in view of the opposition of a majority of Member States in Council to adoption of a substantial provision, the Commission proposed to drop the requirement. 11

COM(2002) 605 final. For example, the Ignalina plant in Lithuania, the decommissioning of which was ultimately funded by a special fund administered by the European Bank for Reconstruction and Development, to which the EU was the main contributor, as was also the case with the Bohunice VI plant in Slovakia. 13 COM(2003) 32 final. 14 COM(2004) 526 final. 12

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EU Developments 345 In October 2004 the Commission published a Communication,15 re-emphasising the importance of the subject, the divergent approaches within Member States, the need for a better understanding of approaches in different Member States,16 and also signalling the intention to come forward with a Recommendation on the subject, pending the adoption of any legislation, asking Member States to ensure that financial resources were set aside for decommissioning and that they were managed with complete transparency. The Commission published its Recommendation on 28 November 2006 containing the following recommendations: (a) Where not already provided for, Member States should set up or appoint a national body capable of providing an expert judgment on fund management and decommissioning cost matters. This body should be independent as regards the contributors to the fund. The national body should annually review the financial resources gathered and periodically, at least every five years, the decommissioning cost estimates. Any shortfall between cost estimates and resources gathered should be addressed in good time. Member States should report annually on the conclusions of the proceedings of the relevant national body mentioned above to the Commission. (b) Nuclear installations should set up adequate decommissioning funds on the basis of the revenues obtained from their nuclear activities during the designed lifetime. A segregated fund with appropriate control on prudent use should be the preferred option for all nuclear installations. The review of the national body provided for in this Recommendation should play a key role in ensuring proper management and use of the funds. New nuclear installations should set up segregated decommissioning funds with appropriate control on prudent use. (c) In view of the differences in the use of the decommissioning funds gathered, technical decommissioning of the installation, on the one hand, and waste management, on the other, should be addressed separately, on the basis of separate cost calculations. In order to ensure that adequate financial resources are available, cost calculations should be based upon a prudent choice from the realistically available alternatives and subject to the external supervision and agreement of the national body. All cost estimates should be site-specific and based upon best available estimates. If during implementation the decommissioning project proves to be more expensive than the approved cost estimates, the operator should cover the additional expenses. This aspect should be carefully addressed should the operator change during or beyond the lifetime of the nuclear installation. (d) Financial resources should be used only for the purpose for which they have been established and managed. In this context, due consideration should be given to transparency. All commercially non-sensitive information should be publicly available. A secure risk profile should be sought in the investment of the assets, ensuring that a positive return is achieved over any given period of time. The value of the investments should be guaranteed by the State in order to ensure that adequate funds are available 15

COM(2004) 719 final. For example, six countries (Finland, Germany, Italy, Lithuania, Slovenia and Spain) had adopted the policy of immediate decommissioning, four (the Czech Republic, Hungary, the Netherlands and Slovakia) had opted for deferred decommissioning, and four (Belgium, France, Sweden and the UK) had no clear policy. Similarly, 10 countries (the Czech Republic, Finland, Hungary, Italy, Lithuania, the Netherlands, Slovakia, Slovenia, Spain and Sweden) had chosen the more transparent option of external management of decommissioning funds, whereas in France and Germany financial provision was made in the accounts of electricity producers. 16

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346 Decommissioning and Radioactively Contaminated Land when required, even if a nominal loss is made by the independent manager of the invested amounts by the time these financial resources are to be used. If the management of an internal fund underperforms, the operator should be responsible for ensuring that adequate funds are available when needed.17 Apart from any Community specific rules on decommissioning, a number of existing measures are relevant. These include the application of the Basic Safety Standards on radiological protection, and Directives on the protection of workers. The dismantling or decommissioning of a nuclear power station or other nuclear reactor (except research installations for the production and conversion of fissionable and fertile materials, whose maximum power does not exceed 1 kilowatt continuous load) is an Annex I project under Directive 85/337/EEC on environmental impact assessment (as amended by Directive 97/11/EC) and as such must be subject to a procedure for development consent and to assessment of effects in accordance with the Directive before such consent is given. The Commission has, however, noted that, existing decommissioning plans have tended to focus on the radiological impacts, rather than the wider range of environmental effects required by the Directive.18 Further, the provisions relating to the European internal electricity market (see Directive 96/92/EC) require transparency in accounts for production, transmission and distribution, which means that a clear overview should be given of the estimated final costs of decommissioning and their effect on electricity prices.

DECOMMISSIONING OF EXISTING FACILITIES IN THE UK: INTRODUCTION Many nuclear facilities in the UK date back to the 1960s or earlier and have reached the stage where decommissioning has to be addressed. These include facilities developed in the 1940s, 50s and 60s to support the UK’s research programmes, such as parts of the BNFL site at Sellafield (fuel recycling operations, opened 1947); Capenhurst (diffusion plant) and Springfields (fuel manufacture since 1946); and UKAEA sites at Dounreay (fast reactor research laboratories); Winfrith (a centre for prototype reactor development in the 1960s); Harwell (the UK’s first centre for nuclear research and development, including low energy and materials testing reactors); and Windscale (an enclave within Sellafield, including the Windscale Piles and the prototype Advanced Gas-Cooled Reactor). They also include the early Magnox power stations built in the 1960s, such as Hinkley Point A (1965–2000), Bradwell (1962–2002), Chapelcross (1959–2005), Hunterston A (1964–90), Sizewell A (1966–2006), Transfynydd (1965–93), Wylfa (opened 1971, due to close 2010) and Berkeley (including a number of specialist laboratories and cells). The work streams involved in such projects provide lucrative opportunities for companies with experience in the field. In 2006 it was reported that the ‘scramble’ for contracts said to be worth some £56 billon had commenced, with the UKAEA having formed an alliance with AMEC, the British engineering and oil serviced group, and CH2M Hill, the US nuclear decommissioning company responsible for decommissioning the Rocky Flats former nuclear weapons facility in Colorado.19 17 18 19

2006/851/Euratom. See COM(2004) 719 final. The Times, 17 January 2006.

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Decommissioning of Existing UK Facilities 347 Substantially the whole cost of decommissioning these so-called legacy facilities falls to the taxpayer.20 Originally the process was managed by BNFL and UKAEA, the cost being estimated in March 2002 as some £41 billion in respect of BNFL sites and around £5.4 billion for UKAEA sites. These figures did not take account of the costs in respect of liabilities arising from defence programmes, other than those relating to the BNFL or UKAEA sites. In July 2002 the Government published a White Paper, Managing the Nuclear Legacy: A strategy for action.21 This stated that whilst BNFL and UKAEA had made steady progress, a different approach was required for a programme which was described as ‘one of the most important and demanding managerial, technical and environmental challenges facing the UK over the next century and one offering major opportunities for those involved in it’.22 It was, therefore, proposed to set up a new Liabilities Management Authority responsible to Government and with the specific remit of ensuring a safe, secure and cost-effective clean up of the nuclear legacy. Competition through contracts for clean up projects would be central to this approach. The transfer of assets and liabilities to the new body would have fundamental implications for the structuring of BNFL. The new body would take on legal and financial responsibility for the Sellafield site, the Magnox fleet of power stations, the Capenhurst site and the low level waste (LLW) repository at Drigg; a new company (new BNFL) would be created, owned by the Secretary of State, which would include a utility product and services business and a government contracting business. The existing company BNFL plc and its subsidiary Magnox Electric plc would continue in being, owned by new BNFL and would continue to operate the sites under contract to the new authority, until new contracts were placed either with BNFL, Magnox Electric, or other contractors. Similarly, the new body would take on responsibility for UKAEA’s sites, though UKAEA would continue to operate them for the time being under performance-based contracts. The White Paper was clear that both BNFL and UKAEA would have to demonstrate their ongoing suitability and effectiveness as facilities managers; the alternative would be the creation of licensee companies to operate the sites and contracts for their management awarded by competitive tender. Funding of clean up prior to the White Paper was provided in part by the taxpayer (in respect of UKAEA liabilities, MoD liabilities and (from 2008) the Magnox fleet), in part by BNFL, and in part by BNFL’s customers. BNFL met its share from its own funds, in the form of the Nuclear Liabilities Investment Portfolio (NLIP), held in cash, Government stocks and short term investments, which as at 2002, amounted to about £4 billion. Apart from the NLIP being transferred to the Government under the new arrangements, the Government canvassed two new options for funding clean up. These were: (1) a segregated fund, akin to a pension fund, set up by statute; and (2) a statutory segregated account, akin to a savings account kept by the Secretary of State, which could only be used for the relevant purposes. Both would require ongoing annual payments by the Government and would represent a significant long-term commitment. 20 In 1986 the Government accepted full financial responsibility for liabilities arising from Government nuclear R&D programmes carried out by UKAEA; in 1998 under the so-called ‘Magnox Undertaking’, as part of the reorganisation of the electricity industry and the privatisation of British Energy, the Government agreed to accept responsibility for costs relating to the decommissioning of the Magnox stations and the reprocessing of Magnox fuel; in 2001 the Government announced that it intended to accept direct financial responsibility for liabilities managed by BNFL, except for matters covered by commercial contracts between BNFL and commercial customers whereby the customers contribute to decommissioning costs on a scale reflecting the service provided to them by BNFL. 21 Cm 5552. 22 Ibid, para 1.16.

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348 Decommissioning and Radioactively Contaminated Land

THE NUCLEAR DECOMMISSIONING AUTHORITY The Energy Act 2004, Part I, created the body foreshadowed in the White Paper, now named the Nuclear Decommissioning Authority. The NDA is a body corporate, the constitution of which is governed by the Act. Its principal statutory function by section 3(1) is to have responsibility for securing: (a) (b) (c) (d)

the operation of designated nuclear installations, pending their decommissioning; the decommissioning of designated installations; the cleaning up of designated nuclear sites; the operation of designated facilities for treating, storing, transporting or disposing of hazardous material (nuclear matter, radioactive waste and any other article or substance which is contaminated, whether radioactively or chemically, as a result of nuclear activities); and (e) the treatment, storage, transportation and disposal of hazardous material in designated circumstances; and the decommissioning of designated installations comprised in NDA facilities. In addition, the NDA may be given additional responsibilities under directions by the Secretary of State (section 4) and has a number of supplemental functions, such as carrying out research on relevant issues, education and training, and giving encouragement and other support to activities that benefit the social and economic life of communities living near designated installations or sites (section 7). The NDA is under a number of general duties when carrying out its functions, which include: (a) having particular regard to relevant Government policy, to the need to safeguard the environment, to the need to protect persons from risks to their health and safety, and to the need to preserve nuclear security; (b) promoting and ensuring the maintenance in the UK of a skilled workforce able to undertake decommissioning and clean up; (c) promoting effective competition for contracts; (d) securing the adoption of good practice by the persons with control of designated sites and installations; (e) subject to the foregoing duties, to secure value for money; and (f) in respect of the operation and management of facilities and sites, to act in the manner that it considers is most beneficial to the public. The NDA must prepare a strategy for carrying out its functions (section 11), annual plans (section 13) and annual reports (section 14). Under section 18 the NDA may give directions to the person in control of relevant installations or sites, which that person must comply with and which the NDA may enforce in civil proceedings (section 20(2)). However, such directions may only be given for the purpose of giving effect to the NDA’s annual plan (section 18(5)), nor can the direction authorise a contravention of any obligation which the person in control is subject to by or under any enactment—for example the terms of the nuclear site licence, or any authorisation regarding disposal of radioactive waste, or any environmental permit or other discharge consent, or any obligation under general health and safety or radiological protection legislation. By section 17(2), the person having control of the installation or site is under a duty to ensure it is not used except for purpose which

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The Nuclear Decommissioning Authority 349 will ensure that there is no contravention of any statutory obligations imposed on the person having such control. The issue of financial responsibility for decommissioning is of critical importance. Section 21 of the Energy Act makes clear that this responsibility is the NDA’s alone in respect of designated installations. Where a person other than the NDA (that is a contractor) has control of the installation, that person is not liable for meeting the costs of the matters for which the NDA is responsible, and the NDA must meet the costs of the contractor in doing what they are authorised or required to do, and cannot impose charges on that person or require them to make financial provision in respect of those matters. The contractor may be liable to persons other than the NDA in respect of these matters, for example regulatory or third party liabilities, but the NDA must make arrangements for securing that the person with control is able to meet such liabilities as they become due.23 The NDA’s funding derives from grants made by the Secretary of State under section 22, or from borrowing from the Secretary of State or from third parties with the consent of the Secretary of State under section 23. Current information on the NDA’s designated sites and activities is available on its website,24 including its Strategy, Annual Plans and Reports and Socio-Economic Policy. The NDA is responsible for some 39 reactors, five fuel reprocessing plants, three fuel fabrication plants, one redundant enrichment plant and five nuclear laboratory complexes. Information is also provided on the NDA contracting process. In 2005, as a temporary expedient the NDA granted BNFL and the UKAEA transitional site management contracts. Since then the NDA has entered into a major procurement process, with commercial competitions for the longterm contracts to manage the sites. As explained further below, this involved the NDA forming in 2007 seven new Site Licence Companies (SLCs) which hold the nuclear site licence for the relevant site and enter into direct contractual arrangements with the NDA for the relevant services. Companies or consortia then bid for the role of managing each SLC. The competition processes are managed in accordance with EC procurement requirements. Essentially, suppliers may enter into contracts relating to the provision of goods and services at three different levels:25 1. Direct contracts with the NDA. These include contracts for internal operations within the NDA, for example on safety and environmental management or on strategic planning, and the Tier 1 management and operation contracts entered into with SLCs. 2. As a Parent Body Organisation. This is the key format used for NDAs contracting in relation to specific sites or groups of sites and is discussed further below. 3. Directly with Site Licence Companies. The NDA does not currently procure goods or service for SLCs and tendering opportunities for so-called Second Tier subcontractors can be obtained on the various SLC websites. However, the NDA does impose a significant degree of control over the context of such contracts. The SLCs have, of course, been procuring in their capacity as site operators for many years and have developed their own supply chain arrangements based on historic business needs. The NDA is looking at collaborative procurement arrangements for certain requirements, which will cover all SLCs, and has standardised certain terms—‘flowdowns’—which it requires SLCs to 23

Section 21(5) and (6). www.nda.gov.uk/. 25 In July 2008, the NDA published for consultation its Supply Chain Development Strategy, which is part of the work to standardise decommissioning contracts which began within the NDA in April 2008. 24

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350 Decommissioning and Radioactively Contaminated Land include in their contracts with others, including issues such as intellectual property rights, nuclear liabilities, assignability and termination rights.

SITE LICENCE COMPANIES AND PARENT BODY ORGANISATIONS The NDA’s contracting structure involves the creation of an SLC which operates the site pursuant to a Tier 1 management and operation contract with the NDA and employs the workforce, thereby ensuring continuity. The Parent Body Organisation (PBO) owns shares in the relevant SLC, which could relate to a large complex site such as Dounreay, or to multiple sites (such as a group of Magnox Stations), or to smaller single sites such as the LLW Repository at Drigg. There are a number of SLCs: Sellafield Ltd,26 Magnox Electric Ltd,27 Nuclear Sites Ltd (covering Springfields),28 LLW Repository Ltd (Drigg),29 Dounreay Site Restoration Ltd,30 and UKAEA Ltd.31 The role of the PBO32 is put out to competitive tender, leading to a Parent Company Agreement between the NDA and the chosen PBO and a management and operation contract between the PBO and the SLC. The starting point is that the SLC will have the technical capability to fulfil its role in operating the site; the PBO will not necessarily be a nuclear operator, and what the NDA is seeking is an ‘intelligent owner’ to provide leadership. The shares in the SLC are transferred to the PBO, and the PBO provides a seconded management team into the SLC. The first PBO competition to be initiated was in relation to the LLW Repository at Drigg (including the development of a UK-wide strategy for managing low-level waste from the nuclear industry). The invitation to tender was issued in October 2006 and the contract was awarded in March 2008 to UK Nuclear Waste Management Limited, a consortium led by the US firm URS Corporation, with an initial term of five years and a value of between £200 and 500 million. The largest PBO relates to Sellafield, where four bidders submitted final tenders, and where the NDA announced on 11 July 2008 that the current preferred bidder was Nuclear Management Partners Limited, a consortium consisting of Washington International Holdings (now a division of URS Corporation), AMEC and AREVA NC. The estimated turnover during the five year plus contract is over £5 billion, with an estimated profit potential in excess of 4 per cent. A prior information notice has been published in the Official Journal for a PBO competition for Magnox South SLC, covering five Magnox sites in the south of England. The process of creating an SLC and the transfer of its shares to a PBO will raise regulatory issues on control of safety critical operations and on management of change.33

26

See www.sellafieldsites.com. See www.magnoxelectric.com. 28 See www.nuclearsites.co.uk. 29 See www.llwrsite.com. 30 See www.dounreay.com. 31 See www.ukaea.co.uk. UKAEA is currently, in partnership with engineering companies AMEC and CH2M Hill, engaged in cleaning out and dismantling the Windscale Pile 1 which was damaged in the 1957 fire: see ENDS Report 392, September 2007, 6–7. The work began in 1995. 32 Following creation of the NDA, the initial PBOs were: UKAEA, British Nuclear Group Ltd (part of BNFL), Reactor Sites Management Co Ltd (part of the private company EnergySolutions, which acquired Magnox Electric Ltd from BNFL in June 2007) and Westinghouse Electric Co (part of the Toshiba Group). 33 See further ch 4 on nuclear site licensing and the discussion below on regulatory aspects of decommissioning. 27

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Independent Scrutiny 351

INDEPENDENT SCRUTINY In January 2008 the National Audit Office (NAO) published a report on the work of the NDA, ‘Taking Forward Decommissioning’.34 This report pointed out that the nature and scale of the decommissioning task inherited by the NDA was highly uncertain, but that the most recent iterations of the NDA’s plans have continued to produce large increases in estimates,35 and suggested that the use of a basic cost reimbursable management and operation contract across all sites means that increases in costs are borne by the taxpayer and that the relatively short-term incentive regimes involved are not well-suited to the longer timescales involved in delivering the projects. The NAO recommended a move towards more commercial mechanisms, including fixed price or target cost plus fee in appropriate cases, reviewing intellectual property provisions to maximise the NDA’s share of the benefits of innovation, and moving to multi-year performance milestones aligned with project timetables. It was also suggested that the NDA needs to determine the reasons for the continuing increases in cost estimates and strengthen its capacity to scrutinise the estimates put forward by SLCs in their lifetime plans submitted for sites. It was also noted that the appointment of PBOs drawn from the private sector introduced a new set of relationships to manage in the regulatory context, and that while there had been efforts to clarify the respective roles of the relevant parties, the framework remains relatively new and untested. The NAO remarked on a tension between the NDA’s duties under the Energy Act 2004 and the site licensee’s responsibility for controlling all activity on site: this had led the NDA to take a restricted view of its freedom to influence contractors in how work should be done, for fear of cutting across their responsibilities and being deemed to have taken control.36 Further critical attention was focused on the NDA’s work in April 2008, with the publication of the House of Commons Business and Enterprise Committee Report, ‘Funding the Nuclear Decommissioning Authority’.37 The context of this Report was that the 2008 Spring Supplementary Estimate for DBERR had asked for an additional £400 million to be made available to the NDA for the financial year 2007/08, and the Committee found it ‘very surprising to receive so late in the financial year a supplementary estimate for such a significant sum—around 10% of BERR’s total Departmental Expenditure Limit’. The circumstances which had prompted the problems related to technical issues concerning the financial treatment of waste substitution contracts between the NDA and overseas customers, and reduced income from other sources because of technical reasons. However, the Committee expressed serious and more general concerns over the funding of the NDA: Public funding for the NDA will almost certainly have to increase significantly in the coming years over and above current plans. If nuclear decommissioning is going to be carried out as planned this has major implications for the Department for Business, Enterprise and Regulatory Reform, which already spends over 40% of its Departmental Expenditure Limit on the NDA . . . Government departments that have experienced funding problems in one area of their activities have often had to make reductions in other unrelated areas. The scale of the NDA as a proportion of BERR’s overall budget makes such a prospect completely unacceptable in this case . . . 34

HC 218 Session 2007–2008. Around £61 billion for decommissioning as at 2007, plus a further £12 billion to cover the cost of running operational facilities to the end of their projected commercial life. 36 HC 218 Session 2007–08, para 4.3. 37 HC 209 Session 2007–08. 35

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352 Decommissioning and Radioactively Contaminated Land We believe the NDA’s funding model is unsustainable. We note the Department’s assurances that a solution has been found for the current Comprehensive Spending Review period. However, in view of the volatile—and declining—nature of the NDA’s commercial income we are sceptical about how watertight such an assurance can be. Nuclear decommissioning is too important to be left to the mercy of changing priorities in the Treasury and uncertain commercial income; as the Permanent Secretary acknowledged, a new system of funding is needed, and work on this needs to begin urgently.38

The NDA’s process does indeed present commercial risks for the Government and taxpayers.39 It is designed to encourage a vibrant market in decommissioning services and by competition to drive down costs. The attraction for the contractors is the securing of a stable baseload of Government-funded work at a reasonable profit level and relatively low risk. The risk to the taxpayer is of market consolidation leading to fewer, larger companies or consortia, coupled with an understandable reluctance to go outside the circle of trusted contractors for such potentially high profile work, leading over time to a reduction in competition and escalating costs. It remains to be seen whether this will be the case.

REGULATORY ASPECTS OF DECOMMISSIONING This issue has already been touched on in the context of the contractual structures being created by the NDA. Reference should also be made to the general treatment of nuclear site licensing in chapter four. Decommissioning is an aspect of the operation of a nuclear installation controlled by nuclear site licensing conditions. Standard Condition 35 requires the licensee to make and implement adequate arrangements for the decommissioning of any plant or process which may affect safety, and to make arrangements for the production and implementation of decommissioning programmes to be submitted to the HSE for approval. The arrangements should, where appropriate, divide the decommissioning into stages, so that the licensee cannot proceed from one stage to the next without the consent of HSE, which also has power to direct the licensee to halt decommissioning. An example of how the Condition operates in practice can be seen from the Nuclear Installations Inspectorate (NII) statement regarding enforcement action taken at UKAEA’s Winfrith and Harwell sites.40 UKAEA had drawn up work programmes for the sites which were largely compliant with LC 35 and which were published in the relevant site Lifetime Plan. UKAEA then departed from the published plan by making substantial changes without first demonstrating that their outcome remained compliant. NII issued a Specification under LC 35(3) requiring UKAEA to submit the relevant parts of the plan for approval, targeting the major hazard plant areas on the site and their long-term decommissioning timescales. The creation of new Site Licensee Companies and their management control by successful tendering companies raises further licensing issues that the HSE must address, and a further relevant Condition is LC 36, dealing with control of organisational change.41 A 38 Ibid, paras 31–7. The Government published a response to the Committee’s report in July 2008: HC 944, Session 2007–2008, 21 July 2008. 39 See the detailed discussion in Ian Jackson, Nukenomics: the Commercialisation of Britain’s Nuclear Industry (London, Nuclear Engineering International Special Publications, 2008) 11–18 40 28 January 2008 available at www.hse.gov.uk/nuclear/winharlc35enf.htm. 41 See further discussion in ch 4.

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Environmental Impact Assessment 353 Memorandum of Understanding (MoU) was signed between the HSE and the NDA in March 2005, which represents a statement of common purpose with respect to the decommissioning and clean up of designated sites, installations and facilities, recognising that the obligations placed on site licensees and operators of designated sites by the HSE and the NDA should, so far as practicable, be mutually consistent. Beyond mutual commitment to co-operative working, the MoU, however, gives little firm information on how the process will work in practice—perhaps not surprisingly given that it was signed at the inception of the NDA’s work. More informative is the HSE Note, ‘Financial Implications of Licence Condition Compliance at NDA Sites’.42 This recognises that (as discussed above) section 21 of the Energy Act means that financial responsibility for designated sites lies with the NDA and that the site licensee cannot be made liable for those costs, or required to make continued financial provision for them. The NDA has provided assurances on such funding to the HSE, though ultimately the NDA is, of course, reliant on the Government (through the taxpayer) to provide the necessary money. At the same time, the non-prescriptive nature of site licensing means that the onus is on the licensee as the user of the site to make adequate arrangements to show that risks are properly controlled and that radioactive waste is properly managed: complying with those conditions will inevitably carry financial costs— potentially very heavy costs in relation to clean up—but not to do so will risk breach of the criminal law. Therefore the HSE has a strong interest in whether the SLC has a reasonable expectation of access to sufficient resources to enable it to comply with the licence conditions. On the basis that under the statutory framework of the Energy Act 2004 the SLC must be reimbursed for the costs of operating and decommissioning the site in accordance with licence conditions and other applicable statutory requirements, and on the basis of the NDA’s own published statement, the HSE is satisfied that there will be adequate funding. This deals with the financial resources aspect of being a fit company to hold a nuclear site licence, but other relevant aspects of technical competence, staffing, managerial competence and organisational structures and control, will have to be addressed on an individual case by case basis.

ENVIRONMENTAL IMPACT ASSESSMENT The fact that EC requirements on EIA apply to nuclear decommissioning activities has already been noted. These requirements are transposed into UK law by the Nuclear Reactors (Environmental Impact Assessment for Decommissioning) Regulations 1999 (the IADR).43 The HSE as the competent authority has produced Guidance and Technical Guidance Notes on these Regulations.44 The EIADR apply to the decommissioning and dismantling of nuclear power stations and other reactors and associated plant and buildings and land contaminated as a result of the operation of the reactor. The requirements now extend to projects serving national defence unless the Secretary of State is of the opinion that this would have an adverse effect on the defence purposes of the project.45 By regulation 2(1) the 42

August 2006. SI 1999 No 2892, as amended by SI 2006 No 657. www.hse.gov.uk/nuclear/eiadr.htm. 45 The project may, of course, not be for defence purposes at all, if, it is dealing with facilities or wastes from defence activities which serve no further useful defence purpose. The HSE Guidance states that it considers plants and sites that are currently owned by, or operated on behalf of, MoD to be projects serving national defence purposes. 43 44

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354 Decommissioning and Radioactively Contaminated Land removal of fuel elements, cartridges or control rods in accordance with normal operating procedures, and removal of waste or decontamination work similarly carried out are not subject to the Regulations. Also, dismantling or decommissioning of a nuclear power station or nuclear reactor are not treated as having commenced unless plant or equipment is disabled or removed for the purpose of permanently preventing the continued operation of that station or reactor. The licensee may not commence the project unless he has applied to the HSE for consent, providing an environmental statement, and the HSE has granted such consent. The environmental statement must provide a clear picture of the project and give at least the information specified in Schedule 1 to the EIADR. The HSE Guidance however accepts that it may not be possible at the outset to be definitive about the later stages of the project—details should be given of the range of options being considered and where there is uncertainty this should be indicated. The Guidance also reminds operators that where the project is likely to have a significant effect on a European site, the HSE will apply the requirements for an appropriate assessment under the Habitats Directive 92/43/EC, and will apply the tests of no alternatives and imperative reasons of overriding public interest where the assessment cannot ascertain that the integrity of the site will not be adversely affected. The usual EIA requirements for publicity and consultation apply, including transboundary consultation where the project is likely to have significant environmental effects in another EEA state. Regulation 6 provides for a pre-application scoping opinion to be sought from the HSE as to the content of the environmental statement.46 It is important to note that under regulation 13, further EIA may be required if there is a change to a consented project, or one predating the EIADR, which may have significant adverse effects on the environment (being an Annex II project). In that case the HSE must issue a screening opinion, having regard to the relevant selection criteria for such projects taken from Annex III of the EIA Directive.47 This process may be particularly important given the long timescales involved in decommissioning projects and the fact that they may change over time. By regulation 8(4) the HSE may, on granting a consent to carry out a project, attach to that consent such conditions as may appear to it to be necessary or desirable in the interests of limiting the impact of that project on the environment: this can be used, for example, to require the licensee to prepare and implement an environmental management plan. This clearly goes further in terms of control than the normal site licence conditions to protect health and safety of persons. The HSE is, however, likely to approach the use of such conditions in the same non-prescriptive way as site licence conditions and is unlikely to seek to impose the sort of detailed conditions on environmental protection matters such as noise, dust, ecological protection and so on, as might be found in a planning permission. Consents issued are listed on HSE’s website, together with explanatory reports, and include a number of nuclear power stations such as Oldbury, Dungeness A, Sizewell A, Chapelcross, Calder Hall, Hinkley Point A, Bradwell and Wylfa.

46 A number of such opinions have now been issued, eg in relation to Wylfa Nuclear Power Station and Imperial College Consort Reactor, which are available on the HSE website at www.hse.gov.uk/nuclear/ consult.htm. 47 Determinations that the EIA is not required have been made under regulation 13 for the Berkeley project and the Windscale Piles project.

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Nuclear Liabilities During Decommissioning 355

NUCLEAR LIABILITIES DURING DECOMMISSIONING The holder of the nuclear site licence will be responsible under section 7 of the Nuclear Installations Act (NIA) 1965 for injury or damage caused by an occurrence on the site involving nuclear matter during decommissioning, or by an occurrence involving nuclear matter in the course of carriage on behalf of the licensee, or by ionising radiations emitted during the licensee’s period of responsibility from anything caused or suffered by the licensee to be on the site which is not nuclear matter, or from any waste discharged on or from the site.48 In accordance with the concept of channelling liability, as required by the Paris and Vienna Conventions, there cannot be more than one liable person in respect of an occurrence or other event giving rise to damage, and therefore the liability will rest with the person who was the licensee at the time of the occurrence giving rise to the injury or damage, or where there is no ‘occurrence’ and liability rests on the discharge of waste, the licensee at the time the waste was discharged. Such liability will continue for the 30 years allowed by section 15 for claims, running from the date of the occurrence, or the date of the last event where there is a continuing occurrence or succession of occurrences. Ongoing liability for the condition of the site will rest with the current licensee until the period of responsibility as defined by section 5(3), that is the date when the HSE notifies its opinion that there has ceased to be any danger from ionising radiations from anything on the site. In respect of a previous licensee, their period of responsibility will end when a new licence is granted to some other person. The question therefore arises as between the NDA and the company managing and operating the site (and holding the licence) as to the allocation of such liability and financial provision in respect of it. This is addressed by sections 21(5) and (6) of the Energy Act 2004. By section 21(5) the general allocation of financial responsibilities to the NDA, rather than the contractor, does not restrict the extent to which the person with control of the installation may be or may become subject to a liability in relation to a person other than the NDA.49 Thus there is a distinction between liability and the cost of meeting that liability. It is the site licence company which is liable under the NIA to a third party suffering injury or damage falling within the Act; however under section 21(6) it is the NDA’s duty to make all such arrangements as it thinks fit for securing that the licensee is able to meet, as they become due, such liabilities, or that they are otherwise discharged. The NDA currently purchases nuclear liability insurance on the normal terms, both as to site liability and transit, to cover the SLC up to the £140 million required by the legislation, with the NDA and the SLC being co-insured.50 The possibility of the UK ratifying the 2004 Protocol revising the Paris Convention would mean that there would be additional heads of nuclear liability applying to the SLC.51 The NDA has undertaken, if such increased liability becomes law, to negotiate in good faith an appropriate funding mechanism to manage such liabilities.52 The issue of indemnification of the contractor by the NDA may arise in respect of risks which are not coverable by insurance. In the case of the contract relating to the LLW 48

See ch 6 generally. The Explanatory Notes to the Act on this section do not refer to liability under the NIA, but rather to, eg, liability the contractor may incur under to make payments under contracts it enters into with third parties. 50 See further ch 6 on insurance. 51 See ch 6. 52 See Questions & Answers from Market Engagement Sellafield PBO Competition (December 2006). 49

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356 Decommissioning and Radioactively Contaminated Land repository at Drigg, the NDA identified a low probability nuclear risk for which insurance was not commercially available, namely that the courts of a country which was not a party to the Paris and Brussels Conventions (in reality, almost certainly the US) might accept jurisdiction to determine liability in respect of a nuclear incident affecting a person within its jurisdiction. The PBO, a consortium including substantial American interests, was not willing to accept that risk. The NDA proposed to give an indemnity unlimited in amount, but limited in time to 30 years from the expiry of the contract, in respect of that risk. A Minute detailing the proposed indemnity was presented to Parliament by the Minister of State for Energy on 27 February 2008 in accordance with normal parliamentary practice. Similar arrangements in respect of Sellafield aroused more controversy. On 14 July 2008 the Minister of State for Energy wrote to Edward Leigh MP, Chairman of the Public Accounts Committee, to inform him that the NDA proposed to grant a similar indemnity against uninsurable claims to the PBO to be identified as the preferred bidder to take ownership of the Sellafield SLC, and attaching a draft Departmental Minute. This procedure was adopted because of the urgency of reconciling the Parliamentary process with the timetable for entering into the contract. The letter stated that a copy would be placed in the Libraries of the House, but this did not happen until October, by which time the contract with the successful PBO had been signed and the indemnity given. The Secretary of State for Energy and Climate Change wrote to Edward Leigh on 3 November 2008 to apologise for the omission, due to a ‘clerical oversight’, but resisting any suggestion that the indemnity should be rescinded or subjected to a process of further review. This led to a trenchant debate in Westminster Hall,53 initiated by Paul Flynn MP.54 The Minister of State, Mike O’Brien, set out as follows the Government’s position on the issue of such indemnities: My hon Friend accuses the Government of dumping liability on the public, but who on earth does he think owned those nuclear power stations? Does he think that they were somehow owned by a private company when they were created? They were owned by the public—he knows that. No liability is being dumped on anyone, secretly or otherwise; there is a public liability. The Nuclear Decommissioning Authority has been set up to deal with the public liabilities that we have as a country and as a Government. We are trying to deal with those liabilities in a sensible, coherent way, and to ensure that that is done openly and with full consultation. There has been widespread consultation on this matter. The idea that something is happening secretly is nonsensical, as this matter has been addressed in the blaze of publicity. The nature of the indemnity is very clear. There is a legislative restriction, in terms of the Government’s liability, so that they are able to deal with those liabilities if an incident happens in the UK. Under the Paris and Brussels conventions, other countries have signed up to agreements on how nuclear incidents might be dealt with, but the United States is not a signatory to some of those. My hon Friend says that we are failing to put a value on the indemnity, but what is the indemnity about? It concerns the remote possibility that, if an incident happened in the UK, an American court might take a view about a court fine or settlement over there. All the companies that bid in the process said that they were quite to happy to undertake the task, but that they would not be responsible for a liability that some American or other court, which has not signed the Brussels and Paris conventions, might impose. The NDA therefore decided, quite properly and openly, that it would have to come forward with the indemnity. When that was done, 53 Westminster Hall debates, initiated in 1999 are aimed at fostering a new style of debate. Sessions are open to all MPs, who sit in a horseshoe arrangement which is meant to encourage constructive rather than confrontational debate. The meetings are presided over by a Deputy Speaker and there are no votes. 54 19 November 2008.

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Site Delicensing 357 my right hon Friend wrote to the Public Accounts Committee, and that letter was to go into the Library. An administrative error, and nothing more, resulted in that not happening. The day that we found out that it had not happened, it was immediately corrected. That is what happened, and all the other claims do not add up to a hill of beans, if we are talking about hills and mountains.

SITE DELICENSING The issues of delicensing and the ‘period of responsibility’ (POR) of a licensee are interlinked in that while the POR may in principle continue after the licence has been surrendered or revoked, the HSE contemplates that in most cases licensees will seek to achieve the required state of ‘no danger’ so that delicensing and termination of the POR can take place simultaneously.55 The application for surrender of the licence will therefore need to be supported by a detailed safety case covering the history and use of the site, identification of areas where radioactivity could contribute significantly to radiation exposure, an assessment of the reasonably practicable methods for their remediation, records and results of radiological surveys and comparison with background data, and an assessment of dose and risk to the public to demonstrate that any future use of the land represents no danger, based on conservative assumptions as to future uses and possible exposure pathways. The HSE is required by section 5(1A) of the NIA to consult the Environment Agency or SEPA before revoking a site licence. Strictly speaking this duty does not extend to surrender, as opposed to revocation. In reality, however, the HSE will consult the relevant Agency on delicensing, and there is a Memorandum of Understanding on the issue. There is no statutory obligation to consult the public (save insofar as is required by the provisions of the EIA, set out above) though the public may, of course, been keenly interested in the standards of safety achieved before licensing control over the site is relinquished and the licensee’s period of responsibility ceases. The HSE simply says in its Guidance on Licensing that it will decide the outcome on the basis of ‘its own reasoned assessment of the facts of the case’, whilst encouraging licensees to engage with and inform the public (and indeed relevant public bodies) through stakeholder groups and similar mechanisms.56 Partial delicensing of a site is also a possibility under section 3(6). As well as satisfying the HSE with the information indicated above with regard to that part of the site to be delicensed, the licencee will also need to consider other regulatory aspects that could be affected, that is marking the revised boundary, any potentially problematic working issues such as infrastructure, any effect on security and emergency arrangements, and so on. The HSE may ask the licensee to consider withdrawing, deferring or amending the proposed change if it may lead to detrimental effects on these matters or to regulatory complexity.

DECOMMISSIONING AND NEW BUILD The issue of construction of new nuclear installations is dealt with in chapter five. Whereas the nuclear power stations constructed previously in the UK have been publicly owned and 55 56

HSE, The Licensing of Nuclear Installations, para 3.10. Ibid, para 3.13.

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358 Decommissioning and Radioactively Contaminated Land funded, future stations will be commercial private sector projects, and there is no reason why future taxpayers should be responsible for dealing with the wastes they generate or for meeting their decommissioning costs. The Government has made clear that as a matter of policy, the cost of decommissioning such installations must be borne by the operator. Part 3 of the Energy Act 2008 deals with the decommissioning of various energy installations, and Chapter 1 of that part puts in place a regime for ensuring funded decommissioning programmes for new nuclear power stations. From the date when the provisions come into force, a person who intends to construct a nuclear installation for the purpose of generating electricity and who is applying for a nuclear site licence must give written notice to the Secretary of State and must prepare and submit a funded decommissioning plan. Such plan is defined as a programme which makes provision for the treatment, storage, transportation and disposal of radioactive waste during the operation of the installation and the decommissioning of the installation and cleaning up of the site, and which specifies how implementation of that provision is to be funded, so far as it relates to designated matters. It must in particular include estimates of the likely costs and details of any security to be provided. The Secretary of State may approve the programme (with or without modifications and subject to conditions) or reject it. The Secretary of State’s powers are to be exercised with the aim of providing that prudent provision is made for these matters. There is no right of appeal, but before making modifications or imposing conditions, the Secretary of State must give the site operator and any other person with obligations under the programme (for example a parent company which would be required to provide security) an opportunity to make written representations. It is an offence to use a site, or permit another person to use it, at a time when there is no approved programme. A procedure is provided for the modification of approved programmes, either on the initiation of the Secretary of State, or the site operator or any other person obligated under the programme. The Secretary of State has powers to require the provision of information and documents by the site operator and other persons who have, or would have obligations under the programme, where this information is considered necessary for the purpose of making a decision on approving or modifying a programme. The Secretary of State may also require information relevant to reviewing the operation of the programme, that is to determine whether the programme is being complied with, whether it will be possible for future obligations to be met, and whether the programme makes prudent provision for the relevant matters. Supplying false or misleading information knowingly or recklessly is an offence. The Secretary of State may make regulations about decommissioning programmes, and may publish guidance. In particular, the regulations may make provision for the Secretary of State to rely on verification of estimates of costs and assessment of the prudence of the financial provision by an independent third party. Special provision is made as to the protection of funding provision made by way of trust or other approved arrangements, in that in applying the funds, no regard may be had to provisions of insolvency law which would prevent or restrict the protected assets being applied in accordance with the trust or other arrangements. The funds are therefore effectively ring-fenced as against creditors of the operator. It is an offence for a site operator or an associated company57 to fail to comply with an obligation imposed on it by an approved 57 ‘Associated company’ is defined by s 67(1) by reference to a ‘significant interest’ of a threshold of 20% of issued share capital, voting rights or assets, whether the relevant entity is a company or a limited partnership. This caters for the situation where a site is operated by a consortium of companies through an operating company in respect of which none of the consortium may have decisive control.

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Decommissioning and New Build 359 programme, subject to a defence of due diligence. The Secretary of State may give directions to a person in default to take steps to comply with their obligations, which may ultimately be enforced by order of the High Court. Important provision is made for the situation where the site operator changes. The original site operator continues to be under the relevant statutory obligations unless the Secretary of State gives notice releasing the company from its obligations. Such notice may relate to all or part of the relevant obligations and to all or part of the site. In this way the Secretary of State may ensure continuity of provision by keeping the original operator on the hook until such time as a satisfactory scheme binding its successor has been approved. Draft guidance on the funding of decommissioning, dealing both with technical issues and with funding, was issued by DBERR for consultation in February 2008.58 According to this draft, plans should be prepared on a base case containing standard assumptions as to generating life and how the wastes will be dealt with—any deviation from this base case would have to be justified by the operator. Fixed unit prices will be provided by the Government as to the disposal of Intermediate Level Waste and spent fuel in a geological repository,59 thereby achieving some degree of certainty. These fixed prices are intended to include the direct costs of creating extra space in the repository which will take legacy waste, a proportion of the fixed costs of building that facility, and a significant risk premium to take account of uncertainties and of the risk of delay in the facility becoming available, entailing longer interim storage. Funding plans will be expected to accumulate, on robust assumptions, at least 100 per cent of the value of the predicted liabilities, adjusted for inflation, risk and uncertainty. The fund will have to be established prior to commissioning and contributions will be required to start as soon as electricity generation commences. Plans will also have to set out the steps to increase value if a potential shortfall becomes apparent. The Government’s response to the consultation was published in September 2009.60 This indicated that two sets of guidance would be produced: the first, Decommissioning and Waste Management Plan (DWMP) Guidance, will assist operators in setting out and costing the steps involved in decommissioning a new nuclear power station and disposing of waste; the second, Funding Arrangement Plan (FAP) Guidance, will assist in setting out acceptable financing proposals to meet the costs identified in the DWMP. The guidance is not intended to be unduly prescriptive, but rather to set out the principles that the Secretary of State will expect to see satisfied in operators’ submitted plans. In conjunction with these steps, the Government has created a new body, the Nuclear Liabilities Financing Advisory Board (NLFAB), the terms of reference of which were set out in Annex C to the September 2008 response. The NLFAB’s main role will be to provide independent public advice to the Secretary of State on the suitability of the funding arrangements aspect of plans submitted for approval, and on the ongoing suitability of approved plans. It comprises a Chair and six members.61 The revised indicative timeline published in September 2008 suggested that 58 Consultation on Funded Decommissioning Programme Guidance available at www.berr.gov.uk/files/ file44486.pdf. 59 Proposed methodologies for determining the apportionment of fixed costs and on establishing an indicative fixed unit price were published as discussion papers in October 2008, January 2009 and May 2009: see www.berr.gov.uk/files/file48571.pdf; www.berr.gov.uk/files/file49168.pdf; www.berr.gov.uk/files/file50601.pdf. 60 BERR, The Government Response to the Consultation on Funded Decommissioning Programme Guidance for New Nuclear Power Stations (Office for Nuclear Development, September 2008) available at www.berr.gov.uk/ files/file47629.pdf. 61 The appointment of the first chair (Lady Balfour of Burleigh) was announced in November 2008 and the other six members in March 2009. www.berr.gov.uk/energy/sources/nuclear/whitepaper/actions/waste-decommissioning/ nlfab/page49007.html.

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360 Decommissioning and Radioactively Contaminated Land final guidance would be published in Autumn 2009 and by late 2009 a possible operator would be able to request a fixed unit price for the disposal of intermediate level waste and spent fuel.

RADIOACTIVELY CONTAMINATED LAND The topic of radioactively contaminated land is of much wider relevance than the decommissioning of nuclear sites, in that many former industrial activities may have led to the presence of radioactive materials within land.62 Contaminated land generally is dealt with by Part 2A of the Environmental Protection Act 1990, which provides a detailed regime for the identification and remediation of such land, including complex rules on the allocation and apportionment of responsibility for clean-up. Consideration of that regime is beyond the scope of this work, and reference should be made to specialist environmental law texts on the subject.63 The Part 2A regime originally excluded land where the harm or pollution which made the land contaminated was attributable to radioactivity, but left open the possibility that regulations could apply provisions of the regime, with appropriate modifications, to such contamination.64 The Part 2A regime has now been so extended by separate Regulations dealing with the constituent parts of the UK.65 The regulations for England, the Radioactive Contaminated Land (Modification of enactments) (England) Regulations 2006, are for convenience referred to here as the 2006 Regulations. These regulations, as explained subsequently, have themselves already been the subject of amendment. They operate by applying Part 2A in relation to harm attributable to radioactivity possessed by any substance, so that Part 2A applies for the purposes of dealing with such harm, with the modifications made by the 2006 Regulations.66 Apart from the different technical considerations involved in dealing with radiological, as opposed to chemical contamination, there are potentially important legal considerations which affect radioactively contaminated land, and which help to explain the detail of the modified regime. The first such consideration was the increasingly urgent need to ensure transposition of Articles 48 and 53 of the Basic Safety Standards Directive 96/29/Euratom.67 Title IX of the Directive deals with Intervention, which is defined as:

62 See DEFRA Circular 01/2006, Contaminated Land, Annex 1, para 69; also the DEFRA Industry Profile on Industrial Activities which have used materials containing radioactivity (March 2006) at: www.defra.gov.uk/ environment/radioactivity/conland/pdf/industryprofile.pdf. These include various forms of metals mining and refining, processes involving rare earths (used in luminescent materials and in electrical technologies), radium luminising works, gas mantle production, phosphate industries, gasworks which used uranium catalysts, various MoD activities, and some landfills which have taken radioactive wastes from local industries before the controls introduced by the Radioactive Substances Act 1960. 63 See in particular, Stephen Tromans and Robert Turrall-Clarke, Contaminated Land, 2nd edn (London, Sweet & Maxwell, 2008), ch 9 of which deals with radioactively contaminated land. 64 Section 78YC. 65 The Radioactive Contaminated Land (Modification of Enactments) (England) Regulations 2006 No 1379; the Radioactive Contaminated Land (Scotland) Regulations 2007 SSI No 179; the Radioactive Contaminated Land (Modification of Enactments) (Wales) Regulations 2006 No 2988 (W. 277); the Radioactive Contaminated Land Regulations (Northern Ireland) 2006 No 345. 66 Reg 3. 67 See generally ch 4 on the directive.

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Amendment 361 human activity that prevents or decreases the exposure of individuals to radiation from sources which are not part of a practice or which are out of control, by acting on sources, transmission pathways and individuals themselves.

Article 48 applies Title X to ‘intervention in cases of radiological emergencies or in cases of lasting exposure resulting from the after-effects of a radiological emergency or a past or old practice or work activity’. The Title contains a number of obligations on Member States with regard to radiological emergency situations, but of particular relevance to the issue of contaminated land is Article 53, which provides that: Where the Member States have identified a situation leading to lasting exposure resulting from the after-effects of a radiological emergency or a past practice, they shall, if necessary and to the extent of the exposure risk involved, ensure that: (a) the area concerned is demarcated; (b) arrangements for the monitoring of exposure are made; (c) any appropriate intervention is implemented, taking account of the real characteristics of the situation; (d) access to or use of land or buildings situated in the demarcated area is regulated.

Since a ‘practice’ can include any human activity that can increase the exposure of individuals to radiation from an artificial source of radioactivity, these obligations may arise in respect of potentially numerous situations where land is found to be radioactive, and there was no legislation directly on the issue, leading to infraction proceedings against the UK and a successful application by the Commission to the European Court for a declaration that the UK had failed to adopt all measures necessary to fulfil its obligations under Article 53.68 The second legal issue is the relationship between any domestic regime dealing with contaminated land and the regime governing liability for nuclear occurrences pursuant to the relevant international conventions.69 It is in part the perceived tension between the two issues which has led to the need to amend the implementing regulations and their present unsatisfactory form.

AMENDMENT The 2006 Regulations were themselves substantively amended by the Radioactive Contaminated Land (Modification of Enactments) (England) (Amendment) Regulations 2007,70 to deal with the fact that they had still not effectively transposed the requirements of Community law. Further amendment was then necessary to make consequential amendments following the introduction of the environmental permitting regime in 2008.71

68 Acknowledged in the Regulatory Impact Assessment in the published Explanatory Memorandum on the 2006 Regulations, para 2(ii). The concern was well-founded in that the ECJ held that the UK had failed to fulfil its obligations in this regard in July 2007: Case C-155/06, Commission v UK (Eighth Chamber). 69 See ch 6. 70 SI 2007 No 3245; for Scotland see SI 2007 No 3240; for Wales see SI 2007 No 3250; for Northern Ireland, see SI 2007 No 3236. 71 Radioactive Contaminated Land (Modification of Enactments) (England) (Amendment) Regulations 2008 No 520; Radioactive Contaminated Land (Modification of Enactments) (Wales) (Amendment) Regulations 2008 No 521.

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362 Decommissioning and Radioactively Contaminated Land

DEFINITION OF RADIOACTIVELY CONTAMINATED LAND As with contaminated land generally, the responsibility for identifying land which meets the definition of ‘contaminated’ falls to the local authority at district level. A special definition of contaminated land applies to the radioactivity regime by substituted section 78A(2), which is:72 any land which appears to the local authority in whose area it is situated to be in such a condition, by reasons 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.

This approach differs from the normal definition in a number of respects. First, there is no limb dealing with water pollution as separate basis for regarding land as contaminated. Secondly, the ‘harm’ limb refers to simply ‘harm’ and not (as in the normal definition), ‘significant harm’ (though the reference to the possibility of such harm remains qualified by the concept of significance). Thirdly, there is a specific definition for the term ‘substance’— whereas in the normal Part 2A regime this simply means any natural or artificial substance, whether solid, liquid or gaseous in form, the modified definition means any substance which contains radionuclides which have resulted from the after effects of a radiological emergency or which are or have been produced as part of a past work practice or past work activity, but does not include radon gas or a list of specific radionuclides.73 Thus the regime will not apply, for example, to properties affected by naturally-occurring radon gas. Fourthly, there is a specific definition of ‘harm’, which reflects that in the BSS Directive: ‘lasting exposure to any person resulting from the after effects of a radiological emergency, past practice or past work activity’. These and other terms bear the same meaning as in the Directive.74 Therefore the regime is essentially restricted to what is required by the BSS Directive,75 that is risks to humans from emergencies and past practices, and does not include general environmental harm to ecological resources, or damage to property, or pollution of water (except in so far as that is a potential pathway affecting human health). The possible extension of the regime to these matters at some future time has however not been ruled out.76 The key similarity with the normal Part 2A regime is that in making its determination, the local authority is obliged to act in accordance with statutory guidance issued by the Secretary of State, both as to the manner in which it makes that determination,77 and as to whether harm is being caused and whether the possibility of harm being caused is significant.78 This is obviously a critically important issue in determining how many sites will fall to be regarded as ‘contaminated’ and what remediation measures will be needed. Shortly before the modified regime was introduced, DEFRA’s expectation, based in part on a study 72

2006 Regulations, reg 5(2) (as substituted by SI 2007 No 3245). PO-218, Pb-214, Al-214, Bi-214, Rn-218, Po-214, Tl-210. 74 Section 78(9) as modified by reg 5(7)(e) of 2006 Regulations, substituted by SI 2007 No 3245, reg 3 and further substituted by SI 2008 No 520. 75 The regime’s extension to defence-related matters goes beyond what is required by the BSS Directive, which applies only to peaceful uses of nuclear energy. 76 See DEFRA Circular 01/2006, Annex 1, paras 73–4. 77 Section 78A(2) as modified. 78 Section 78A(6) as modified. 73

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Radioactvely Contaminated Land 363 by consultants, was that only a modest number of sites (between 150 and 200 in England and Wales) might have accommodated activities giving rise to a real risk of radioactive contamination, and that only a small percentage of this number would actually fall within the definition of ‘contaminated land’.79 In requiring intervention measures in respect of lasting exposure from past practices, the BSS Directive does not apply the effective and equivalent dose limits for workers and members of the public laid down in Articles 9 and 13; however, intervention levels established under intervention plans drawn up at national or local level under Article 50(2) constitute indications as to the situations in which intervention is appropriate.80 The BSS also requires that intervention is justified in that it is undertaken only if the reduction in detriment is sufficient to justify the harm and costs, including social costs, of the intervention; and also that the form, scale and duration of the intervention are optimised to ensure maximum benefit in reduction of health detriment, less the detriment associated with the intervention.81 The initial consultation paper issued by the Department of the Environment, Transport and the Regions on proposals to extend Part 2A to radioactive contamination expressed concern that existing dose limits might if applied to occupied sites, cause considerable disturbance to the lives of the occupants, as a result of the intervention required.82 The statutory guidance on the issue of harm attributable to radioactivity is to be found in Annex 3, Chapter A, Part 5 of Circular 01/2006. In the event, harm is to be regarded as being caused where lasting exposure gives rise to annual doses which exceed any of the following limits: (a) 3 millisieverts effective dose; (b) 15 millisieverts equivalent dose to the lens of the eye; or (c) 50 millisieverts equivalent dose to the skin. The equivalent dose limits provided by (b) and (c) equate to those laid down as applicable to members of the public by Article 13(3)(a) and (b) of the BSS Directive, whereas the effective dose is higher than the Directive figure of 1 millisievert laid down by Article 13(a). ‘Lasting exposure’ is considered by the Government to be ‘exposure that could take place over a protracted period as a result of the nature of the contamination and the use to which land is put’.83 In considering whether harm is being caused, consideration should only be given to human receptors likely to be present given the ‘current use’ of the land, which is consistent with its permitted use in planning terms, and includes temporary uses covered by permitted development rights, future uses which do not require further planning permission, and any likely informal recreational use, such as children playing, whether authorised by the owner or not.84 The other criterion is the significant possibility of harm, from potential exposures which are not certain to occur, for example where an individual might or might not come into contact with a radioactive particle present on a site. Essentially there are two approaches set out in the statutory guidance. The first is where the potential annual effective dose that might be received does not exceed 50 millisieverts, and the potential annual equivalent 79 80 81 82 83 84

See ENDS Report 367, August 2005, 33–4. See also Circular 01/2006, Annex 1, para 69. Art 48(2), third indent. Art 48(2), first and second indents. DETR, Control and Remediation of Radioactively Contaminated Land (February 1998). Circular 01/2006, Annex 1, para 76(a). Circular 01/2006, Annex 3, para A43.

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364 Decommissioning and Radioactively Contaminated Land doses to the lens of the eye and the skin do not exceed 15 and 50 millisieverts respectively.85 In that case, the probability of the potential annual effective dose being received is applied to that dose, and if the resultant dose is greater than 3 millisieverts the possibility is regarded as significant. So for example, if an annual dose of say 35 millisieverts could be received from lasting exposure, and the probability in a year of that dose being received is one in ten, then the resulting dose of 3.5 millisieverts would be viewed as a significant possibility of harm. These dose levels were selected on advice from the Health Protection Agency86 to avoid the possibility of deterministic effects,87 such as radiation burns or radiation-induced cataracts, resulting from non-uniform exposure such as that from ‘hot-particles’,88 and also as being within the linear dose–response relationship range for stochastic effects89 such as cancer. The approach is therefore essentially intended for sites where radiation is spread fairly evenly over an area, without significant ‘hot spots’. For potential doses higher than these levels, for example where contamination is spread very unevenly, the approach has to be one of considering the significance of the possibility of harm on a case-by-case basis, taking into account relevant information concerning the potential annual effective dose, potential annual equivalent does for the eyes and skin, any non-linearity as regards stochastic effects, the nature and degree of any deterministic effects, the probability of the dose being received, the duration of the exposure and the timescale for occurrence of any harm, and any uncertainties associated with these matters.90 One matter which is not relevant in assessing the significant possibility of harm is harm which could be caused as a result of a change of use of the land to one which is not a ‘current use’ in the special sense in which that term is used in the guidance.91 This is because the assessment of potential risks from contamination on the basis of a proposed future use of land is a matter for the town and country planning and building control regimes, not Part 2A.92 This is reconciled with the requirements of the BSS Directive, in that a change in the use of land is regarded as a ‘practice’, that is a human activity that can increase exposure of individuals to radiation, and not a matter for intervention. So if planning permission is sought for redevelopment of radioactively contaminated land, the Environment Agency would advise the local planning authority that options for remediation should be considered and that no option should be accepted if residual contamination would result in doses in excess of 0.3 millisieverts a year.93 Thus redevelopment may well result in levels of risk being reduced to significantly below what would be tolerated under Part 2A. Once planning permission has been granted for a use, then risk must be assessed against that use; however, it should also be assumed that development will be in accordance with the permission and that any condition or planning obligation requiring remediation will be properly fulfilled.94 85

Ibid, para A45. Circular 01/2006, Annex 1, para 90. Health Protection Agency, Dose Criteria for the Designation of Radioactively Contaminated Land (RCE-2, March 2006) available from: www.hpa.org.uk. 87 A deterministic effect is one which occurs following a dose of radiation above a certain level, with the severity of the effect then being dependent on the level of the dose (see Circular 01/2006, Annex 3, para A47(c)). 88 Where contamination comprises small numbers of highly radioactive particles. 89 A stochastic effect is one where the likelihood may be assumed to be in linear proportion to the radiation dose over a wide range of doses, and where the severity of the effect is not dependent on the level of the dose (see Circular 01/2006, Annex 3, para A47(b)). 90 Circular 01/2006, Annex 3, para A46. 91 Ibid, para A49. 92 Circular 01/2006, Annex A, para 83. 93 Ibid, para 85. The figure is based on advice from the Health Protection Agency: see NRPB, 1998, Radiological Objectives for Land Contaminated with Radionuclides. 94 Circular 01/2006, Annex 3, para A50. 86

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Part 2A Procedural Aspects 365 The identification of radioactively contaminated land is a duty of local authorities, which, of course, may not have the necessary specialist expertise. There is, however, guidance on the methodology for exposure assessment in DEFRA’s Radioactively Contaminated Land Exposure (RCLEA) Methodology.95

PROCEDURAL ASPECTS The Part 2A regime as applied to radioactively contaminated land is essentially the same as for normally contaminated land, with a number of modifications, some more important than others. The main features are as follows.

DUTY OF INSPECTION Local authorities are under a duty to cause their area to be inspected from time to time for the purpose of identifying contaminated land (section 78B(1)). However, in respect of radioactively contaminated land this duty is qualified so that it only applies where the authority considers that there are reasonable grounds for believing that the land may be contaminated, and the fact that substances have been or are present on land is not of itself taken to be such reasonable grounds.96 Statutory guidance on this duty is provided at Annex 3, Chapter B of Circular 01/2006, a number of features which apply specifically to radioactive contamination,97 and which essentially tie in the reasonable grounds for belief to the presence of radioactivity from past practices, work activities or radiological emergencies, that are capable of causing lasting exposure giving rise to the relevant threshold doses. The Government’s view, though not stated in the mandatory statutory guidance, is that local authorities are not required to review actively records compiled before the modified regime came into force.98

MAKING THE DETERMINATION Determination of whether land is ‘contaminated’ is to be made in accordance with the statutory guidance. Circular 01/2006 contains guidance specific to the determination process for radioactive contamination, including the correct approach to using authoritative and scientifically based guidance on dose assessment, the use of guideline values, the need to take account of advice from the Environment Agency, and that the estimation of effective doses and equivalent doses should be undertaken in accordance with Articles 15 95 See CLR 13—The Radioactively Contaminated Land Exposure Assessment Methodology; CLR 14—The Radioactively Contaminated Land Exposure Assessment Methodology—Technical Report; CLR 15—The RCLEA Software Application (available at www.defra.gov.uk/environment/radioactivity/conland/index.htm. A number of briefings and guidance intended to assist local authorities are also available on the Environment Agency website at www.environment-agency.gov.uk/research/planning/33744.aspx. 96 Sections 78B(1) and (1A) as modified and inserted by the 2006 Regulations, reg 7. 97 Circular 01/2006, Annex 3, paras B17A, B17B, B18A and B19A. 98 Circular 01/2006, Annex 2, para 3.4A.

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366 Decommissioning and Radioactively Contaminated Land and 16 of the BSS and should not include the local background level of radiation from the natural environment.99

SPECIAL SITES Certain types of contaminated land are designated as ‘special sites’, with the effect that once they are identified as contaminated, the enforcing authority is the Environment Agency (or SEPA) rather than the local authority. Land which is contaminated land wholly or partly by virtue of any radioactivity possessed by any substance in, on or under the land is required to be designated as a special site.100

REMEDIATION NOTICES Designation of land as a special site places the enforcing authority under a duty to serve a remediation notice specifying what is to be done by way of remediation: section 78E(1). ‘Remediation’ is defined to include assessment of the condition of the land, the doing of any works or taking of any steps for the purpose of preventing or minimising harm or restoring the land to its original state, and the making of subsequent inspections for the purpose of keeping the condition of the land under review.101 Intervention is defined by the BSS Directive as a human activity that prevents or decreases the exposure to individuals to radiation by acting on sources, transmission pathways and individuals themselves. Hence whilst the definitions are not identical in scope, there is clearly considerable overlap between intervention and remediation. The general principle is that the authority may only require things by way of remediation which it considers reasonable, having regard to the cost likely to be involved and the seriousness of the harm in question: section 78E(4). In cases of radioactively contaminated land, there is an additional constraint, imposed by section 78E(4A), which is that where remediation includes an intervention, the relevant part of the remediation may only be considered reasonable: (a) where the reduction in detriment is sufficient to justify the adverse effects and costs, including social costs, of the intervention; and (b) where the form, scale and duration of the intervention is maximised. It will be appreciated that these requirements implement those of Article 48(2) of the BSS Directive, discussed above. The statutory guidance expands upon these aspects.102 In making its assessment the authority should consult publications of international bodies, including the IAEA, apply approaches of multi-attribute analysis in weighing and balancing the relevant factors, consider methods of sensitivity analysis, and consult with stakeholder groups to understand their perceptions of relative importance of different attributes. In considering social costs, relevant factors to be considered include social disruption from 99 Circular 01/2006, Annex 3, paras B51A—B51H. Arts 15 and 16 provide for values and relationships set out in Annexes II and III to be used for estimating doses. 100 Contaminated Land (England) Regulations 2006 No 1380, reg 2(1)(k). 101 Section 78A(7) as modified by the 2006 Regulations, reg 5(7). 102 Circular 01/2006, Annex 3, paras C43A–C43J.

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Duties of the Enforcing Authority to carry out Remediation 367 having to vacate property or restrict access to it (for example gardens), doses to the workers involved, heavy traffic associated with the work, environmental risks (for example pollution, nuisance, risks to nature conservation or heritage interests), the generation of waste and the transport of waste where this is relevant.

DUTIES OF THE ENFORCING AUTHORITY TO CARRY OUT REMEDIATION Section 78N provides for a number of specified circumstances where, rather than serving a remediation notice, the enforcing authority can itself undertake the remediation. Under the normal Part 2A regime, the enforcing authority has in these cases the power to do what is appropriate by way of remediation, and in certain cases the authority may then seek to recover its costs under section 78P from the appropriate person. The modified Part 2A regime for contaminated land places the authority under a duty to exercise this power in the following cases:103 (a) where a person on whom a remediation notice has been served fails to comply with any requirement of it;104 (b) where the authority is precluded from including something in the remediation notice by the rules on escapes of substances to other land;105 (c) where notice cannot be served because of the rules on hardship;106 (d) where no appropriate person has been found after reasonable inquiry;107 or (e) where section 78F(1A) applies in cases of damage to land caused by nuclear incidents, for which the Secretary of State is deemed to be the appropriate person.108 The rationale for the imposing a duty on the authority to intervene, as opposed to a power, is to ensure compliance with the UK’s obligations under the BSS Directive. Where the authority (the Environment Agency or SEPA) responds to that duty, the Secretary of State may make funds available to the Agency to the extent that the costs exceed or are expected to exceed any reasonable provision made by the Agency.109 In cases where the Secretary of State is the appropriate person in respect of nuclear damage, he must meet all of the Agency’s costs.110

THE APPROPRIATE PERSON AND RELATIONSHIP WITH RULES ON NUCLEAR DAMAGE Section 78F has effect for determining who is the appropriate person to bear responsibility for the remediation of land. On ordinary principles, that person is, first, any person who 103 104 105 106 107 108 109 110

Section 78N(1A) as inserted by SI 2007 No 3245. Section 78N(3)(c). Section 78N(3)(d). Section 78N(3)(e). Section 78N(3)(f). Section 78N(3)(g). See the detailed discussion following, on this issue. Section 78N(1B). Section 78N(1C).

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368 Decommissioning and Radioactively Contaminated Land caused or knowingly permitted the contaminating substances to be in, on, or under the land.111 That could be either the person whose activities originally caused the contamination, or a person who subsequently had control of the land so that they had the ability to remove or otherwise deal with the substances, and failed to take a reasonable opportunity to do so.112 If no such person can be found, then the appropriate person is the current owner or occupier. The statutory guidance provides detailed rules under which in specified circumstances a person who would otherwise be an ‘appropriate person’ may be excluded from liability—for example where they sold the land at arm’s length with sufficient information on its condition—and also rules as to how the apportionment process is to be conducted where there is more than one appropriate person. The issue of who is responsible for the cost of dealing with radioactively contaminated land raises the question of the inter-relationship with the Paris Convention rules on liability for nuclear occurrences.113 In some cases there may not be any overlap between the regimes. For example, if land is radioactively contaminated by a former activity which does not involve a nuclear licensed site falling within the Convention (for example a former luminising works) then the Part 2A regime, as modified, will apply to govern who is liable to undertake or pay for the intervention. Similarly, if the effect of the contamination does not amount to damage within the Convention regime, there will be no overlap. An example would be where there is no damage to land, but its condition presents a risk of harm to persons exposed in the long term, so as to require intervention. The risk of future harm does not of itself amount to injury or damage within the terms of the Nuclear Installations Act.114 The extension of the ambit of the Paris Convention regime beyond the traditional concepts of injury and damage will, however, require reconsideration in this respect. Though as explained, overlap between the regimes is not inevitable, it could certainly occur where land is contaminated by an occurrence falling within the nuclear liability regime. Examples could be an accident which contaminates the nuclear site itself, or where radioactive material deposited from an accident, or waste which is discharged from the site, contaminates other land such as to amount to damage to it. However, it must also be kept in mind that the regimes serve different purposes. The liability regime of the Paris Convention and Nuclear Installations Act is, at least as originally defined, concerned with civil liability to the victims of nuclear damage, its function being to secure a route to compensation for injury or damage suffered. Part 2A, and the BSS Directive’s provisions on intervention, are concerned with securing the remediation of land in the public interest, so as to reduce the risks of exposure to radiation, not with compensation for damage. Whether there is, therefore, any serious problem from potential overlap is debatable. However, the Government when consulting on the 2006 Regulations was clearly concerned about the prospect of conflict, and asked for views on whether the proposed extension of Part 2A should extend to incidents covered by the Paris Convention. A majority of views favoured such extension but suggested that liability should follow the approach of the Paris Convention, in that the operator should be liable. The Government’s concern was that this would be dependent on the provision of commercial insurance or other financial guaran111 In the case of radioactive contamination, liability extends also to substances present as a result of radio active decay affecting the original substances caused to be present (ie decay products): section 78F(9) as modified. 112 The law is in fact substantially more complex than this very brief summary might imply, and reference should be made to specialist works for the detail. 113 See ch 6. 114 Ibid.

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Appropriate Persons 369 tee to underwrite such liabilities.115 Accordingly, the 2006 Regulations excluded entirely from the modified Part 2A regime land which was contaminated land, insofar as by reason of the presence of the relevant radioactive substances damage to any property occurred, being damage which was caused in breach of the duties under sections 7 to 10 of the Nuclear Installations Act 1965 (also extended to cover damage to the site licensee’s own property, which would not be covered under those provisions) or in respect of which a relevant foreign operator would be liable under any relevant foreign law.116 This approach was said to be to allow options for financial security to be explored to meet Paris Convention requirements.117 This, however, seems misconceived, and was certainly contrary to the BSS Directive’s requirements for intervention, since if it is assumed that, for example, airborne particles from an accident at a nuclear plant in the UK or Europe were to contaminate land to such an extent as to amount to damage to it, the ability of the owner to claim compensation for that damage from the operator would do nothing to secure intervention by a competent authority to comply with the requirements of Article 53. Therefore the exclusion of such situations from the Part 2A regime led the UK, not surprisingly, into further trouble with the Commission. As the Government stated: Unfortunately, under pressure of infraction proceedings from the European Commission, we are now obliged to complete our transposition of the Directive even though it has not proved possible to secure commercial insurance or to put in place another form of financial guarantee.118

The way in which this was done was to modify section 78F to provide that in relation to any ‘land contaminated by a nuclear occurrence’, the Secretary of State is deemed to be the appropriate person.119 ‘Land contaminated by a nuclear occurrence’ is defined to mean land which is contaminated land by reason of the presence of radioactive substances, in so far as by reason of such presence damage to that land has occurred, being:120 (a) damage caused in breach of any duty imposed by section 7, 8, 9 or 10 of the Nuclear Installations Act 1965 or which is deemed to be so caused by section 12(2) (that is because it is not reasonably separable from injury or damage so caused); (b) damage which would have been so caused or would have been deemed to be so caused if in sections 7 and 10, the words ‘other than the licensee’ had not been enacted, that is damage which occurs to the licensee’s own land; 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 but for any exclusion or limitation of liability applying under such law for purposes corresponding to those of specified provisions of the 1965 Act on matters such as time limits and financial limits. It is said that placing the responsibility on the Secretary of State to deal with contamination arising from a nuclear occurrence meets the obligations of the UK under the BSS Directive, while avoiding problems of financial guarantees, but leaving the option to address the matter at a later date when such provision can be made.121 115

See Explanatory Memorandum to SI 2007 No 3245. Section 78YB(5), inserted by reg 17(4) of the 2006 Regulations. 117 See Explanatory Memorandum to SI 2007 No 3245, para 7.5. 118 Ibid. 119 Section 78F(1A), inserted by SI 2007 No 3245; for Scotland see SI 2007 No 3240; for Wales see SI 2007 No 3250; for Northern Ireland, see SI 2007 No 3236. 120 Section 78A(2A), inserted by SI 2007 No 3245; for Scotland see SI 2007 No 3240; for Wales see SI 2007 No 3250; for Northern Ireland, see SI 2007 No 3236. 121 See Explanatory Memorandum to SI 2007 No 3245, para 7.5. 116

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370 Decommissioning and Radioactively Contaminated Land This approach, however, seems equally misconceived as excluding contamination involving nuclear damage from the Part 2A regime entirely. The situation now is that where land is contaminated by a nuclear incident so as to involve damage to that land, then provided the damage involves harm to human receptors, or the significant possibility of harm, intervention will be required, but the person liable to pay will be the Secretary of State, that is the taxpayer, and not the operator who caused the contamination. The Paris Convention as it is currently binding on the UK, would not have precluded the operator, or any other person, being liable, because the proceedings by the enforcing authority under Part 2A would not be a claim for damage to or loss of property caused by that damage in the sense of Article 3(a) of the Convention; such claims would fall to be made by the owner of the affected land. Nor does the Paris Convention, as currently binding on the UK, require compulsory insurance for any costs other than those for claims under the Convention. The current position under UK law gives rise to various anomalies. The Secretary of State is liable if ‘damage’ to the relevant land has occurred, but if there is a significant risk of harm by reason of contamination which does not cause damage, the company which caused the contamination is liable. There is no valid reason why the company should escape liability for the costs of the necessary intervention if as well as being contaminated the land is damaged; the fact of damage merely means that in addition there is the possibility of a civil claim from the owner. Further, there is no valid reason why a company which emitted radioactive waste from a luminising works should be liable for the remediation of land affected by it whereas the owner of a nuclear installation in an equivalent position should not. It also seems highly anomalous that the Secretary of State is responsible for remediation of the operator’s own site, where that land has been affected by contamination from an incident on that site. All in all therefore, this aspect of the Part 2A regime is to say the least, unsatisfactory and needs to be reconsidered. Should the Government be required to transpose the 2004 Protocol amending the Paris Convention, then the damage for which the operator will be liable will have to include ‘preventive measures’, which mean reasonable measures taken by any person after a nuclear incident to prevent or minimise nuclear damage, including personal injury.122 Such measures would appear to include the types of intervention measures that the Member State might be required to take under the BSS Directive.

PART 2A AND LICENSED NUCLEAR SITES Part 2A as modified in respect of radioactive contamination does not apply to land within a nuclear site,123 defined as any licensed site (in terms of the Nuclear Installations Act 1965) in respect of which, or part of which, either a nuclear site licence is in force, or after the revocation or surrender of the licence, the period of responsibility of the licensee has not come to an end.124 Neither does Part 2A apply to land which is used by or on behalf of the Secretary of State for Defence for a purpose which would require a nuclear site licence.125 The idea behind these exclusions is that any remediation necessary will be dealt with either 122

See ch 6. Section 78YB(4A) as modified by reg 17 of the 2006 Regulations, as amended by SI 2008 No 520. 124 Section 78YB(5) as modified by reg 17 of the 2006 Regulations, as amended by SI 2008 No 520. As to the period of responsibility, see ch 4. 125 Section 78YB(4B) as modified by reg 17 of the 2006 Regulations, as amended by SI 2008 No 520. 123

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Part 2A and Licensed Nuclear Sites 371 by way of the powers available to the HSE under the nuclear licensing regime, or by the Secretary of State for Defence. The same rationale underlies a further exclusion by section 78YB(4C), by which Part 2A does not apply to land in respect of which action is required to be taken by a local authority under regulation 13(2) of the Radiation (Emergency Preparedness and Public Information) Regulations 2001 (dealing with implementation of emergency plans) where that action would amount to remediation of the relevant land.

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12 Radioactive Waste INTRODUCTION The question of how to dispose of radioactive waste safely in perpetuity has been said to be ‘one of the most intractable problems currently facing industrial countries’.1 The various types of radioactive waste which arise from industrial and other activities, together with the main problems which they present, have been outlined in chapter one. This chapter considers the controls currently applied by the Radioactive Substances Act (RSA) 1993 to the accumulation and disposal of radioactive waste, and begins with an overview of underlying domestic and international policy in this area. As with the regulation of radioactive substances described in chapter nine, it is currently proposed that radioactive waste regulation will be brought within the general environmental permitting regime (EPR), possibly some time in 2010. The substance of regulation will not change, but the procedures will—significantly in some respects. In view of this transitional position, as with Chapter 9, the existing system will be described and the likely changes will be noted. A general overview of the EPR system can be found at the end of chapter nine. There are many potential sources of radioactive waste, reflecting the many uses of radioactive materials as discussed in chapter nine; hospitals, surgeries, and general manufacturing industry may all generate radioactive wastes.2 In addition, all parts of the nuclear fuel cycle, beginning with the tailings from uranium mining, produce waste. A large proportion of radioactive waste will have levels of activity comparable to natural background levels. A much smaller proportion, however, is highly radioactive and requires very long term isolation from people and the environment. The essential factors which determine the precautions required are the concentration of radioactive material in the waste, the persistence of that radioactivity in terms of the half-life of the materials concerned, and to what extent the waste generates heat. High-level waste (HLW) arises from spent fuel and may comprise the spent fuel itself (if not reprocessed) or fission products and transuranic materials separated from the fuel. They require an initial period of cooling of between 20 and 50 years, either in water or in air-cooled buildings, before disposal.3 Such wastes are currently 1

British Government Panel on Sustainable Development, Second Report (1996), 18. There are also examples of high-level wastes being generated naturally—in particular the self-sustaining nuclear reaction which occurred at Oklo in Gabon, West Africa millions of years ago, evidence of which was discovered in 1972. The reaction is thought to have occurred intermittently over 500,000 years, and generated exactly the types of fission products and transuranic elements which would occur in a man-made nuclear reactor. See Gwyneth Cravens, Power to Save the World: The Truth About Nuclear Energy (New York, Alfred A Knopf, 2007) 154–7. 3 In April 2009 there was concern when cooling systems at Sellafield’s high level radioactive waste stores failed when the cooling reservoirs ran dry temporarily, prompting allegations by environmental groups of a ‘near miss’ where the tanks could have boiled and caused a significant off-site release of radioactivity. See ENDS Report 411 (April 2009) 24–5. 2

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Introduction 373 accumulating at around 12,000 tonnes per year worldwide.4 Such wastes, once they have cooled sufficiently to allow safe handling, will remain highly radioactive for very long periods of time. Various countries are working towards disposal facilities in stable deep geological repositories. The concept is one of multiple barriers, the waste itself being immobilised by vitrification or similar techniques, sealed in a corrosion-resistant steel or copper container and buried in a stable formation of salt, rock or clay. This entails some considerable thought as to how best to communicate to any future inhabitants of the planet in tens or even hundreds of thousands of years’ time the dangers of interfering with the containment arrangements. The US Department of Energy has been working with linguists, scientists, science fiction writers, anthropologists and futurologists on this issue to come up with such ‘passive institutional controls’. These may involve, for example, granite slabs and pillars etched with warning and informational messages in various languages, with additional space for translation into future languages, and pictograms such as Edvard Munch’s painting, ‘The Scream’.5 The history of the various attempts to grapple with the problem of nuclear waste disposal in the UK does not always make for happy reading. It may be some small comfort, however, to realise that the problems are not necessarily less intractable in other democracies, such as the US and Germany, particularly in terms of dealing with long-lived intermediate and high-level wastes. Some 39 countries worldwide will have to address the long-term management of long-lived wastes from civil nuclear power production or research reactor operation. As of 2006, 25 of these had taken a policy decision in favour of deep geological disposal, though most were not yet implementing that policy.6 The US has an operational facility (the Waste Isolation Pilot Plant or WIPP in Permian Salt Formations in the Chihuahuan Desert, outside Carlsbad, New Mexico7) disposing of defence related transuranic wastes (broadly equivalent to lower-level intermediate level wastes) and is currently in the course of the permitting process for a geological facility at Yucca Mountain, adjacent to the former Nevada atomic test site, some 80 miles north-west of Las Vegas, to take spent fuel and high-level wastes.8 Germany is preparing its Konrad facility for non-heat generating wastes and has extensively studied a salt dome site at Gorleben in Saxony since 1974, though these proposals have been extremely controversial and further investigations were subjected to a moratorium in October 2000, to allow for discussion on the concept and on security matters.9 Belgium is pursuing the siting of a low and intermediate level waste facility in the 4

See World Nuclear Association, Radioactive Wastes available at www.world-nuclear.org/info/inf60.html See ‘Danger! Keep Out! Do Not Enter!’ Science Illustrated, May/June 2008. 6 NDA, National Policies on the Long-Term Management of Higher Activity Wastes (April 2008) using data from national reports for 2005–2006 under the IAEA Joint Convention. 7 The facility has been operational since 1999 after 25 years in the planning and construction process and is a US Department of Energy facility managed by Washington TRU Solutions. See www.wipp.energy.gov. 8 The recommendation for a deep geological disposal route goes back as far as 1957. An early attempt to find a site failed in 1971 when the site under consideration, a salt mine in Lyons, Kansas, proved to be unsuitable because of extensive drillings in the area. The Department of Energy began studying the geology of Yucca Mountain in 1978. Investigations were undertaken at 10 sites originally, narrowed down to three (Yucca Mountain, Hanford and Deaf Smith County, Texas) in 1985. In 1987 Congress amended the Nuclear Waste Policy Act 1982 to direct the Department of Energy to study only Yucca Mountain. However, delays have resulted from political opposition and legal challenges. As of 2008 some US$9 billion had been spent on the project, and the total life cycle cost submitted to Congress in 2008 was around US$90 billion. A formal license application has now been submitted for the project to the Nuclear Regulatory Commission and following initial checking and docketing which was completed in September 2008, the NRC now has four years to complete the safety analysis and public hearings processes. See www.ocrwm.doe.gov/ym_repository/index.shtml for further details. 9 See www.dbe.de/en/sites/gorleben/1/index.php. 5

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374 Radioactive Waste municipality of Dessel, with backing of local councils under a Government Decision in May 2006. Canada is developing a deep geological disposal facility for low and intermediate level waste at Kincardine, Ontario, under the mandate of the Nuclear Fuel Act of 2002. Sweden has an operational facility for waste up to intermediate level at Forsmark, and is currently characterising two volunteer community sites, also at Forsmark, for spent fuel disposal.10 Finland has final disposal facilities for low and intermediate level wastes at Olkiluoto, and is now characterising a preferred site for spent fuel at the same location.11 France is investigating an area around its underground research laboratory at Bure in the Meuse/Haut-Marne as a location for a deep facility for high-activity long lived wastes.12 The French criteria for siting a deep geological repository were published in 1991 by the Nuclear Safety Authority as Basic Safety Rule RFS III.2.f and are: (1) no seismic risk over the long term; (2) no significant water circulation within the repository; (3) a suitable rock for structure excavation; (4) containment properties for radioactive substances; (4) located deep enough to protect the waste against ‘various aggressions’; and (5) no exceptional recoverable resources in the vicinity. In most countries requiring disposal facilities there appears to be a general consensus in favour of deep geological disposal and recognition of the need for strong engagement and interaction with the public in the site selection process. The scientific consensus is that geological disposal is technically feasible, and can be accommodated in a wide range of geological settings, if carefully selected and matched with facility design and configuration. Further, there is a common international framework provided by the Joint Convention on Safety of Spent Fuel Management and Radioactive Waste Management, the relevant Safety Standards of the IAEA and the recommendation of the ICRP.13 Site search and selection is challenging in political and social terms, and the more successful national programmes have in general benefited from open, transparent and inclusive processes that have allowed sufficient time and flexibility for stakeholder engagement.14

INTER-GENERATIONAL EQUITY ISSUES The time scales involved also raise intriguing but potentially insoluble ethical and legal issues of fairness to future generations. The IAEA Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management expressly provides at Article 1(ii) that among its objectives are to ensure that individuals, society and the environment are protected from harmful effects of ionising radiation, ‘now and in the future, in such a way that the needs and aspirations of the present generation are met without compromising the ability of future generations to meet their needs and aspirations’. Both the 10

See www.world-nuclear.org/info/inf42.html. See www.stuk.fi/en_GB/. 12 The construction of the underground laboratory began in 2000 pursuant to Act No 91-1381 of 30 December 1991, 500m deep in Argilitic clay. The first research on the issue dates back to the 1960s, undertaken by the Commissariat à l’Energie Atomique. Planning Act No 2006-739 of 15 June 2006 sets out a timetable for geological studies and public debate, leading to operation of a reversible storage facility by 2025, subject to authorisation. See www.andra.fr/international/. 13 See ch 2. 14 See Nuclear Energy Agency, Radioactive Waste Management Committee, Moving Forward with Geological Disposal of Radioactive Waste NEA/RWM(2008)5/REV2 available at www.oecdnea.org/html/rwm/docs/2008/ index.html. 11

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International Co-operation on Disposal Facilities 375 general safety requirements for spent fuel management (Article 4(vi) and (vii)) and waste management (Article 11(vi) and (vii)) require contracting parties to take appropriate steps to avoid actions that impose reasonably predictable impacts on future generations which are greater than those permitted for current generations and to aim to avoid imposing undue burdens on future generations. This implies an exercise of judgment rather than an attempt to avoid any risk, at whatever cost. No-one can, of course, know what may represent an ‘undue burden’ over the timescales concerned, any more than what may be the ‘needs and aspirations’ of future generations. Deferring final disposal by placing waste in long-term storage may itself be regarded as creating a burden for future generations who will have to deal with the waste. The concern for the environmental and social consequences of current actions for future generations is, of course, not confined to the area of nuclear waste,15 but the duration of the effects of decisions in that area present the issues at perhaps their most extreme.16 In particular, it may be said that the responsibility of the present generation includes developing the technology, constructing and operating facilities, and providing a funding system and sufficient controls and plans; to the best extent possible, management arrangements should not rely on long-term institutional arrangements or actions as a safety feature.17 Whilst the general concept of an obligation to act responsibly with regard to the interests of future generations is readily understandable, it does not in itself help to resolve the practical issues of how it is to be implemented.18 The wording of Article 11 of the Joint Convention does not suggest that future generations should not bear any burden whatsoever, rather that the burden passed on to them should not be an ‘undue’ one. The corollary of this is that the standards and consequent costs imposed on current operators and the public might themselves be regarded as ‘undue’ if they go beyond what might be regarded as scientifically appropriate to provide an adequate level of future protection, purely on the basis of an indeterminate ethical principle that future generations should suffer no adverse consequences from current actions.

INTERNATIONAL CO-OPERATION ON DISPOSAL FACILITIES In view of the problems and costs involved in finding such solutions on a national basis, there have been proposals mooted for regional and international repositories for high level wastes.19 For example, in November 2003 in a speech to the UN General Assembly, Dr Mohamed ElBaradei, Director-General of the IAEA said:

15 See, eg, the work of Prof Edith Brown Weiss, ‘Intergenerational Fairness and Rights of Future Generations’, (2002) Intergenerational Justice Rev 1, 6. For a summary of the issues, see Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment, 3rd edn (Oxford, Oxford University Press, 2009) 119–22. 16 See, eg, the decision of the US Court of Appeals for the District of Columbia Circuit in Nuclear energy Institute Inc v Environmental Protection Agency 373 F.3d 1251 (DC Cir 2004) which set aside a radiation standard written for the proposed Yucca Mountain repository on a 10,000 year basis, as effectively not taking a sufficiently long-term approach where the National Academy of Sciences had advised that the peak radiation risks would not be experienced for tens to hundreds of thousands of years after disposal, if not longer. 17 See IAEA Safety Series No 111-F, Safety Fundamentals: the Principles of Radioactive Waste Management (1995), Principle 5, paras 318, 320, discussed further below. 18 For practical and technical discussion of the issues, see Considering Timescales in the Post-Closure Safety of Geological Disposal of Radioactive Waste (Nuclear Energy Agency, OECD Publishing, 2009). 19 www.world-nuclear.org/info/inf21.html.

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376 Radioactive Waste We should . . . consider multinational approaches to the management and disposal of spent fuel and radioactive waste. Over 50 countries currently have spent fuel stored in temporary locations, awaiting reprocessing or disposal. Not all countries have the appropriate geological conditions for such disposal—and, for many countries with small nuclear programs, the financial and human resources required for the construction and operation of a geological disposal facility are daunting.

Suggestions have included the proposal by Pangea Resources in the 1990s for an international deep geological repository in Australia,20 an idea which did not meet with political or public favour in that country when mooted in 1999. In 2001 the Russian Parliament passed legislation to allow the import of spent nuclear fuel,21 and in 2003 there was for a time interest in the development of a major spent fuel repository at Krasnokamensk, in uranium mining territory some 7,000km east of Moscow. At European level, in 2006 following a previous pilot study, the EC-funded Strategic Action Plan for Implementation of European Regional Repositories (SAPIERR) project22 assessed the feasibility of European waste repositories, presenting its results at a symposium in Brussels in January 2009. This has led to some 14 countries23 agreeing to set up a European Repository Development Organisation (ERDO). The concept of regional facilities makes much sense on a number of levels, given the huge cost of constructing such facilities on a purely national basis, ensuring the necessarily high standards of safety and design, and the increasingly important imperative of exercising strict safeguards control over the dangerous materials involved, through having joint facilities with multinational staff. The lack of any real international market for spent fuel disposal services may become an increasingly acute problem as more countries rely on nuclear power for part of their electricity supplies. To that extent multilateral approaches will probably become more compelling for those countries which have not developed their own national facilities. Certainly there are possible advantages from multinational co-operation in terms of cost, efficiency, safety, non-proliferation and security. However, there are formidable obstacles to be addressed in terms of political and public acceptability and in adaptation of the current legal regimes on transboundary movements of waste, arrangements for transit through the territory or territorial waters of other states and on liability and insurance.

CLASSIFYING RADIOACTIVE WASTE For some years attempts have been made to classify radioactive waste into various levels according to its characteristics. The physical, chemical and radiological properties of waste will affect how it is handled, stored and managed. Different approaches and terminologies have been used in different countries, and even in some cases between different facilities in the same country, leading to some confusion in communication and comparison of 20 This would have entailed an inland deep geological repository served by a dedicated port and rail link, taking some 75,000 tonnes of spent fuel and high-level waste over a period of 40 years, or some 25% of the world’s civil nuclear waste inventory, with revenues of around US$100 billion over the lifetime of the facility. The Western Australian Government’s response was to pass a bill making it illegal to dispose of foreign high-level waste in the state without specific Parliamentary approval. 21 See ch 10 on transport. 22 www.sapierr.net/index_01.htm. 23 Austria, Bulgaria, Czech Republic, Denmark, Estonia, Ireland, Italy, Latvia, Lithuania, the Netherlands, Poland, Romania, Slovakia, Slovenia.

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Classifying Radioactive Waste 377 practices internationally.24 In 1994, the IAEA issued its Safety Guide on Classification of Radioactive Waste,25 which sought to recommend a method for deriving a classification system. This proposed a system based on three major classes of waste: 1. Waste containing such a low concentration of radionuclides that it can be exempted from nuclear regulatory control, in accordance with clearance levels, as the associated radiological hazards are negligible (exempt waste). 2. Waste that contains such a level of radionuclides that it requires actions to ensure protection of workers and the public either for short or long periods of time. This may cover a wide range of waste varying both in their activity and their half-lives, so that very different precautions might be required. 3. Waste that contains such high levels of radioactive material that a high degree of isolation, normally geological isolation, from the biosphere is required over long time periods, and which will normally require both shielding and cooling (high level waste). The European Community has also adopted a Recommendation as to a common classification system for solid radioactive waste, based on the IAEA system, for use in the context of national and international communication and information management, but without seeking to pre-empt domestic technical criteria for waste management.26 In the UK, the classification has historically designated four types, as was outlined in the Government’s 1995 Review of Radioactive Waste Management Policy and has remained the basic approach:27 1. High-level or heat-generating wastes (HLW)— the temperature of such wastes may rise significantly as a result of their radioactivity and they require substantial radiation shielding, containment, and measures to remove heat. Such wastes include spent fuels and liquid wastes produced from reprocessing nuclear fuels, which are subject to a vitrification process to convert them into a borosilicate solid glass form. There is currently no disposal route available for such wastes in the UK. It is stored either as liquid in watercooled, stainless steel tanks or as vitrified blocks. Most is currently stored at Sellafield, which opened a vitrification plant and a purpose built vitrified products store in 1996. 2. Intermediate-level wastes (IWL)— radioactivity levels in these wastes exceed the upper bounds for low-level wastes, but do not generate heat in sufficient quantity that it requires to be taken into account in the design of storage or disposal facilities. Some degree of radiation shielding will be required. The disposal route will depend on whether the waste is long or short lived. Short-lived wastes can be disposed of by shallow burial, whereas the long-lived wastes will require deep geological disposal, together with high-level wastes. The materials in question include items that have been subject to irradiation in reactors such as filters and control rods, equipment used in processing radioactive materials, and some chemical residues from effluent treatment. As with HLW, the UK currently has no disposal route for these wastes. The waste is stored in the interim in tanks, vaults and drums. Some is being subjected to a cementation process, immobilising it in steel drums, as it arises. 24 See, eg, MD Lowenthal, Radioactive-waste Classification in the United States: History and Current Predicaments (Lawrence Livermore National Laboratory UCRL-CR-128127, July 1997). 25 Safety Series No 111-G-1.1, Vienna, 1994. 26 1999/669/EC, Euratom; SEC(99) 1302 final. 27 Review of Radioactive Waste Management Policy and Conclusions, Cm 2919 (1995), para 53.

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378 Radioactive Waste 3. Low-level wastes (LLW)— these contain radioactive materials other than those acceptable for disposal with ordinary refuse, but not exceeding 4 GBq/te (gigabecquerels per tonne) of alpha activity or 12 GBq/te of beta activity. Such wastes include items such as protective clothing, laboratory equipment and other materials such as paper, packaging, plastics and metals which have come into contact with radioactivity. Amounts will increase significantly as the clean-up and decommissioning of nuclear sites progresses, producing quantities of materials such as soil, rubble and steel reinforcement. They require containment to protect the operator, but generally not shielding. They will often be compacted to reduce volumes. Since 1959 the main disposal route has been burial at the Drigg waste facility near Sellafield, now operated by British Nuclear Group Limited, or at UKAEA’s Dounreay facility in Scotland. 4. Very low-level wastes— these require no special protective measures and can be safely disposed of with ordinary refuse by landfill or incineration. They may include some wastes arising from industries which deal with materials that are naturally radioactive, for example, zircon sands used in refractories and as abrasives. They are sub-classified into low volumes (‘dustbin loads’) which can be safely disposed of to unspecified destinations with normal waste, and high-volume bulk disposals which are disposed of to specified landfill sites where the total volumes deposited at the given landfill site are controlled by licence conditions.

THE UK NATIONAL INVENTORY The current UK radioactive waste inventory is maintained by the Nuclear Decommissioning Authority (NDA).28 It describes the sources, quantities and properties of waste existing on 1 April 2007 and anticipated to arise in the future.29 The position is (figures in cubic metres): HLW: 1,730 existing; 1,420 lifetime total after packaging.30 ILW: 92,550 existing; 143,000 future estimated; 364,000 lifetime total after packaging. LLW: 196,000 existing; 3,000,000 future estimated; 3,470,000 lifetime total after packaging. Radioactive waste is managed on some 36 sites in the UK, including operating nuclear power stations; shut-down reactors undergoing decommissioning; facilities supporting the civil nuclear fuel cycle (Capenhurst, Sellafield, Springfields); research and development sites where decommissioning and clean up are being undertaken (Harwell, Windscale, Dounreay and Winfrith); the Joint European Torus (JET) fusion facility at Culham; 10 sites owned by the Ministry of Defence relating to the atomic weapons and nuclear submarine programmes; three healthcare science sites operated by GE Healthcare (Amersham, Cardiff, Harwell); and the national disposal facility for LLW at Drigg.31

28

For further detail on the NDA see ch 11. See www.nda.gov.uk/ukinventory/the_inventory/2007-inventory.cfm. 30 The existing volume includes waste in liquid form which will reduce in volume when vitrified. 31 The inventory also notes that a site in Sheffield is storing a small quantity of waste from the accidental smelting of radioactive materials in a steel manufacturing plant. 29

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Radioactive Waste Disposal in the UK 379

RADIOACTIVE WASTE DISPOSAL IN THE UK: HISTORICAL EVOLUTION It was the Government’s 1959 White Paper, Control of Radioactive Waste,32 which prompted the enactment of the Radioactive Substances Act 1960, with its requirement that the disposal and accumulation of radioactive waste be authorised. However, public attention to radioactive waste disposal practices remained very limited until the mid 1970s. The Sixth Report of the Royal Commission on Environmental Pollution, Nuclear Power and the Environment, the so-called ‘Flowers Report’,33 considered in detail the various disposal methods applied at the time. In relation to gaseous discharges of radioactive substances to the atmosphere from, for example, nuclear reactors and fuel reprocessing plants, it appeared to the Royal Commission that the standards being applied were such that there was no significant problem (paragraph 343). The Royal Commission referred to the principles set out in the 1959 White Paper, namely, that strict upper limits should be given to the doses that may be received by an individual or population, below which doses should be reduced to as low a level as was reasonably practicable ‘having regard to cost, convenience and the national importance of the subject’. Whilst agreeing with this approach, the Royal Commission suggested that in the case of gaseous effluents the agreed maximum levels should be regarded as a presumptive standard, forming part of the overall authorisation to discharge (at that time, standards were only generally fixed numerically for aqueous effluents). As to liquid waste, the Royal Commission noted that by far the largest aqueous discharge of radioactivity to British waters originated from BNFL’s Windscale works. No particular comment was made upon this practice, other than to note that discharges of plutonium by this route could be a serious issue for the future. With respect to low-level solid waste deposited on municipal and ‘special precautions’ refuse tips, the Royal Commission concluded that the present practices of the Radiochemical Inspectorate were ‘perfectly satisfactory’ (paragraph 356) and that moves to have such slightly contaminated material moved across the country at great expense for ocean dumping were misguided. With respect to the low-level solid wastes disposed of by burial at Drigg in Cumbria, the Royal Commission was satisfied that the practice presented no danger to the public, but were doubtful that it should be repeated around the country to deal with waste from an expanded nuclear programme; they considered that more thought needed to be given to the arrangements which might be needed in the future. Difficulties really began to emerge when the Royal Commission considered intermediate-level solid waste, as they were unable to discover any clearly formulated policy for its future disposal (paragraph 364). Such waste was at that stage kept at nuclear sites, and the Royal Commission gained the impression that there was a lack of clarity about where responsibility lay for determining the best strategy for dealing with such wastes. The Royal Commission referred also to the policy of BNFL, expressed in their evidence to the Commission, that solid waste should be disposed of by deep ocean dumping. The 1972 London Dumping Convention, which had entered into force in September 1975, restricted the sovereignty of the UK with regard to ocean dumping and prohibited the dumping of high-level waste. At that time the UK took part in an annual international operation to 32 33

Cmnd 884 (1959). Royal Commission on Environmental Pollution, 6th Report, Cmnd 6618 (1976).

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380 Radioactive Waste dump packaged, low-level solid waste in the deep North Atlantic some 900 kilometres off Land’s End; such operations had been conducted and controlled by the Nuclear Energy Agency of the OECD since 1967. The Royal Commission did not feel this scale of dumping, amounting to about 7,000 tonnes per year, gave rise to any worry, but felt it unlikely that an expanded programme would be acceptable to UK authorities and internationally, and that it was therefore necessary to begin work on developing a national disposal facility. In relation to the interim management strategies for high-level waste, the Royal Commission considered the various possible options which were open and stressed the need for a clear strategy, which was lacking under contemporary arrangements. Overall, the picture which emerged from the Royal Commission’s review of radioactive waste management was ‘in many ways a disquieting one, indicating insufficient appreciation of long term requirements either by Government Departments or by other organisations concerned’ (paragraph 427). In view of the long lead times required for the development of appropriate disposal facilities, the Royal Commission was convinced that a much more urgent approach was needed and that the responsibilities for both devising and executing policy needed to be more clearly defined. The Government responded to the Flowers Report in Command Paper 6820 (1977). This response was generally endorsed by a further White Paper in 1982.34 These policy documents set out six main objectives of Government policy: (1) to minimise the creation of waste from nuclear activity; (2) to deal with waste management problems in principle before any large scale programme of nuclear power was undertaken; (3) to carry out the handling and treatment of waste with due regard to environmental considerations; (4) to dispose of wastes at nuclear sites in accordance with a programme; (5) to provide adequate research and development on methods of disposal; and (6) to dispose of wastes in appropriate ways, at appropriate times and at appropriate places. These objectives were sufficiently vague to mean very little in practice, though the Government did take positive action by creating the Radioactive Waste Management Advisory Committee (RWMAC) in 1978, and the Nuclear Industry Radioactive Waste Executive (Nirex) in 1982. Nirex was to play a major, and unhappy, part in the process of seeking a solution to the disposal of waste; it was a body owned by the nuclear industry as the key waste producers and became the limited company UK Nirex Limited in 1985.35 Additionally, primary Government responsibility in this area was passed to the Department of the Environment. Other concerns expressed in the Flowers Report prompted the Department to commence a programme of test drilling in potential rock structures for the disposal of highly active wastes. These plans were abandoned in December 1981, following opposition from the rural communities involved in Ayrshire, mid-Wales and Northumberland.36 By the time of the decision, plans for further investigation had been shelved by a Parliamentary announcement two days earlier and, in view of this, the Secretary of State decided that a loss of amenity in the National Park, even in the short term, was not justified. By this time, it had been decided from available scientific evidence that high-level waste could be vitrified and stored for up to 50 years prior to 34

Cmnd 8607 (1982). From 1985 to April 2005, shares in Nirex were owned by the major nuclear industry players, ie BNFL, Magnox Electric, UKAEA and British Energy Generation, subject to a ‘golden share’ owned by the Secretary of State for Trade and Industry, who was represented on the Nirex board. Nirex was funded by its shareholders. 36 See the planning appeal decision at [1981] Estates Gazette, Vol 261, 144—where the UKAEA unsuccessfully appealed against refusal by Northumberland County Council to sink test boreholes in the Northumberland National Park. 35

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Radioactive Waste Disposal in the UK 381 its disposal; later work advocated such storage of 100 years to allow for radioactive decay and reduction in heat output. In its 1982 White Paper, the Government felt able to assert that problems of waste management did not present a barrier to the foreseeable development of nuclear power. Once the RWMAC had pointed to the urgent need for suitable disposal options for ILW in its first Annual Report in 1980, attention switched to securing such options. The Government’s 1982 White Paper identified the lack of suitable disposal facilities for ILW as a major gap in waste management policy and Nirex was given the role of identifying such facilities. The Government was shortly to find out how difficult this task would be.37 At the same time, the practice of sea dumping assumed a high profile internationally when in February 1983, the London Dumping Convention resolved to prohibit the practice until scientific evidence could demonstrate conclusively that no harm to the marine environment would result. The possibility that Britain would ignore this decision led to a boycott of radioactive waste dumping at sea in the summer of 1983 by the National Union of Seamen and other transport unions. This action resulted in the creation of an independent panel of scientists chaired by Professor FGT Holliday to investigate the safety of the North Atlantic Sea dump. The report, published in December 1984,38 recommended a continued moratorium until further evidence could substantiate a case for removal of the ban; it was also recommended that sea dumping should be compared with land-based alternatives on the basis of identifying the best practicable environmental option (BPEO). Against this background, in 1983, Nirex announced its selection of sites at Billingham in Cleveland and Elstow in Bedfordshire as potential repositories for ILW and LLW. This process of selection was seen as seriously flawed in the absence of consideration of alternative sites for additional disposal options. Major campaigns were mobilised against the choice of both sites. In the midst of the controversy, the Government published its National Strategy for Radioactive Waste Management (DoE, 1984) which contained only a general statement suggesting that, for low-level and intermediate-level waste, there was no requirement for any lengthy research and development into disposal methods. Both sites were ultimately withdrawn in the face of considerable opposition. The withdrawal of Billingham as a potential site was announced in January 1985, and was mainly prompted by the refusal of the owner of the mine (ICI) to sell it. In the statement announcing this decision, the Secretary of State indicated that at least two further sites additional to Elstow would be investigated to provide a comparative assessment, and that to facilitate the comparative evaluation the Government was to introduce a special development order to allow experimental drilling to take place. This latter aspect was important, given the strategy followed by Bedford County Council in seeking injunctions to prevent site sampling work at Elstow.39 In February 1986, the Secretary of State announced that three further sites would be considered, namely South Killingholme in South Humberside, Fulbeck in Lincolnshire and Bradwell in Essex. Planning permission for investigation was given by the Town and Country Planning (Nirex) Special Development Order 1986.40 Local opposition at all sites 37 See S Openshaw, S Carver and J Fernie, Britain’s Nuclear Waste: Siting and Safety (London and New York, Belhaven Press, 1989) for a detailed exposition of the process and where it went wrong. 38 The Report of the Independent Review of the Disposal of Radioactive Waste in the North-East Atlantic (HMSO, 1984). 39 Bedfordshire County Council v CEGB, SSEB, UKAEA, BNFL Plc [1985] JPL 43 (Nirex not having been formally incorporated at that stage). 40 SI 1986 No 812.

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382 Radioactive Waste led to protests with Nirex having to resort to court action to gain access by obtaining injunctions against protestors and all those ‘associated or affiliated with’ the local protest groups, a description said to have been enough to cover: ‘The Bishop of Lincoln, Mr Austin Mitchell, MP for Great Grimsby, and the Women’s Institute’.41 An additional political embarrassment was that all three sites were in Conservative constituencies, including that of the then Government Chief Whip, Mr John Wakeham. The heavy-handed approach adopted by Nirex contrasts with the evolution of the co-operative approach in more recent years, described below. In March 1986, Assessment of Best Practicable Environmental Options for Management of Low and Intermediate-Level Solid Radioactive Wastes (HMSO) was published. This significant study by the DoE Radioactive Waste Management (Professional) Division concluded that the BPEO for most LLW and some short-lived ILW was near-surface disposal, as soon as practicable, in appropriately-designed trenches. Where levels of alpha emissions made this method unacceptable for ILW, deep underground disposal would be required, with no technical preference between deep cavity disposal or offshore borehole disposal. Economic, radiological and social impacts could be used to distinguish between these opinions only on a site-specific basis. Meanwhile, the House of Commons Environment Select Committee chaired by Sir Hugh Rossi MP had published its first report on radioactive waste.42 The Report was deeply critical of many aspects of policy: It has become apparent to us that far from there being a well-defined, publicly debated policy on the creation, management and disposal of radioactive waste, there was confusion, and obfuscation among the various organisations entrusted with its care . . . In short, the UK Government and nuclear industry are confused. On the one hand, bold announcements about prospective new disposal sites are issued. They are then withdrawn, left hanging in the air, or modified ad hoc. On the other hand, a very large proportion of radioactive waste goes on being produced unquestioned and a sequence of different studies shows that the UK is still only feeling its way towards a coherent policy. For an issue which is of such great public concern, this is regrettably inadequate.

Whereas the Flowers Report had been satisfied with much of the detail of then current waste management practice, Rossi’s Commons Select Committee expressed dissatisfaction with many aspects. In relation to disposal of low-level waste at Drigg, the conclusion was that much valuable space was wasted by the unnecessary disposal of material which had been subject to even the remotest contact with radioactive matter; conversely, the Committee was not assured that harmful higher activity wastes could not leak out of the site into groundwater. The Committee also critically referred to the fact that public perception was at the heart of the problem in this respect, and concluded that the ‘industry must radically change its present attitudes and its relationship with the public; that a “Rolls-Royce” approach must be embraced and is not significantly more expensive than less cautious solutions’.43 Then in May 1987, in an amazing turnaround in policy, the Secretary of State announced the abandonment of the search for a near surface disposal repository at the four sites then 41

The Times, 30 September 1986. Session 1985–86, HC 191-I. This was the first of a series of seminal reports by the Select Committee under Sir Hugh Rossi’s chairmanship during the 1980s and 90s on what were then neglected topics such as hazardous waste and contaminated land. 43 The importance of public perception in this area was also strongly emphasised by the 1985 DoE Research Report, Social Impacts of Radioactive Waste Disposal (Final Report, November 1985) which considered the reactions of various interest groups to different methods of disposal. 42

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Radioactive Waste Disposal in the UK 383 under consideration, in favour of a multi-purpose facility for both LLW and ILW. This decision was attributed to cost considerations, in particular that the increase in shallow repository costs had narrowed any cost differential between that and a deep repository. It had also become clear to the Government that the public were no less concerned about the creation of a site for the disposal of LLW as for ILW, notwithstanding the very different tangible risks involved. The increase in costs relating to near surface facilities was referable to the House of Commons Committee’s suggestion that a ‘Rolls-Royce’ solution was required to meet the public’s perception of the problems. Therefore, it became more economic to consider disposing of LLW and ILW at a single facility, rather than creating two separate facilities. These costing arguments were met with some scepticism; suggestions were made that the real reason was related to the atmosphere of heightened concern about nuclear issues following the Chernobyl disaster.44 Attention then became focused on three possible options: a deep mine on land; a repository under the seabed accessed by tunnels from the shore; or a repository under the seabed accessed by a vertical shaft from a rig or similar structure. Nirex published in 1988 its discussion document, The Way Forward, aimed at assisting general understanding of the issues and stimulating comment. The document invited comments in particular on the issue of site selection factors, selection process and local liaison—including the issue of whether ‘an adequate site which enjoys local support should be preferred to a superior site which does not’. In May 1994, the Secretary of State for the Environment announced a fresh review of radioactive waste management policy, which was carried out in parallel with the Government’s review of the future prospects for the nuclear power industry, also announced in May 1994. Preliminary conclusions were published by the Government in August 1994. The final outcome of the review was published in July 1995: Review of Radioactive Waste Management Policy, Final Conclusions.45 The purpose of the review was to examine current policy in the light of changes which had taken place since the 1984 National Strategy was published. In legal terms it formed part of the guidance given by Government to the Environment Agency and SEPA, providing a policy framework within which those bodies were to carry out their regulatory activities in relation to radioactive waste disposal. It was also stated as being intended to inform the UK’s approach to negotiations in bodies such as the IAEA and Euratom on radioactive waste management and to help determine the Government’s research programme in future years. It remains an important statement of the general principles which should underlie radioactive waste management. The consultation paper and consultative responses which had preceded the 1995 Review document indicated widespread support for updating the six principles for radioactive waste management set out in the 1977 White Paper. Suggestions included placing policy on radioactive waste more firmly within the context of general environmental policy, making reference to the precautionary principle, greater emphasis placed on sustainable development, and a firmer line to be taken on minimising the creation of waste. Paragraphs 50 to 52 of the Review Paper set out new principles for radioactive waste management policy. These took the starting point that such a policy should be based on the same central principles as apply more generally to environmental policy, particularly the principle of sustainable development. Reference was made to the formulation of that policy in Sustainable Development—the UK Strategy,46 and also to the various supporting principles contained in that document. These included the basing of decisions on 44 45 46

The Times, 3 May 1987. Cm 2919 (1995). Cm 2426 (1994).

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384 Radioactive Waste the best possible scientific information and risk analysis; the application of the precautionary principle where there is uncertainty and where potentially serious risks exist; the consideration of ecological impact, particularly where resources are non-renewable or effects may be irreversible; and that the cost implications should be brought home directly to those responsible for impacts (the ‘polluter pays’ principle). More specifically, the policy went on to provide at paragraph 51 that radioactive waste should be managed and disposed of in ways which protect the public, the workforce and the environment. In applying the principle of risk minimisation, it was recognised that there is a point where additional costs of further risk reduction will exceed the benefits arising from improvements in safety. The level of safety, and the resources required to achieve it, should not be inconsistent with those accepted in other spheres of human activity. Within this approach, the intention was to maintain and develop a policy framework to ensure that: (a) radioactive wastes are not unnecessarily created; (b) such wastes as are created are safely and appropriately managed and treated; and (c) they are then safely disposed of at an appropriate time and in appropriate ways, so as to safeguard the interests of existing and future generations and wider environments, and in a manner which commands public confidence and takes due account of costs.

THE NIREX PLANNING APPLICATION An important chapter in waste management closed in 1997. The 1995 White Paper had continued to favour a policy of deep disposal rather than indefinite storage for ILW and considered it appropriate that Nirex should continue with its programme to identify suitable sites. It was stated that there was no advantage to be gained from delaying the development of a repository, and that once a suitable site has been found, it should be constructed as soon as was reasonably practicable. By 1989, Nirex had prepared a short list of 12 sites and the Government had accepted that a deep repository should be under land rather than under the seabed and that the next steps should be to carry out detailed geological studies in the vicinity of Sellafield and Dounreay. The conclusion of Nirex was based on the view that it would be best to begin by exploring those sites where there was some measure of local support for civil nuclear activities. Following borehole tests, Nirex announced in 1991 that its preliminary conclusion was that either site could potentially support the safe case necessary for a deep site, but that it proposed to concentrate its investigations on Sellafield for logistical and transport reasons (most ILW arising from BNFL’s operations at Sellafield). Nirex thus applied for planning permission for a rock characterisation facility at Longlands Farm near Sellafield (essentially an underground laboratory to test the suitability of the site for the disposal of intermediate level waste). The process of selecting the site was not discussed with the public and stakeholders and was conducted in secret, other sites under consideration not being made public in order to prevent blight (and perhaps political controversy).47 Following refusal of planning permission by Cumbria County Council, the matter went to public inquiry which ran for 66 sitting days and closed on 1 February 1996, 47 Nirex, Technical Note 477002, Review of 1987–1991 Site Selection for an ILW/LLW Repository (June 2005). This information was finally published after a policy change following the introduction of the Freedom of Information Act 2000 on 1 January 2005, previous requests having been denied.

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The Nirex Planning Application 385 hearing evidence from 73 witnesses. The evidence included a strong case presented by Friends of the Earth Limited and Greenpeace Limited, who called between them 13 expert witnesses on matters such as volcanology, geophysics, geochemistry, hydrogeology, engineering, computer modelling and geochemistry.48 On 18 March 1997 the then Secretary of State, John Gummer, dismissed the appeal, the day the election was called which was to bring the Labour Government to power. Mr Gummer’s decision was based on a series of local planning issues, such as design, layout, visual intrusiveness and damage to badger habitats. However, it was clear from the decision letter and the inspector’s report that there were very serious concerns over site selection processes and technical deficiencies in the proposal.49 It was noted that the site selection process had ‘singularly failed to impress the inspector in terms of its transparency and the rigour of its technical and scientific logic’. Moreover, the technical assessor to the inquiry found that the proposed site was not readily characterisable—indeed its volcanic nature and significant faulting made it ‘exceptionally difficult’ to characterise accurately.50 Nirex was also found to have been guilty of ‘undue optimism’ in its modeling of possible pathways through the overlying sedimentary rocks. An internal inquiry undertaken by Nirex after the decision produced a finding that the process for developing the Sellafield repository was ‘damagingly unclear’ and that insufficient public justification was provided, which ‘implied a lack of accountability to society’. The collapse of Nirex’s proposal not only discredited Nirex51 but left waste management policy generally in a state of limbo. In 1997 the Parliamentary Office of Science and Technology produced a report which found that several factors had come together to cause this outcome, ‘a trip back to square one’ after 15 years of work at a cost in excess of £500 million.52 As that Report pointed out, the fundamental importance of basing the process of site selection on considerations of public and environmental safety, rather than practical expediency, and of openness and credibility with the public, had been pointed out in the 1970s by Lord Flowers’ Royal Commission.53 Whilst the application was, after all, for an underground 48 See RS Haszeldine and DK Smythe (eds) Radioactive waste disposal at Sellafield, UK: site selection, geological and engineering problems (University of Glasgow, 1994). This very useful publication sets out the proofs of evidence and closing submissions of Cumbria County Council, Greenpeace and Friends of the Earth in full and is available at www.geos.ed.ac.uk/homes/rsh/Sellafield.html. 49 See ENDS Report 266, March 1997, Radwaste Policy in tatters as Gummer blocks Nirex dump. 50 The report of the assessor, Mr CV Snipe, is available at www.jpb.co.uk/nirexinquiry/nirex.htm. Para G.26 of the report described the site as falling ‘well short of meeting what at one stage Nirex itself accepted as requisite generic features, notably very slow local and regional groundwater movements in an area of low regional hydraulic gradients, and predictable groundwater flow paths’. Para G.27 described the features of the Sellafield district as being generally unfavourable for the siting of a repository, including the hilly topography and relatively steep head gradients of groundwater locally, the degree of faulting and the complexity of the volcanic rocks, and the overlying presence of 500m of water bearing-sandstones, recognised as a significant aquifer. At para G.28 it was stated: ‘Taken overall, the site is not an obvious choice for its geological environment. It seems to me to have been selected because of its convenience—its proximity to Sellafield works’. 51 Following the decision, there were drastic reductions in Nirex staff and changes in senior management. Nirex reverted to its important but more routine functions of advising waste producers on packaging and transportation, and the national waste inventory. Recognising the shortcomings of its previous essentially technical approach in terms of transparency, there was a significant shift in corporate culture, and Nirex made considerable progress in engaging with the social and ethical issues in radioactive waste management. See further, ENDS Report 319, August 2001, 20–25, Nirex: Lessons from the Last Chance Saloon. However, the decision was ultimately taken to subsume Nirex within the NDA. Ownership of Nirex was transferred from the nuclear industry shareholders to DEFRA and the DTI in April 2005, then to the NDA in November 2006, with Nirex ceasing to trade in April 2007, when its staff and functions were transferred into the Radioactive Waste Management Directorate of the NDA. 52 Radioactive Waste—Where Next? (POST, November 1997) available at www.parliament.uk/post/9711.htm. 53 See also Nirex Technical Note 477002 Review of 1987–1991 Site Selection for an ILW/LLW Repository (June 2005) which accepts that ‘the process used was technically sound, but it was conducted in secret and did not involve stakeholders, therefore it was not a legitimate process’.

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386 Radioactive Waste laboratory rather than a waste repository, public opposition resulted in the planning inquiry turning into ‘a de facto assessment of the full safety case for a repository, essentially in the wrong place, the wrong forum, at the wrong time’. The House of Lords Select Committee on Science and Technology, in its March 1999 Report, Management of Nuclear Waste, noted that with the rejection of the Nirex planning application, the UK ‘was left with no practical plan for the disposal of most of its nuclear waste’. The Committee found that while there was plenty of evidence that phased disposal in a deep geological repository was feasible and desirable, the future policy would critically require public acceptance, central to which would need to be widespread public consultation before any policy was settled by Government. In May 1999 a ‘Consensus Conference’, organised by the UK Centre for Economic and Environmental Development (UKCEED), was held in London, with the aim of creating dialogue between the public, experts and politicians and which can perhaps be seen as marking an important change in openness and transparency on the issue of disposal.54

REBUILDING THE RADIOACTIVE WASTE PROGRAMME Since 1997, there have been developments on many fronts in terms of policy on radioactive waste management in the UK, which are best dealt with under various subject headings. Radioactive waste management is now a devolved function in the UK, so that DEFRA, the Scottish Executive, the Welsh Assembly Government and the Department of the Environment in Northern Ireland are each responsible for radioactive waste in their relevant parts of the UK.55 The Radioactive Waste Management Policy Group (RWPG) of DEFRA is the group in which the relevant UK Government departments, the devolved administrations, the NDA and the principal regulatory bodies (Health and Safety Executive and the Environment Agencies) are represented. A very useful summary of policy in the various fields is provided by RWPG’s Rolling Summary of the current components of radioactive waste management policy in the UK, though further developments have occurred since the most recent version of this document in September 2007.56 The basic aims of the policy and regulatory framework are to ensure that radioactive wastes are not unnecessarily created, that they are safely and appropriately managed and treated, and that they are then safely disposed of at appropriate times and in appropriate ways. The policy includes the aims of safeguarding the interests of existing and future generations and the wider environment, and in a manner that commands public confidence. The relevant overarching principles are: 1. Justification, optimisation and dose limitation as required under ICRP guidance.57 2. The use of best practicable means (BPM) in the design and operational management of facilities.58 54 The Conference and its outcomes are well summarised at www.laka.org/info/publicaties/afval/2-discussions00/9-UK.htm. 55 Radioactive wastes kept or stored at civil and defence related nuclear sites are the responsibility of the relevant ministers for Energy and Defence, wherever they are located. 56 www.defra.gov.uk/environment/radioactivity/waste/rwpg/pdf/rwpg-rolling-summary.pdf. 57 See ch 7 on radiological protection. 58 See the research report of the Scotland and Northern Ireland Forum for Environmental Research (SNIFFER), Review of the Application of ‘Best Practicable Means’ within a regulatory framework for the management of radioactive waste available at www.sniffer.org.uk.

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CoRWM 387 3. The review of waste management strategies to ensure that they represent the best practicable environmental option (BPEO).59

CoRWM Until March 2004, RWMAC advised the UK government and the devolved administrations on all aspects of radioactive waste management.60 The failure of the Nirex rock characterisation facility planning application in 1997 led to calls for an independent advisory body to lead a more transparent process. The House of Lords Select Committee on Science and Technology in its 1999 report called for the creation of a Nuclear Waste Commission, charged with consulting on a comprehensive policy.61 In 2001 the Government’s consultation paper, Managing Radioactive Waste Safely,62 proposed the creation of an ‘independent and authoritative committee’. The Committee on Radioactive Waste Management (CoRWM) was set up in 2003 as that independent committee with the specific role of reviewing options for the long-term management of high and intermediate level solid wastes. Following completion of that work in 2006, CoRWM was reconstituted with new members and terms of reference, to provide independent scrutiny and advice on the long term management, including both storage and disposal, of radioactive waste. The work of CoRWM on this topic is discussed later in this chapter. It comprises currently a chair, a deputy chair and 13 other members from various disciplines. Its main terms of reference are: The role of CoRWM will be to provide independent scrutiny and advice to UK Government and Devolved Administration Ministers on the long term management, including storage and disposal, of radioactive waste. CoRWM’s primary task is to provide independent scrutiny on the Government’s and NDA’s proposals, plans and programmes to deliver geological disposal, together with robust interim storage, as the long term management option for the UK’s higher activity wastes.

CoRWM applies a number of guiding principles to its work, the first of which is openness and transparency: Transparency means that we aim to make as clear as possible how, and why, we have formulated our advice. We want people to know about the information we have reviewed, the processes of engagement and discussion we have used with others, the nature of our internal deliberations, and, at the end of the process, the reasons why we have formulated our advice in the way we have. Transparency also means that we want people to have good access to information in order that they are able to participate effectively in any engagement that we carry out.

Details on CoRWM’s membership, publications, work programme and other matters are available on its website.63 Other relevant advisory bodies whose work is not primarily concerned with radioactive waste management, but may have a bearing on it, include the 59 See Guidance for the environment agencies’ assessment of BPEO at nuclear sites at www.environmentagency.gov.uk/static/documents/PMHO0204BKHK-e-e.pdf. 60 Its advice up to March 2004 can be found at www.defra.gov.uk/rwmac. 61 Management of Nuclear Waste (Session 1998–99, Third Report). 62 DEFRA, 2001. 63 www.corwm.org.uk.

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388 Radioactive Waste Nuclear Safety Advisory Committee (NuSAC), the Committee on Medical Aspects of Radiation in the Environment (COMARE) and the Radiation Protection Division of the Health Protection Agency (previously the NRPB).64

SPENT FUEL MANAGEMENT AND REPROCESSING Spent (irradiated) fuel arises when it is removed from reactors and typically comprises 97.5 per cent unreacted uranium, 0.5 per cent plutonium and 2 per cent waste products. It may be subject to storage for long periods prior to further management or it may be reprocessed. Historically, spent fuel has not been regarded by the UK Government as waste, because of the possibility of reprocessing. However, it is gradually becoming accepted that some spent fuel may in the future have to be categorised as waste. Spent fuel from the older Magnox stations and from the more recent Advanced Gas-Cooled (AGR) reactors is reprocessed at Sellafield by BNFL, the latter in the Thermal Oxide Reprocessing Plant (THORP). The cladding of Magnox fuel is subject to corrosion when stored in water, and hence requires reprocessing, AGR fuel can be stored as an alternative to reprocessing; this is reflected in the contractual arrangements entered into between BNFL and British Energy (BE) as owner of the fuel, which allowed BE the option of having such fuel reprocessed or conditioned for disposal. The long-term arrangements for reprocessing between BNFL and BE were one aspect underlying BE’s financial crisis in 2002.65 The Government’s policy on reprocessing remains as set out in the White Paper of 1995,66 namely that the decision whether to reprocess or to hold the spent fuel in long term storage is a matter for the commercial judgment of the owner. The 2002 White Paper, Managing the Nuclear Legacy:—A strategy for action,67 stated that following the creation of the NDA existing THORP contracts would remain with BNFL and that THORP would continue to operate until those contracts were completed or the plant was no longer economic. Therefore, whereas it is clear that Magnox spent fuel will be reprocessed (the 2002 White Paper indicated that this was expected to be completed by around 2012) the future of the AGR fuel and spent fuel from pressurised water reactors (PWR) stations in the UK (currently only Sizewell B) remains to be decided. The 2008 draft UK strategy on radioactive discharges, discussed later in the chapter, has this to say on THORP: The NDA’s intention is that all current overseas and UKAEA contracted fuel will be reprocessed through THORP and sufficient additional fuel will be reprocessed such that the remainder can be safely stored. The option of new business has not yet been foreclosed by the NDA, but any proposals for new contracts will require the approval of the UK Government. As set out in the White Paper Managing the Nuclear Legacy, in the event of such a proposal, the UK Government would look in detail not just at the circumstances of the specific case, but would also review the range of issues which would be involved in increasing the current volume of fuel to be reprocessed through THORP. Approval would only be given if the proposal was consistent with clean-up plans for Sellafield, was expected to generate a positive return to the taxpayer and was consistent with the UK’s environmental objectives and international obligations. 64

NuSAC is discussed further in ch 4 on licencing and COMARE in ch 1. See Simon Taylor, Privatisation and Financial Collapse in the Nuclear Industry (London and New York, Routledge, 2007) Ch 15: The BNFL Contracts. 66 Review of Radioactive Waste Management Policy, Cm 2919. 67 Cm 5552, discussed further in ch 11. 65

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High Level Waste 389

HIGH LEVEL WASTE HLW results from the reprocessing of spent fuel, as the residue of the primary stages of separating out uranium and plutonium. Though small in volume, it is highly radioactive and can generate heat. It is currently stored at Sellafield, with some smaller quantities stored at UKAEA’s Dounreay site. At Sellafield liquid HLW is concentrated by evaporation and stored in double-walled and continuously cooled stainless steel tanks, shielded by concrete. The waste is conditioned using a process known as vitrifrication, to form a solid and stable material suitable for long term management. The vitrified blocks are sealed in stainless steel canisters and placed in a dry store. By 2015 all the waste should be in this form. The ultimate intended disposal route is in a deep geological repository (see below).

INTERMEDIATE LEVEL WASTE ILW consists of a variety of materials, metals, organics, inorganic sludges, cements, graphite, glass and ceramics. It mainly arises from the dismantling and reprocessing of spent fuel and is defined by the amount of radioactivity it contains per unit weight. Until the abrupt termination in 1997 of the Nirex programme for an underground repository, the general assumption was that such wastes would be conditioned, then disposed of directly without any further intermediate storage. The Government’s policy had been that the waste should be retained in untreated form for as long as possible, so as not to foreclose possible disposal options. The consequence of this was that waste in ‘raw’ form was stored at the place of arising, in some cases over many decades, and relatively little of it was conditioned. There is currently no facility in the UK for the long-term management of ILW. Most is stored at the site where it was produced, in water filled concrete tanks, or in a variety of steel containers, or immobilised in standard packages. This has led to problems in particular with ‘historic’ wastes, which may be poorly characterised, physically and chemically degraded, and in some cases kept in old and dilapidated facilities. This has led to the need for joint guidance on the regulatory process associated with conditioning of ILW kept on licensed nuclear sites.68 Higher activity ILW is included within the framework for managing waste in a geological repository and for safe and secure interim storage, following the recommendation made by CoRWM in 2006.69

LOW LEVEL WASTE Such waste represents around 90 per cent by volume of the radioactive waste arising from UK nuclear facilities. It is generally dealt with by compaction to reduce its volume, followed by disposal in the shallow national repository near Drigg in Cumbria, now owned by the 68 Environment Agency, SEPA, HSE, Conditioning of intermediate level waste on nuclear licensed sites (March 2005) availavle at www.environment-agency.gov.uk/commondata/acrobate/intlevelradiowaste_1010898.pdf. 69 Managing our radioactive waste safely, 31 July 2006.

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390 Radioactive Waste NDA and operated under contract by British Nuclear Group Sellafield Limited. The facility is effectively a concrete-lined vault into which the compacted waste is placed within special metal International Organization for Standardization (ISO) containers, and which is cemented over and capped when full. Originally, when first opened in 1959 the system was simply one of open trenches, similar to an ordinary council tip of the time. Certain kinds of LLW are not suitable for disposal at Drigg because of the types of radioactivity they contain or their chemo-toxicity: these continue to be stored on site until a suitable facility is available. There was also a facility known as the ‘LLW pits’ operated at Dounreay by the UKAEA, which is now full. The UKAEA, following a best practicable environmental option study,70 proposed building a new LLW facility at Dounreay to receive wastes arising from the decommissioning programme there.71 In June 2006 the contractor, Dounreay Site Restoration Limited (DSRL), submitted a planning application seeking permission to construct a series of shallow engineered vaults adjacent to the existing licensed site, a grouting plant within the existing site, an administration block and associated infrastructure. The facilities are required for disposal of up to 175,000 cubic metres of solid low level waste which is expected to be generated during the decommissioning of the site. During the period June 2006 to April 2008 DSRL undertook further site investigation work and a design review which resulted in some amendments to the original application and an addendum to the environmental statement.72 A revised policy statement on LLW was published in March 2007.73 This stresses the need so far as possible to avoid LLW waste arising, to put public safety at the forefront of its management, and to involve the public in developing and authorising such plans.

PLUTONIUM Plutonium is a by-product of exposing uranium fuel to a flux of neutrons in a nuclear reactor. When spent fuel is reprocessed, separated plutonium is one of the products. It can be used as a feedstock to manufacture mixed oxide fuel, and historically has not been viewed as a waste within the UK. However, the NDA, which is now responsible for the UK’s stockpile of plutonium, regards it as a zero-rated asset. In future it may either be seen as a strategic stock, or as waste. Either way, it must be stored safely and securely and civil stocks will be subject to international safeguards to prevent diversion to military uses.74 The main producers and users of plutonium for civil purposes75 agreed international guidelines for the management of civil plutonium in 1997,76 under which they meet annually and exchange 70 University College London, Dounreay LLW Strategy: Best Practicable Environmental Option Study, Final Report (UKAEA Report GNGL(04)TR75, April 2004). 71 See www.ukaea.co.uk. 72 See www.dounreay.com/news. 73 Policy for the Long Term Management of Solid Low Level Radioactive Waste in the UK (DTI, DEFRA, Scottish Executive, Welsh Assembly Government, DOENI, 26 March 2007). 74 In September 2007 the Royal Society produced a report outlining the health, security and environmental risks associated with the plutonium stockpile and stressing the urgent need for development and implementation of a Government strategy: see Strategy Options for the UK’s Separated Plutonium (Ref: 24/07, 21 September 2007) available at www.royalsoc.ac.uk/document.asp?latest=1&id=7080. 75 Belgium, China, France, Germany, Japan, Russia, Switzerland. the UK and the USA. 76 International Guidelines for the Management of Civil Plutonium available at www.berr.gov.uk/files/ file26403.doc.

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Depleted Uranium 391 information, which is in turn published by the IAEA. The Guidelines recognise that each State has an inalienable right to develop research, production and use of nuclear energy for peaceful purposes, but that this right is accompanied by sovereign responsibility for the use and management of all nuclear materials under its jurisdiction. Materials which can be used for the manufacture of nuclear explosive components without transmutation or further enrichment are particularly sensitive and require special precautions. The Guidelines cover matters such as security, safeguards, accounting, transfers of material and the provision of information. In particular, the participating states undertook to publish periodic statements explaining their national strategies for nuclear power and the nuclear fuel cycle and, against that background, their general plans for managing national holdings of plutonium. The most recent published statement of Government policy in this respect is the UK Civil Nuclear Policy including Plutonium,77 section 10 of which deals with policy on plutonium as follows: Spent fuel and plutonium have to be managed, whether there is reprocessing or not. The UK Government believes that it is for the owners of the spent fuel and plutonium, subject to their meeting the appropriate safety, security and international safeguards requirements, to choose their preferred management option, including whether or not their spent fuel should be reprocessed. Concerns have been raised about world-wide holdings of separated plutonium. In considering the validity of these concerns in relation to the stocks of plutonium held by the UK, it is important to distinguish between stocks held on behalf of foreign customers and those held on behalf of UK nuclear generators and other UK companies. With regard to stocks held on behalf of foreign customers, this is material owned by BNFL’s customers and held by BNFL to their order. All reprocessing customers are contractually required to demonstrate an acceptable end use before delivery of plutonium. The customers may opt to store the plutonium for a period of time or to convert it to MOX fuel. However, the plutonium remains the property of BNFL’s customers, and so the UK Government considers that these customers (or in the last resort, their Governments) bear ultimate responsibility for the plutonium. In the case of plutonium owned by UK nuclear generators, the UK Government believes that it is a matter for these operators to choose the fuel cycle arrangements which best suit their requirements, within established regulatory frameworks to ensure safety and protection of the environment. British Energy recently signed fixed price long-term contracts with BNFL for further reprocessing of spent fuel. In addition, SNL [Scottish Nuclear Limited] has also contracted for BNFL to provide storage facilities for additional spent fuel arisings potentially until the year 2086.

DEPLETED URANIUM Depleted uranium (DU) is the main by-product of the uranium enrichment process and also arises from the reprocessing of Magnox fuel. UK stocks, which are now owned by the NDA, amount to some 85,000 tonnes. DU has useful properties both in terms of its very high density and as radiation shielding, and as such is used in both civil and military applications, for example, counterbalances in aircraft and yachts, shielding in medical radiotherapy, heavy industrial drilling equipment, and munitions. Historically it has not been regarded as nuclear waste in the UK. 77

www.berr.gov.uk/files/file26400.doc.

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392 Radioactive Waste

PARTITIONING AND TRANSMUTATION This is an alternative means which has been proposed for dealing with some types of waste whereby certain long-lived and toxic radionuclides are partitioned or separated and transmuted, using portable accelerators or reactors, into radionuclides with a shorter half life. By this means, the long-term hazards presented by the waste may be reduced. Whilst the UK carried out various studies into the subject in the late 1970s and early 1980s, the results were not encouraging. However, research has subsequently been carried out elsewhere, and the UK Government took note of that work. It has, however, since been concluded, on the advice of RWMAC and CoRWM that these techniques cannot realistically be considered to offer a long term solution and currently have no role to play in managing the UK’s higher activity wastes.

WASTE SUBSTITUTION Various nuclear operators in Japan and Europe have contracts for the reprocessing of their spent nuclear fuel at Sellafield. Since 1976, all BNFL contracts for reprocessing spent fuel from foreign companies have included options for the return of wastes arising during reprocessing. It is Government policy that such options be exercised and that the waste should be returned, in the case of HLW, as soon as practicable after vitrification. Since 1986 the Government has been considering the possibility of waste substitution, whereby LLW might be substituted for an equivalent quantity, in radiological terms, of higher level wastes. In 1992, BNFL proposed to offer its overseas customers the option of substituting an equivalent amount of HLW, and retaining the ILW and LLW in the UK. This would have the effect of reducing significantly the volume of waste to be returned and would greatly reduce transport costs. RWMAC was asked to consider whether substitution could result in environmental detriment to the UK. Consideration was given to the proposed ‘integrated toxic potential’ (ITP) system proposed by BNFL to establish radiological equivalence between different waste categories. RWMAC, whilst recognising the many doubts that existed in the area, agreed that ITP was a supportable means of quantifying substitution and that the substitution policy based on ITP would be broadly neutral in terms of radiological impact. The idea, however, received considerable opposition in the review process, on the basis that the UK should not agree to take extra quantities of radioactive waste, and that to do so would run counter to the principle of self-sufficiency in waste management. The Government’s conclusion was that a fully rigorous appraisal of comparative environmental effects could not take place in the case of intermediate-level waste until a specific site and finalised design concept for a proposed deep underground disposal facility had been agreed. Until then, it was regarded as imprudent for the UK to become irrevocably committed to retaining wastes where there was the contractual option to return them. These objections did not apply to LLW, for which there were disposal facilities in the UK, and policy allowed substitution for such wastes.78 However, the approach to ILW substitution required reappraisal with the termination of the Nirex repository programme in 1997, and in December 2004 the 78

Review of Radioactive Waste Management Policy Cm 2919 (July 1995).

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Imports and Exports of Waste 393 Government announced a policy of substitution for ILW, allowing additional HLW to be returned as compensation for ILW remaining in the UK.79 Otherwise, shipments of ILW from the UK, following conditioning, could have extended into the 2030s.

IMPORTS AND EXPORTS OF WASTE The Government’s policy on imports and exports of radioactive waste remains as set out in the 1995 White Paper, Review of Radioactive Waste Management Policy.80 The Government’s preliminary review suggested that policy towards the import and export of radioactive waste should be broadly similar to that of other waste, namely a presumption of self-sufficiency, but with some flexibility in view of the highly specialised nature of the waste itself. Such a policy was seen as consistent with the IAEA’s Code of Practice on the International Transboundary Movement of Radioactive Waste, which provides for the sovereign right of every state to prohibit the movement of radioactive waste into, from, or through its territory.81 As might be anticipated, the issue provoked a clash of views between the nuclear industry (in favour of the receipt of shipments of waste from countries which did not have the technology to deal with radioactive waste adequately) and environmental groups and local authorities (opposed to further imports and viewing the exceptions proposed by the Government as unduly relaxed). The Government’s general policy following the 1995 review was that radioactive waste should not be imported to, or exported from, the UK except for the recovery of useful materials (provided this is the genuine prime purpose), or for treatment which will make the subsequent storage or disposal more manageable, in cases where the processes are at a redevelopment stage, or which involve quantities too small for the processes to be practicable in the country of origin. Where such processes would add materially to the waste needing to be disposed of in the UK, the presumption should be that they will be returned to the country of origin. Additionally, Government policy is that waste should be imported for treatment and disposal in the UK where it is in the form of spent sources which were manufactured in the UK, or it is waste from small users (for example, hospitals) situated in EU Member States which produce such small quantities of waste as to make provision of their specialised installations impracticable, or from developing countries which cannot reasonably be expected to acquire disposal facilities.

GEOLOGICAL DISPOSAL As indicated above, 30 years after the Flowers Report in 1976 highlighted the need for management solutions to the radioactive waste issue to be found, the UK was no nearer to securing that long-term solution. In 2006 CoRWM, after three years undertaking a technical 79 This decision was based upon work by consultants NAC suggesting that the environmental consequences of substitution would be ‘negligible’ if overseas ILW is ultimately placed in a repository in the UK, and ‘very small’ if long-term storage were pursued, and that the total financial benefit to the UK could be between £200 and £650 million. See ENDS Report 349, February 2004. 80 Cm 2919 (July 1995). 81 See further, ch 10.

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394 Radioactive Waste assessment of the options, engaging with the public and interested parties, considering the ethical issues and international practice, delivered its recommendations to Government.82 CoRWM saw the issue as a social, as well as a technical one, which was to be understood in terms of a changing social and political context. Initiatives which had focused on finding technical solutions had failed because they had not responded to the need to gain public acceptability. CoRWM accordingly placed huge emphasis on participative, open and democratic approaches to its task, through a comprehensive public and stakeholder engagement (PSE) programme. Whilst CoRWM’s main task was to identify the best option or combination of options for managing higher activity waste in the long term, it also addressed generic issues relating to siting. The conclusion of CoRWM on the options for disposal was that, in the context of current knowledge, it had sufficient confidence in geological disposal as the best method for long-term management, though there was in CoRWM’s view a need for continued research and there should be a commitment to leaving open the possibility of other options becoming available until the time of repository closure. This led to considerable debate between the desirability of ‘early closure’ (in practice at least a century away) as minimising the burden of ongoing management for future generations, versus ‘phased disposal’ (leaving the repository open after emplacement of the waste for a period of 300 years or more) in order to preserve flexibility of action for future generations. CoRWM’s unanimous conclusion, after much debate, was that early closure would be a preferable course of action. One could question the merit of seeking to reach any conclusion on what course of action should be taken in 100 years’ time, by analogy with considering how useful it would have been for the Cabinet in 1910 to consider what energy policy the UK should be following in 2010, given the social, political and technological developments which have occurred since then. One factor which perplexed CoRWM and on which there was not consensus, was how much say the ‘host community’ in the neighbourhood of such a facility should have on whether it should be subject to early closure or phased disposal. The Committee also considered the issue of storage in the short and medium term, an extremely important matter raising questions of security, protection against terrorism, minimisation of transportation, avoidance of double-handling of waste, and public acceptability in respect of new central or major regional storage facilities. CoRWM’s 15 final recommendations were as follows: 1. Geological disposal is considered to be the best available approach within the present state of knowledge. The aim should be to progress to disposal as soon as practicable, consistent with developing and maintaining public and stakeholder confidence. 2. A robust programme of interim storage must play an integral part in the long-term management strategy. 3. A flexible and staged decision-making process to implement the overall strategy, with decision-points providing for a review of progress and the opportunity for reevaluation at each stage. 4. A commitment to an intensified programme of research and development into the longterm safety of geological disposal aimed at reducing the uncertainties at generic and sitespecific levels. 5. The commitment to flexibility in decision-making should leave open the possibility of other long-term management options, for example, borehole disposal, emerging as practical alternatives. 82

Managing Our Radioactive Waste Safely (CoRWM Doc 700, 31 July 2006).

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Geological Disposal 395 6. At the time of inviting host communities to participate in the implementation process, the inventory of material destined for disposal must be clearly defined. Any substantive increase in this inventory (for example, waste from a new generation of power stations or from overseas) would require an additional step in negotiation, to allow the host community to decide whether to take or reject such waste. 7. If a decision is taken to manage any uranium, spent nuclear fuel or plutonium as wastes, they should be immobilised for secure storage followed by geological disposal. 8. In determining what reactor decommissioning wastes should be consigned for geological disposal, due regard should be paid to considering other available and publicly acceptable management options. 9. There should be continuing public and stakeholder engagement, which will be essential to build trust and confidence in the proposed approach, including siting of facilities. 10. Community involvement in any proposals for the siting of long-term facilities should be based on the principle of volunteerism, that is, an expressed willingness to participate. 11. Willingness to participate should be supported by the provision of community packages that are designed both to facilitate participation in the short term and to ensure that a facility is acceptable to the host community in the long term. Participation should be based on the expectation that the well-being of the community will be enhanced. 12. Community involvement should be achieved through the development of a partnership approach, based on an open and equal relationship between potential host communities and those responsible for implementation. 13. Communities should have the right to withdraw from the process up to a pre-defined point. 14. In order to ensure the legitimacy of the process, key decisions should be ratified by the appropriately accountable democratically elected bodies. 15. An independent body should be appointed to oversee the process without delay. One point which CoRWM was at pains to emphasise was that its recommendations were directed to existing and committed waste arisings and that its recommendations should not be seen as providing either a red or (more probably) a green light for new nuclear build. New build wastes would extend the time-scales for implementation, possibly for very long but currently unknowable periods. Also, the political and ethical issues raised by the creation of more wastes were regarded as quite different from those relating to existing, unavoidable, wastes. In CoRWM’s view the introduction of a new build programme would require a quite separate process to test and validate proposals for the management of the wastes arising from such a programme. The process CoRWM was asked to pursue was not without criticism. In a pungent report published in December 2004,83 the House of Lords Science and Technology Committee (to which Lord Flowers, three decades after his eponymous report, was co-opted, and which included Lord Lewis of Newnham, another former distinguished Chairman of the Royal Commission) expressed its astonishment that in the light of ‘the numerous authoritative and exhaustive reports that have been published in the 83

5th Report of Session 2003–04, Radioactive Waste Management, HL Paper 200.

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396 Radioactive Waste UK and abroad,84 of current international agreements, and of European Union guidance’, CoRWM should have been told to start with ‘a blank sheet of paper’. CoRWM could more fruitfully have been instructed to concentrate on the various alternatives for underground repositories, and the Committee regarded it as most unlikely that meaningful public acceptance could be secured for any particular method of managing nuclear waste in the abstract. CoRWM’s terms of reference were ‘dauntingly broad and in some respects astonishingly vague’. Referring to the 2001 consultation paper, Managing Radioactive Waste Safely, which preceded the CoRWM exercise the Committee, in a striking precognition of the judicial strictures on the 2007 consultation on nuclear power discussed in chapter five, argued it was flawed ‘by providing insufficient background to enable meaningful responses’.85 Moreover, the Committee was less than impressed with CoRWM’s focus on process: [W]e were dismayed at the length of time given over to discussion of methodology. At times it felt as though CoRWM was engaged in a philosophical exercise in theoretical decision-making . . . The discussion of a hypothetical situation ‘where a majority hold a view that a minority cannot subscribe to, and where they are also unable to agree to disagree’ could be taken as a satire on bureaucratic processes in general.86

After the CoRWM recommendations, there followed a Government consultation paper on Managing Radioactive Waste Safely (MRWS), published on 25 June 2007. This covered the technical programme and aspects of design and delivery for a facility for the long-term management of higher activity waste, and the process and criteria to be used to decide on the siting of that facility, including the development of a voluntarism/partnership approach and the assessment and evaluation of potential disposal sites.87 This consultation closed on 2 November 2007, having received 81 responses. In June 2008 the Government published the White Paper, Managing Radioactive Waste Safely: A Framework for Implementing Geological Disposal.88 The main points emerging from the White Paper may be summarised as follows: 1. A robust programme of interim storage will play an integral part in implementing geological disposal. The NDA has the task of reviewing waste storage arrangements as part of the NDA strategy. 2. It is envisaged that the Radioactive Waste Management Directorate (RWMD) of the NDA, formed after the NDA subsumed Nirex, will be the delivery organisation to implement geological disposal. The relevant ongoing research would be undertaken within the NDA. 3. The decision on how long to keep open a facility to allow waste to be retrieved if desired over an extended period can be made at a later date, but in the meantime the planning, design and construction of a facility can be carried out so as not to exclude the option of retrievability. 4. The detailed layout of any facility, above and below ground, will be tailored to the Baseline Inventory of waste, and to the characteristics of the site in question. The 84 For example, the MIT report, The Future of Nuclear Power (July 2003), which pointed out the high level of confidence in the geological repository approach existing within the scientific community. See also the numerous other references cited by the Committee at fn 12 to its report. 85 Para 2.6. 86 Para 4.10. 87 The consultation included various regional ‘stakeholder’ events available at www.defra.gov.uk/corporate/ consult/radwaste-framework/event.htm. 88 Cm 7386.

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Geological Disposal 397

5.

6.

7.

8.

9.

10.

Baseline Inventory would be updated to take account of any additional arisings from new nuclear build. In principle the Government saw no case for having more than one geological disposal facility if one facility can be developed to provide suitable and safe containment for the Baseline inventory. Volunteerism and partnership arrangements with local communities are seen as the right way forward in siting a facility, without being prescriptive as to how those arrangements would work in individual cases. During the process there would be two key local decision points: an expression of interest where a community could register its interest in discussion, and a decision to participate when the local decision-making body at local government level makes a formal commitment to participate in the process, though without at that stage commitment to host the facility. The steps involved in these stages are explained in Chapter 6 of the White Paper. After the decision to participate, it is envisaged that a Community Siting Partnership would be formed, representing community and wider local interests, with a mission statement as follows: ‘The mission of a Community Siting Partnership is to ensure that all the questions and concerns of potential Host Communities and Wider Local Interests about the facility’s siting, construction, operation, closure and post-closure are addressed and resolved as far as reasonably practicable; and that the project contributes to a community’s development and well-being.’ A community would have the right of withdrawal up until a late stage, when underground operations and construction were due to begin, the right of withdrawal being exercised by the local decision-making body. Construction and operation of a facility would be a multi-billion pound project, providing skilled employment over many decades and as such viewed as contributing significantly to the local economy and socio-economic framework and bringing benefits such as enhanced educational and transport infrastructure. An illustrative list of possible benefits which might result from hosting a facility includes investment in local education and training, public services, housing, transport, local healthcare, and environmental improvements. Property price protection may be another significant factor.

A number of comments may be made on the position emerging from the White Paper. First, under devolution arrangements, the proposals extend only to England. The Scottish Executive did not sponsor the MRWS consultation and views long-term storage and ongoing research as the correct option. The Welsh Assembly Government has reserved its position. The Department of Environment in Northern Ireland supports the initiative, but simply on the basis that it is in the interests of Northern Ireland that solutions should be found to managing wastes on the UK mainland. Next, the Government has blurred the clear distinction which CoRWM sought to draw between legacy and new build wastes. Operators of new nuclear power stations will have to negotiate commercial contracts with the NDA for long-term waste management, and the Government would expect to set a fixed unit price for geological disposal, including a significant risk premium, at the time when approvals for construction of the stations are givens, prior to construction. The suitability of wastes for storage and disposal is proposed to be considered at the stage of generic design assessment of new types of reactor, with early involvement from the

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398 Radioactive Waste NDA.89 The Government views it as technically possible, and desirable, to dispose of both new and legacy waste in the same facility. It may, of course, be technically possible, but as CoRWM pointed out, there are very different non-technical considerations involved in a local authority agreeing to be the host community for a facility to take a defined, existing, quantity of waste than one which will receive an indeterminate quantity, over an indeterminate timescale depending on the numbers, types and operating lives of a new fleet of nuclear reactors. The White Paper simply stated that, through agreed mechanisms for updating the Baseline Inventory, inclusion of new waste would be taken forward in discussion with host communities as the programme proceeds. However, the economics of constructing new power stations could be fundamentally affected by a decision on that waste from new build could not be co-disposed of with legacy waste, but would require its own separate facility.90 The other aspect which merits attention is the voluntarism or partnership approach. The development of a facility will, of course, require planning permission, which it now appears will fall within the new planning system for national infrastructure projects, introduced by the Planning Act 2008 and discussed in more detail in chapter five. Such permission seems likely to be given on a staged basis as site-based investigations progress. The facility will require a nuclear site licence, which will involve consideration of the detailed safety case by the HSE, and the disposal of the waste will be subject to authorisation under the Radioactive Substances Act 1993. In addition, CoRWM has been reconstituted to provide independent scrutiny and advice on the delivery process. But fundamental to any progress is a willingness of a local community, or communities, to participate in the process and ultimately to act as ‘host’ by the facility being constructed.91 It has to be said that this approach takes the Government into largely uncharted waters, at least for the UK92 and is a recognition of the particular perceived problems of imposing nuclear waste facilities on unwilling communities, compared with, for example, facilities such as airports, waste incinerators or landfill sites, which can ultimately be so imposed. The local democratic process and credible public support will obviously be critical in moving to decisions to participate, and in any later decision whether to withdraw while there is still the opportunity.93 The issue of community benefits raises some interesting ethical questions. There is a precedent in the Community Fund for the benefit of residents of Copeland Borough Council instituted in 2008 to recog89 This involves applying the established ‘Letter of Compliance’ (LoC) process used by Nirex in assessing disposability of waste at the conditioning and packaging stages: see NDA, Radioactive Waste Management Directorate, Disposability Assessment of Solid Waste Arisings from New Build (25 April 2008). 90 See The Guardian, 17 November 2008, citing a DECC pre-consultation discussion paper (Pre-consultation Discussion Paper No 1, Office for Nuclear Development, October 2008) to the effect that ‘cost modelling needs to take account of the possibility that, with a large new nuclear programme, co-disposal proves not to be feasible and another GDF (geological disposal facility) would naturally mean a significantly greater total cost, although such cost would be spread over a larger nuclear programme’. 91 It may be noted however that in para 6.5 of the White Paper the Government reserves the right to explore ‘other approaches’ if voluntarism and partnership at some point in the future do not look likely to work. 92 However, there is significant international experience of voluntary, local veto and community benefits approaches: see the NDA Technical Note, Managing Radioactive Waste Safely: Literature Review of International Experiences of Community Partnerships (2007) which looks at the position in Belgium, Canada, Finland, France, Japan, Korea, Spain, Sweden, Switzerland and the USA. There is also some, very limited, UK experience of community partnership approaches in areas such as the 2012 Olympics and oil facilities at Sullom Voe in the Shetlands: see NDA Technical Note, Managing Radioactive Waste Safely: Literature Review of UK Experience of Partnerships (2007). Local strategic partnerships for producing Community Strategies were introduced by the Local Government Act 2000. 93 For further general discussion of local democracy and community empowerment, see the White Paper, Communities in Control: real people, real power Cm 7427 (July 2008).

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International Law 399 nise the service provided in hosting the LLW repository at Drigg, under which an initial Government endowment of £10 million is followed by a payment of £1.5 million a year for each year the repository is operating.94 A troublesome question is however the intergenerational one: such community benefits (a new road, new school or new hospital) will have perhaps a life of two generations and by the time such benefits are at the end of their life, the geological facility will still be receiving waste and a long way away from final closure. It is not the generations benefiting from the present community benefits (at least such benefits as they appear to be envisaged) which will incur such burden as there may prove to be from hosting the facility. The wish of a community to host a facility cannot, of course, be allowed to override technical concerns as to the suitability of the location. Hence the processes for screening out unsuitable sites at the expression of interest stage will be important. These processes are explained in the Government’s response to the House of Lords Science and Technology Committee in 2008.95 Two expert groups, the Criteria Proposals Group and the Criteria Review Group, were established to develop criteria for screening out geologically unsuitable areas.96 Once Communities have expressed an interest the British Geological Survey (BGS) will be asked to apply these criteria to the area in question. It is increasingly acknowledged that technical discussion and public interaction cannot be placed in watertight compartments, that technical outcomes must be underpinned by ‘stakeholder confidence’ and that stakeholders have a role to play in shaping the concept of safety. This will present new challenges to the technical community.97

INTERNATIONAL LAW

The Role of the International Atomic Energy Agency The IAEA, which is discussed generally in chapter two, has taken an interest in developing safety objectives for the management of radioactive waste, since shortly after its creation in 1957. Initially this was manifested through its Safety Series documents. The scope and nature of these standards has changed: for example in the 1960s disposal of radioactive waste at sea was an option favoured by many states, and Safety Series No 5 (1961) dealt with that topic, predating by four years the first IAEA guidance on disposal in the ground (Safety Series No 15 in 1965). In the late 1980s, as the issue of waste management became increasingly politically important, the IAEA established the Radioactive Waste Safety Standards (RADWASS) series, which was broadened in scope and re-ordered in 1996.98 RADWASS documents are categorised under four subject areas: discharges, pre-disposal, disposal and environmental restoration. The expert Waste Safety Standards Committee provides a mechanism for review and approval of standards. The leading RADWASS document in this area is The Principles of Radioactive Waste Management (Safety Series No 111-F) issued in 1995. It was this document which formed the basis for the requirements of the IAEA Joint 94

www.copelandbc.gov.uk/main.asp?page=4577. House of Lords Science and Technology Committee 2nd Report of Session 2007–08, Radioactive Waste Management Update: Government Response (HL Paper 48). 96 www.defra.gov.uk/environment/radioactivity/waste/hilw/disposal.htm. 97 See OECD Nuclear Energy Agency Forum on Stakeholder Confidence, Link between Research, Development and Stakeholder Confidence: the specific aspect of long-term safety (NEA/RWM/FSC(2008)2, 26 March 2008). 98 See Dominique Delattre, RADWASS Update, IAEA Bulletin 4 March 2000. 95

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400 Radioactive Waste Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (Vienna, 1997) which is discussed further below. Below the Safety Fundamentals document sit a number of Safety Requirements, which are expressed in mandatory terms and establish the requirements that must be met to ensure safety. Topics include pre-disposal management of radioactive waste including decommissioning (WS-R-2, 2000), near surface disposal of radioactive waste (WS-R-1, 1999) and remediation of areas contaminated by past activities and accidents (WS-R-3, 2003). An important recent addition to this series is Safety Requirements No WS-R-4, Geological Disposal of Radioactive Waste (2006) which supersedes guidance issued in 1989 as Safety Series No 99. They also include requirements on institutional and legal matters—for example GS-R-1, Legal and Governmental Infrastructure for Nuclear, Radiation, Radioactive Waste and Transport Safety (2000). Beneath the Safety Requirements are a number of Safety Guides, on matters such as classification of waste (111-G-1.1, 1994), regulatory control of discharges (WS-G-2.3, 2000), decommissioning of nuclear facilities (1999), siting of near surface disposal facilities (111-G-3.1, 1994), siting of geological disposal facilities (111-G-4.1, 1994), safety assessment for near surface disposal (WS-G-1.1, 1999), decommissioning of nuclear power plants and research reactors (WS-G-2.1, 1999) decommissioning of nuclear fuel cycle facilities (WS-G-2.4, 2001). These recommend actions, conditions or procedures, expressed in ‘should’ terms. More recent work has included developing standards for clean up and rehabilitation of radioactively contaminated areas, responding to the need for guidance in dealing with former Cold War test sites and military facilities. In 2008 a new Safety Guide No GS-G-3.4, The Management System for the Disposal of Radioactive Waste, was issued, addressing the role of management systems in geological disposal situations, where the geosphere continues to provide isolation of the waste on geological timescales after active institutional control has terminated and engineered barriers have degraded.

The Joint Convention The IAEA Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management was opened for signature at Vienna in September 1997. It had been agreed during negotiations of the Nuclear Safety Convention that waste management was a topic of such importance as to require its own instrument. The Convention was adopted on 5 September 1997, and entered into force on 18 June 2001. Parties include the UK and many other EU states, Argentina, Australia, Brazil, Canada, Japan, Korea, Russia and the US as well as the European Atomic Energy Community. The objectives of the Convention are to achieve and maintain a high level of safety worldwide through the enhancement of national measures and international co-operation, to ensure that at all stages of management there are effective defences against potential hazards, and to prevent accidents and mitigate their consequences. The Convention is ‘Joint’ in the sense that it covers both waste and spent fuel (which may be regarded as wholly or partly something other than waste). Initially a number of countries, particularly those concerned with reprocessing, were opposed to the inclusion of spent fuel; this impasse was eventually resolved in discussions of the Group of Experts in 1996.99 The scope of application is essentially civil99 See Wolfram Tonhauser and Odette Jankowitsch-Prevor, The Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (1997) Nuclear Law Bulletin No 60.

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International Law 401 ian and does not apply to the safety of spent fuel or radioactive waste within military or defence programmes, unless declared as spent fuel or waste for the purposes of the Convention by the contracting party, or when such material is transferred permanently to and managed within exclusively civilian facilities (Article 3(3)). Chapter 2 deals with spent fuel management and provides general requirements as to general safety, review of safety of existing facilities, siting of proposed facilities, design and construction of facilities, assessment of the safety of facilities, operation of facilities and disposal of spent fuel. Chapter 3 contains broadly equivalent provisions on waste management. Chapter 4 provides for general safety measures such as establishment of a legislative and regulatory framework, establishment or designation of an effectively independent body entrusted with implementation of that framework, ensuring the prime responsibility of the licence holder for safety, ensuring that adequate human and financial resources are provided, operational radiation protection, emergency preparedness and decommissioning.100 A number of points may be made as to the implications of the Convention for spent fuel and waste management in the UK. The first is that, whilst as the Convention acknowledges at recital (vii) the decision is for individual states as to whether spent fuel should be considered as a resource for reprocessing or a waste for disposal, the same safety objectives apply to spent fuel as to radioactive waste (recital (ii)). In the case of both spent fuel and radioactive waste management facilities (which includes decommissioning, storage and pretreatment: see Article 2(i)), the safety of existing facilities must be reviewed and all reasonably practicable improvements made to upgrade safety.101 This has implications for the NDA, which has taken over existing facilities, which may be in various conditions. The provisions on siting of new facilities, their design and construction and assessment of their safety,102 will be relevant in the context of proposals for any geological disposal facility as these come forward. Financial provision will have to be made for such facilities to support safety during their operational lifetime (which may be many decades) and to enable the appropriate institutional controls and monitoring arrangements to be continued for the period deemed necessary following closure (Article 22(iii)). Article 30 of the Joint Convention provides for review meetings. The Second Review Meeting of the Contracting Parties took place in May 2006 in Vienna.103 The parties indicated a commitment to improve policies and practices specifically in the areas of national strategies, engagement with the stakeholders and the public, and the control of disused sealed sources.

The IAEA International Action Plan Following the adoption of the Joint Convention, the IAEA acting in conjunction with the European Commission, NEA and WHO, organised the International Conference on the Safety of Radioactive Waste Management that took place in March 2000, in Córdoba, Spain. This led to the development of an International Action Plan on the Safety of Radioactive Waste Management, with a list of nine actions which has set the agenda for 100 See Carlton Stoiber, Alec Baer, Norbert Pelzer, Wolfram Tonhauser, Handbook on Nuclear Law (IAEA, Vienna 2003) ch 2, ‘The Regulatory Body’. 101 See Arts 5, 12. The results of past practices must also be reviewed under Art 12(ii) to determine whether any intervention is necessary: this has implications for contaminated land, discussed in ch 11. 102 See Arts 13–16. 103 JC/RM.2/03/Rev 1. See the UK Second National Report on Compliance with the Obligations of the Joint Convention (DEFRA, February 2006).

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402 Radioactive Waste future co-operation and which have in a number of cases resulted in the promulgation of safety standards or technical guidance:104 1. Develop a common framework for the management and disposal of different types of radioactive waste, paying particular attention to large volumes of waste containing longlived naturally occurring radionuclides. 2. Assess the safety implications of the extended storage of radioactive waste and of any future reconditioning which may be necessary and develop safety standards for the longterm storage of radioactive waste.105 3. Promptly develop safety standards for geological disposal, addressing issues of human intrusion, institutional control, retrievability, the content of the safety case and any implications of nuclear safeguards. 4. Develop an internationally accepted and harmonised approach for controlling the removal of materials and sites from regulatory control. 5. Develop a structured and systematic programme to ensure adequate application of the IAEA’s waste safety standards and facilitate their application in implementing the Joint Convention.106 6. Explore ways to ensure that information, knowledge and skills concerning radioactive waste management are made available to future generations.107 7. Address the broader societal dimensions of radioactive waste management by disseminating information on the issues involved and on lessons learned from national experiences. 8. Reviewing new developments relating to policies for the control of radioactive discharges, taking into account availability and cost-effectiveness of discharge reduction technologies. 9. Explore international mechanisms for facilitating the management of spent sealed sources.

The London Convention The international community has increasingly set itself against the option of sea disposal for solid radioactive wastes. The difficulties encountered by the UK Government in relation to resolutions under the London Dumping Convention 1972 have been referred to previously. At their 26th meeting in November 1993, the parties to the London Convention decided to ban the dumping of all forms of radioactive waste in the open sea, the ban being effected by resolution LC.51 (16), amending Annexes J and I of the Convention.108 The background to this development is that the UN Convention on Environment and Development in Agenda 21, Chapter 22.5(b), had urged the contracting parties to the London Convention to expedite the completion of studies on replacing the previous voluntary moratorium on the disposal of low-level radioactive waste by a legal ban. The parties decided to institute an immediate ban in relation to all levels of radioactive waste at their 26th meeting, rather than 104

See GOV/INF2003/15-GC(47)/INF/4, Annex 7 and GOV/INF/2004/10-GC(48)/INF/7, Annex 9. A position paper entitled ‘The long-term storage of radioactive waste and sustainability’ was produced by a group of international experts and published by the IAEA in 2003. It reviews the ethical and philosophical issues surrounding the extended storage of radioactive waste and is intended as an international reference point on the subject. 106 This has led to the development of a comprehensive syllabus for training in radioactive waste safety, based on the waste safety standards and the institution of a worldwide programme of training events. 107 Proposals have been developed and tested under this action on archiving as a means of preserving knowledge about radioactive waste facilities for future generations. 108 See further, Year Book of International Law (Oxford, OUP 1993), Vol IV, 188. 105

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International Law 403 wait for wholesale revision of the Convention. The changes are, therefore, by replacing the reference to high-level radioactive waste at paragraph 6 of Annex I to the Convention with a reference to ‘radioactive waste and other matter’. The wastes and other matter listed in Annex I are prohibited from being dumped at sea. Annex II is correspondingly amended by deleting the reference to lower level radioactive wastes and other radioactive matter, the dumping of which had previously required a prior special permit. The UK was one amongst the five of 42 state parties who abstained in relation to the ban (the others being Belgium, China, France and Russia).

OSPAR and the Sintra Statement In September 1992, the UK signed the Convention for Protection of the Marine Environment for the North East Atlantic (OSPAR),109 which entered into force on 25 March 1998, replacing the 1972 Oslo and 1974 Paris Conventions (Article 31). The Convention bans the disposal of low and intermediate-level radioactive wastes, but includes an option for France and the UK to resume the practice, subject to certain conditions, after a period of 15 years from 1 January 1993. France and the UK are, under this provision, required to report to the meeting of the Commission in 1997 on the steps taken to explore alternative land-based options. Unless within that period of 15 years the Commission decides unanimously not to continue the exception, it must take a decision on the prolongation of the prohibition for a further period of 10 years after 1 January 2008. Furthermore, should France and the UK still wish to retain the option, they are required to submit further reports on the progress of land-based options and studies to show that sea dumping would not result in hazards to human health, harm to living resources or marine ecosystems, damage to amenities, or interference with other legitimate uses of the sea. The adoption by the Government of geological disposal as the preferred approach means that it has not sought to take advantage of this route. The work of OSPAR in this area is conducted through its Radioactive Substances Strategy, one of its five thematic strategies. At the 1998 Ministerial Meeting of the OSPAR Commission, contracting parties agreed a strategy on radioactive substances, the so-called ‘Sintra Statement’. This agreement followed announcements by the UK and French Governments of their wish to renounce possible future exemptions under OSPAR from the ban on dumping low and intermediate level radioactive wastes. The Commission in the Statement indicated its intention to prevent pollution of the marine environment from ionising radiation, through progressive and substantial reduction of discharges, emissions or losses, with the ultimate aim of reducing concentrations of radioactivity to near background levels for naturally occurring substances and ‘close to zero’ for artificial substances. The stated objective is to reduce such discharges, emission and losses of radioactive substances by the year 2020 to levels where additional concentrations in the marine environment, above historic levels, are ‘close to zero’.110 Whilst the Sintra Statement may not be 109 Cm 2265. Article 9 of the Convention on access to information was the subject of litigation in the Permanent Court of Arbitration in Ireland v UK (Final Award, 2 July 2003) when Ireland sought access to redacted information on reports prepared for the approval process of the BNFL MOX plant. The Tribunal, by a 2:1 majority, found that the claim for information did not fall within Art 9(2) on the basis that the redacted items (essentially to do with the economics of the plant) had not been shown to amount to information on the state of the maritime area, or if there were, to be likely adversely to affect the maritime area (see para 178 of the Final Award); see however the fully reasoned dissenting opinion of Gavan Griffith QC on the issue. 110 Art 4.1(b).

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404 Radioactive Waste strictly binding in law,111 it has been reflected in UK Government policy and has been highly influential politically in terms of decisions taken by the UK Government.112 The concepts of ‘close to zero’ and ‘historic levels’ are not defined; however, the concept is clearly a different and more onerous test than the ALARA principle, of reducing discharges to a level as low as reasonably achievable. A similar approach will be required by the application of the precautionary principle, which applies to the disposal of all radioactive wastes as part of the UNEP Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities, paragraph 111(a): States should not promote or allow the storage or disposal of high-level, intermediate-level and low-level radioactive wastes near the marine and coastal environment unless they determine that scientific evidence, consistent with the applicable internationally agreed principles and guidelines, shows that such storage or disposal poses no unacceptable risk to people and the marine and coastal environment or does not interfere with other legitimate uses of the sea, making, in the process of consideration, appropriate use of the concept of the precautionary approach.113

The principle is relevant also to land-based disposal facilities in that over the geological timescales involved, any escaping radioactivity may well find its way into the marine environment.

Sub-seabed Disposal A different issue is the possibility of disposal of radioactive waste by geological disposal under the seabed, for example in stable dense brine formations, accessed from the mainland. Such disposal, as opposed to dumping at sea, is not necessarily precluded by international law. Views have differed on whether the prohibition on dumping of radioactive wastes at sea under the London Convention of 1972, Articles IV(1)(a) and III (1)(a) applies to sub-seabed disposal. There was substantial debate on this question in the 1980s. The matter was considered in the context of possible disposal into the seabed of high-level radioactive waste at the Eighth Consultative Meeting of the Parties to the London Dumping Convention in February 1984.114 It was reported that it was clear from a Meeting of the Ad Hoc Group of Legal Experts on Dumping that a division of opinion existed as to whether the Convention was intended to apply to the sub-seabed emplacement of wastes: Some experts considered that this form of disposal did not feature in the discussions in 1972 and therefore was not covered by the Convention, but in the opinion of others disposal into the seabed of high-level radioactive wastes was incompatible with the obligations under the Convention. There was however a consensus that the Consultative Meeting of Contracting Parties to the London Dumping Convention was the appropriate forum in which to address the question of seabed disposal in particular of high-level radioactive wastes including the question of the compatibility of this type of disposal with the provisions of the London Dumping Convention.115 111 Whilst the Statement is not binding in law in terms of the OSPAR Convention, it is arguable that on general principles of international law it may have created a unilateral binding obligation on the UK: see the Final Award in Ireland v UK (Permanent Court of Arbitration, The Hague, 2 July 2003) 31, para 89, citing the Nuclear Tests Case (Australia v France) 1974 ICJ Rep 253, 266, para 43. 112 See the UK Strategy for Radioactive Discharges 2001–2020 (DEFRA, July 2002) which adopts the Sintra Declaration wording, and proposed revisions, discussed further below. 113 UNEP, Washington DC, October–November 1995 UNEP(OCA)/LBA/IG.2/7. 114 LDC 8/10, IMO, 8 March 1984. 115 LDC 8/5/3, para 5.5.2, 22.

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International Law 405 The UK Government delegation did not express any concluded view at the 1984 Consultative Meeting on the issue of the applicability of the Convention to seabed disposal. It simply recognised the need for due regard to widespread international opinion that international control of the disposal of radioactive wastes would be indispensable, and expressed the view that the Consultative Meeting would not be empowered to resolve any ambiguity and thereby determine the scope of the treaty.116 It did, however, indicate clearly that it could not accept a resolution implying that the sub-seabed disposal of high-level radioactive wastes were covered by the London Dumping Convention.117 The issue was further considered in October 1990 at the Fourth Meeting of the Ad Hoc Group of Legal Experts under the Convention. The Ad Hoc Group considered the perspectives of the Contracting Parties as to ‘whether disposal of low-level radioactive waste into a repository, constructed in bedrock either totally or partially beneath the sea, and accessed from shore (for example, via a tunnel or other conduit) would be dumping at sea under the terms of the London Dumping Convention’.118 The Ad Hoc Group concluded that a substantial majority of the comments received indicated that such disposal would not constitute ‘dumping’ since it was not undertaken from any structure in marine waters and was not disposal ‘at sea’.119 This appears to have been the view of the majority of the Expert Group, some of whom felt that such disposal fell within the Paris Convention on Landbased Sources. However, it was noted that some representatives had yet to form an opinion on the matter, and that some were of the view that such disposal was within the London Convention.120 The issue of sub seabed repositories accessed from the sea was the subject of separate discussion by the Ad Hoc Group.121 Two substantive documents were produced on the issue of shore-accessed facilities. The first was a study prepared by Greenpeace, ‘The Disposal of Nuclear Wastes into the Seabed by Shore-Accessed Facilities’.122 Greenpeace argued that the London Convention was the appropriate convention to govern such facilities, on the basis that ‘at sea’, interpreted in accordance with the appropriate principles of construction under the 1969 Vienna Convention on the Law of Treaties, Article 31, should be read as meaning ‘on, in, near or by the sea’. The second document was a study by Professor J-P Queneudec of the University of Paris I, submitted by the OECD and NEA, ‘Low-level Radioactive Waste Repositories Built into the Seabed and the London Dumping Convention’.123 This made the case for a distinction between repositories accessible from the shore and those accessible from the surface of the sea and sought to refute the arguments put forward by Greenpeace. It suggested that a repository accessible only from dry land through a tunnel or shaft cannot fall within the London Convention, since it is not disposal at sea, and should not be assimilated to the concept of ‘dumping’. The position under the 116

Para 5.2.19, 27. Para 5.2.27, 29. 118 These views had been requested from Contracting Parties by the Secretariat to the Convention by LDC.2/ Circ. 222. 119 LDC/LG 4/7, para 3.1.3, 4–5. Parties of the view that it was not within the Convention were: Canada, Denmark, Finland, France, Germany, the Netherlands, Norway, Portugal, South Africa, Sweden, the UK and the USA. Those of the view that such disposal was dumping at sea were: Chile, Ireland, Mexico, Nauru and Spain (possibly). 120 Ibid. This was noted as being on the basis that (a) it could be said to be disposal ‘at sea’ as opposed to disposal ‘in sea’ and (b) ‘the purpose of the Convention is to protect the marine environment and the ultimate destination of the sea-bed could not be separated from the overlying water’. 121 LDC/LG 4/7, s 3.2, 5–7. 122 LDC/LG 4/3 (1 August 1990). 123 LDC/LG 4/INF.2. 117

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406 Radioactive Waste London Convention seems therefore reasonably clear. There are tenable arguments that disposal beneath the seabed can be regarded as disposal ‘at sea’.124 However, in terms of ‘dumping’ as defined in the Convention, this would not cover such disposal if accessed by a tunnel from land, as opposed to a vessel or other installation at sea. It does not appear to have been suggested, apart from in the Greenpeace study referred to above, that a repository accessed in this way would constitute ‘dumping at sea’. Furthermore, the debate during the 1980s has moved on with the agreement of the London Protocol, discussed below, which goes a long way to resolving any doubts. The correct approach to the London Convention in this context is to read it as a whole, and in particular the general obligation in Article I to take all practicable steps to prevent the pollution of the sea and to promote the effective control of all sources of pollution of the marine environment. This was the underlying approach of the second Draft Resolution at the Eighth Consultative Meeting that no disposal should take place unless the waste could be shown to be effectively isolated from the environment and under an agreed regulatory mechanism.125 The better view therefore is that the London Convention, to the extent that it applies to geological subseabed facilities, is not an absolute prohibition but rather requires proper control and assurance that the wastes will be effectively isolated from the biosphere. Further support for this view is provided by the London Protocol of 1996 made under the London Dumping Convention and which entered into force in March 2006. Significantly, the protocol provides an extended definition of ‘dumping’ which goes beyond that in the London Dumping Convention and includes at Article 1.4.1.3 ‘any storage of wastes or other matter in the seabed and the subsoil thereof from vessels, aircraft or other man-made structures at sea’. The London Protocol operates in a much stricter fashion than the London Dumping Convention by imposing a general prohibition on the dumping of any wastes or matter with the exception of a list at Annex 1 of materials that may be considered for dumping: needless to say these do not include radioactive waste. However, the critical definition of ‘dumping’ turns on the means by which the waste reaches its place of storage, namely ‘from vessels, aircraft, platforms or other man-made structures at sea’. This contemplates some form of sea-based disposal, rather than a tunnel accessed from land. It would be stretching the definition unacceptably to regard such a tunnel as a ‘man-made structure at sea’. This view is strengthened considerably by the definition of ‘sea’ at Article 1.7 as ‘all marine waters other than the internal waters of States, as well as the seabed and subsoil thereof; it does not include sub-seabed repositories accessed only from land’. The Convention for the Protection of the Marine Environment of the North-East Atlantic of 1992 (the OSPAR126 Convention) also requires consideration. The salient parts of the OSPAR Convention are as follows: (a) the contracting parties shall take all possible steps to prevent and eliminate pollution from land-based sources, in particular as provided for in Annex I (Article 3); (b) the contracting parties shall take all possible steps to prevent and eliminate pollution from dumping of wastes, in particular as provided for in Annex II (Article 4); (c) in particular, under Article 3.1 of Annex II, the dumping of all wastes, except for the types listed, is prohibited; and (d) the contracting parties shall take all possible steps 124 It should be noted however that such arguments depend on a purposive approach to the Convention, by reading ‘at sea’ in an expansive way to include the seabed and subsoil. 125 It is also the approach favoured by Birnie, Boyle and Redgewell, (see n 15 above) 422. 126 So called because it was opened for signature under the Commissions to the Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (1972) and the Paris Convention for the Prevention of Pollution from Land-Based Sources (1974).

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International Law 407 to prevent and eliminate pollution from ‘offshore sources’, in particular as provided for in Annex III (Article 5). It seems clear that a repository accessed solely from land would not fall within the provisions relating to ‘offshore sources’, which are defined as ‘offshore installations and offshore pipelines from which substances or energy reach the maritime area’ (Article 1(k)). ‘Dumping’ is not expressly defined, other than by Article 1(g) which states that is does not include certain activities. However, it seems to be clear from the definition of ‘land-based Sources’ at Article 1(e) that such a repository would fall within this aspect of the OSPAR Convention. The definition reads: point and diffuse sources on land from which substances or energy reach the maritime area127 by water, through the air or directly from the coast. It includes sources associated with any deliberate disposal under the sea-bed made accessible from land by tunnel, pipeline or other means.

This view is strengthened by the approach taken under the Paris Convention on Land-Based Sources as the predecessor of OSPAR. PARCOM recommendation 91/5 on the Disposal of Radioactive Wastes into Sub-Seabed Repositories Accessed from Land (20 June 1991) agrees: That the disposal of radioactive waste in repositories constructed in bedrock under the seabed and accessed from land constitutes a potential land-based source of marine pollution and therefore the Paris Convention has the competence to consider such developments.128

Accordingly, the provisions of the OSPAR Convention relating to land-based sources will be applicable to any sub-seabed repository accessed by a tunnel from land. These provisions do not, however, provide a prohibition on such a facility. What is required is that states take all possible steps to prevent and eliminate pollution from such a facility (Article 3), require the use of best available techniques (Annex I, Article 1(1)), take preventative measures to minimise the risk of pollution caused by accidents (Annex I, Article 1(3)), take account of recommendations of the appropriate international organisations and agencies (Annex I, Article 1(4)), and subject such a facility to authorisation or regulation procedures (Annex I, Article 2(1)). None of these matters appear to add anything to the steps that would be expected in relation to such a facility in any event. Thus, provided the proponent of the facility can demonstrate that it will not result in pollution of the marine environment, the OSPAR Convention should not prevent the facility being approved.

The MOX Plant Case In 2001 Ireland instituted arbitral proceedings against the UK pursuant to Part XV of the UN Convention on the Law of the Sea, concerning discharges into the Irish Sea of radioactive wastes from the Sellafield MOX plant. Hearings took place in The Hague in June 2003. Ireland’s assertion was that there was a risk of harm arising from such discharges, seen in the context of likely increased activity at the THORP plant and the higher quantities of waste that this would produce. Ireland relied on a number of provisions within Part XII of UNCLOS on protection and preservation of the marine environment—in particular failure to carry out a proper assessment of effects (Article 206), failure to co-operate with Ireland 127

‘Maritime area’ is defined to include the bed of the sea and its sub-soil (Art 1(a)). The recitals to the Recommendation recall that there had been a decision at the 13th Consultative Meeting of the London Dumping Convention that such disposal did not constitute dumping under the terms of the London Convention (see above). 128

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408 Radioactive Waste (Articles 123 and 197) and failure to take all steps necessary to protect the marine environment (Articles 192 to 194, 207, 211, 213 and 217). The UK raised objections as to jurisdiction. The tribunal rejected the UK’s argument that its jurisdiction was excluded by the application of the OSPAR Convention. On the other hand, the tribunal identified important problems in respect of the division of competences between the European Community and its Member States, and whether the matter fell within the exclusive competence of the European Court of Justice, precluding the jurisdiction of the tribunal under Article 282 of UNCLOS. The tribunal considered that it would be inappropriate to proceed, and suspended further proceedings. It declined Ireland’s request to prescribe provisional measures by way of interim relief, not being satisfied that there was in the circumstances an urgent and serious risk of irreparable harm to Ireland’s claimed rights which would justify such measures.129 The sequel to this case was that the European Commission took Ireland to the European Court for breach of its obligations under Articles 10 and 292 of the EC Treaty, relating to the exclusive jurisdiction of the European Court over treaty matters and the general duty of member states to ensure fulfilment of their treaty obligations.130 The European Court held that the UNCLOS Convention was concluded by the Community and all of its member states on the basis of shared competence and that, as a mixed agreement, it was necessary to examine whether the provisions of that agreement relied on by Ireland before the Arbitral Tribunal came within the scope of Community competence. The matters covered by the provisions of the Convention relied on by Ireland were very largely regulated by Community measures. Thus, with regard to the head of complaint alleging failure to meet the obligation to carry out a proper assessment of the environmental impact of all of the activities associated with the MOX plant on the marine environment of the Irish Sea, based on Article 206 of the Convention, this matter was the subject of Directive 85/337 on environmental impact assessment. Indeed, in its pleadings before the Arbitral Tribunal, Ireland had derived several arguments from Directive 85/337 with a view to supporting its complaint. The relevance of Directive 85/337 to the matter under consideration was therefore manifest. Other Community measures which were relevant were Directive 93/75/EEC, regulating the minimum requirements for vessels bound for or leaving Community ports and carrying dangerous or polluting goods, and Directive 90/313/EEC on the freedom of access to information on the environment. Those matters sufficed to establish that the Convention provisions on the prevention of marine pollution relied on by Ireland, which clearly covered a significant part of the dispute relating to the MOX plant, came within the scope of Community competence which the Community had elected to exercise by becoming a party to the UN Convention. Consequently, the dispute in this case was indeed a dispute concerning the interpretation or application of the EC Treaty, within the terms of Article 292 EC. Furthermore, as it was between two Member States in regard to an alleged failure to comply with Community law obligations resulting from those provisions of the Convention, the dispute was clearly covered by one of the methods of dispute settlement established by the EC Treaty within the terms of Article 292, namely the procedure set out in Article 227 EC. Accordingly, Articles 220 EC and 292 EC precluded Ireland from initiating proceedings before the Arbitral Tribunal with a view to resolving the dispute concern129

Permanent Court of Arbitration, Order No 3, 24 June 2003. Case C-459/03 Commission v Ireland; for detailed commentary, see Paul Cardwell and Duncan French, ‘Who Decides? The ECJ’s Judgment on Jurisdiction in the MOX Plant Dispute’ (2007) 1(19) Journal of Environmental Law 121. 130

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European Community Law 409 ing the MOX plant. By bringing proceedings under the dispute settlement system set out in the UN Convention, without having first informed and consulted the competent Community institutions, Ireland had failed to comply with its duty of co-operation under Articles 10 EC and 292 EA.

EUROPEAN COMMUNITY LAW

Euratom Requirements: Article 37 Article 37 of the Euratom Treaty creates obligations concerning radioactive waste, requiring each Member State to provide the Commission with such general data relating to any plan for the disposal of radioactive waste in whatever form, as will make it possible to determine whether the implementation of such a plan is liable to result in the radioactive contamination of the water, soil or air space of another Member State. For such an important issue, the wording of Article 37 is vague; this is not altogether surprising, since it was drafted in the 24 hours preceding the signature of the Euratom Treaty.131 Opinions under Article 37, as described below, tend to follow a standard format. Whilst the procedure is one of the few means available for the Commission to obtain an up-to-date picture of radiological protection issues nationally, it also has serious weaknesses. The opinion has no legal status and is issued only a short time before the plant is authorised. It is very rare for opinions to conclude that discharge limits for liquid effluent are liable to result in radioactive contamination in other Member States. Ultimately, the Member State to whom the opinion is issued is not legally bound by it, and may decide that it disagrees with the conclusions, or that adequate safeguards are in place.132 The requirements of Article 37 do, however, mean that adequate time must be built in to the process for seeking an authorisation for the discharge of waste from new facilities to allow the authorising authority to obtain the Commission’s Opinion before granting the authorisation. Article 37 is subject to Commission Recommendation 1999/829/Euratom of 6 December 1999. In particular this seeks to provide clarity on what is meant by ‘the disposal of radioactive waste’, which it is recommended it should cover any planned disposal or accidental release of a radioactive substance in solid, liquid or gaseous form, associated with 13 listed operations, the list concluding in typical European drafting style, with the catch-all category of ‘all other operations’. The categories are, however, relevant because the Recommendation states what the ‘general data’ required to be provided should be understood to mean by reference to the categories of operations (see Annexes 1 to 3). The Recommendation also indicates what general data should be submitted where an existing plan for the disposal of waste is proposed to be modified. It also recommends that the general data be submitted wherever possible one year, but not less than six months, before authorisation is to be granted by the competent national authority. The application of Article 37 was considered in relation to the THORP nuclear reprocessing plant of Sellafield. The Commission issued an Opinion on 30 April 1992 131

Application of Article 37 of the Euratom Treaty—Experiences Gained: 1959–81, COM (82) 455 Final, 4. See evidence of Mr Fraser (European Commission), Nineteenth Report of the House of Lords Select Committee on the European Communities: Radioactive Waste Management (Session 1987–88), HL Papers 99-I, 510. 132

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410 Radioactive Waste (92/269/Euratom) that implementation of the proposals for disposal of radioactive waste from THORP was not liable, either under normal operations or, in the case of an accident of the type considered in the general data provided by the UK, to result in radioactive contamination which was significant under Article 37 (the nearest other Member State being the Republic of Ireland). The Opinion referred to the fact that the distance from the nearest Member State was 180 kilometres; that exports of locally produced foodstuffs were of minor importance; that solid wastes produced would be stored on-site pending disposal; and that normal and unplanned discharges of radioactive effluent would not be liable to cause significant exposure in other Member States, taking into account all possible pathways, particularly the consumption of seafoods.133 Similar considerations were relevant in the decision relating to the planned disposal of waste from the Sizewell B nuclear power station.134 In Opinions relating to the nuclear power stations at Heysham135 and Torness,136 the Commission took note of expert opinion that maximum proposed discharge limits for liquid effluent appeared to be unnecessarily high, and recommended that they be fixed at levels taking into account the ALARA principle. Council Recommendation 91/4/Euratom of 7 December 1990 made certain changes to the procedures under Article 37, requiring communication of general data not less than six months before the planned date of commencement of disposal of radioactive waste. This period was intended to allow the Commission to issue its Opinion and for the content of the Opinion to be taken into account prior to disposal beginning. In Case C-187/87, Saarland v Minister of Industry,137 the European Court of Justice ruled that Article 37 must be interpreted as meaning that the Commission of the European Community is to be provided with general data relating to plans for disposing of radioactive waste before such disposal is authorised by the competent authority of the Member State concerned. The case arose from a long-running dispute concerning the French nuclear installation at Cattenom, close to the borders with Luxembourg and Germany.138

European Action Plans on Radioactive Waste Disposal There has been some frustration on the part of the European Commission at the lack of progress within Member States in developing final disposal facilities for high level and long-lived wastes. Community attempts to impose some sort of European wide framework for action go back many years. Council Decision 75/406/Euratom of 9 July 1975 adopted a programme on the management and storage of radioactive waste. This was followed by three important Council Resolutions of 18 February 1980, the first of which related to the implementation of a Community plan of action in the field of radioactive waste.139 This resolution referred to the fact that the Council had already approved Community environment programmes and research and development programmes in the field of management and storage of radioactive waste, but pointed out that these programmes needed to be supplemented in relation to matters of a legal, administrative, financial and social nature. 133 134 135 136 137 138 139

[1992] OJ L138. Dir 92/537/Euratom: [1992] OJ L344. Dir 87/170/Euratom: [1987] OJ L68/33. Dir 87/530/Euratom: [1987] OJ L189/42. Saarland v Minister of Industry [1989] 4 CMLR 529. See K Lenaerts, ‘Nuclear Border Installations: A Case Study’ [1989] European Law Review 158. [1980] OJ C51/1.

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European Community Law 411 This first plan ran from 1980 to 1992 and was based on five points: (1) continuous analysis of the situation in terms of techniques available, technological research and management practices; (2) examination at Community level of measures to ensure the long-term or permanent storage of radioactive waste under optimum conditions; (3) consultation on practices concerning the management of waste; (4) continuity of Community research and development work during the plan; and (5) provision of regular information to the public. The second resolution of 18 February 1980 related to the reprocessing of irradiated nuclear fuels140 and recorded the agreement of the Council that it was in the interests of the Community and its Member States to keep open the option of recovering and re-using spent fuel discharged from nuclear reactors. The third resolution of the same date presented the Advisory Committee for the Management and Storage of Radioactive Wastes with the additional task of advising the Commission in connection with implementation of the Community Plan of Action. The Community’s Plan of Action for Radioactive Waste was renewed by a Council Resolution of 15 June 1992.141 The initial five points of the plan adopted in 1980 become seven points: (1) continuous analysis of the situation and prospects in the field of radioactive waste management in Member States, including the status of research and technological development, a list of storage installations intended for construction, and the list of management practices and strategies defined by Member States; (2) development of technical co-operation in the Community in relation to longterm or final disposal of radioactive waste; (3) concerted action on the safe management and storage of radioactive waste, which should make it possible to develop a common approach and achieve harmonisation on strategies and practices; (4) consultation on management practices and strategies in the context of abolition of frontier controls within the Community; (5) continuity of interaction between the research programmes and administrative, legal and regulatory issues, with regular consultations to be held within the Advisory Committee on the plan to provide a single framework for considering possible improvements to techniques for final storage and on the legal, administrative and social problems to be solved; (6) information for the public, whereby Member States are required to continue and intensify their efforts to provide the public with regular information on their activities in the field of radioactive waste management and storage by drawing up, as far as possible, a common information strategy; and (7) development of international consensus, thereby promoting concerted action by Member States within international organisations such as the IAEA, NEA and ISO. The need for continued co-operation was emphasised by the Council Resolution of 19 December 1994, on Radioactive Waste Management.142 This Resolution took as its starting point the view that for the protection of Community citizens and the environment, comprehensive policies covering all stages of the nuclear fuel cycle are needed for the management of radioactive waste, and that such policies should dovetail smoothly with the Community’s general waste policy. The Resolution endorsed the view that each Member State is responsible for ensuring that radioactive waste produced on its territories is properly managed, but also considers that optimum use should be made of facilities at national level, which may involve co-operation between Member States. Despite these ambitions, the progress hoped for by the Commission has not been forthcoming and the Commission has expressed its frustration that existing EU legislation does 140 141 142

[1980] OJ C51/4. [1992] OJ C158/3. [1994] OJ C379/1.

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412 Radioactive Waste not provide for specific rules to ensure that spent nuclear fuel and radioactive waste is safely managed ‘in an effective and consistent manner throughout the EU’.143 This led the Commission in 2003 to issue an proposal for a Directive on the safe management of spent nuclear fuel and radioactive waste144 which included a fixed timetable for Member States to take the steps required to put the necessary authorised facilities in place. This was opposed by the European Parliament and, unsurprisingly, aroused deep hostility in discussions in Council. The Council accordingly issued a modified proposal in September 2004,145 which proposed a more flexible system, leaving Member States free to fix their own dates, relying largely on peer pressure. The Commission remained of the view that Community intervention in some form remains indispensable, in view of the fact that the international conventions, while binding, do not set up any clear mechanism to ensure that their obligations are respected and do not have the same effectiveness as Community legislation. The 2004 proposal refers to the Commission Green Paper, Towards a European Strategy for the security of energy supply,146 as emphasising the need for ‘a satisfactory solution to be found for the radioactive waste issue with maximum transparency’. Among the requirements proposed is an obligation for each Member State to establish and keep updated a clearly defined national programme for the management of radioactive waste that includes all waste under its jurisdiction and covers all stages of management. Such a programme would include a timetable for long-term management, chosen by the Member State, covering high, low and intermediate level wastes. Pressure on Member States in developing that timetable would primarily come about from the requirement to submit regular detailed national reports, to be considered by a Committee of Experts, which would issue an opinion on the reports, with any recommendations. In that sense the proposal is somewhat analogous to the approach under the IAEA Conventions.

Transfrontier Movement of Radioactive Waste Transfrontier movement of radioactive waste is dealt with in chapter ten. It may be noted here that the Commission, in its 2004 proposed Directive on safe management of spent fuel and radioactive waste, referred to above, indicated that whilst no Member State should be obliged to accept shipments of radioactive waste, it might be advantageous for Member States to co-operate with a view to establishing multinational waste management programmes, particularly in the case of Member States with only small quantities of radioactive waste, or with a territory or geology not suited to a deep repository. It therefore proposed that national programmes might include shipments of waste to another Member State or third country, with the agreement of the country concerned and provided that such shipments would be fully in accord with existing Community and international law, were covered by bilateral or multilateral agreements, and that the state receiving the waste had appropriate facilities meeting accepted norms and standards and under adequate safeguards.

143 144 145 146

Seeeuropa.eu/scadplus/leg/en/lvb/127048.htm. COM(2003) 32. See further the discussion on the nuclear package generally in ch 3. COM(2004) 526 Final. COM(2000) 769.

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Control Under the Radioactive Substances Act 1993 413

CONTROL UNDER THE RADIOACTIVE SUBSTANCES ACT 1993 The legislative origins of the Radioactive Substances Act 1993 (the ‘1993 Act” ’) have been discussed in chapter nine. Sections 13 and 14 respectively provide control over the disposal and accumulation of radioactive waste by the requirement of authorisation. As with the system for registration of the use of radioactive material, from 1 April 1996, the relevant enforcing authorities became the Environment Agency (for England and Wales) and SEPA (for Scotland), and the 1993 Act is amended to reflect this. As described below, the 1993 Act has also been amended to change the procedure in relation to authorisations for the accumulation or disposal of radioactive waste on or from nuclear sites. Both the Environment Agency and SEPA exercise their functions within the detailed statutory framework of powers and duties under Part I of the Environment Act 1995, including the principal aim under section 4 of so protecting or enhancing the environment, taken as a whole, as to make the contribution that Ministers consider appropriate towards achieving sustainable development. In February 2009 a consultation paper147 was issued on proposals to widen the EPR introduced by the Environmental Permitting (England and Wales) Regulations 2007148 to include a number of other areas, among them radioactive substances regulation. Essentially this is part of a wider programme to standardise the legislation on environmental permitting, with the object of creating a simpler and less bureaucratic system. The paper indicated that it is not intended to change either the territorial scope of the regime or its field of application generally (for example the fact that it does not apply to domestic premises). The proposal includes revised Environmental Permitting Regulations—these use the term ‘radioactive substances activity’ to cover all activities currently subject to regulation under the 1993 Act. This would mean that applications for permits, the grant of permits, conditions, appeals, enforcement and other matters would become subject to common requirements and provisions. Of particular significance to the permitting of any geological disposal facility is the proposal for staged permits, which will allow regulatory control and public transparency to be achieved early on, during what may be a long investigative stage for candidate sites, to allow more intrusive investigations, the construction of an underground laboratory, and in due course the disposal facility itself. Another significant proposed change is the ability for authorisations to be transferred in respect of non-nuclear sites. Whereas the 1993 Act regime currently has no statutory defences in respect of criminal liability, the general defence of emergency under the EPR is proposed to be applied. There will also be changes on publicity requirements, the system of the 1993 Act now being perceived as somewhat archaic in various respects. Another significant change is likely to relate to the streamlining of inter-site transfers of radioactive waste, which would avoid the need for permits to be varied every time a new disposal route is used. This would save considerable time and cost. In order that local authorities with waste disposal sites in their area are informed of changes to waste being brought into their area for accumulation or disposal, it is proposed to direct that permit conditions should be imposed so that operators of such sites must inform the local authority of the nature and origin of waste they intend to receive form new consignors. 147 148

Environmental Permitting Programme Second Phase (February 2009). SI 2007 No 3538.

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414 Radioactive Waste

Radioactive Waste Definition Section 2 of the 1993 Act defines radioactive waste as waste which consists wholly or partly of: (a) a substance or article which, if it were not waste, would be radioactive material; or (b) a substance or article which has been contaminated in the course of the production, keeping or use of radioactive material, or by contact with or proximity to other waste falling within paragraph (a) above. Under subsection 47(1), ‘waste’ includes any substance which constitutes scrap material or an effluent or other unwanted surplus substance arising from the application of any process, including any substance or article which requires to be disposed of as being broken, worn out, contaminated or otherwise spoilt. It is not envisaged that incorporation of radioactive waste regulation within the EPR will result in any change to the definition. There are, therefore, two main components to the definition: first, the material must be waste and secondly, it must consist wholly or partly of material which satisfies the criteria for ‘radioactive material’ in section 1, or of a substance or article contaminated in the course of producing, keeping or using radioactive material, or by contact with radioactive waste. The definition is, in this second aspect, a broad one since it can include materials which are not of radioactive origin (for example, wood, concrete, metal, textiles, rubber, soil, and so on) but which have been exposed to radioactivity. The contamination may take the form of the absorption, admixture or adhesion of radioactive matter, or the effect of the emission of neutrons or ionising radiations; the material must as a result have become radioactive or must possess increased radioactivity (subsection 47(5)). The potential problems of adhesion and adsorption of radioactive materials to other substances was clearly recognised when the Radioactive Substances Act 1960 was being framed (for example, the adsorption of radioactive material to sand or sediment, or to sewage sludge). Since waste materials cannot, by definition, be ‘radioactive material’, the definitions in sections 1 and 2 are mutually exclusive. The more difficult component in the definition of radioactive waste relates to the requirement that the substance or article be waste. Radioactive waste is excluded from the EC general waste regime. The Framework Directive on waste 2006/12/EC, replacing the original Directive 75/442/EEC as amended, excludes radioactive waste where such waste is already covered by other legislation (Article 2(1)(b)(i)). The definition of ‘waste’ provided by section 47 of the 1993 Act (and, before it, by the Radioactive Substances Act 1960) was consistent with the domestic statutory definition contained in section 75 of the Environmental Protection Act 1990 Act and, before it, section 30 of the Control of Pollution Act 1974. However, whereas the definition in the 1990 Act has long ago been replaced with a definition explicitly more consistent with European waste legislation, the definition in the 1993 Act has remained unchanged, and consequently may be interpreted in the light of decisions on the definitions previously applying in the 1974 and 1990 Acts. In this respect, a number of relevant points are discussed below. 1. Subsection 47(4) of the 1993 Act provides that any substance or article which, in the course of carrying on any undertaking, is discharged, discarded or otherwise dealt with as if it were waste, shall be presumed to be waste unless the contrary is proved. 2. On the corresponding definition in section 30 of the Control of Pollution Act 1974, the courts have held that the correct approach is to regard the material from the point of

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Control Under the Radioactive Substances Act 1993 415 view of the person who produces it, that is is it something made as a product or byproduct or is it useless? If the latter, it will be waste even if it has economic value or use to some other party. The relevant judicial decisions to that effect were discussed at paragraphs 14 to 17 of DoE Circular 14/92 The Controlled Waste Regulations 1992, namely: Berridge Incinerators v Nottinghamshire County Council 149 and Kent County Council v Queensborough Rolling Mill Co Ltd.150 3. Although Circular 14/92 has been superseded in relation to its original purpose of helping to define non-radioactive waste, the questions suggested in that guidance still seem apposite to the definition in section 47 of the 1993 Act, that is: (a) Is the material what would ordinarily be described as waste? (b) Is it a scrap material? (c) Is it an effluent or other unwanted substance arising from the application of any process? (d) Does it require to be disposed of as being broken, worn out, contaminated or otherwise spoilt? (e) Is it being discarded or dealt with as if it were waste? In line with the wording of section 47, if any of these questions is answered ‘yes’; the material is waste. 4. There is a further important presumption contained in subsection 14(4) and relating to the accumulation of waste, which is considered below. 5. Subsection 47(1) defines ‘substance’ to mean any natural or artificial substance, whether in solid or liquid form or in the form of a gas or vapour. Radioactive waste can take all of these forms. 6. In practice, there will generally be little doubt as to whether a material is radioactive waste. From the way in which the material is being treated and handled, this will usually be obvious; nor will there generally be much scope for beneficially re-using materials contaminated by radiation without specialist decontamination. Nonetheless, both the EC and the UK Government recognise the possibility of recovering re-usable materials from radioactive waste.

‘End of Waste’ Issues The section 47 definition is not in absolute, exhaustive or comprehensive terms: rather it provides that waste ‘includes’ within the ordinary meaning of the term certain substances, materials or articles about which there might otherwise have been doubt. That point is made in paragraph 12 of DoE Circular 14/92. The Circular also suggests at paragraph 13 that when the issue has come before the courts they have consistently taken the view that waste is defined from the point of view of the person producing or discarding the substance, material or article in question. This last point is potentially important in the context of radioactive waste, because if followed through rigorously, it would suggest that if an original person X has produced something which they regard as waste and discard as such, then it will remain waste even though a subsequent holder (perhaps after processing it in some 149

Berridge Incinerators v Nottinghamshire County Council 1987, unreported. Kent County Council v Queensborough Rolling Mill Co Ltd (1990) 89 LGR 306; (1990) 154 JP 530. To the same effect, see also Cheshire County Council v Armstrong’s Transport (Wigan) Ltd [1994] Env LR D21 and Meston Technical Services Ltd v Warwickshire County Council [1995] Env LR D36. 150

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416 Radioactive Waste way) regards it as a useful material or a product, and treats it as such. In other words, such an approach would negate the possibility of radioactive waste being transformed into something which is not waste—an analysis which the European Court has recognised as a possibility in the case of ‘normal’ waste. Is that absolutist approach justified? Certainly in Long v Brooke (a decision of HH Judge Chapman QC in Bradford Crown Court) it was said that ‘although one man’s waste may be another man’s treasure, on its true construction the Act [COPA 1974] defines waste from the point of view of the person discarding the material’.151 Thus large quantities of subsoil and clay diggings produced by building contractors were held to be rightly regarded as waste when used as cover material to restore a quarry. In Berridge Incinerators Ltd v Nottinghamshire County Council 152 Deputy High Court Judge PJ Crawford QC approved the observation in Long v Brooke and endorsed the correct approach as being to regard the material from the point of view of the person who produces it: ‘is it something which is produced as a product, or even as a by-product of his business, or is it something to be disposed of as useless?’ In Kent County Council v Queenborough Rolling Mill Company Ltd the Divisional Court (Woolf LJ and Pill J) regarded material comprising china clay, broken china and chalk which was removed from a demolished factory, sorted and graded, then deposited at another site which was prone to subsidence as a base for road-making, as being waste.153 Pill J (as he then was, Woolf LJ agreeing) held that since the material had been discarded on the factory site and had lain there for many years, it was waste when removed. It bore the same character when deposited at the second site and its usefulness there did not change the character of the material. Pill J went on: Neither did the fact that the material was separated from other material before deposit deprive it of its identity as waste. Different considerations might apply if the material is recycled or reconstituted before the deposit complained of.

These last emphasised words of Pill J form an important qualification. They acknowledge that there could be circumstances where what was waste is reprocessed in some way so that a material which is not waste may result. The three cases referred to above are all cases where there was no such processing, and the court in each case rejected the argument that the simple fact that the material had a use, or even a value, could in itself prevent it being waste. This approach is entirely consistent with cases in the European Court which have held that material is ‘discarded’, and hence waste, even though it has a value, or is recognised as a commodity, or is put to a useful purpose. It is therefore reasonable to take an approach to ‘waste’ in the context of radioactive waste which is not conclusively determined by the fact that someone has at some point discarded material, or treated it as if it were waste, but instead allows for the possibility of some form of transformation activity which leads to a material which is no longer waste, albeit that it may be radioactive material and regulated as such. Indeed, such an approach seems consistent with the wording of section 47(1), which specifically focuses on an ‘unwanted surplus substance arising from the application of any process’. This suggests that there could be a process which involves treating radioactive waste in some way which produces a substance which is neither ‘surplus’ nor ‘unwanted’ and hence is not waste. The provision cannot exclude processes involving waste, since the reference is to ‘any process’. The point at which the ‘end of waste’ threshold is crossed is clearly a potentially difficult issue that will have to be addressed on the facts of 151 152 153

Long v Brooke [1980] Crim LR 109. Berridge Incinerators Ltd v Nottinghamshire County Council QBD, 14 April 1987, unreported. [1990] JEL 257.

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Control Under the Radioactive Substances Act 1993 417 each case. No single factor is likely to be conclusive, but it will need to be considered whether the ‘threat’ posed by the original waste has been reduced to an acceptable level, and whether the material produced is comparable to a raw material.154 There are many practical situations where the issue could arise: these include for example, the conversion into agricultural fertiliser of sewage sludge which contains low levels of radioactivity as a result of permitted industrial discharges to sewer, and the commercial activity of reconfiguring and refurbishing used and depleted radioactive sources so that they can be re-used.

Contaminated Material Another issue arises in respect of the definition in section 2(b), which refers to substances or articles which have been contaminated. The question here is how widely to interpret the concept of contamination, which is the basis of the provision. The draftsman has clearly recognised the possibility that radioactive material or radioactive waste may contaminate other, non-radioactive, material by the process of irradiation, or by absorption, adhesion or admixture of radioactive matter. This is obvious from the explanation in section 47(5) of what is meant by ‘the contamination of a substance or article’. The point is that by one or other of these means the substance or article has become radioactive or possesses increased radioactivity. At the time of the passage of the Radioactive Substances Act 1960 the potential problems of adhesion and absorption of radioactive materials to other substances was recognised—for example sand, sediment or sewage sludge.155 The key question, therefore, is whether the material in question has become contaminated either (a) in the course of using, keeping or producing radioactive material, or (b) by contact with or proximity to radioactive waste. The words ‘contact’ and ‘proximity’ recognise that contamination may come about either by direct contact with radioactive waste (for example, where radioactive waste is mixed with or absorbed by other material) or by proximity (for example, where waste is close enough to other material to emit ionising radiation which contaminates that material).156 There is no time constraint built into the definition, and thus in principle radioactive waste could be released into the environment and take some considerable time to come into contact with and contaminate other material, rendering that material radioactive waste. The issue of ‘proximity’ does not seem to be a limit in this respect. As indicated above, proximity is an alternative to direct contact as a means of contamination; radioactive waste could in principle be released and transported considerable distances through the environment before making contact with the other material which it then contaminates. This issue may arise in practice, for example, in respect of roofing or other materials contaminated by the deposition of airborne radionuclides, or marine silt which is affected by radioactivity from waste discharged into the sea. The difficulty is that this may potentially result in a very broad ambit of material having to be regarded as radioactive waste. Once in the environment, radioactive waste which is discharged in permitted amounts under an authorisation will be dispersed, potentially very widely, and will inevitably come into contact with, or be in proximity to, other materials which it may contaminate—that is water, soil or vegetation. The ambit of ‘radioactive waste’ would then be very wide. The alternative would be to adopt a purposive approach, linking the definition in section 2(b) to the 154 155 156

See R (OSS Group Ltd) v Environment Agency [2007] EWCA Civ 611; [2008] Env LR 8. See Hansard HL vol 201 cols 886 and 911. This view also appears from the original Notes on Clauses of the RSA 1960.

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418 Radioactive Waste operative provisions of sections 13 and 14 which deal with the disposal of radioactive waste from premises and the accumulation of radioactive waste on premises with a view to its subsequent disposal, and by reading section 2(b) as a whole. The first part of section 2(b) covers substances contaminated in the course of the production and keeping or use of radioactive material. Clearly this is likely to occur at the premises where the material is produced, used or kept. The second part covers material contaminated by contact with or proximity to radioactive waste. It could be argued that this means contact with or proximity to the waste at the premises prior to its disposal—that is material which is stored or kept in such proximity to the waste that it becomes irradiated, for example a building or container which surrounds the waste. This interpretation could be regarded as consistent with the general approach of the Act, which requires authorisation for the accumulation of radioactive waste on premises and its disposal from premises. It could be argued that the definition in section 2(b) is intended to cover contamination which occurs to other material prior to the point of authorised disposal, but not thereafter. However, there could be a potentially serious lacuna arising from this approach, in that the relevant enforcing authority may need to be able to exert control over situations where, for example, drummed radioactive waste is disposed of from premises but then contaminates other material, perhaps during transport. The only way of avoiding this consequence would be to seek to draw a distinction between cases where the waste remains in an identifiable, packaged form and cases where the disposal involves its dispersal into the environment. This, however, is a somewhat sophisticated distinction to seek to infer from the terms of the Act.

Section 1(2)(b) Another potentially difficult issue of interpretation relates to section 1(2)(b), which is one limb of the definition of ‘radioactive material’. It is relevant to radioactive waste because by section 2(a) waste material which (if it were not waste) would be within the definition of 1(2)(b) will be radioactive waste. Unfortunately, this provision is not clearly drafted: a substance possessing radioactivity which is wholly or partly attributable to a process of nuclear fission or other process of subjecting a substance to bombardment by neutrons or to ionising radiations, not being a process occurring in the course of nature, or in consequence of the disposal of radioactive waste, or by way of contamination in the course of the application of a process to some other substance.

The possible difficulty of interpretation is whether the words ‘or in consequence of the disposal of radioactive waste’ relate to the preceding phrase ‘not being a process occurring in the course of nature’, or to the opening words ‘a substance possessing radioactivity’. In the first case the provision would be read as follows: a substance possessing radioactivity which is wholly or partly attributable to a process of nuclear fission or other process of subjecting a substance to bombardment by neutrons or to ionising radiations, not being a process occurring (a) in the course of nature, or (b) in consequence of the disposal of radioactive waste, or (c) by way of contamination in the course of the application of a process to some other substance

The alternative reading is as follows:

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Radioactive Waste Definition 419 a substance possessing radioactivity: (a) which is wholly or partly attributable to a process of nuclear fission or other process of subjecting a substance to bombardment by neutrons or to ionising radiations, not being a process occurring in the course of nature, or (b) in consequence of the disposal of radioactive waste, or (c) by way of contamination in the course of the application of a process to some other substance.’

Simply in grammatical terms the first reading seems more straightforward. The words, ‘not being a process’ appear to govern what follows as a qualification to the two stated types of processes (nuclear fission and bombardment). However, aside from the grammar, in seeking the intention of the legislator, the words should be interpreted (a) in the context of the definition sections of ‘radioactive material’ and ‘radioactive waste’ as a whole, and (b) so as to give purpose and effect to the provisions.157 From the Parliamentary material it appears that the original intention when drafting the RSA 1960 was to define radioactive material as any material rendered radioactive by artificial means or naturally occurring radioactive material, which as the result of any process contained greater levels of radioactivity than would occur in nature. However, it was recognised that it would be difficult to establish what the relevant naturally occurring levels would have been—hence the decision to specify particular materials and levels of radioactivity under what is now section 1(2)(a).158 This would explain why a ‘process occurring in the course of nature’ is excluded from section 1(2)(b), because the status of material irradiated in that way was intended to be governed by the specific limits under section 1(2)(a). This might be an argument in favour of the second interpretation, that the words ‘not being a process in the course of nature’ stand alone and do not govern the words which follow. However, this approach would give rise to problems when section 2 is considered. If by the second interpretation a substance which is waste falls within section 2(2)(b) because it possesses radioactivity ‘in consequence of the disposal of radioactive waste’, then it will be radioactive waste under section 2(a), rendering the limb under section 2(b) otiose. Such an intention should not be attributed to the draftsman. The more convincing approach is that section 1(2) sets out to define radioactive material first by a specifically adopted scientific approach under 1(2)(a) of a clearly defined list of elements and degrees of radioactivity. As indicated above, such certainty was an important objective of Parliament.159 It then, however, goes on to provide an alternative basis of radioactivity which is attributable to a process of nuclear fission or of subjecting a substance to bombardment by neutrons or ionising radiation. Such processes would probably have been very much in the minds of the legislators given the development of the nuclear industry in the period between 1948 and 1960, particularly in terms of the production of nuclear fuel. The second interpretation would involve adding other, not easily determinable, categories of ‘radioactive material’, that is ‘a substance possessing radioactivity . . . in consequence of the disposal of radioactive waste’ and ‘a substance possessing radioactivity . . . by way of contamination in the course of the application of a process to some other

157 See, eg, R (Hart Aggregates Limited) v Hartlepool Borough Council [2005] EWHC 840 Admin; [2005] 2 P & CR 31, para 24 (per Sullivan J). 158 See Hansard HL vol 220, col 208. 159 The preceding legislation, the Radioactive Substances Act 1948, had adopted a very broad definition of radioactive substances, simply any substance containing a radioactive chemical element, whether natural or artificial. In the 1960 Act a narrower and more complex definition was adopted specifically to avoid bringing under control ‘a great variety of familiar articles’ such as ‘wood, bricks [or] granite’: see Hansard, HL vol 619 col 327.

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420 Radioactive Waste substance’.160 As indicated above, the first such category would be radioactive waste in any event under section 2(b). It therefore seems a more coherent approach, and one more consistent with Parliament’s intention to regard all of the words which follow ‘not being’ in section 1(2)(b) as qualifying the words which come before.

Disposal and Accumulation ‘Disposal’ in relation to waste is defined to include its removal, deposit, destruction, discharge or burial (subsection 47(1)). It is stated to cover discharges into water or into the air, or into a sewer or drain or otherwise. ‘Burial’ may be underground or otherwise. This definition of disposal appears likely to continue to apply under EPR. ‘Accumulation’ is not defined, and the question arises as to how the concept relates to those aspects of disposal which involve accumulating waste as opposed to dispersing it, that is deposit and possibly burial. The Guide to the Administration of the Radioactive Substances Act 1960 drew a distinction for practical purposes between ‘storage’ and ‘disposal’. ‘Storage’ was seen as emplacement in a facility with the intention of taking further action at some future time, and in such a way that such action is feasible. ‘Disposal’ on the other hand, involves dispersal into an environmental medium or emplacement in a facility, with the intention of taking no further action apart from any monitoring which may be thought desirable on technical grounds or to provide reassurance. The most obvious case of accumulation will be where waste is kept at the premises where it is produced, pending its disposal elsewhere. In the context of radioactive waste management, this could be for very protracted periods. Subsection 14(4) contains an important presumption: where radioactive material (as defined by section 1) is produced, kept or used on any premises, and any substance arising from the production, keeping or use of that material is accumulated in a part of the premises appropriated for the purpose for three months or longer, the substance is presumed unless the contrary is proven: (a) to be radioactive waste; and (b) to be accumulated on the premises with a view to the subsequent disposal of the substance. The distinction between disposal and accumulation is relevant when considering the terms of sections 13 and 14 of the 1993 Act. The general requirement of authorisation for the accumulation of waste under section 14(1) does not apply to the accumulation of radioactive waste on any premises situated on a nuclear site, such accumulation being controlled under the nuclear site licence. On the other hand, the disposal of waste on or from a nuclear site will require authorisation under section 13. An example of how this may have practical consequences appears from the prosecution of Magnox Electric for the long-term undetected leakage of aqueous waste from a pump sump at it Bradwell nuclear power station (discussed below under the topic of offences). The sump had been used for the temporary accumulation of waste, which would not require authorisation. However, the unintended escape of the waste from the sump into the ground below the site could become a disposal of that waste on the site or (if it had escaped) from the site. The disposal does not have to be intentional. 160 It is accepted that s 1(4) does limit the application of s 1(2)(b) by reference to prescribed levels of radioactive activity. However, this provision was only inserted into the RSA 1960 by the Environmental Protection Act 1990 (Sch 5, para 17, inserting new sub-section 18(3A)). Hence it cannot provide any clear guide as to parliamentary intention in 1960.

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Radioactive Waste Definition 421 Waste can also be accumulated on premises other than those where it is produced, for example, waste being subjected to or awaiting treatment or processing, or simply being allowed to cool and decay, could fall into this category. One potentially difficult area arises as to the point at which accumulation becomes disposal. If waste is buried and covered (as at Drigg, for example), there is no intention to retrieve it, though obviously it could be dug up and retrieved if circumstances dictated. The burial is clearly disposal rather than accumulation. With some types of facility, however, the position may for some time remain ambivalent. An example could be a repository for intermediate-level waste where during the lifetime of the repository, which could be as long as 50 years, there could be the option of retrieving the waste until final closure of the facility. Essentially, in such a case there would appear to be two options. First, the facility could be authorised for disposal at the outset, dealing with any interim accumulation within the authorisation; in that case no separate authorisation to accumulate will be needed (subsection 14(2)). The second option is to treat the facility initially as a site for the accumulation of waste, until such time as it can be demonstrated that the facility is ready to be closed and that the wastes can be left there with no further action needed other than monitoring; at this point, the accumulation would become disposal and would require authorisation as such. It should be noted that to avoid duplication of control an authorisation for disposal may also require or permit waste to be accumulated with a view to its subsequent disposal, and that in such a case no separate authorisation to accumulate is needed (subsection 14(2)).

The Requirement of Authorisation for Disposal: Section 13 Section 13 contains three separate prohibitions on the disposal of radioactive waste, as follows: 1. By subsection (1) no person shall, except in accordance with an authorisation, dispose of any radioactive waste on or from any premises which are used for the purposes of an undertaking carried on by him, or cause or permit it to be disposed of, if he knows or has reasonable grounds for believing it to be radioactive waste. This prohibition is expressly subject to section 15 which creates or allows for the creation of various exemptions; these are discussed below. The wording of the prohibition is analogous in various respects to that relating to the keeping and use of radioactive materials, that is the reference to causing or permitting, and the requirement of knowledge or reasonable grounds for belief that it is radioactive waste. Reference should therefore be made to the case law referred to above in this respect. 2. Subsection (2) provides that any person who keeps mobile radioactive apparatus shall not dispose of any radioactive waste arising from such apparatus, or cause or permit it to be disposed of, except in accordance with an authorisation granted for that purpose. 3. By subsection (3) where any person, in the course of carrying on an undertaking, receives radioactive waste for the purpose of his disposing of it, he must not dispose of it, or cause or permit it to be disposed of, knowing or having reasonable grounds for believing it to be radioactive waste, other than in accordance with an authorisation. As with subsection (1), the prohibition is subject to the exception provisions of section 15. It is also subject to subsection 13(4), the effect of which is that such disposal does not require an authorisation if the waste falls within an authorisation granted under either subsection (1) or (2) and it is disposed of in accordance with that authorisation.

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422 Radioactive Waste This last provision raises an important issue as to the relationship between authorisation of the producer of the waste, the disposal of the waste from the producer’s premises and ultimate disposal. These associated activities may be dealt with by a single authorisation setting the conditions for disposal. The ultimate disposer can rely on the authorisation granted under subsection (1) or subsection (2) to legitimise ultimate disposal. In debates on the 1960 Act it was already clear that the intention was to issue an authorisation to the person from whose premises the waste was disposed of rather than to the person operating the disposal site to which the waste was taken.161 Current practice is still to issue a single authorisation to the person disposing of the waste from its premises, attaching conditions as to the site to which it must be taken and the way in which it must be buried or otherwise disposed of.162 The Government concluded as part of its review of radioactive waste management that there was no need to duplicate control by means of a separate authorisation granted to the site operator. In considering an application for controlled burial the regulatory bodies consider the characteristics of the waste and also the containment characteristics of the site to which it is proposed to be sent; conditions imposed may involve, for example, the monitoring of leachate from the site for radioactivity. Under the EPR, an environmental permit is required in order to operate a ‘regulated facility’, which term includes a ‘radioactive substances activity’. This term includes (a) the use of premises for the purposes of an undertaking where that person disposes of radioactive waste on or from the premises or accumulates radioactive waste on the premises; or (b) where in the course of carrying on an undertaking, a person receives radioactive waste for the purposes of disposing of it, knowing or having reasonable grounds to believe it is radioactive waste. These provisions are a recasting of those in the Radioactive Substances Act, section 13, though in terms of the second limb, it is the receiving of the waste, not its subsequent disposal, which becomes the relevant activity. There is, however, a third category added, namely where a person carries out intrusive investigation work or other excavation, construction or building work in order to determine the suitability of the premises or enable the use of the premises as a place to be used wholly or substantially for the disposal of solid radioactive waste. This enables permitting control to be exerted at the earliest stages of work on a potential or actual repository.

Nuclear Sites—Disposal of Waste The disposal of waste on, or from, a nuclear site requires authorisation under the RSA and will continue to require an environmental permit under the EPR. Special provision is made for waste on licensed nuclear sites which have ceased to be used for the undertaking of the licensee. Subsection 13(5) of the RSA ensures the requirement of authorisation applies also to nuclear sites which have ceased to be used for an undertaking carried on by the licensee (for example, after closure). This specific provision will be carried through into the EPR. Any radioactive waste disposed of by being left in situ would therefore require authorisation as if the premises were still used for an undertaking carried on by the licensee. The power of the HSE to attach conditions to the nuclear site licence by section 4 of the Nuclear Installations Act is without prejudice to this subsection with respect to the discharge of any substance on or from the site. 161

Hansard, HL vol 220 col 1077.

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Radioactive Waste Definition 423

The Requirement of Authorisation for Accumulation: Section 14 Subsection 14(1) prohibits the accumulation of radioactive waste by any person (with a view to its subsequent disposal) on any premises which are used for the purpose of an undertaking carried on by him, or the causing or permitting of such accumulation, if the person accumulating or causing or permitting the accumulation knows, or has reasonable grounds for believing, it to be radioactive waste. It should be noted that the prohibition applies to any premises used for the purposes of an undertaking carried on by the person accumulating the waste; it is immaterial whether those premises are the place where the waste arose. The relationship with authorisation to dispose of radioactive waste, and the fact that no separate authorisation for prior accumulation may be necessary, has already been noted. Under the EPR, it is proposed that any accumulation of radioactive waste on premises used by the relevant person for the purposes of an undertaking will require a permit, whether accumulated with a view to its subsequent disposal or not. Two further points are relevant. First, the requirement of authorisation is subject to any applicable exemptions under section 15; secondly, that no authorisation is necessary for the accumulation of radioactive waste on any premises situated on a nuclear site (subsection 14(3)). This exclusion was provided in the 1960 Act on the basis that equivalent controls were already applicable under the Atomic Energy Authority Act 1954 and the Nuclear Installations (Licensing and Insurance) Act 1959.163 Control in this respect must therefore be provided by the nuclear site licence. The lack of direct control through the authorisation process raises the need for liaison arrangements between the Nuclear Installations Inspectorate (NII) as licensing authority and the Environment Agencies. An interesting example of co-operation is provided by the joint audit carried out by the NII and Her Majesty’s Inspectorate of Pollution (HMIP) between September and December 1994 of the management of solid radioactive waste accumulated at the Sellafield and Drigg sites then operated by BNFL.164 The audit demonstrated a lack of uniformity in standards and resulted in various recommendations for improvement which were accepted by BNFL. A similar audit was carried out by SEPA and the NII in June 1998 in respect of the Dounreay nuclear licensed site, and gave rise to a number of recommendations, all of which were closed out by April 2008; these included a number of recommendations relating to the safe treatment and disposal of various wastes, such as absorber rods, sodium coolants and contaminated oils and solvents, as well as the emptying of specific facilities such as those known as ‘the Shaft’165 and ‘the Wet Silo’.166

162

Cm 2919 (1995) para 118. Hansard HC vol 619 col 325. 164 The audit resulted in a two volume report, The Management of Solid Radioactive Waste at Sellafield andDrigg: An Audit of BNFL Facilities by HM Nuclear Installations Inspectorate and HM Inspectarate of Pollution (February 1996). 165 The Dounreay Shaft was excavated in the 1950s to allow the removal of rock spoil during construction of an under sea tunnel that would be used for the discharge of low level liquid effluent to the sea. The Shaft is shaped like a cylinder, 4.6m across and 65m deep. In 1958 the Scottish Office authorised the UKAEA to use the Shaft as a disposal facility for radioactive waste. More than 11,000 disposals of a wide variety of radiologically contaminated material took place until 1977, when there was an explosion, thought to have been caused by a build-up of hydrogen gas caused by a reaction between water in the shaft and sodium present among the waste. 166 The Wet Silo succeeded the Shaft in 1971 as a storage facility for the site’s ILW. 163

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424 Radioactive Waste

Exemptions: Section 15 Subsection 15(1) creates a general exemption from three requirements: authorisation for disposal of waste on or from premises (subsections 13(1) and (3)) and authorisation for accumulation (subsection 14(1)). The exemption applies to radioactive waste arising from clocks or watches, but does not affect the operation of subsections 13(1) and 14(1) in relation to the disposal or accumulation of radioactive waste on, or from, premises on which clocks or watches are manufactured or repaired by processes involving the use of luminous material. Subsection 15(2) allows further exemptions from the requirements of sections 13 and 14 to be made by order, either absolutely or subject to conditions. The Orders have developed in a somewhat unco-ordinated fashion over the years and, as explained below, are at the time of writing under review. They cover both the keeping and use of radioactive materials and the accumulation and disposal of radioactive waste. The common theme is that they are intended to provide a degree of control, without excessive bureaucracy, over minor uses of radioactive substances and management of wastes, where there is a clear benefit from the relevant activity or use, whilst protecting the environment and the public. The DEFRA website167 provides the details of the exemptions in force at 1 April 2009, with DEFRA’s descriptions. Some types of order relate to low-activity materials, others to naturally occurring materials, others to products, others to materials in transit and others to particular types of establishments. The Orders providing exemption for educational establishments and hospitals are of particular practical relevance. The most curious Order to have been made is almost certainly the Radioactive Substances (Emergency Exemption) (England and Wales) Order 2006,168 which provided an exemption in respect of ‘radioactive waste relating to the death of Alexander Litvinenko’. Mr Litvinenko was a former officer of Russian Federal Security Services, who had obtained political asylum in Britain and was an outspoken critic of President Putin’s regime. He fell ill and died in November 2006, it transpired from acute radiation syndrome induced by poisoning by polonium-210. The poisoning was found from forensic examination to have taken place on 1 November at the Millennium Hotel in Grosvenor Square, where polonium-210 was found in a teacup, on various hotel furnishings and where several bar staff were found to have suffered exposure. The body excretes polonium through sweat and polonium was found at locations around London where Mr Litvinenko had visited after being poisoned and at his home, as well as traces left in hotels, restaurants and transport by the two former KGB Officers, Lugovoi and Kovtun, who had handled the material and were among the murder suspects. This led to a major exercise in detection and decontamination and disposal of the relevant materials. Other current orders have important practical effects for establishments such as schools, colleges and hospitals. For example, the Radioactive Substances (Prepared Uranium and Thorium Compounds) Exemption Order 1962169 applies to prepared compounds, commonly used in laboratories, of either uranium or thorium from which each of the radioactive decay products has been substantially removed in the course of preparation. It is permissible and acceptable for small amounts of unwanted laboratory chemicals such as uranium and thorium salts to be disposed of locally with non-radioactive refuse. No authorisation under RSA 93 is required provided that the conditions in this exemption 167 168 169

www.defra.gov.uk/environment/radioactivity/government/legislation/exemption_orders/htm. SI 2006 No 3169. SI 1962 No 2711; Scotland SI 1962 No 2772; Northern Ireland SR & O 1962 No 242.

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Radioactive Waste Definition 425 order are complied with. The Radioactive Substances (Natural Gas) Exemption Order 2002170 grants conditional exemption from registration and authorisation to businesses using natural gas and its products. Some important orders relate to particular kinds of undertakings. The Radioactive Substances (Hospitals) Exemption Order 1990 (as amended)171 applies to private and National Health Service hospitals and gives conditional exemption from authorisation in respect of the disposal of wastes arising (particularly human excreta) from the administration of very low doses of radioactive materials to patients; this is an important exemption in respect of the disposal of sewage and waste water from hospital premises. It should be noted that the exemption from registration or authorisation does not apply where a registration is already in force in respect of the premises. The Radioactive Substances (Substances of Low Activity) Exemption Order (as amended)172 exempts from registration and authorisation man-made radioactive substances which possess such low levels of activity that they pose negligible radiological risk. It is only applicable to solid waste which is substantially insoluble in water, organic liquids and short-lived gases.

Review of Exemptions As indicated above, a wide variety of exemption orders have been made over the past 45 years or so. At the time of writing a review of the orders is being undertaken by DEFRA, as part of the general ‘Better Regulation’ initiative. The aim is to produce a suite of orders that will be easier to follow and interpret and conform to modern legislative drafting approaches, and are easier to use. The programme was begun in 2006, with a Programme Board, representative of the devolved administrations, meeting three times a year. A number of workshops and informal consultations were held in 2007–2008. A public consultation on the terms of a proposed exemptions regime was initiated in June 2009,173 the intention being to bring the new Orders into force, with associated guidance, in 2010. In the proposed new regime, amendments to the scope of control will provide a system for removing from regulation radioactive substances that are not amenable to control and for unconditionally exempting radioactive substances that pose such low levels of risk that regulation is unnecessary (including, for the first time, artificial radionuclides). It is proposed that material outside the scope of the Act should be differentiated into descriptive and numerical categories. The descriptive category would cover naturally-occurring low risk material for which numerical values would not be appropriate and would include environmental materials, foods, organisms or products containing naturally-occurring levels of radioactivity, for example, potassium-40 in bananas. The descriptive and numerical categories of exemption will ensure that radioactive waste which was once radioactive material, and which complies with those descriptions or numerical values, will also be exempt. However, material which becomes radioactive waste through contamination by radioactive material or by other radioactive waste will not fall outside the scope of the Act, whatever its description or activity level. This is the same as the existing position under section 2 of the 1993 Act and means that items such as drains, filters, storage tanks and similar equipment, used for 170 171 172 173

SI 2002 No 1177. SI 1990 No 2512; amended by SI 1995 No 2395; Northern Ireland SR 1993 No 54. SI 1986 No 1002; amended by SI 1992 No 647; Northern Ireland SR 1990 No 115. www.decc.gov.uk/en/content/cms/consultations/exemptions/exemptions.aspx.

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426 Radioactive Waste processing or discharge of radioactive waste or material, when they become waste, must be treated as radioactive waste even at the lowest levels of radioactivity, subject to any specific further exemption which may apply. In relation to radioactive waste all such exemptions will be numerically based and will be subject to conditions which are likely to vary depending on the types of waste and its form, that is solid or liquid. These might, for example, exempt very low quantities of very low level waste. Exemptions to allow low volumes of aqueous liquids or organic wastes from hospital test laboratories and other such premises are likely to continue. The intention is that there will be UK-wide guidance to accompany and explain the new regime.

Authorisation Procedures: Generally What follows is a description of the system as at the time of writing. However, it needs to be borne in mind that, as referred to already, there are proposals to modernise the systems for radioactive substances and radioactive waste regulation by bringing them within the regime of environmental permitting. This will involve some significant changes to the procedures mentioned below. Such potential changes are referred to as appropriate.

Authorisation Procedure: Non-nuclear Sites Section 16 deals with the granting of authorisations under sections 13 and 14. Since 1 April 1996, the power to grant authorisations has been exercisable by the Environmental Agency or SEPA. By subsection 16(5), the Agency must consult with such local authorities, relevant water bodies or other public or local authorities as appear proper to be consulted. It seems obvious now that there should be such consultation, but this was not always the case. The absence of any clear requirement to consult local authorities and sewerage undertakers was a cause of serious concern and protracted discussion in debates on the 1960 Act, particularly since under other provisions of the Act radioactivity was to be disregarded for the purposes of other forms of control. The Government was unwilling to impose any more specific requirement, on the basis that it would be very difficult to find an acceptable criterion for consultation. Viscount Hailsham on behalf of the Government suggested that: [T]he cases in fact vary so much that it is impossible to define them in the statute without clogging up the administrative machinery by requiring a number of consultations which if we really went into it might well prove to be a pure waste of time and paper.174

On that basis, Viscount Hailsham suggested that it was appropriate to: follow the practice of accepting from Ministers their assurance that it is their intention and practice invariably to consult those local authorities and other bodies whose interests are directly affected.175

Typically, consultation will now take place with appropriate local authorities, parish councils and water plcs, as well as various national and local environmental, farming, fishing and food production, consumer and interest groups. Upon bringing authorisation within the EPR, the requirements as to consultation and public participation will be put onto a mod174 175

Hansard HL vol 220 col 1079. Ibid; Hansard HL vol 219 col 907; Hansard HL vol 220 cols 1082–3; Hansard HC vol 619 col 372.

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Radioactive Waste Definition 427 ern footing consistent with requirements under more modern regimes which have been influenced by requirements of public participation under Community law. On an application being made, the Agency must (subject to any direction under section 25, as to which see below) send a copy of the application to each local authority in whose area the radioactive waste is to be disposed of or accumulated in accordance with the authorisation (subsection 16(6)). Again, these provisions will be modernised as part of applying the EPR. By subsection 16(7) an application may be treated by the applicants as refused if it is not determined within the prescribed period of four months. The authorisation may, by subsection 16(8)(a), be granted in respect of radioactive waste generally or in respect of specified descriptions of such waste; in practice, the waste authorised for disposal will always be specified in some way. Wide discretion is given by subsection 16(8)(b) as to the imposition of limitations or conditions. On granting an authorisation, the Agency must provide the holder with a certificate containing material particulars, and must also (again subject to any direction under section 25) send a copy to each local authority in whose area the waste is to be disposed of or accumulated. Subsection (10) deals with the date from which the authorisation takes effect; this date is to be specified in the authorisation and in fixing it the authorising Agency must allow a period of at least 28 days after the date on which copies are expected to be sent to the relevant local authorities, unless it is necessary to bring the authorisation into effect on an immediate or expedited basis. Debates on the 1960 Act indicate that the Government felt that some flexibility might be required to avoid the 28 day delay in emergency cases, for example, medical applications or ‘detecting the seat of a failure in an important public utility’.176 It is not intended at present to carry across this 28 day delay provision once environmental permitting applies.

Authorisation Procedure: Nuclear Sites ‘Nuclear sites’ are defined by subsection 47(1) to mean sites where a nuclear site licence is currently in force or where, after surrender or revocation of such a licence, the statutory ‘period of responsibility’ is still current (see chapter four as to this period). Until 1 April 1996 in England, Wales and Northern Ireland, the authorising body for nuclear sites was HMIP acting jointly with ‘the appropriate Minister’—the Minister for Agriculture, Fisheries and Food in England, the Secretary of State in Wales; and the Department of Agriculture in Northern Ireland. This requirement of acting jointly was repealed by amendments made to the 1993 Act by the Environment Act 1995, to coincide with the establishment of the Environment Agencies. By section 16(2) the power to grant authorisations is now simply exercisable by the appropriate Agency. However, there are still some differences between the procedure in relation to waste from nuclear sites: 1. On an application for authorisation under subsection 13(1) in respect of the disposal of waste on or from any premises situated on a nuclear site in any part of Great Britain, the appropriate Agency must by section 16(4A):177 (a) consult the Food Standards Agency and the HSE before deciding whether to grant the authorisation and, if so, subject to what limitations and conditions; and 176

Hansard HL vol 220 col 1092. As inserted by the Environment Act 1995, s 120, Sched 22, para 205(5); amended by the Food Standards Act 1999, s 40(1) and Sched 5, para 43. 177

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428 Radioactive Waste (b) consult the Food Standards Agency concerning the terms of the authorisation, in particular by sending the Agency a copy of any authorisation which it proposes to grant (see subsection 16(4A)). 2. Before granting an authorisation in respect of the disposal of radioactive waste on or from a nuclear site, the appropriate Agency by section 16(5) must also consult such local authorities, relevant water bodies (defined in subsection 47(1) to mean water undertakers, sewerage undertakers or local fisheries committees) or other public or local authorities as appear to the Agency to be proper to be consulted. This will obviously depend on the nature of the disposal under consideration; for example, it would clearly be proper to consult a sewerage undertaker in the case of a proposed discharge of aqueous effluent to sewer, but not a release of gaseous effluent to air. Again, consultation requirements will be standardised under the proposed application of the environmental permitting system. 3. Unlike other types of application, an application for an authorisation for disposal of radioactive waste on or from a nuclear site is not deemed to be refused if it is not determined within the prescribed period (subsection 16(7)). It is not understood that it is proposed to apply a statutory determination period to nuclear sites when the EPR is applied, since co-ordination with the nuclear site licensing process means that permitting could not be completed within the normal environmental permitting determination period.

Public Consultation on Applications The 1993 Act makes no provision for general public consultation on applications for authorisation. Nonetheless, when it was the authorising authority, HMIP recognised that the accumulation, and more particularly disposal, of radioactive waste were matters of public concern and followed the practice of allowing a period of public consultations on applications. Typically, this would involve a period of six or eight weeks for comments, with copies of the application, draft authorisation and an explanatory memorandum being placed on deposit in public libraries, local authority offices and the appropriate HMIP regional office. The same applied to applications made to HMIP for authorisations in Scotland; see, for example, the consultation in 1992 on the continued disposal of liquid and gaseous wastes from Hunterston A’ nuclear power station. It was held in R v Inspectorate of Pollution, ex p Greenpeace Ltd (No 2)178 that HMIP was not under a mandatory obligation to undertake consultation either for new authorisations or for variations of existing authorisations. Wide discretion is given, and the legislation does not, in fact, refer to general public consultation at all. In that 1994 case, it was held that it was not illogical for HMIP and the Ministry of Agriculture, Fisheries and Food (MAFF) to deal with an application for variation of existing authorisations to allow testing of the THORP plant without consultation, whereas the main application for authorisation was subject to a major consultation exercise.179

178

R v Inspectorate of Pollution, ex p Greenpeace Ltd (No 2) [1994] 4 All ER 329. The consultations carried out in respect of the THORP authorisations give an indication of the scale of the process which may be involved in major and high profile applications; the first round of consultation on draft authorisations lasted for 10 weeks and generated 84,000 responses; the second round dealing with wider policy issues lasted two months and elicited 52,500 responses. 179

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Radioactive Waste Definition 429 The issue of consultation also arose in R v Secretary of State for the Environment, ex p Greenpeace Ltd.180 As described above, the application by BNFL for full authorisation of discharges from THORP was subject to two rounds of consultation—the first on the terms of the draft authorisation and the second on wider policy issues. Greenpeace argued that on the second round of consultation, the public should have been provided with greater information on economic issues; allegations that the whole exercise was a ‘sham’ were not, however, pursued. Potts J held that given the way in which the Ministers had approached economic issues, nothing turned on the precise details of contracts and profitability figures. In any event, exhaustive information did not have to be given to ensure effective consultation. The consultation procedure which had been followed was therefore held to be adequate. The law on consultation has moved on since these cases in two important respects. First, there are the obligations assumed under the UNECE Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which clearly require effective consultation arrangements as part of the participation process. Secondly, the common law has developed to reflect the legitimate public expectations for fair and meaningful consultation. These developments are discussed further in chapter five dealing with new nuclear power stations, but are equally applicable to plans and proposals for the disposal of radioactive waste. Such requirements are reflected in current Environment Agency practice in consulting on draft determinations.181 The standard approach on consultation and public participation will in any event be applied once radioactive waste matters are brought within the EPR.

Local Inquiries into Authorisations There is no statutory provision for a public inquiry where an application for authorisation is determined simply by the Agency. However, section 24(1) of the 1993 Act allows the Secretary of State to give general or particular directions to the Agency that applications of a certain description, or a specific application, be referred to him for determination. By subsection 24(2), where an application for authorisation is referred to the Secretary of State for determination pursuant to a direction, the Secretary of State may cause a local inquiry to be held. In R v Secretary of State for the Environment, ex p Greenpeace Ltd (see above), the question arose as to how that discretion was to be exercised. Greenpeace put forward seven factors which it said were relevant to the decision whether to hold an inquiry: 1. the importance of the decision, with a substantial increase in emissions of ionising radiations; 2. the great public concern and the wish of many members of the public and of local authorities that there be an inquiry; 3. the quality of the responses to consultation, raising scientific and technical issues that could only properly be tested in an inquiry; 4. the failure of ministers to obtain certain information which could only properly be evaluated in an inquiry; 5. the likelihood of public concern if Ministers decided issues where the Government had already indicated a policy and wish that THORP should proceed; 180 181

R v Secretary of State for the Environment, ex p Greenpeace Ltd [1994] All ER 352. www.environment-agency.gov.uk/research/library/consultations/78701.aspx.

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430 Radioactive Waste 6. the need to inform the public and allay their fears as to the effects of discharges; and 7. the need to provide Ministers with the best possible information to allow the correct decision to be reached. The Ministers decided not to hold a public inquiry, essentially on the basis that they were already adequately informed as a result of the consultation exercise; they were also conscious that a hearing or inquiry would cause considerable delay and likely adverse financial consequences for BNFL. Potts J concluded that the Secretary of State had carried out the correct balancing exercise and had addressed the correct criteria in deciding not to hold an inquiry.182 The Ministers had not given undue weight to the delay and financial consequences point; this was a collateral point, of which they were simply aware. Greenpeace also argued that the Ministers had not referred to the need to allay the public’s concerns and to better inform the public. Potts J had some sympathy with these arguments, but essentially the Ministers had been entrusted by Parliament with a discretion as to whether to hold an inquiry and there was no evidence that they had exercised that discretion wrongly; the court might disagree with the Ministers as to the weight to be placed on matters such as public concerns, but it was not for the court to substitute its own judgment for that of the Ministers. Whether an inquiry should or should not be held remains a matter for the discretion of the Secretary of State, though clearly the Secretary of State will have to pay proper regard to the same considerations addressed in the Greenpeace case. The Aarhus Convention does not of itself dictate that there must be a public hearing or inquiry. (See Article 6(7) which refers to procedures for participation that ‘allow the public to submit, in writing, or, as appropriate, at a public hearing or enquiry, any comments, information, analyses or opinions that it considers relevant to the proposed activity’.)

Environmental Assessment In R v Secretary of State, ex p Greenpeace Ltd183 (see above) it was also argued by Greenpeace that no lawful authorisation for the disposal of radioactive waste from THORP could have been granted without an environmental assessment complying with Directive 85/337/EEC.184 The Directive identifies a number of projects involving radioactive materials as requiring environmental assessment. In particular, Annex I (projects subject to environmental assessment in all cases) refers to nuclear power stations and other nuclear reactors (except certain research reactors) and installations solely designed for the permanent storage, or final disposal of, radioactive waste. Annex II (projects subject to assessment where their characteristics so require) refers to installations for the production or enrichment of nuclear fuels and installations for the reprocessing of irradiated nuclear fuels. Various European countries, including Denmark, Ireland and the Netherlands had queried the legality of authorising THORP without going through formal environmental assessment procedures.185 The key issue in the THORP case was, however, whether the construction, operation and discharges from THORP were one single project, in which case its commencement predated the 1985 Directive, which would accordingly not apply to it.186 182 183 184 185 186

See Binney and Anscomb v Secretary of State for the Environment [1984] JPL 871. [1994] 4 All ER 352. Now amended by 97/11/EC. Financial Times 1 December 1993. See Twyford Parish Council v Secretary of State for the Environment [1991] COD 210; [1992] 1 CMLR 276.

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Radioactive Waste Definition 431 Greenpeace argued that discharges of radioactive waste into the environment constituted another ‘intervention in the natural surroundings’ within Article 1(2) of the Directive which was separate from the construction of the plant. This submission was rejected as a distortion of Article 1(2) and of the whole tenor of the Directive, which required environmental assessment at the earliest possible stage, prior to consent for the project being given. Possible alternatives to the process were to be considered at that stage, not at the stage of authorising emissions when the plant had already been built. The position following Greenpeace could, therefore, be said to be that environmental assessment will generally be appropriate at the planning stage of a project involving the emission of ionising radiations, and will not require a separate formal environmental assessment at the stage of authorisation under sections 13 and 16 of the 1993 Act. Nonetheless, the process of considering the application and the related consultation might in practice meet the requirements of the Directive; certainly Potts J was satisfied that this was so in the THORP case. However, the law on environmental impact assessment has not stood still since that case was decided. Whilst detailed examination of the voluminous case law on environmental impact assessment (EIA) is far beyond the scope of this chapter, it should in particular be noted that the European Court has addressed the issue of what are termed ‘multi-stage consents’, where national law provides for a development consent procedure which involves more than one stage, a principal decision followed by an implementing decision.187 Whilst rejecting the Commission’s argument that the Directive may require EIA to be carried out at each stage, the Court regarded the Directive as requiring the environmental effects to be identified and assessed at the time of the procedure relating to the principal decision. However, assessment at the later stage would be required where there had been no previous assessment, or where the relevant effects were not identifiable until the later stage. Whilst the decision concerned the procedure for outline planning permission and approval of reserved matters, it is potentially applicable to the authorisation process if this can be regarded as a second stage in the development consent, as a decision which entitles the developer to proceed with the project. A facility for disposing of radioactive waste would require EIA at the stage at which planning permission is granted. However, it is possible that new information may have emerged by the time authorisation for actual disposal comes to be considered, and in that case there are good arguments to suggest that further EIA will be required. Another possible issue relates to the situation where there is some change in the operation of an existing and previously authorised project which is subject to EIA (for example a nuclear power station, or the decommissioning of such a facility, or a nuclear fuel production or reprocessing facility). Such changes, if they may have significant effects on the environment, may require EIA under Annex II, paragraph 13 (first indent) of the Directive. If they require planning permission for physical infrastructure, this will engage domestic EIA requirements. However, if no such permission is required, then the authorisation for disposal of the resulting waste may be the ‘development consent’ which is the key to the project proceeding. In that case, again EC law would require EIA at that stage.188 Another important development in EIA law since the Greenpeace case is the recognition by the House of Lords in Berkeley v Secretary of State for the Environment (No 1) that 187 Case C-290/03 Barker v London Borough of Bromley [2006] ECR I-3949; Case C-508/04 Commission v UK [2006] ECR I-3969; see also Case C-201/02 Delena Wells v Secretary of State for Transport, Local Government and the Regions [2004] ECR I-723. 188 On the question of assessment of changes to existing projects and their cumulative effects with the project before the change, see R (Baker) v Bath and North-East Somerset Council [2009] EWHC 595 (Admin).

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432 Radioactive Waste non-compliance with the EIA Directive cannot readily be excused by refusal of a discretionary judicial remedy, even where it is said that EIA would have made no difference to the outcome or where analogous procedures have been followed but which do not amount to the EIA procedure required by the Directive.189 Whether the processes actually followed are such that they amount to EIA by another name, or whether there is a flaw despite which there are legitimate grounds for allowing the decision to stand, are matters which would need to be addressed in the context of the case under consideration.190 Where assessment has been carried out, the court will, of course, be reluctant to venture into technical debate as to the adequacy of such assessment, in the absence of any obvious error of law.191

Revocation and Variation of Authorisations By subsection 17(1), the Agency may at any time revoke an authorisation granted under section 13 or section 14, and by subsection 17(2) such an authorisation may be varied at any time by attaching or adding conditions or limitations, or by revoking or varying the current conditions or limitations. The powers of revocation and variation are exercisable with or without an application having been made by the holder of the authorisation, but where the holder does make such an application, it must be accompanied by the appropriate charge or fee.192 Before varying an authorisation in respect of the disposal of waste on or from a nuclear site, the Agency must consult the Food Standards Agency and the HSE (subsection 17(2A)). Notice of the revocation or variation must be given to the person to whom the authorisation was granted and a copy must be sent to any local or public authority to which a copy of the original authorisation was sent (subsection 17(3)). Standard provisions on revocation and variation will be applied once radioactive waste regulation is brought within the EPR.

The Scope of the Variation Power In the case of the THORP plant at BNFL’s Sellafield works, existing authorisations to discharge gaseous and liquid radioactive waste were varied so as to allow THORP to be tested prior to full authorisation. This variation was the subject of judicial review proceedings brought by Greenpeace, which also attacked absence of any justification.193 The variations had been made under subsection 8(7) of the Radioactive Substances Act 1960 (now subsection 17(2) of the 1993 Act) and Greenpeace argued that it was not a proper and lawful exercise of the variation power to include emissions from entirely new plant which did not exist at the time of the original authorisation. It was said by leading counsel for Greenpeace that the power to vary conditions and limitations extended only to matters peripheral to the core activity, and did not permit variation of the core activity itself. Moreover, the effect of the variation route was to avoid public consultation which would have taken place on an application for a fresh authorisation. 189

Berkeley v Secretary of State for the Environment (No 1) [2001] 2 AC 603. See R (Edwards) v Environment Agency [2008] UKHL 22; [2008] Env LR 34, per Lord Hoffmann at para 63. 191 See the decision of the Federal Court of Appeal in Toronto in Inverhuron & District Ratepayers’ Assn v Canada (Minister of the Environment) [2001] FJC No 1008; 2001 FCA 203 (considering a dry storage facility for used nuclear fuel). 192 Subss 17(2ZA) and (2ZB), inserted by the Energy Act 2004, s 73. 193 R v Pollution Inspectorate, ex p Greenpeace Ltd (No 2) [1994] 4 All ER 329. For the justification aspect, see ch 7. 190

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Radioactive Waste Definition 433 The conclusion of Otton J was that HMIP and MAFF had acted lawfully in granting the variations. The starting point was that subsection 6(1) of the 1960 Act (now subsection 13(1) of the 1993 Act) allowed BNFL to dispose of any radioactive waste, subject to complying with the terms of the authorisation, from ‘premises’ used for the purpose of any undertaking carried on by BNFL. ‘Premises’ meant land and would include the plant on site, but was not confined to the original plant; there was ‘a wide power vested in BNFL to extend or contract their activities on site under their licence, in pursuance of their objectives but subject to strict independent regulatory control’.194 In construing the authorisations, it was held that the term ‘premises’ was to be given the same meaning as in the statute.195 The wastes described in the authorisations were not limited to wastes arising from a particular type of plant, but covered all wastes arising from BNFL’s operations at Sellafield. The power to vary the conditions of authorisations was ‘very wide but not unlimited’; any variation to the conditions or limitations of the authorisation could not have the effect of widening the general terms of the authorisation, but could be used to relax or make more stringent the conditions governing disposal of the relevant wastes. It was held that the variations granted had not extended the description of radioactive waste already included within the existing authorisations and, as mentioned above, it was irrelevant that waste would emanate from new plant. In the case of gaseous waste, one new discharge point would be added, and in the case of aqueous waste, the existing discharge point would be used. It was neither illogical nor irrational to use the variation process with the effect that there would not be consultation; there was no mandatory requirement for public consultation either for authorisation or for variation. Whilst as pointed out above, these comments on the lack of any requirement for consultation now need to be treated with caution, the discussion provides useful clarification of the scope of the variation procedure, which can provide a flexible means of dealing with changes to plant, provided that the scope of the authorisation in terms of the waste to be discharged is not enlarged. In view of the effect of subsection 13(1) in authorising discharges as outlined above, it will be worth considering carefully the terms of the authorisation to see whether any variation is necessary at all.

Review of Authorisations As a matter of practice, a regular process has been followed for reviewing authorisations in the light of changed circumstances and past performance, including critical appraisal of the adequacy of existing conditions. These routine reviews are scheduled in the light of the individual circumstances of plant; for example, so as to take place following a major maintenance period or ‘statutory outage’. The Energy Act 2004196 formalised this by inserting section 17A into the 1993 Act. This requires the authorising authority to carry out periodic reviews of the limitations and conditions attached to authorisations, and allows reviews at such other times as the authority thinks fit. ‘Periodic reviews’ in this context means reviews at such regular intervals as the authority thinks fit. Again, it is anticipated that the standard provisions as to review of permits will be applied to radioactive waste regulation under the environmental permitting system.

194 195 196

See 342. See ss 11 and 21 of the Interpretation Act 1978. Section 74.

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Transfer of Authorisations No provision was originally made in the 1993 Act for the transfer of authorisations, and therefore where the relevant premises or undertaking changed hands, there had to be is reauthorisation by issuing a fresh authorisation to the incoming party, in the course of which the appropriate Agency might determine to change the conditions. This requirement for re-authorisation was significant on the privatisation of the nuclear power industry; changes in the operation of nuclear power stations involved the issue of new authorisations to the private sector companies involved. This absence of a provision for transfer was an anachronism, and in 2004 the 1993 Act was amended197 to add section 16A which allows applications to be made for the transfer, in whole or in part, of an authorisation in respect of the disposal of radioactive waste on or from premises situated on a nuclear site. The power applies only to nuclear sites and not other premises on or from which radioactive waste is disposed.198 Equivalent requirements on consultation as to those for the grant of new authorisations apply to transfer by subsection 16A(5), unless the authorising authority is satisfied that arrangements for the disposal of waste are unlikely to be changed, as a result of the transfer, in a way that would be of interest to the authority or body to be consulted: subsection 16A(6). The application may only be granted if the authorising authority is satisfied—(a) that the transferee has or will have operational control over the disposals to which the transferred authorisation will relate, and (b) that he is able and willing to ensure compliance with the limitations and conditions of the authorisation that he will hold, and (c) that no other grounds exist on which it would be reasonable to refuse to grant the application (subsection 16A(7).

Effect of Authorisation In R v Inspectorate of Pollution, ex p Greenpeace Ltd (No 2)199 Otton J considered the effect of authorisation pursuant to subsection 6(1) of the 1960 Act (now subsection 13(1) of the 1993 Act). He concluded that authorisation related to ‘premises’ used for the purposes of the relevant undertaking, not to specific plant located at any given time on those premises. Thus, in the absence of any specific condition or limitation confirming the authorisation to the discharge of waste from a particular plant or materials, an authorisation is capable of accommodating the contraction or expansion of activities on site, subject to disposal remaining in accordance with its conditions.

Functions of Local Authorities—‘Special Precautions’ The practice of disposing of very low level waste with ordinary domestic refuse has been referred to above. Provisions exist under section 18 of the 1993 Act regarding circumstances in which the disposal of radioactive waste is likely to need special precautions to be taken 197

By s 72 of the Energy Act 2004. This makes for difficulties where business assets are being sold and the business requires an authorisation. It is proposed under the 2009 consultation on bringing radioactive substances regulation within the environmental permitting regime, to remove this anomaly by allowing for such transfer. 199 [1994] All ER 329. 198

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Radioactive Waste Definition 435 by such bodies as local authorities, water bodies and other public authorities. Such consultation was intended to be additional to any other consultation requirements applying to applications generally.200 Subsection 18(1) requires the Agency to consult with these bodies before granting the authorisation under section 13. If special precautions need to be taken by the appropriate consultee in disposing of radioactive waste, it is empowered to make a charge for taking those precautions. A further provision under subsection 18(3) imposes duties on a local authority in relation to radioactive waste that is brought to a local authority refuse site in compliance with an operator’s authorisation under section 13. Under these circumstances, the local authority must accept that waste and deal with it in a manner required by the operator’s authorisation. Section 18 has not been extended to private site operators or local authority waste disposal companies’ operating sites and since in England and Wales local authorities may no longer operate waste disposal sites, this latter aspect of section 18 is something of a dead letter, and the receipt of radioactive waste will therefore need to be agreed with the site operator. Where radioactive waste is disposed of by controlled burial at a privately operated site, there is no statutory obligation to consult local authorities. Nonetheless, in practice they are consulted, and this was accepted as a course which should be followed in the 1995 White Paper on radioactive waste management.201 The provisions are seen as somewhat anachronistic since local authorities are no longer responsible for waste disposal sites, and are likely to be superseded upon the application of environmental permitting. The practical and policy aspects of controlled burial of LLW are considered further below.

Notices and Records The 1993 Act details a number of miscellaneous further obligations relating to a person authorised under section 13 or section 14. By section 19 any person to whom such an authorisation has been granted is under an obligation to cause copies of the certificate of authorisation to be kept posted on his premises in an appropriate fashion. Operators with an authorisation under section 13 or section 14 can be required to retain copies of site or disposal records for specified periods after the operator ceases to carry on the activities regulated by his authorisation. He may also be required under section 20 to provide copies of records where his authorisation is revoked or he ceases to carry on the authorised activities. For these purposes, ‘records’ are defined as records required to be kept by virtue of the conditions attached to the authorisation relating to the activities regulated by that authorisation; ‘site records’ relate to the condition of the relevant premises, while ‘disposal records’ relate to the disposal of radioactive waste on or from the premises on which the relevant activities are carried out. A further category of ‘source transfer records’ was added by an amendment in 2005 to cover records relating to the transfer of high-activity sources.202

Enforcement and Prohibition Notices: Sections 21 and 22 The same power to serve enforcement and prohibition notices as applies to registrations under sections 7 and 10 also applies to authorisations under sections 13 and 14. An 200 201 202

See Hansard HL vol 220 col 1080. Cm 2919 (1995) para 119. See SI 2005 No 2686.

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436 Radioactive Waste example of an enforcement notice is that served in June 2005 on DML, operators of Devonport Dockyard, following a leak of about 20 litres of water containing Cobalt 60 during the refit of the Trident nuclear submarine HMS Victorious. The notice required review of all arrangements for handling waste in the relevant dock. Again, enforcement is likely to become a standard matter under the EPR, with the application of the general enforcement powers to serve notices and to step in and take action in appropriate cases, as outlined in Chapter 9.

Secretary of State’s Powers of Direction As with registrations under sections 7 and 10, the Secretary of State has powers under sections 23 and 24 to give directions to the appropriate Agency and to call in applications for his own determination. The powers of direction include how the Agency should exercise its functions in respect of grant, transfer, review and revocation of authorisations, and the attachment of limitations and conditions. This represents the means through which the Government can require fulfilment of general policies and strategies for dealing with various waste streams. As radioactive waste is a devolved function, the powers are exercisable in respect of Scotland by the Scottish Executive, in Wales by the National Assembly,203 and in Northern Ireland by the Department of Environment for Northern Ireland.204 By section 25, the Secretary of State may direct that information contained in, or relating to, authorisations or applications under sections 13 and 14 be restricted on grounds of national security. This is an important and now widely-used power: in the interest of protecting radioactive material or waste from misappropriation by terrorist groups, the Environment Agency is prohibited from making information on matters such as locations and types of material generally available. However, in the case of authorisations under section 13 relating to nuclear sites, such directions may not detract from obligations to consult with, or provide information to, the Food Standards Agency (subsection 25(3A)). Again, the power of the Secretary of State to give directions will be the standard power under the EPR regime in due course.

Appeals The appeals mechanism in relation to sections 13 and 14 authorisations is to be found at sections 26 and 27 and is essentially the same as for sections 7 and 10 registrations. It for appeal to the Secretary of State (or the relevant devolved body) by the person directly concerned205 against refusal of applications for the grant of authorisation, for transfer or variation, against limitations or conditions attached, and against revocation or cancellation, as well as against enforcement and prohibition notices. No appeal lies in respect of decisions taken in pursuance of a direction by the Secretary of State or devolved body. The procedure on appeals is dealt with by section 27. However, the application of the EPR will mean that the standard procedures on appeals will be applied, and it is also proposed that it will become possible to appeal against conditions imposed as a result of a direction. 203 204 205

See the National Assembly for Wales (Transfer of Functions) Order 1999 No 672, Art 2, Sched 1. Section 23(5). Defined at subs 26(5).

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Radioactive Waste Definition 437

Powers of the Secretary of State relating to Radioactive Waste: Section 29 Section 29 confers residual powers on the Secretary of State (or the devolved administrations), where it appears to them that adequate facilities are not available for the safe disposal or accumulation of radioactive waste, to provide such facilities or to arrange for their provision by such persons as the Secretary of State may think fit. In the context of the 1960 Act, this provision was described as carrying on an arrangement by which the AEA had been acting as agent for the Minister in disposing of wastes which were particularly difficult, or in such large quantities as to require large-scale rather than local disposal.206 By subsection 29(2), the Secretary of State is required to consult any local authority in whose area it is proposed to provide such facilities, and such other public or local authorities (if any) as appear to him appropriate to be consulted. By subsection 29(3), reasonable charges may be made for the use of any facilities so provided.

Power of Appropriate Agency to Dispose of Radioactive Waste and Orphan Sources Residual powers are given to the Agencies by section 30 of the 1993 Act to deal with the situation where radioactive waste is present on premises and ought to be disposed of, but for various reasons is not likely to be. Those reasons are stated to include the premises being unoccupied or the occupier being absent or insolvent. In these unfortunate circumstances, the appropriate Agency has the power to dispose of the waste as it thinks fit and to recover any expenses reasonably incurred from the occupier of the premises, or from the owner (a defined term) where the premises are unoccupied. Subsection 30(3) applies, in these circumstances, the provisions of section 294 of the Public Health Act 1936 so as to limit the liability of owners who are simply agents or trustees. Section 30A(1), inserted in 2005,207 requires the appropriate Agency to have prepared and made provision, for the recovery of orphan sources, and to have drawn up appropriate response plans and measures. Power is given by section 30A(2) to recover expenses reasonably incurred in the recovery and disposal of orphan sources from the holder of the source (that is the person who is or is required to be registered or authorised in relation to the source) or from the owner or occupier of the premises where the source is located. The Secretary of State or devolved administrations may make funds available to the appropriate Agency to cover necessary costs and expenses which exceed any reasonable provision made by the Agency or which are expected to do so (section 30A(4)). The issue of orphan sources is discussed further in chapter nine.

Rights of Entry, Inspection, etc The Agencies are provided with powers of entry, inspection and other enforcement powers by the general provisions of the Environment Act 1995. Common form powers under the EPR will apply as and when radioactive waste regulation is brought within that regime. 206 207

Hansard HL. vol 219 col 879. By SI 2005 No 2686.

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Offences: Sections 32 to 38 The various offences relating to authorisation are the same as for registration under sections 7 and 10, which are discussed in chapter nine. Various prosecutions have been brought in recent years in relation to the accumulation and disposal of radioactive waste. As will be seen, the levels of fines have increased, when comparing the cases mentioned in the 1990s with those in more recent years. BNFL who pleaded guilty to unauthorised disposal of low-level solid radioactive waste and were fined £7,500 with costs of around £6,000 in September 1991. Leicestershire Health Authority who pleaded guilty to failing to properly dispose of radioactive waste from Leicester Royal Infirmary and were fined £6,000 with costs of £5,000 in February 1992. Nichols Institute Diagnostics who pleaded guilty to accumulating waste diagnostic kits without authorisation (as well as to holding radioactive materials exceeding registered limits) and were fined a total £10,000 with £2,726 costs in April 1993. Essex University who pleaded guilty to the incineration of radioactive waste in breach of an authorised limit on two successive occasions and were fined £800 with costs of £2,651 in 1993. Hunting BRAE, the consortium operating the Atomic Weapons Establishment at Aldermaston under contractorisation arrangements, was fined £17,500 by Newbury magistrates in December 1999 having pleaded guilty to three charges relating to discharges of groundwater contaminated by tritium208 to Aldermaston Stream, a tributary of the River Kennett. The Agency did not seek to have the case referred to the Crown Court for sentencing because it accepted that the discharge had caused no significant risk to public health.209 Nuclear Electric, which was fined £13,000 after pleading guilty to failure to comply with an authorisation condition requiring systems for discharging waste to be kept in good repair, following a leak of radioactive coolant gas from an instrumentation pipeline.210 Jenny Seward, a company director who arranged for the unlawful disposal of drums of depleted uranium which should have been consigned to BNFL, but which she paid a skip operator £300 to take away, and which was found dumped on farmland in Northamptonshire. She pleaded guilty and was fined just £4,000 at St Albans Crown Court in February 2000, plus a prison sentence suspended for two years. The penalty was criticised by the Agency and commentators as unduly lenient.211 Magnox Electric, which was sentenced to fines totalling £100,000 plus £28,000 costs by Taunton Crown Court in June 2001 having pleaded guilty to six counts, relating to unauthorised releases of radioactive effluent from its Bradwell and Hinkley Point nuclear power sta208 Interestingly, the tritiated groundwater came from large underground ponds constructed to prevent a recurrence of the incident in 1989 when flooding had flushed radioactive material onto the adjoining site of Blue Circle Industries, resulting in a successful civil claim by Blue Circle, discussed further in ch 6. 209 ENDS Report 299, December 1999, 52–3. Unusually, the defendant put forward one of its employees as a witness as part of its plea in mitigation, who claimed that a former Agency inspector for the site had informally approved the discharge; the Agency, despite an extensive search, had found no evidence to support this suggestion in its own files or the company’s. 210 ENDS Report 249, October 1995. 211 ENDS Report 302, March 2000, 47–8.

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Radioactive Waste Definition 439 tions.212 In both cases faults in a filter system had resulted in radioactive discharges. The discharges were agreed to have had no environmental impact, but in the case of Hinkley the faults had been continuing for some time. The company was fined £10,000 for unauthorised disposal at Bradwell and £20,000 at Hinkley, plus fines of £30,000 on each count of failing to keep plant in good repair and £5,000 on each count of failing to report the incidents. The University of Cambridge was fined £16,000 plus over £20,000 costs by Ely magistrates in October 2005, having pleaded guilty to five counts of breaching its authorisation, when a faulty seal on equipment at its Wolfson Brain Imaging Centre caused radioactive gases to be discharged to the atmosphere.213 Cleansing Services Group Ltd, who were prosecuted following a fire at their waste treatment site at Sandhurst, Gloucestershire, which involved the release of various toxic substances and where unauthorised drums of low-level radioactive waste were found on the site.214 They pleaded guilty to 15 charges under environmental and health and safety law and were fined £250,000 plus £400,000 prosecution costs at Gloucester Crown Court in December 2003 (though the prosecution involved numerous other offences). UKAEA was fined a total of £140,000 at Wick Sheriff Court in 2007, having pleaded guilty to four charges relating to the illegal discharge of particles from the Dounreay facility, over a period from 1976 to 2006.215 The matter was the subject of a major investigation by SEPA, which found that the particles derived from various shortcomings in the fuel-handling processes. Other issues related to the disposal of low level radioactive waste at a landfill site intended only for inert waste, between 1963 and 1975, and radioactive particles in surface water drains which derived from a misconnected fuel flask washing process which had discharged from 1964 to 1967. The age of the events in question meant that the prosecution was brought under the Radioactive Substances Act 1960. Magnox Electric Ltd was convicted in April 2009 at Chelmsford Crown Court on three counts relating to an ongoing leak from an underground sump at Bradwell nuclear power station. It was fined £250,000 on those counts and on two further offences to which it had already pleaded guilty, and ordered to pay £150,000 in costs.216 The leak was thought to have begun in 1976, and the sump was not subject to routine inspection and maintenance until 2004. The company was found guilty of disposing of radioactive waste on its premises in three counts relating to separate periods, and pleaded guilty to two charges of failure to maintain and keep in good repair the sump and associated pipework. The sump had been constructed in 1976 by the CEGB, which operated Bradwell until March 1990.217 It was accepted that the leaks did not involve risk to the public and that there was no prospect of the aqueous waste leaving the site. The case raised some interesting legal issues. The company was not charged in respect of leaks during the period of operation of CEGB as its predecessor. The NII had decided not to prosecute in respect of breaches of the nuclear site licence. A further eight counts were withdrawn from the jury during the trial. 212

ENDS Report 317, June 2001, 45–6. ENDS Report 369, October 2005, 54. 214 See HSE Press Release E244:03, 8 December 2003. 215 ENDS Report 386, March 2007, 60–61. 216 See www.environment-agency.gov.uk/news/103626.aspx. 217 See www. magnoxsouthsites.com/news/2009-02-09/bradwell-statement. In the absence of clear statutory provisions passing criminal liability to Magnox, there was no basis for attributing to it criminal liability for the activities its predecessors: see British Airways Board v Taylor [1976] 1 All ER 65, 70, 71; R v Pennine Acute Hospitals Trust [2004] 1 All ER 1324. 213

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Public Access to Information: Section 39 When the Radioactive Substances Act 1960 was debated in Parliament, concerns were expressed as to the lack of provision for public registers to inform the public where radioactive wastes were stored and how they were to be disposed of.218 However, it was not until the Environmental Protection Act 1990 amended the 1960 Act that such a provision was made. Section 39 of the 1993 Act requires the appropriate Agency to keep copies of all applications made to it, all documents issued by it, all documents sent by it to a local authority in pursuance of directions by the Secretary of State, and such records of convictions as may be prescribed in regulations. Copies must be made available to the public except where this would involve disclosure of information relating to trade secrets or the disclosure of information which the Secretary of State has directed should be restricted on grounds of national security. The copies need not be kept in documentary form, and the public has the right to inspect copies and, on payment of a reasonable fee, to be provided with copies. In relation to authorised discharges of radioactive waste, the Secretary of State has directed the Agencies to send all local authorities (that is county councils, district and London Borough Councils) copies of the annual reports of their monitoring programmes for such discharge, containing both summary data and an analysis of the main findings.219 Such reports deal with analysis of effluent samples from nuclear sites, and major registrations for keeping radioactive material, and other relevant industrial sources, for example, certain smelters. Each local authority is required by subsections 39(2) and (5) to make copies of such documents available to the public. In relation to local authorities consulted on applications relating to discharges from nuclear sites (and any others who request the information) DEFRA sends copies of its annual Aquatic Monitoring Report and Terrestrial Radioactivity Monitoring Programme Report.220 The mass of more detailed monitoring data available is not sent to local authorities, but is available subject to confidentiality constraints at regional offices of the Agency. Similarly, monitoring data required by the terms of authorisations to be provided to the Agency are sent to the relevant local authorities, and should generally then be made available to the public.221 In the case of the Ministry of Defence and visiting forces, copies of any non-statutory authorisations which they hold are sent to the local authorities.222 Transition to the EPR regime should have the benefit of bringing these somewhat archaic statutory arrangements into conformity with modern standards of public information.

Relationship of the 1993 Act to Other Statutory Provisions The potential overlap between the legislation on radioactive substances and radioactive waste and other environmental controls is dealt with in part by section 40 of the 1993 Act. By this section Act, for the purposes of certain specified statutory provisions, no account is to be taken of any radioactivity possessed by any substance or article, or by any part of any premises. The objective of this provision was to avoid those who were becoming subject to 218 219 220 221 222

Hansard HL vol 220 cols 798 and 802. Section 23(4); and DoE Circular 22/92, para 4 (Welsh Office: 43/92; FMP 1102). Circular 22/92, para 5. Ibid, para 8. Ibid, paras 9–10.

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Radioactive Waste Definition 441 the new regime of control remaining subject to other controls and the possibility of prosecution under those controls.223 The section applies to all local enactments dealing with matters such as waste and nuisances224 and to the general statutory provisions listed at Schedule 3 to the 1993 Act. Among the more significant of these provisions are Part III of the Environmental Protection Act 1990 (statutory nuisances), the provisions on pollution of controlled waters contained in the Water Resources Act 1991 and the Control of Pollution Act 1974, and Chapter III of Part IV of the Water Industry Act 1991 (discharge of trade effluent to sewer). Effectively, therefore, the enforcing or authorising bodies for these provisions must disregard any radioactivity of the relevant materials or effluent, leaving this as part of the matter to be regulated under the 1993 Act. Similarly, in any prosecution under these provisions (for example, for causing polluting matter to enter controlled waters), the court would have to ignore the radioactivity. The holder of a Radioactive Substances Act authorisation may be carrying out prescribed industrial activities which require an environmental permit under the Environmental Permitting (England and Wales) Regulations 2007.225 In that case the operator will have to comply with both the conditions of the permit and those of the authorisation, which may overlap in their scope.226 As regards general controls over waste disposal and recovery, section 78 of the Environmental Protection Act 1990 provides that except as may be provided by regulations, nothing in Part II of the 1990 Act applies to radioactive waste as defined in the Radioactive Substances Act 1993. Accordingly, radioactive waste is not subject to the duty of care under section 34 of the Act and the deposit or treatment of such waste does not require an environmental permit. Radioactive substances and waste can result in serious problems of soil and groundwater contamination. The provisions on the identification and clean-up of contaminated land contained in Part 2A of the Environmental Protection Act 1990 do not apply to land or water pollution attributable to radioactivity unless applied by regulations (section 78YC). These provisions have now been applied, with substantial modifications, and are discussed in chapter 11. Radioactive waste may have toxic or other qualities which would qualify it as hazardous waste. The relationship between the regulations dealing with special or hazardous waste and the radioactive substances regime has always been complex. Both the Control of Pollution (Special Waste) Regulations 1980227 and the Special Waste Regulations 1996228 made it clear that radioactive waste could be subject to control as special waste although it was not controlled waste for general purposes. The Hazardous Waste (England and Wales) Regulations 2005 229 in general exclude from the definition of ‘waste’ for their purposes 223

Hansard HL vol 220 col 1093. This applies to any provision of a local enactment, whenever passed, in so far as the disposal or accumulation of waste or other substance which is a nuisance, noxious, polluting, or any similar description, is prohibited or restricted, or where any power or duty to take action for preventing, restricting or abating such accumulation or disposal is conferred or imposed on an authority. 225 SI 2007 No 3538. 226 Compare subs 28(2) of the Environmental Protection Act 1990, which provided in respect of the integrated pollution control system created by Pt I of the 1990 Act, that where activities comprising a process prescribed for the purposes of Pt I were regulated both by an authorisation under Pt I and an authorisation under the 1993 Act, if different obligations are imposed by the separate authorisations in respect to the same matter, the relevant Pt I authorisation condition would be treated as not binding. 227 SI 1980 No 1709. 228 SI 1996 No 972. 229 SI 2005 No 894, reg 2(1)(b). 224

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442 Radioactive Waste anything that is excluded from the scope of the Waste Framework Directive by Article 2 of that Directive: this would normally have the effect of excluding radioactive waste which is covered by the 1993 Act. However, this is subject to regulation 15, which treats as waste, and accordingly hazardous waste, any material which (a) is radioactive waste under the 1993 Act but is exempt from the requirements of sections 13 or 14 by virtue of an exemption order under section 15;230 and (b) has one or more hazardous properties arising other than from its radioactive nature. This avoids the lacuna which might otherwise occur where a type of waste is relatively innocuous in terms of its low radioactivity, and hence exempt from control under the 1993 Act, but possesses other hazardous properties such as toxicity.

Application to Crown: Section 42 By subsection 42(1), the general position is that the 1993 Act binds the Crown, although contravention will not result in the Crown being criminally liable. However, by subsection 42(2), application of the Act to the Crown does not affect premises occupied on behalf of the Crown for naval, military or air force purposes, or for purposes of the Secretary of State for Defence, or by or for the purposes of a visiting force. Where premises are occupied by a contractor carrying out work for the armed forces or Ministry of Defence, the question will be whether those premises are being occupied on behalf of the Crown, or on the contractor’s own behalf; this will depend on the nature of the arrangements between the parties. As already indicated, there are recent examples of enforcement and criminal proceedings being taken under the 1993 Act against operators of facilities such as the Devonport naval dockyard and the Atomic Weapons Establishment. In any event, even in relation to premises occupied by the armed forces or Ministry of Defence, the policy is to go through authorisation procedures for the accumulation and disposal of radioactive waste. A good example is HM Naval Base at Devonport, where applications for authorisation for the disposal of liquid radioactive waste to sewer, and very lowlevel waste to landfill, were in February 1996 subject to full public consultation by HMIP.231 The practice is that, rather than being issued with registrations or authorisations, MoD and visiting forces are sent documents known as ‘certificates of notification’, recording the holding of radioactive material, and ‘certificates of agreement’ which approve the disposal of radioactive waste. Each will specify the conditions to be observed. The Government’s policy is to send copies of such certificates to the relevant local authorities except where considerations of national security preclude it (which of course they often will). As explained in chapter nine, the EPR regime is binding on the Crown, save in respect of imposing criminal liability.

EFFECT ON OTHER RIGHTS AND DUTIES: SECTION 46 By section 46(a) of the 1993 Act, nothing in the Act is to be construed as conferring a right of action in civil proceedings in respect of any contravention of the Act. Thus, where injury or damage is caused by radioactive waste accumulated on a site, or emitted or discharged from a 230 231

Exemption orders are discussed above. HMIP Bulletin—No 42 (February 1996).

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Issues in Regulation: Generally 443 site, the normal principles of civil law will govern liability. The position is, of course, different where nuclear installations are concerned, being governed by the special liability regime of the Nuclear Installations Act 1965 (see generally chapter six). Although it is not stated expressly, it must be the case that this provision should not be read as derogating from the express right to take civil proceedings to secure compliance with an enforcement or prohibition notice, where it appears that criminal proceedings would be ineffectual for that purpose.232 Further, by section 46(b) and (c), nothing in the Act is to be construed as affecting any restriction imposed by or under any other enactment, or as derogating from any right of action or other remedy, criminal or civil, in proceedings instituted otherwise than under the Act. This provision must be read subject to the provisions of section 40 on the disregard of radioactivity for certain purposes (see above) and to the general provision of section 18 of the Interpretation Act 1978 on the avoidance of multiple punishments for offences arising from the same act or omission.

Territorial Jurisdiction The 1993 Act regime applies to installations outside territorial waters, for example in respect of radioactive sources held on oil and gas platforms in the North Sea. These are deemed to be within UK territory for various purposes including the 1993 Act.233

ISSUES IN REGULATION: GENERALLY This chapter concludes with a discussion of some of the current policy and practical issues involved in regulating the accumulation and disposal of radioactive waste. Fundamental to this is the UK’s approach to meeting its international obligations as discussed earlier in this chapter.234

UK Strategy for Radioactive Discharges The first UK Strategy for Radioactive Discharges was published in 2002.235 An important component of the Strategy is to describe how the UK will implement the agreements reached at the 1998 OSPAR Ministerial Meeting and subsequent OSPAR Commission Meetings.236 The OSPAR requirements can be summarised as follows (taken from the UK Strategy): Overall objective: To prevent pollution of the maritime area, as defined under the Convention, from ionising radiation, through progressive and substantial reductions of discharges, emissions and losses of radioactive substances. The ultimate aim is to achieve concentrations in the environment near background values for naturally occurring radioactive substances and close to zero for artificial radioactive substances. In achieving this objective, the following issues should, inter alia, be taken into account: 232

See subs 32(3) of the Act (added by the Environment Act 1995, s 120 and Sched 22). See the Civil Jurisdiction (Offshore Activities) Order 1987 No 2197 and the Criminal Jurisdiction (Offshore Activities) Order 1987 No 2198. 234 See www.defra.gov.uk/environment/radioactivity/government/discharges. 235 UK Strategy for Radioactive Discharges 2001–2020 (DEFRA, July 2002) available at www.defra.gov.uk/ environment/radioactivity/discharge/strategy/index.htm. 236 Discussed above in the section dealing with international obligations. 233

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444 Radioactive Waste • legitimate uses of the sea; • technical feasibility; • radiological impacts to man and biota. Intermediate objective (2020): By the year 2020, the OSPAR Commission will ensure that discharges, emissions and losses of radioactive substances are reduced to levels where the additional concentrations in the marine environment above historic levels, resulting from such discharges, emissions and losses, are close to zero.

The 2002 Strategy set out the general principles and aims, the considerations involved in further reductions of discharges, and detailed proposals for discharge reductions from 2001–2020 by reference to the various types of sources within six sectors, noting in each case the possibilities for reducing discharges. Consultation on a revised Strategy took place in 2008. This marked a number of changes in scope and emphasis from the 2002 Strategy. The revised Strategy will include not only liquid discharges but also aerial discharges and discharges from decommissioning as well as operational activities, and will cover discharges from the non-nuclear sector. Furthermore, whereas the 2002 Strategy was written in the context of a declining nuclear industry in the UK, the new Strategy is predicated on a significant expansion of nuclear generating capacity. The overall objective remains to implement the UK’s OSPAR obligations in respect of the intermediate 2020 objective, and to provide a clear statement of policy and a strategic framework for discharge reductions on a sectoral basis. As such, the revised Strategy will set out the principles to be applied when setting conditions on discharge authorisations. The Strategy does not set individual site limits, but rather sets targets at the sectoral level, and a strategic framework. The consultation proposed that in England and Wales the approach for setting discharge limits would move from BPM and BPEO to best available techniques (BAT). The Sintra Statement requires parties to apply BAT, together with the polluter pays and precautionary principles, in order to achieve its overall objective, and a move to this approach is believed to deliver a regime that is more consistent with the terminology of the OSPAR Strategy and other environmental protection regimes, including the EPR. However, SEPA and the Environment & Heritage Service, Northern Ireland intend to continue applying BPM and BPEO in the regulation of radioactive discharges in Scotland and Northern Ireland. This seems anomalous, but it may be that not much turns on it, as the application of BPM and BPEO are believed by the Government to achieve a very similar level of environmental protection to BAT, and the Government’s view is that past policy based on BPM and BPEO has shown itself effective in minimising discharges: This revised strategy represents the next chapter of what has been an increasingly effective policy to minimise discharges, while recognising the benefits of nuclear practices in terms of energy, defence, medical treatments and scientific research. Trends in discharges of man-made radionuclides over the last 20 years show large and sustained reductions in discharges of the most radiologically significant radionuclides, particularly from the nuclear fuel reprocessing sector.237

The Strategy covers five nuclear sectors: nuclear fuel production and uranium enrichment, nuclear energy production, spent fuel reprocessing, research facilities and defence facilities. Discharges from the non-nuclear sectors are also discussed. For each sector, the possibili237 Executive Summary, para 9. This was the approach taken by the UK in reporting on its implementation of its PARCOM obligations: see OSPAR Commission, Implementation of PARCOM Recommendation 91/4 on Radioactive Discharges (OSPAR Commission, Radioactive Substances Series, 2003) para 2.1.1 (national implementation of BAT): ‘the equivalent of BAT is applied’.

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Issues in Regulation: Generally 445 ties for reducing discharges are examined and projected discharge profiles for the period 2006 to 2030 are given for the nuclear sectors and for isotope production and the oil and gas sector. Targets are set for discharge reductions, by sector. The consultation recognises that there are uncertainties which may affect these targets: The strategy targets and forward discharge profiles are based on current assumptions about future activities in each sector and we recognise that they will need to be adjusted if assumptions change. In particular, the UK Government has opened the way to new-build nuclear power stations, the potential discharges from which cannot yet be accurately quantified and are not included in the current discharge profiles . . . It would be prudent to assume that a programme of new nuclear build is likely to replace or exceed current generating capacity during the time-frame covered by the strategy. On the basis of the low levels of discharges from current pressurised water reactors (PWRs) in the UK and abroad, such a programme, on a purely illustrative basis, would not prevent the UK from achieving the objective of the OSPAR Radioactive Substances Strategy.238

One aspect discussed in the draft Strategy is the application of the principle of sustainable development to radioactive waste regulation. In working towards this general objective, as the Strategy points out, an analysis of the environmental, social and economic aspects of development needs to be carried out and a balance needs to be struck when making decisions about the best way to take policy objectives forward. In relation to reducing radioactive discharges and achieving a balance, some flexibility is needed to safeguard other Government objectives. The following examples are given: —in healthcare, balancing the health and economic benefits of radio-pharmaceuticals against the radioactive discharges resulting from their use and manufacture; —in defence, balancing the national security benefits of maintaining defence operational capability with the radioactive discharges that arise from defence operations and activities; —in securing the UK’s energy supply, as a basic requirement of sustainable development, including potential new nuclear build in England and Wales, and the possibility of extending the operational lives of existing Advanced Gas-cooled Reactor (AGR) nuclear power reactors; and —in the decommissioning and clean-up of nuclear facilities and remediation of contaminated land, balancing the benefits of hazard reduction and environmental restoration against the discharges generated from the processing of radioactive materials and wastes. In particular, the environmental, social and economic aspects of sustainable development need to be balanced in considering the selection of the most appropriate abatement technology to reduce discharges into the environment: There would be no overall benefit to the environment if, as a result of the new abatement process, a plant emitted large quantities of carbon dioxide or toxic (but non-radioactive) substances into the environment, resulting in environmental harm equal to or greater than that avoided by abating the radioactive discharges . . . While, for individual operators, affordability is not an appropriate justification for applying lower levels of environmental protection, if the cost of installing abatement equipment was so great that certain activities were to become uneconomic, the social and economic impact could be judged to outweigh the environmental benefit of the proposed abatement technology . . . Finally, there is a need to consider whether further discharge abatement represents value for money, recognising that there is a point where the costs of further 238

Executive Summary, paras 14–15.

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446 Radioactive Waste discharge reduction measures could be disproportionate to the benefits of small reductions in discharges.

Consultation on the draft Strategy closed at the end of September 2008. At the same time, DEFRA has been consulting on new guidance to the Environment Agency on the regulation of radioactive discharges into the environment,239 to be issued under section 4 of the Environment Act 1995. This will provide guidance to the Agency on pursuit of the objective set out in the UK Strategy. The principles which the Agency should apply are listed as follows: —sustainable development; —the use of BAT; —the precautionary principle; —the polluter pays principle; —optimisation of protection on the basis that radiological doses and risks to workers and members of the public from a source of exposure should be kept as low as reasonably achievable (the ALARA principle); and —the preferred use of ‘concentrate and contain’ in the management of radioactive waste over ‘dilute and disperse’ in cases where there would be a definite benefit in reducing environmental pollution, provided that BAT are being applied and worker dose is taken into account.

Best Available Techniques On BAT, the draft guidance to the Agency contains the following statements, which may, of course, be subject to some change in the final version:240 1. The Environment Agency should set discharge limits based on the use of BAT by holders of authorisations under the Radioactive Substances Act 1993. 2. Limits should be set at the minimum necessary levels to permit ‘normal’ operation or decommissioning of a facility. 3. In regulating the normal operation or decommissioning of a facility the Environment Agency should take into account the relevant operational fluctuations, trends and events that are expected to occur over the likely lifetime of the facility. Flexibility in setting discharge limits may also be necessary in those cases where other key Government objectives need to be met, for example the safe and timely decommissioning of redundant facilities, clean-up of the historic legacy of radioactive wastes, security of energy supply; maintaining defence nuclear and non-nuclear capabilities; and the use of radionuclides in medicine. 4. Before granting or significantly varying authorisations for radioactive discharges, the Environment Agency should ensure that a systematic and proportionate examination is made of waste management options having regard to the waste hierarchy.241 The 239 www.defra.gov.uk/corporate/consult/rad-discharges-eaguidance/index.com. Statutory guidance to SEPA was issued by Scottish Ministers in February 2008. 240 Paras 15–22. 241 The waste hierarchy has become a cornerstone of sustainable waste management, setting out the order in which options for waste management should be considered based on environmental impact. More information is available from www.nda.gov.uk/documents/upload/WNM-PP-001-The-role-of-the-waste-hierarchy-March-2008.pdf.

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Issues in Regulation: Generally 447 Environment Agency should ensure that the waste management strategy chosen by holders of authorisations under the Radioactive Substances Act 1993 represents the use of BAT to provide proper protection for people and the environment. The Environment Agency should also ensure that waste management decisions by such holders are based on BAT in order— —to prevent the unnecessary creation of waste or discharges; —to minimise waste generation; and —to minimise the impact of discharges on people and the environment. 5. When determining whether holders of authorisations under the Radioactive Substances Act 1993 are applying BAT, the Environment Agency should consider if the holder is taking account of— —all relevant guidance and good practice; —the technical characteristics of the facility; —its geographical location and local environmental conditions. 6. Where a legally binding obligation requires stricter conditions and limits than those which would be required by the application of BAT then the Environment Agency should ensure that those stricter conditions and limits are applied. 7. Where the prospective dose to the most exposed group of members of the public is below 10 ÌSv/yr from the overall discharges of an authorised site under the Radioactive Substances Act 1993 the Environment Agency should not seek to reduce further the discharge limits that are in place, provided that the holder of the authorisation applies and continues to apply BAT.242 8. In relation to any designs for new nuclear power stations, the Environment Agency should ensure that BAT are applied so that the design is capable of meeting high environmental standards. This requirement should be imposed at an early stage so that the most modern technology can be incorporated into the design of the stations. The application of BAT should ensure that radioactive wastes and discharges from any new nuclear power stations in England and Wales are minimised and do not exceed those of comparable stations across the world. Similarly the Environment Agency should ensure that BAT are used in all other new nuclear facilities.

ALARA It will be noted that the ALARA principle, namely that radiological doses and risks to workers and members of the public from a source of exposure should be kept as low as reasonably achievable, remains part of the guidance to the Agency. This principle has been followed for many years, and has attracted some comment. The relationship of the ALARA principle to other concepts, such as the use of best practicable means, has not always been clear. An article by Christopher E Miller has pointed out that whilst the concept may appear to be explicitly economic in character, in practice the approach has tended to be pragmatic.243 The term ‘reasonably practicable’ has been construed as implying a computation between the risk to be averted and the cost of measures involved. Nuclear site licences and 242 It is proposed that this should supersede the ‘threshold for optimisation’ of 20 ÌSv/yr set out at para 73 of Cm 2919, Review of Radioactive Waste Management Policy—Final Conclusions, July 1995. 243 Dr C Miller, ‘Economics v Pragmatics: The Control of Radioactive Wastes’ [1990] 2(1) JEL 65.

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448 Radioactive Waste authorisations to discharge radioactive waste have frequently made use of terms such as ‘all reasonable steps’ and ‘practicable’ as well as the term ‘best practicable means’. Such terminology was subject to consideration in the 1985 trial of BNFL for breach of authorisation conditions relating to its Sellafield works. The condition in question referred to a requirement to limit the amount of radioactive elements discharged and their rate of discharge such that radiation exposure was ALARA; another relevant condition referred to a requirement to take ‘reasonable steps’ to minimise the exposure of persons to radiation. The judge (Rose J) appears to have accepted the appropriateness of a weighing exercise of costs and other disadvantages against higher levels of risk.244 Ultimately, the jury was directed to make ‘common sense’ decisions, about what was reasonable in the circumstances, rather than detailed economic judgments; indeed, there was no detailed evidence before the jury on cost issues. An interesting sequel to the case is that Greenpeace attempted unsuccessfully to argue that illegality in failing to comply with the ALARA requirement constituted a defence against claims by BNFL for an injunction against Greenpeace in respect of trespass to BNFL’s property.245 At about the same time as the BNFL case, the RWMAC argued in its Fifth Report246 that certificates of authorisation should be stated in terms of as low as reasonably practicable (ALARP) rather than ALARA; the RWMAC took this view apparently on the basis that actual exposures were outside the ultimate control of the operator, and that the ALARP concept would lend itself more readily to effective control over operations and processes leading to discharges, as well as enjoying the benefits of previous judicial interpretation. However, there are grave doubts as to whether ALARP would achieve any more effective protection than ALARA or indeed, as discussed at the Sizewell B Inquiry, whether there is in fact any discernible difference between ALARA and ALARP. A more fundamental issue is whether the use of concepts such as ALARA, BAT or BPM in authorisation wording (as distinct from criteria which result in the setting of quantitative limits) is a weakness in the regulatory system. This was certainly the view of the House of Commons Environment Committee in its report on Radioactive Waste.247 Authorisations for discharges from Sellafield granted after the Report and after the BNFL trial appeared to move in the direction of specific emission limits for individual radionuclides and total alpha and beta activity, whilst using the ALARP requirement (rather than ALARA as in previous authorisations) for certain aspects and a defined version of BPM (excluding ‘grossly disproportionate’ expenditure and embracing maintenance and manner of operation of plant) for a general limit on the activity of waste discharged.248

Agency Guidance on Regulation and BAT The Environment Agency has produced draft guidance in respect of the environmental principles applying to radioactive substances regulation.249 This aims to provide generic guidance which can be applied equally to the nuclear and non-nuclear sectors. It is based on the IAEA approach of setting fundamental principles and developing generic and 244 245 246 247 248 249

Ibid, 73. BNFL v Greenpeace, CA, 25 March 1996, unreported. HMSO, 1984. HC Session 1985–86, vol 1, para 153. Miller (see n 243 above), 78. Radioactive Substances Regulation: Environmental Principles. Consultation Draft (June 2008).

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Issues in Regulation: Generally 449 sector-specific principles beneath them and builds on existing international and national guidance. Regulated entities must develop a radioactive substances strategy, which is proportionate, integrated and incorporates stakeholder input. BAT should be applied to minimise wastes and there should be transparent, inclusive, properly documented processes for identifying BAT, based on good quality data. The guidance indicates the matters which will be required to be covered by limitations or conditions when authorising disposals of waste—these comprise limitations (on the activity and mass or volume of the waste), restrictions (on matters such as types of waste, disposal route, co-disposal with other wastes, and on when waste can be disposed of), and requirements (on matters such as management systems, information reporting, record keeping, maintenance of facilities and monitoring). The guidance also includes a section on the general principles applied to the evaluation of sites for new facilities, and the engineering principles to be applied (such as defence in depth, reliability, taking account of human actions and fault sensitivity). It also requires a decommissioning strategy and plan, to be updated and refined throughout the life of the facility. In respect of BAT, the Environment Agency has produced an assessment guide.250 This describes the concept of BAT and provides guidance to both nuclear and non-nuclear regulators to help them judge whether an operator is using BAT. It notes that BAT is believed to be broadly the same concept as BPEO and BPM, previously in use. Whereas within the Community there is substantial technical guidance on what constitutes BAT for various industrial processes, through Best Available Technique Reference Notes, such European standards are currently not available for radioactive substances regulation. Instead, a principle-based approach will be followed which is not intended to change existing practices. The Agency adopts the definition of BAT from Article 2 of the Directive on Integrated Pollution Prevention and Control, 96/61/EC, as: the most effective and advanced stage in the development of activities and their methods of operation which indicates the practical suitability of particular techniques for providing in principle . . . the basis for emission limit values designed to prevent and, where that is not practicable, generally to reduce emissions and the impact on the environment as a whole.

In that regard, ‘techniques’ includes both the technology used and the way in which the installation is designed, built, maintained, operated and decommissioned. ‘Best’, in relation to techniques, means the most effective in achieving a high level of protection to the environment as a whole. ‘Available’ means those techniques which have been developed on a scale which allows implementation in the relevant industrial sector, under economically and technically viable conditions, taking into consideration the cost and advantages, whether or not the techniques are used or produced inside the UK, as long as they are reasonably accessible to the operator. Thus a technique may be rejected as BAT if its costs would far outweigh the environmental benefits. The process in the context of radioactive substances regulation must have regard not only to radiological impact but also health and safety, security and non-proliferation, and any wider environmental considerations such as energy or other resource usage. Discharge limits will be set based on the use of BAT, that is the normal expected routine level of discharges, with the minimum headroom necessary to cover relevant operational fluctuations, trends and events that are expected to occur over the lifetime of the facility: it is the responsibility of the operator to identify these 250 Radioactive Substances Regulation: Environmental Principles. Assessment Guide No. 1—Assessment of Best Available Techniques. Consultation Draft (June 2008).

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450 Radioactive Waste fluctuations, trends or events. Some flexibility in setting discharge limits may be necessary in those cases where other key Government objectives need to be met—for example safe and timely decommissioning of existing facilities, securing energy supply through new build, maintaining defence capabilities and using radionuclides in medicine.

Solid Waste Disposal A different approach to that for liquid and gaseous effluents is required when authorising facilities for the disposal of solid waste: the approach has been essentially risk-based. Criteria set out in the 1984 ‘Green Book’, Disposal Facilities on Land of Low and Intermediate Level Radioactive Wastes: Principles for the Protection of the Human Environment were superseded both in terms of regulatory process and policy by the Government’s 1995 Review of Radioactive Wastes Management policy.251 The issue turns on the safety case provided by the developer or operator of the proposed facility as to the precautions to prevent radionuclides finding their way back to the human environment. As was referred to in the Review, the question of what constitutes upper and lower levels of acceptability of risk for such facilities is a difficult one, which created a divergence of views within the RWMAC/ACSNI Study Group created by the Government to advise on the issue. The Government, faced with this difficulty, took the view that the nature of such disposal systems makes them less amenable to the use of quantified, numerical risk criteria than facilities such as new nuclear power stations, and views it as inappropriate to rely on a specified risk limit alone to judge the acceptability of a proposed disposal facility. Instead, it was proposed that a ‘risk target’ of 10-6 a year (one in a million a year) of developing either a fatal cancer or serious hereditary defect should be used as an ‘objective’ in the design process, applied to a representative member of the exposed group most at risk.252 Where the level of risk is below this figure, then no further reductions in this should be sought, provided the Agencies are satisfied that best practicable means to limit risks have been adopted. Above this figure, the regulators will need to be satisfied ‘not only that an appropriate level of safety is assured, but also that any further improvements in safety could be achieved only at disproportionate cost’.253 This approach fed through into the policy statement on long-term management of solid LLW, issued in 2007,254 which replaces the relevant parts of the 1995 White Paper. This recognises that, given the large number of types of LLW, policy cannot be prescriptive, and solutions will need to be developed on a case-by-case basis. This involves the preparation of LLW management plans, using a ‘risk-informed’ approach, adopting the risk target of 10-6 per year, referred to above. The statement also emphasises the need to ensure that waste 251

Ibid, paras 74–82. The figure was arrived at on the basis that the NRPB considered it represented a level of individual risk that is widely regarded as acceptable, negligible by comparison with other risks people run in their daily life. Using the dose-to-risk conversion factor of 0.006 per Sievert, the risk equates to a radiological dose of 17 microSieverts per year, by comparison with the average dose from natural background radiation in the UK of around 2,000 microSieverts per year. Calculations of risk from a facility up to a million years after closure are dominated by exposure to radionuclides which are sufficiently mobile in water to reach the biosphere before they have decayed to insignificant levels—chlorine-36 and iodine-129 have decay half-lives on 300,000 years and 17,000,000 years respectively. 253 Ibid, para 78. 254 Policy for the Long Term Management of Solid Low Level Radioactive Waste in the UK, DEFRA, DTI, DOENI, Scottish Executive, Welsh Assembly (26 March 2007). 252

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Issues in Regulation: Generally 451 arisings are minimised, that all practicable options for management should be considered, that there should be a presumption in favour of early solutions (not necessarily early disposal), that the proximity principle should be employed as a ‘point of reference’, balanced against other factors, and that there should be wide and effective stakeholder engagement. The Statement also addresses the management of LLW from the non-nuclear sector. Here, waste producers have traditionally been dependent on the commercial sector to provide landfill and incineration facilities. The far-reaching changes that have affected the waste management industry over the past decade and more (privatisation and commercialisation of sites, public interest in an opposition to new facilities, implementation of the Landfill and Waste Incineration Directives) have resulted in serious pressures on the availability of disposal options for low-level waste from the non-nuclear sector; in addition the extremely onerous conditions for acceptance and expensive disposal tariff applying at the Drigg site have made this option impracticable on a routine basis.255 The Government’s view is that as a general principle, communities should take greater responsibility for how they deal with non-nuclear LLW arising from undertakings in their area. It acknowledges that a UK-wide strategy is needed for this purpose, and that this will involve estimating the extent and geographical distribution of waste arisings; this will be undertaken by the Government working with the NDA. The approach is set out more precisely in guidance on requirements for authorisation (GRA) prepared by the regulatory bodies. The provision of such guidance is important because new near-surface disposal facilities will be needed as the NDA’s decommissioning programme creates large quantities of low-level radioactive waste for disposal in such facilities. A draft of this guidance was issued for consultation in 2008,256 intended to supersede guidance issued in 1997 which covered both LLW and ILW.257 Two sets of final guidance were issued in February 2009:258 Near-surface disposal facilities on land for solid radioactive wastes: Guidance on Requirements for Authorisation (Environment Agency, SEPA, DOENI, February 2009) and Geological disposal facilities on land for solid radioactive wastes: Guidance on Requirements for Authorisation (Environment Agency, SEPA, DOENI, February 2009). Both guidance documents apply the same principles and largely the same detailed requirements. The GRA documents set out and explain in detail the fundamental principles to be applied, which are: Principle 1: Level of protection against radiological hazards at the time of disposal and in the future Solid radioactive waste shall be disposed of in such a way that the level of protection provided to people and the environment against the radiological hazards of the waste both at the time of disposal and in the future is consistent with the national standard at the time of disposal.

255 See Disposal of Low-Level Radioactive Waste from Non-Nuclear Premises: a paper for the LLW management policy workshop (Low Level Waste Steering Group of DEFRA/DTI, October 2005). An example of concern by local communities as to landfill disposal of non-nuclear industry radioactive waste is the dispute over disposal by Rolls Royce at Hilts Quarry, a former limestone quarry at Crich, Derbyshire. See the 2003–2004 Agency consultation on its explanatory document available at www.environment-agency.gov.uk/research/library/ consultatons/56475.aspx. 256 Near-surface disposal facilities on land for solid radioactive wastes: Guidance on Requirements for Authorisation, Environment Agency, SEPA, DOENI (15 May 2008) 257 Disposal facilities on land for low and intermediate level radioactive wastes: Guidance on requirements for Authorisation, Environment Agency, SEPA, DOENI (1997). 258 www.environment-agency.gov.uk/business/sectors/99322.aspx.

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452 Radioactive Waste Principle 2: Optimisation (ALARA) Solid radioactive waste shall be disposed of in such a way that the radiological risks to individual members of the public and the population as a whole shall be as low as reasonably achievable under the circumstances prevailing at the time of disposal, taking into account economic and societal factors and the need to manage radiological risks to other living organisms and any non-radiological hazards. Principle 3: Level of protection against non-radiological hazards at the time of disposal and in the future Solid radioactive waste shall be disposed of in such a way that the level of protection provided to people and the environment against any non-radiological hazards of the waste both at the time of disposal and in the future is consistent with that provided by the national standard at the time of disposal for wastes that present a non-radiological but not a radiological hazard. Principle 4: Reliance on human action Solid radioactive waste shall be disposed of in such a way that unreasonable reliance on human action to protect the public and the environment against radiological and any non-radiological hazards is avoided both at the time of disposal and in the future. Principle 5: Openness and inclusivity For any disposal of solid radioactive waste, the relevant environment agency shall: —establish ways of informing interested parties and the public about regulatory goals, processes and issues; and —consult in an open and inclusive way. The GRA documents also provide detailed and useful guidance on how developers of facilities are expected to proceed. A notable element here is the intended use of section 37 of the Environment Act 1995, which allows the Agencies to provide advice and assistance, and to enter into agreements with any person to charge that person for services provided, or for advice and assistance in connection with matters involving environmental licences.259 Requirement R1 of the GRA is that the developer should follow a process by agreement under these provisions, which would aim to provide early dialogue and reassure the Agencies and the developer that a facility can be built which will meet the principles and requirements of the guidance. There would be agreement as to what submissions would need to be made and when, according to a forward work programme. This is also envisaged as making for easier dialogue between the Agencies and the planning authorities. Requirement R2 refers to the developer engaging in dialogue with the planning authority, local community, other interested parties and the general public on the developing environmental safety case required by requirement R3. The developer will also expected to establish and demonstrate a positive safety management culture, and an adequate management system, organisational structure and resources (requirement R4). Other requirements relate to dose constraints during the period of authorisation (R5), risk guidance level after the period of authorisation (R6), human intrusion after the period of authorisation (R7), optimisation (R8), assessment of radiological effects on the environment (R9), protection against non-radiological hazards (R10), site investigation and site characterisation (R11), site and facility design, construction, operation and closure (R12), waste acceptance criteria (R13) and monitoring (R14). The guidance expands on each of these, in particular the safety case, which is central to the process: of particular importance in this respect are 259

See subs 37(3) and (7).

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Issues in Regulation: Generally 453 the explanation of the relationship between the various components of the multiple barriers which will be required, the use of multiple lines of reasoning to support the quantitative risk assessment, and the management of uncertainties which may arise from diverse causes. The Environment Agency has also produced guidance on disposing of radioactive waste to landfill.260 This sets out the position on disposal of LLW and very low level waste (VLLW), responding to Government changes in policy published in 2007. This provides guidance on what the Agency will treat as low volume VLLW disposals, which may be disposed of with conventional waste: these are waste from non-nuclear producers (for example, hospitals and universities) provided activity limits are met and the volume does not exceed 50 cubic metres per year, and incinerator residues, again provided the activity limits are met. For LLW disposals, the Agency will expect operators to discuss proposals for disposal with their local site regulator and for more significant disposals, particularly from nuclear sites, there should be in place an integrated waste strategy.

Conditioning Waste The phased geological disposal of radioactive waste requires that waste be conditioned, that is suitably treated to make it passively safe, and packaged to make it fit for acceptance in an eventual geological disposal facility. This involves joint working between the regulators,261 who have issued guidance on the subject.262 Control is exercised through nuclear site licence conditions; safety cases are submitted to the NII, which then consults the appropriate Agency. A key component of the safety case will be the ILW conditioning proposal, which should address the description of the process, options assessment, plant, process and site safety, storage and disposability, and radioactive waste discharges or disposals. Prior to the winding up of Nirex, part of the process normally included the licensee seeking a Letter of Compliance (LoC) from Nirex. The LoC process is now undertaken by the NDA’s Waste and Nuclear Materials Unit, which involves the operator working to NDA packaging standards.263 In some cases the issues are challenging; for example legacy waste in ponds and silos at Sellafield has been identified as presenting a number of difficult technical issues such as characterisation, the feasibility of encapsulation, how to deal with waste streams with very high levels of organic contamination, and whether and if so how interim packaging should be utilised.264 These require options assessments which weigh environment and safety issues in an even-handed way with cost and commercial risk.

260 Guidance Note, Disposing of Radioactive Waste to Landfill available at www.environment-agency.gov.uk/ static/documents/Business/LLW_guidance_note_on_brand.pdf. 261 See Improved Regulatory Arrangements for the Conditioning of Intermediate Level Radioactive Waste on Nuclear Licensed Sites (Environment Agency, SEPA, NII, 2003). 262 See Conditioning of Intermediate Level Radioactive Waste on Nuclear Licensed Sites, Guidance to Industry (Environment Agency, SEPA, NII, 2005). 263 See NDA Waste & Nuclear Materials Unit—Position Paper W&NM/PP/011, Letter of Compliance Assessment Process (17 January 2008). 264 See Andy Baker (Environment Agency), Mick Bacon (NII) and Jim Cochrane (SEPA), Regulation of the Conditioning of Intermediate Level Radioactive Waste on Nuclear Licensed Sites NUSAC (2005) P5 Open Paper.

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454 Radioactive Waste

Authorising New Nuclear Power Stations New nuclear power stations will be subject to a number of regulatory permissions from the Environment Agency, but the most significant and involving the longest lead times will be the authorisation of radioactive discharges and disposals.265 The Environment Agency envisages that it will be involved at the generic design stage, with pre-licensing assessments aligned in terms of timescales with those of the HSE. This is envisaged to be made against a generic site description ‘that appropriately envelopes the most stringent constraints of likely candidate sites’.266 The Agency would expect the proposed operators, or the reactor vendors, to enter into an agreement with the Agency under section 37 of the Environment Act 1995 and to pay the Agency for the costs of its work. In the second phase the Agency will expect to receive an application for authorisation (or an environmental permit) which would build on the generic assessments. Time will need to be built in to the process for a submission to be made to the European Commission under Article 37 of Euratom, and for the Commission to give its opinion. The Agency has built on the previous experience in respect of authorising the Sizewell B station, where the process undertaken by HMIP took around 18 months. In that case the operator applied for authorisation relatively late, and the Agency would hope that future applications will be submitted much earlier—preferably at the time of applying for the nuclear site licence. An important component of the process will be clear policy from the Government about its expectations on standards for radioactive waste and discharges from new nuclear power stations: it is expected that the guiding principle will be the use of BAT, as discussed above. It is these power stations which, if built, will dominate the future agenda for radioactive waste disposal in the UK for the rest of this century, an appropriate comment to draw to a conclusion both this chapter and this edition.

265 266

See Environment Agency, Submission to DTI—Pre-licensing Assessments of New Nuclear Power Stations. Ibid, para 5.4.

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NUCLEAR INSTALLATIONS ACT 1965 (c.57)1 ARRANGEMENT OF SECTIONS Control of certain nuclear installations and operations 1. Restriction of certain nuclear installations to licensed sites 2. Prohibition of certain operations except under permit Nuclear site licences 3. Grant and variation of nuclear site licences 4. Attachment of conditions to licences 5. Revocation and surrender of licences 6. Maintenance of list of licensed sites Duty of licensee, etc., in respect of nuclear occurrences 7. Duty of licensee of licensed site S. Duty of Authority 9. Duty of Crown in respect of certain sites 10. Duty of certain foreign operators 11. Duty of persons causing nuclear matter to be carried Right to compensation in respect of breach of duty 12. Right to compensation by virtue of sections 7—10 13. Exclusion, extension or reduction of compensation in certain cases 14. Protection for ships and aircraft Bringing and satisfaction of claims 15. Time for bringing claims under sections 7—11 16. Satisfaction of claims by virtue of sections 7—10 17. Jurisdiction, shared liability and foreign judgments Cover for compensation 18. General cover for compensation by virtue of sections 7—10 19. Special cover for licensee’s liability 20. Furnishing of information relating to licensee’s cover 21. Supplementary provisions with respect to cover for compensation in respect of carriage Miscellaneous and general 22. Reporting of and inquiries into dangerous occurrences 23. Registration in connection with certain occurrences 1 This Act came into force on December 1, 1965 (Nuclear Installations Act 1965) (Commencement No.1) Order 1965 (S. 1965 No. 1880), and repealed and replaced the Nuclear Installations (Licensing and Insurance) Act 1959 and the Nuclear Installations (Amendment) Act 1965. It has been amended by the Nuclear Installations Act 1969 and may be cited together with that Act as the Nuclear Installations Acts 1965 and 1969 (s.5 (2) of the 1969 Act). The Act applies to England, Scotland and Wales although the modifications and extensions effected by the Congenital Disabilities (Civil Liability) Act 1976 do not apply to Scotland. It applies to Northern Ireland with modifications (s.27).

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456 Appendix 1—Nuclear Installations Act 1965 (c.57) 24. 24.

Inspectors (applicable to Northern Ireland only) Inspectors (as substituted for England, Wales and Scotland by the Nuclear Installations Act 1965, etc. (Repeals and Modifications) Regulations 1974 (SI. 1974 No. 2056)) 24A. Recovery of expenses by Health and Safety Executive 25. Offences—general 25A. Orders 25B. Special drawing rights 26. Interpretation 27. Northern Ireland 28. Channel Islands, Isle of Man, etc 29. Repeals and savings 30. Short title and commencement

Schedules Schedule 1—Security provisions applicable by order under section 2 Schedule 2—Inquiries under section 22(5) (applicable to Northern Ireland only)

Control of certain nuclear installations and operations Restriction of certain nuclear installations to licensed sites 1.—(1) Without prejudice to the requirements of any other Act, no person . . . shall use any site for the purpose of installing or operating— (a) any nuclear reactor (other than such a reactor comprised in a means of transport, whether by land, water or air); or (b) subject to subsection (2) of this section, any other installation of such class or description as may be prescribed, being an installation designed or adapted for— (i) the production or use of atomic energy; or (ii) the carrying out of any process which is preparatory or ancillary to the production or use of atomic energy and which involves or is capable of causing the emission of ionising radiations; or (iii) the storage, processing or disposal of nuclear fuel or of bulk quantities of other radioactive matter, being matter which has been produced or irradiated in the course of the production or use of nuclear fuel, unless a licence so to do (in this Act referred to as a “nuclear site licence”) has been granted in respect of that site by the [Health and Safety Executive] and is for the time being in force. (2) Regulations made by virtue of paragraph (b) of the foregoing subsection may exempt, or make provision for exempting, from the requirements of that subsection, either unconditionally or subject to prescribed conditions, any installation which the Minister is satisfied is not, or if the prescribed conditions were complied with would not be, a relevant installation. (3) Any person who contravenes subsection (1) of this section shall be guilty of an offence

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Control of certain nuclear installations and operations 457 Definitions “atomic energy”: section 26 “contravenes”: section 26(1) “the Minister”: section 26(1) “nuclear reactor”: section 26(1) “nuclear site licence”: section 26(1) “prescribed”: section 26(1) “relevant installation”: section 26(1) Amendments The words omitted from subsection (1) (“other than the Authority”) were deleted by the Nuclear Installations Act 1965 (Repeal and Modifications) Regulations 1990 (SI. 1990 No. 1918). The references to the Health and Safety Executive in square brackets at subsection (1) were substituted by the Nuclear Installations Act 1965, etc. (Repeals and Modifications) Regulations 1974 (S.I. 1974 No. 2056, reg. 2(1)(b) and Sched. 2). These Regulations were made in consequence of the establishment of the Health and Safety Executive and had the general effect of transferring licensing functions from the Minister to the HSE. The words at subsection (3) were repealed for England, Wales and Scotland but not for Northern Ireland by the Nuclear Installations Act 1965, etc. (Repeals and Modifications) Regulations 1974 (S.I. 1974 No.2056).

Prohibition of certain operations except under permit 2.—(1) Notwithstanding that a nuclear site licence is for the time being in force or is not for the time being required in respect thereof, no person other than the Authority shall use any site— (a) for any treatment of irradiated matter which involves the extraction therefrom of plutonium or uranium; or (b) for any treatment of uranium such as to increase the proportion of the isotope 235 contained therein, except under, and in accordance with the terms of, a permit in writing granted by the Authority or a government department [for the time being in force]; and any fissile material produced under such a permit shall be disposed of only in such manner as may be approved by the authority by whom the permit was granted. (1A) A permit granted under this section, unless it is granted by the Minister, shall not authorise the use of a site as mentioned in paragraph (a) or paragraph (b) of the foregoing subsection otherwise than for purposes of research and development. (1B) Where a permit granted under this section by the Minister to a body corporate authorises such a use of a site for purposes other than, or not limited to, research and development, the Minister may by order direct that the provisions set out in Schedule 1 to this Act shall have effect in relation to that body corporate. (1C) Any power conferred by this section to make an order shall include power to vary or revoke the order by a subsequent order; and any such power shall be exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

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458 Appendix 1—Nuclear Installations Act 1965 (c.57) (1D) Any permit granted under this section by the Authority or by the Minister or any other government department may at any time be revoked by the Authority or by the Minister or that department, as the case may be, or may be surrendered by the person to whom it was granted. (2) Any person who contravenes [subsection (1) of this section] shall be guilty of an offence and be liable— (a) on summary conviction, to a fine not exceeding [the prescribed sum], or to imprisonment for a term not exceeding three months, or to both; (b) on conviction on indictment, to a fine . . . or to imprisonment for a term not exceeding five years, or to both. Definitions “the Authority”: section 26(1) “contravenes”: section 26(1) “the Minister”: section 26(1) “nuclear site licence”: section 26(1) Amendments The words omitted from subsection (1) were repealed by the Atomic Energy Authority Act 1971, s.1. The words in square brackets were added by section 17(2) of the same Act. Subsections (1A)–(1D) were added by the Atomic Energy Authority Act 1971, section 17(1). At subsection (2) the words in square brackets were substituted by the Atomic Energy Authority Act 1971, s.17(2). The words in square brackets in paragraph (a) of subsection (2) were substituted by the Magistrates’ Courts Act 1980, s.32 (2) and the words omitted from paragraph (b) were removed by virtue of the Criminal Law Act 1977, s.32 (1).

Nuclear site licences Grant and variation of nuclear site licences 3.—(1) A nuclear site licence shall not be granted to any person other than a body corporate and shall not be transferable. (1A) The Health and Safety Executive shall consult the appropriate Agency before granting a nuclear site licence in respect of a site in Great Britain. (2) Two or more installations in the vicinity of one another may, if the [Health and Safety Executive] thinks fit, be treated for the purposes of the grant of a nuclear site licence as being on the same site. (3) Subject to subsection (4) of this section, where it appears to the [Health and Safety Executive] appropriate so to do in the case of any application for a nuclear site licence in respect of any site, [they] may direct the applicant to serve on such bodies of any of the following descriptions as may be specified in the direction, that is to say— (a) any local authority; (b) . . . any water undertaker or any local fisheries committee;

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Nuclear site licences 459 (c) any river purification board within the meaning of the Rivers (Prevention of Pollution) (Scotland) Act 1951, any district board constituted under the Salmon Fisheries (Scotland) Acts 1828 to 1868, the board of commissioners appointed under the Tweed Fisheries Act 1857, and [Scottish Water]; (d) any other body which is a public [or local] authority, notice that the application has been made, giving such particulars as may be so specified with respect to the use proposed to be made of the site under the licence, and stating that representations with respect thereto may be made to the [Health and Safety Executive] by the body upon whom the notice is served at any time within three months of the date of service; and where such a direction has been given, the [Health and Safety Executive] shall not grant the licence unless he is satisfied that three months have elapsed since the service of the last of the notices required thereby nor until after [they have] considered any representations made in accordance with any of those notices. (4) Subsection (3) of this section shall not apply in relation to an application in respect of a site for a generating station where a consent under section 36 of the Electricity Act 1989 or [Article 39 of the Electricity Supply (Northern Ireland) Order 1992] is required for the operation of the station. (5) A nuclear site licence may include provision with respect to the time from which section 19(1) of this Act is to apply in relation to the licensed site, and where such provision is so included the said section 19(1) shall not apply until that time or the first occasion after the grant of the licence on which any person uses the site for the operation of a nuclear installation, whichever is the earlier [provided that no such provision shall be so included without the consent of the Secretary of State]. (6) The [Health and Safety Executive] may from time to time vary any nuclear site licence by excluding therefrom any part of the licensed site— (a) which the licensee no longer needs for any use requiring such a licence; and (b) with respect to which the [Health and Safety Executive] is satisfied that there is no danger from ionizing radiations from anything on that part of the site. (6A) The Health and Safety Executive shall consult the appropriate Agency before varying a nuclear site licence in respect of a site in Great Britain, if the variation relates to or affects the creation, accumulation or disposal of radioactive waste, within the meaning of the Radioactive Substances Act 1993. Definitions “appropriate Agency”: section 26(1) “licensed site”: section 26(1) “licensee”: section 26(1) “the Minister”: section 26(1) “nuclear installation”: section 26(1) “nuclear site licence”: section 26(1) Amendments Subsections (1A) and (6A) were inserted by paragraph 7 of Schedule 22 to the Environment Act 1995. Other references in square brackets to the Health and Safety Executive were substituted by the Nuclear Installations Act 1965, etc. (Repeals and Modifications) Regulations 1974 (S.I. 1974 No.2056, reg. 2(1) (b) and Sched. 2).

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460 Appendix 1—Nuclear Installations Act 1965 (c.57) Subsection (3) (b) was substituted by the Water Act 1989, s.190 and Sched. 25, although the words omitted have now ceased to have effect. Words omitted in subsection (3)(b) were repealed by the Environment Act 1995, s. 120 and Sched. 22, para. 7(2). The words “Scottish Water” in subsection (3)(c) were substituted by the Water Industry (Scotland) Act 2002 (Consequential Modifications) Order 2004 (S.I. 2004 No. 1882, Art. 2 and Schedule, Part I, para. 5). The words “or local” in square brackets at subsection (3)(d) were repealed for Scotland by the Local Government (Scotland) Act 1973, Sched. 29. The words in square brackets at subsection (4) were inserted by the Electricity Act 1989, s.112(1) and the Electricity Supply (Northern Ireland) Order 1992 (SI. 1992 No. 231). The words in square brackets at subsection (5) were added for England, Wales and Scotland (but not for Northern Ireland) by the Nuclear Installations Act 1965, etc. (Repeals and Modifications) Regulations 1974 (S.I. 1974 No. 2056).

Attachment of conditions to licences 4.—(1) The [Health and Safety Executive] by instrument in writing shall on granting any nuclear site licence, and may from time to time thereafter, attach to the licence such conditions as may appear to the [Health and Safety Executive] to be necessary or desirable in the interests of safety, whether in normal circumstances or in the event of any accident or other emergency on the site, which conditions may in particular include provision— (a) for securing the maintenance of an efficient system for detecting and recording the presence and intensity of any ionising radiations from time to time emitted from anything on the site or from anything discharged on or from the site; (b) with respect to the design, siting, construction, installation, operation, modification and maintenance of any plant or other installation on, or to be installed on, the site; (c) with respect to preparations for dealing with, and measures to be taken on the happening of, any accident or other emergency on the site; (d) without prejudice to [sections 13 and 16] of the Radioactive Substances Act 1993] with respect to the discharge of any substance on or from the site. (2)

The [Health and Safety Executive] may at any time by instrument in writing attach to a nuclear site licence such conditions as the [Health and Safety Executive] may think fit with respect to the handling, treatment and disposal of nuclear matter. (3) The [Health and Safety Executive] may at any time by a further instrument in writing vary or revoke any condition for the time being attached to a nuclear site licence by virtue of this section. (3A) The Health and Safety Executive shall consult the appropriate Agency: (a) before attaching any condition to a nuclear site licence in respect of a site in Great Britain, or (b) before varying or revoking any condition attached to such a nuclear site licence, if the condition relates to or affects the creation, accumulation or disposal of radioactive waste within the meaning of the Radioactive Substances Act 1993.

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Nuclear site licences 461 (4)

(5)

(6)

While a nuclear site licence remains in force in respect of any site, the [Health and Safety Executive] shall consider any representations by any organisation representing persons having duties upon the site which may from time to time be made to [them] with a view to the exercise by [them] in relation to the site of any of [their] powers under the foregoing provisions of this section. At all times while a nuclear site licence remains in force, the licensee shall cause copies of any conditions for the time being in force under this section to be kept posted upon the site, and in particular on any part thereof which an inspector may direct, in such characters and in such positions as to be conveniently read by persons having duties upon the site which are or may be affected by those conditions. Any person who contravenes subsection (5) of this section, and, in the event of any contravention of any condition attached to a nuclear site licence by virtue of this section, the licensee and any person having duties upon the site in question by whom that contravention was committed, shall be guilty of an offence . . . and any person who without reasonable cause pulls down, injures or defaces any document posted in pursuance of the said subsection (5) shall be guilty of an offence and be liable on summary conviction to a fine not exceeding [level 2 on the standard scale].

Definitions “appropriate Agency”: section 26(1) “contravenes” and “contravention”: section 26(1) “inspector”: section 26(1) “licensee”: section 26(1) “nuclear matter”: section 26(1) “nuclear site licence”: section 26(1) Amendments Apart from subsection (3A) which is inserted by paragraph 8 of Schedule 22 to the Environment Act 1995, the references in square brackets to the Health and Safety Executive were substituted by the Nuclear Installations Act 1965, etc. (Repeals and Modifications) Regulations 1974 (S.I. 1974 No. 2056), reg. 2(1) (b) and Sched. 2. The words in square brackets in paragraph (d) of subsection (1) were substituted by the Radioactive Substances Act 1993, Sched. 4. The words omitted in subsection (6) were repealed for England, Wales and Scotland by the Nuclear Installations Act 1965 etc. (Repeals and Modifications) Regulations 1974 (SI. 1974 No. 2056), but remain in force for Northern Ireland. The words in square brackets in subsection 6 relating to standard scale levels of fine were substituted by the Criminal Justice Act 1982, section 46 (for England and Wales) and the Criminal Procedure (Scotland) Act 1975, ss.289F and 289G (for Scotland).

Revocation and surrender of licences 5.—(1) A nuclear site licence may at any time be revoked by the [Health and Safety Executive] or surrendered by the licensee. (1A) The Health and Safety Executive shall consult the appropriate Agency before revoking a nuclear site licence in respect of a site in Great Britain. (2) Where a nuclear site licence has been revoked or surrendered, the licensee shall, if so required by the [Health and Safety Executive] deliver up or account for the licence to

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462 Appendix 1—Nuclear Installations Act 1965 (c.57)

(3)

such person as the [Health and Safety Executive] may direct, and shall during the remainder of the period of his responsibility cause to be kept posted upon the site such notices indicating the limits thereof in such positions as may be directed by an inspector; and the [Health and Safety Executive] may on revocation or surrender and from time to time thereafter until the expiration of the said period give to the licensee such other directions as the [Health and Safety Executive] may think fit for preventing or giving warning of any risk of injury to any person or damage to any property by ionising radiations from anything remaining on the site. In this Act, the expression ‘period of responsibility’ in relation to the licensee under a nuclear site licence means, as respects the site in question or any part thereof, the period beginning with the grant of the licence and ending with whichever of the following dates is the earlier, that is to say— (a) the date when the [Health and Safety Executive] gives notice in writing to the licensee that in the opinion of the [ and Safety Executive] there has ceased to be any danger from ionising radiations from anything on the site or, as the case may be, on that part thereof; (b) the date when a new nuclear site licence in respect of a site comprising the site in question or, as the case may be, that part thereof is granted either to the same licensee or to some other person,

(4)

(5)

except that it does not include any period during which section 19(1) of this Act does not apply in relation to the site. If the licensee contravenes any direction for the time being in force under subsection (2) of this section, he shall be guilty of an offence and any person who without reasonable cause pulls down, injures or defaces any notice posted in pursuance of the said subsection (2) shall be guilty of an offence and be liable on summary conviction to a fine not exceeding [level 2 on the standard scale]. ...

Definitions “appropriate Agency”: section 26(1) “Contravenes”: section 26(1) “injury”: section 26(1) “inspector”: section 26(1) “licensee”: section 26(1) “the Minister”: section 26(1) “nuclear site licence”: section 26(1) Amendments Apart from subsection (1A) which was inserted by paragraph 9 of Schedule 22 to the Environment Act 1995, the reference in square brackets to the Health and Safety Executive were substituted by the Nuclear Installations Act 1965, etc. (Repeals and Modifications) Regulations 1974 (S.I. 1974 No. 2056), reg. 2(1)(b) and Sched. 2. The words omitted in subsection (4) were repealed for England, Scotland and Wales by the Nuclear Installations Act 1965, etc. (Repeals and Modifications) Regulations 1974 (S.I. 1974 No. 2056), but remain in force for Northern Ireland.

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Duty of licensee, etc., in respect of nuclear occurrences 463 The words in square brackets in subsection (4) relating to standard scale levels of fine were substituted by the Criminal Justice Act 1982, s.46 (for England and Wales) and the Criminal Procedure (Scotland) Act 1975, ss.289F and 289G (for Scotland). Subsection (5) was repealed for England, Wales and Scotland by the Nuclear Installations Act 1965, etc. (Repeals and Modifications) Regulations 1974 (S.I. 1974 No. 2056).

Maintenance of list of licensed sites 6.—(1) Subject to subsection (2) of this section, the Minister shall maintain a list showing every site in respect of which a nuclear site licence has been granted . . . and including a map or maps showing the position and limits of each such site, and make arrangements for the list or a copy thereof to be available for inspection by the public; and he shall cause notice of those arrangements to be made public in such manner as may appear to him appropriate. (2) The said list shall not be required to show any site or part of a site in the case of which— (a) no nuclear site licence is for the time being in force; and (b) thirty years have elapsed since the expiration of the last licensee’s period of responsibility. Definitions “licensee”: section 26(1). “licence”: section 26(1) “the Minister”: section 26(1) “nuclear site licence”: section 26(1) Amendments The words omitted at subsection (1) were repealed for England, Wales and Scotland by the Nuclear Installations Act 1965, etc. (Repeals and Modifications Regulations 1974 (S.I. 1974 No. 2056), reg. 2(1)(a) and Sched. 1.

Duty of licensee, etc., in respect of nuclear occurrences Duty of licensee of licensed site 7.—(1) [Subject to subsection (4) below], where a nuclear site licence has been granted in respect of any site, it shall be the duty of the licensee to secure that— (a) no such occurrence involving nuclear matter as is mentioned in subsection (2) of this section causes injury to any person or damage to any property of any person other than the licensee, being injury or damage arising out of or resulting from the radioactive properties, or a combination of those and any toxic, explosive or other hazardous properties, of that nuclear matter; and (b) no ionising radiations emitted during the period of the licensee’s responsibility— (i) from anything caused or suffered by the licensee to be on the site which is not nuclear matter; or (ii) from any waste discharged (in whatever form) on or from the site,

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464 Appendix 1—Nuclear Installations Act 1965 (c.57)

(2)

cause injury to any person or damage to any property of any person other than the licensee. The occurrences referred to in subsection (1)(a) of this section are— (a) any occurrence on the licensed site during the period of the licensee’s responsibility, being an occurrence involving nuclear matter; (b) any occurrence elsewhere than on the licensed site involving nuclear matter which is not excepted matter and which at the time of the occurrence— (i) is in the course of carriage on behalf of the licensee as licensee of that site; or (ii) is in the course of carriage to that site with the agreement of the licensee from a place outside the relevant territories; and (iii) in either case, is not on any other relevant site in the United Kingdom; (c) any occurrence elsewhere than on the licensed site involving nuclear matter which is not excepted matter and which— (i) having been on the licensed site at any time during the period of the licensee’s responsibility; or (ii) having been in the course of carriage on behalf of the licensee as licensee of that site, has not subsequently been on any relevant site, or in the course of any relevant carriage, or (except in the course of relevant carriage) within the territorial limits of a country which is not a relevant territory.

(3)

In determining the liability by virtue of subsection (1) of this section in respect of any occurrence of the licensee of a licensed site, any property which at the time of the occurrence is on that site, being— (a) a nuclear installation; or (b) other property which is on that site— (i) for the purpose of use in connection with the operation, or the cessation of the operation, by the licensee of a nuclear installation which is or has been on that site; or (ii) for the purpose of the construction of a nuclear installation on that site, shall, notwithstanding that it is the property of some other person, be deemed to be the property of the licensee.

(4)

[Schedule 8 of this Act shall apply in relation to sites occupied by the Authority.]

Definitions “the Authority”: section 26(1) “excepted matter”: section 26(1) “injury”: section 26(1) “licensed site”: section 26(1) “licensee”: section 26(1) “nuclear installation”: section 26(1) “nuclear matter”: section 26(1) “period of responsibility”: section 26(1) “relevant carriage”: section 26(1) “relevant installation”: section 26(1)

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Duty of licensee, etc., in respect of nuclear occurrences 465 “relevant site”: section 26(1) “relevant territory”: section 26(1) “territorial limits”: section 26(1) Amendments The words in square brackets at subsection (1) were added and subsection (4) was inserted by the Nuclear Installations Act 1965 (Repeal and Modifications) Regulations 1990 (S.I. 1990 No. 1918), reg. 2 and Sched. 2. The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

Duty of Authority 8. Section 7 of this Act shall apply in relation to the Authority— (a) as if any premises which are or have been occupied by the Authority were a site in respect of which a nuclear site licence has been granted to the Authority; and (b) as if in relation to any such premises any reference to the period of the licensee’s responsibility were a reference to any period during which the Authority is in occupation of those premises; [and section 7 shall so apply whether or not a nuclear site licence has been granted in respect of the premises in question.] Definitions “the Authority”: section 26(1) “licensee”: section 26(1) “nuclear site licence”: section 26(1) “period of responsibility”: section 26(1) Amendments The words in square brackets were added by the Nuclear Installations Act 1965 (Repeal and Modifications) Regulations 1990 (S.I. 1990 No. 1918) reg. 2, Schedule, para. 3. The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

Duty of Crown in respect of certain sites 9.

If a government department uses any site for any purpose which, if section 1 of this Act applied to the Crown, would require the authority of a nuclear site licence in respect of that site, section 7 of this Act shall apply in like manner as if— (a) the Crown were the licensee under a nuclear site licence in respect of that site; and (b) any reference to the period of the licensee’s responsibility were a reference to any period during which the department occupies the site.

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466 Appendix 1—Nuclear Installations Act 1965 (c.57) Definitions “licensee”: section 26(1) “nuclear site licence”: section 26(1) “period of responsibility”: section 26(1) Amendment The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

Duty of certain foreign operators 10.—(1) In the case of any nuclear matter which is not excepted matter and which— (a) is— (i) in the course of carriage on behalf of a relevant foreign operator; or (ii) in the course of carriage to such an operator’s relevant site with the agreement of that operator from a place outside the relevant territories, and is not for the time being on any relevant site in the United Kingdom; or (b) having been on such an operator’s relevant site or in the course of carriage on behalf of such an operator, has not subsequently been on any relevant site or in the course of any relevant carriage or (except in the course of relevant carriage) within the territorial limits of a country which is not a relevant territory, it shall be the duty of that operator to secure that no occurrence such as is mentioned in subsection (2) of this section causes injury to any person or damage to any property of any person other than that operator, being injury or damage arising out of or resulting from the radioactive properties, or a combination of those and any toxic, explosive or other hazardous properties, of that nuclear matter. (2) The occurrences referred to in the foregoing subsection are (a) an occurrence taking place wholly or partly within the territorial limits of the United Kingdom; or (b) an occurrence outside the said territorial limits which also involves nuclear mailer in respect of which a duty is imposed on any person by section 7, 8 or 9 of this Act. Definitions “excepted matter”: section 26(1) “injury”: section 26(1) “nuclear matter”:. section 26(1) “relevant carriage”: section 26(1) “relevant foreign operator”: section 26(1) “relevant site”: section 26(1) “relevant territory”: section 26(1) “territorial limits”: section 26(1) Amendment The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

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Right to compensation in respect of breach of duty 467

Duty of persons causing nuclear matter to be carried 11.

Where any nuclear matter, not being excepted matter, is in the course of carriage within the territorial limits of the United Kingdom on behalf of any person (hereafter in this section referred to as “the responsible party”) and— (a) the carriage is not relevant carriage; and (b) the nuclear matter is not for the time being on any relevant site, it shall be the duty of the responsible party to secure that no occurrence involving that nuclear matter causes injury to any person or damage to any property of any person other than the responsible party, being injury or damage incurred within the said territorial limits and arising out of or resulting from the radioactive properties, or a combination of those and any toxic, explosive or other hazardous properties, of that nuclear matter.

Definitions “carriage”: section 26(2). “excepted matter”: section 26(1). “injury”: section 26(1). “nuclear matter”: section 26(1). “relevant carriage”: section 26(1). “relevant site”: section 26(1). “territorial limits”: section 26(1). Amendment The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

Right to compensation in respect of breach of duty Right to compensation by virtue of sections 7 to 10 12—(1) Where any injury or damage has been caused in breach of a duty imposed by section 7, 8, 9 or 10 of this Act— (a) subject to sections 13(1), (3) and (4), 15 and 17(1) of this Act, compensation in respect of that injury or damage shall be payable in accordance with section 16 of this Act wherever the injury or damage was incurred; (b) Subject to subsections (3) and (4) of this section and to section 21(2) of this Act, no other liability shall be incurred by any person in respect of that injury or damage. (2)

(3)

Subject to subsection (3) of this section, any injury or damage which, though not caused in breach of such a duty as aforesaid, is not reasonably separable from injury or damage so caused shall be deemed for the purposes of subsection (1) of this section to have been so caused. Where any injury or damage is caused partly in breach of such a duty as aforesaid and partly by an emission of ionising radiations which does not constitute such a breach, subsection (2) of this section shall not affect any liability of any person in respect of that emission apart from this Act, but a claimant shall not be entitled to recover

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468 Appendix 1—Nuclear Installations Act 1965 (c.57) compensation in respect of the same injury or damage both under this Act and otherwise than under this Act. (3A) Subject to subsection (4) of this section, where damage to any property has been caused which was not caused in breach of a duty imposed by section 7, 8, 9 or 10 of this Act but which would have been caused in breach of such a duty if in subsection (1)(a) or (b) of the said section 7 the words “other than the licensee” or in subsection (1) of the said section 10 the words “other than that operator” had not been enacted, no liability which, apart from this subsection, would have been incurred by any person in respect of that damage shall be so incurred except— (a) in pursuance of an agreement to incur liability in respect of such damage entered into in writing before the occurrence of the damage; or (b) where the damage was caused by an act or omission of that person done with intent to cause injury or damage.] (4)

Subject to section 13(5) of this Act, nothing in subsection (1)(b) [or in subsection (3A)] of this section shall affect— (a) . . . (b) the operation of the Carriage by Air Act 1932, the Carriage by Air Act 1961 or the Carriage by Air (Supplementary Provisions) Act 1962 in relation to any international carriage to which a convention referred to in the Act in question applies; or (c) the operation of any Act which may be passed to give effect to the Convention on the Contract for the International Carriage of Goods by Road signed at Geneva on May 19, 1956.

Definition “injury”: section 26(1). Amendments Subsection (3A) and the words in square brackets in subsection (4) were inserted by the Nuclear Installations Act 1969, s.1. Subsection (4) (a) was repealed by the Carriage of Goods by Sea Act 1971, s.6(3) (b). The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

Exclusion, extension or reduction of compensation in certain cases 13.—(1) Subject to subsections (2) and (5) of this section, compensation shall not be payable under this Act in respect of injury or damage caused by a breach of a duty imposed by section 7, 8, 9 or 10 thereof if the injury or damage – (a) was caused by such an occurrence as is mentioned in section 7(2)(b) or (c) or 10(2)(b) of this Act which is shown to have taken place wholly within the territorial limits of one, and one only, of the relevant territories other than the United Kingdom; or (b) was incurred within the territorial limits of a country which is not a relevant territory.

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Right to compensation in respect of breach of duty 469 (2)

(3)

(4)

In the case of a breach of a duty imposed by section 7,8 or 9 of this Act, subsection (1)(b) of this section shall not apply to injury or damage incurred by, or by persons or property on, a ship or aircraft registered in the United Kingdom. Compensation shall not be payable under this Act in respect of injury or damage caused by a breach of a duty imposed by section 10 of this Act in respect of such carriage as is referred to in subsection (1)(a)(ii) of that section unless the agreement so referred to was expressed in writing. The duty imposed by section 7, 8, 9, 10 or 11 of this Act— (a) shall not impose any liability on the person subject to that duty with respect to injury or damage caused by an occurrence which constitutes a breach of that duty if the occurrence, or the causing thereby of the injury or damage, is attributable to hostile action in the course of any armed conflict, including any armed conflict within the United Kingdom; but (b) shall impose such a liability where the occurrence, or the causing thereby of the injury or damage, is attributable to a natural disaster, notwithstanding that the disaster is of such an exceptional character that it could not reasonably have been foreseen.

(5)

Where, in the case of an occurrence which constitutes a breach of a duty imposed by section 7, 8, 9 or 10 of this Act, a person other than the person subject to that duty makes any payment in respect of injury or damage caused by that occurrence and— (a) the payment is made in pursuance of any of the international conventions referred to in the Acts mentioned in section 12(4) of this Act; or (b) the occurrence took place [or the injury or damage was incurred] within the territorial limits of a country which is not a relevant territory, and the payment is made by virtue of a law of that country and by a person who has his principal place of business in a relevant territory or is acting on behalf of such a person, the person making the payment may make the like claim under this Act for compensation of the like amount, if any, [(subject to subsection (5A) of this section)] as would have been available to him if— (i) the injury in question had been suffered by him or, as the case may be, the property suffering the damage in question had been his; and (ii) subsection (1) of this section had not been passed.

(5A) The amount that a person may claim by virtue of subsection (5) of this section shall not exceed the amount of the payment made by him and, in the case of a claim made by virtue of paragraph (b) of that subsection, shall not exceed the amount applicable under section 16(1) or (2) of this Act to the person subject to the duty in question. (6) The amount of compensation payable to or in respect of any person under this Act in respect of any injury or damage caused in breach of a duty imposed by section 7, 8, 9 or 10 of this Act may be reduced by reason of the fault of that person if, but only if, and to the extent that, the causing of that injury or damage is attributable to any act of that person committed with the intention of causing harm to any person or property or with reckless disregard for the consequences of his act.

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470 Appendix 1—Nuclear Installations Act 1965 (c.57) Definitions “injury”: section 26(1). “relevant territory”: section 26(1). “territorial limits”: section 26(1). Amendments In subsection (5) the first words in square brackets at para. (b) were added by the Nuclear Installations Act 1969, s.3 and the second set of words was substituted by the Energy Act 1983, s.2 Subsection (5A) was also added by the Energy Act 1983, s.27 (3). Subsection (6) has been modified for England, Wales and Northern Ireland but not for Scotland by the Congenital Disabilities (Civil Liability) Act 1976, s.3(4). The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

Protection for ships and aircraft 14.—(1) A claim under this Act in respect of any occurrence such as is mentioned in section 7(2)(b) or (c), 10 or 11 of this Act which constitutes a breach of a person’s duty under section 7,8, 9, 10 or 11 of this Act shall not give rise to any lien or other right in respect of any ship or aircraft; and the following provisions of the Administration of Justice Act 1956 (which relate to the bringing of actions in rem against ships or aircraft in England and Wales, Scotland and Northern Ireland respectively), that is to say— (a) section 3(3) and (4); (b) section 47; and (c) paragraph 3(3) and (4) of Part I of Schedule 1 . (2)

. . shall not apply to that claim. Subsection (1) of this section shall have effect in relation to any claim notwithstanding that by reason of section 16 of this Act no payment for the time being falls to be made in satisfaction of the claim.

Amendments The words omitted in subsection (1) were repealed by the Merchant Shipping Act 1979, s.50(4) and Sched. 7, Pt. I. Amendment The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

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Bringing and satisfaction of claims 471

Bringing and satisfaction of claims Time for bringing claims under sections 7 to 11 15—(1) Subject to subsection (2) of this section and to section 16(3) of this Act, but notwithstanding anything in any other enactment, a claim by virtue of any of sections 7 to 11 of this Act may be made at any time before, but shall not be entertained if made at any time after, the expiration of thirty years from the relevant date, that is to say, the date of the occurrence which gave rise to the claim or, where that occurrence was a continuing one, or was one of a succession of occurrences all attributable to a particular happening on a particular relevant site or to the carrying out from time to time on a particular relevant site of a particular operation, the date of the last event in the course of that occurrence or succession of occurrences to which the claim relates. (2) Notwithstanding anything in subsection (1) of this section, a claim in respect of injury or damage caused by an occurrence involving nuclear matter stolen from, or lost, jettisoned or abandoned by, the person whose breach of a duty imposed by section 7, 8, 9 or 10 of this Act gave rise to the claim shall not be entertained if the occurrence takes place after the expiration of the period of twenty years beginning with the day when the nuclear matter in question was so stolen, lost, jettisoned or abandoned. Definitions “injury”: section 26(1). “nuclear matter”: section 26(1). “site”: section 26(1). Amendment The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

Satisfaction of claims by virtue of sections 7 to 10 16.—(1) The liability of any person to pay compensation under this Act by virtue of a duty imposed on that person by section 7, 8 or 9 thereof shall not require him to make in respect of any one occurrence constituting a breach of that duty payments by way of such compensation exceeding in the aggregate, apart from payments in respect of interest or costs, [£140 million or, in the case of the licensees of such sites as may be prescribed, £10 million]. (1A) The Secretary of State may with the approval of the Treasury by order increase or further increase either or both of the amounts specified in subsection (1) of this section; but an order under this subsection shall not affect liability in respect of any occurrence before (or beginning before) the order comes into force. (2) A relevant foreign operator shall not be required by virtue of section 10 of this Act to make any payment by way of compensation in respect of an occurrence— (a) if he would not have been required to make that payment if the occurrence had taken place in his home territory and the claim had been made by virtue of the relevant foreign law made for purposes corresponding to those of section 7,8 or 9 of this Act; or

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472 Appendix 1—Nuclear Installations Act 1965 (c.57) (b) to the extent that the amount required for the satisfaction of the claim is not required to be available by the relevant foreign law made for purposes corresponding to those of section 19(1) of this Act and has not been made available under section 18 of this Act or by means of a relevant foreign contribution. (3)

Any claim by virtue of a duty imposed on any person by section 7, 8, 9 or 10 of this Act— (a) to the extent to which, by virtue of subsection (1) or (2) of this section, though duly established, it is not or would not be payable by that person; or (b) which is made after the expiration of the relevant period; or (c) which, being such a claim as is mentioned in section 15(2) of this Act, is made after the expiration of the period of twenty years so mentioned; or (d) which is a claim the full satisfaction of which out of funds otherwise required to be, or to be made, available for the purpose is prevented by section 21(1) of this Act, shall be made to the appropriate authority, that is to say— (i) in the case of a claim by virtue of the said section 8, the Minister of Technology; (ii) in the case of a claim by virtue of the said section 9 (other than a claim in connection with a site used by a department of the Government of Northern Ireland), the Minister in charge of the government department concerned [or where the government department is a part of the Scottish Administration the Scottish Ministers]; (iii) in any other case, the Minister,

(4)

and, if established to the satisfaction of the appropriate authority, and to the extent to which it cannot be satisfied out of sums made available for the purpose under section 18 of this Act or by means of a relevant foreign contribution, shall be satisfied by the appropriate authority to such extent and out of funds provided by such means as Parliament may determine. Where in pursuance of subsection (3) of this section a claim has been made to the appropriate authority, any question affecting the establishment of the claim or as to the amount of any compensation in satisfaction of the claim may, if the authority thinks fit, be referred for decision to the appropriate court, that is to say, to whichever of the High Court, the Court of Session and the High Court of Justice in Northern Ireland would, but for the provisions of this section, have had jurisdiction in accordance with section 17(1) and (2) of this Act to determine the claim; and the claimant may appeal to that court from any decision of the authority on any such question which is not so referred; and on any such reference or appeal— (a) the authority shall be entitled to appear and be heard; and (b) notwithstanding anything in any Act, the decision of the court shall be final.

(5)

In this section, the expression “the relevant period” means the period of ten years beginning with the relevant date within the meaning of section 15(1) of this Act.

Definitions “home territory”: section 26(1). “the Minister”: section 26(1).

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Bringing and satisfaction of claims 473 “occurrence”: section 26(1). “prescribed”: section 26(1). “relevant foreign contribution”: section 26(1). “relevant foreign law”: section 26(1). “relevant foreign operator”: section 26(1). Amendments In subsection (1) the words in square brackets were substituted, and by the Energy Act 1983, s.27(1). Subsection (1A) was inserted by the Energy Act 1983, s.27(1). The figures of £140 million and £10 million in subsection (1) were inserted by the Nuclear Installations (Increase in Operators’ Limits of Liability) Order 1994 (SI. 1994 No. 909). The amendment in subsection (1) replaced a general £5 million limit on liability, but did not affect liability relating to occurrences before (beginning before) the commencement of the Energy Act 1983 (September 1, 1983). For occurrences after September 1, 1983, and before or beginning before April 1, 1994, the figure was £20 million, or in the case of prescribed sites, £5 million. The words in square brackets in subsection (3)(ii) were inserted by the Scotland Act 1998 (Consequential Modifications) (No.2) Order 1999 (S.I. 1999 No. 1820) art. 4, Sched. 2, Pt. I, para. 38 The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

Jurisdiction, shared liability and foreign judgments 1 7.—(1) No court in the United Kingdom or any part thereof shall have jurisdiction to determine any claim or question under this Act certified by the Minister to be a claim or question which, under any relevant international agreement, falls to be determined by a court of some other relevant territory or, as the case may be, of some other part of the United Kingdom; and any proceedings to enforce such a claim which are commenced in any court in the United Kingdom or, as the case may be, that part thereof shall be set aside. (2) Where under the foregoing subsection the Minister certifies that any claim or question falls to be determined by a court in a particular part of the United Kingdom, that certificate shall be conclusive evidence of the jurisdiction of that court to determine that claim or question. (3) Where by virtue of any one or more the following, that is to say, sections 7, 8, 9 and 10 of this Act and any relevant foreign law made for purposes corresponding to those of any of those sections, liability in respect of the same injury or damage is incurred by two or more persons, then, for the purposes of any proceedings in the United Kingdom relating to that injury or damage, including proceedings for the enforcement of a judgment registered under the Foreign Judgments (Reciprocal Enforcement) Act 1933— (a) both or all of those persons shall be treated as jointly and severally liable in respect of that injury or damage; and (b) until claims against each of those persons in respect of the occurrence by virtue of which the person in question is liable for that injury or damage have been satisfied—

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474 Appendix 1—Nuclear Installations Act 1965 (c.57) (i) in the case of a licensee, the Authority or the Crown, up to an aggregate amount [equal to that applicable to the person in question under section 16(1) of this Act]; or (ii) in the case of a relevant foreign operator, up to such aggregate amount, . . . as may be provided for by the relevant foreign law made for purposes corresponding to those of section 19(1) of this Act, no sums in excess of those required for the purposes of sub-paragraph (i) of this paragraph shall be required to be made available under section 18 of this Act for the purpose of paying compensation in respect of that injury or damage. (4)

(5)

Part I of the said Act of 1933 shall apply to any judgment given in a court of any foreign country which is certified by the Minister to be a relevant foreign judgment for the purposes of this Act, whether or not it would otherwise have so applied, and shall have effect in relation to any judgment so certified as if in section 4 of that Act subsections (1)(a)(ii), (2) and (3) were omitted. [Subject to subsection (5A) of this section], it shall be sufficient defence to proceedings in the United Kingdom against any person for the recovery of a sum alleged to be payable under a judgment given in a country outside the United Kingdom for that person to show that— (a) the sum in question was awarded in respect of injury or damage of a description which is the subject of a relevant international agreement; and (b) the country in question is not a relevant territory; and (c) the sum in question was not awarded in pursuance of any of the international conventions referred to in the Acts mentioned in section 12(4) of this Act.

(5A) Subsection (5) of this section shall not have effect where the judgment in question is enforceable in the United Kingdom in pursuance of an international agreement. (6) Where, in the case of any claim by virtue of section 10 of this Act, the relevant foreign operator is the government of a relevant territory, then, for the purposes of any proceedings brought in a court in the United Kingdom to enforce that claim, that government shall be deemed to have submitted to the jurisdiction of that court, and accordingly rules of court may provide for the manner in which any such action is to be commenced and carried on; but nothing in this subsection shall authorise the issue of execution, or in Scotland the execution of diligence, against the property of that government. Definitions “the Authority”: section 26(1). “injury”: section 26(1). “licensee”: section 26(1). “the Minister”: section 26(1). “occurrence”; section 26(1). “relevant foreign judgment”: section 26(1). “relevant foreign law”: section 26(1). “relevant foreign operators”: section 26(1). “relevant international agreement”; section 26(1). “relevant territory”: section 26(1).

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Cover for compensation 475 Amendments In subsection (3)(b)(i), the words in square brackets were substituted, and the words omitted from subsection (3)(b)(ii) were repealed, by the Energy Act 1983, ss.28 (4), 36, and Pt. II, Sched. 4. These amendments do not have effect in relation to occurrences before (or beginning before) section 28 of the Energy Act 1983 was brought into force (September 1, 1983). The words in square brackets in subsection (5) and the whole of subsection (5A) were inserted by the Energy Act 1983, s.31. The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

Cover for compensation General cover for compensation by virtue of sections 7 to 10 18.—(1) In the case of any occurrence in respect of which one or more persons incur liability by virtue of section 7, 8, 9 or 10 of this Act or by virtue of any relevant foreign law made for purposes corresponding to those of any of those sections, but subject to subsections (2) [to (4B)] of this section and to sections 17(3)(b) and 21(1) of this Act, there shall be made available out of moneys provided by Parliament such sums as, when aggregated— (a) with any funds required by, or by any relevant foreign law made for purposes corresponding to those of, section 19(1) of this Act to be available for the purpose of satisfying claims in respect of that occurrence against any licensee or relevant foreign operator; and (b) in the case of a claim by virtue of any such foreign law, with any relevant foreign contributions towards the satisfaction of claims in respect of that occurrence[; and (c) in the case of an occurrence in respect of which the Authority incurs liability, with any amounts payable under a contract of insurance or other arrangements for satisfying claims in respect of that occurrence against the Authority,] may be necessary to ensure that all claims in respect of that occurrence made within the relevant period and duly established, excluding, but without prejudice to, any claim in respect of interest or costs, are satisfied up to [the aggregate amount specified in subsection (1A) of this section]. (1A) The aggregate amount referred to in subsection (1) of this section is the equivalent in sterling of 300 million special drawing rights on— (a) the day (or first day) of the occurrence in question, or (b) if the Secretary of State certifies that another day has been fixed in relation to the occurrence in accordance with an international agreement, that other day. (1B) The Secretary of State may with the approval of the Treasury by order increase or further increase the sum expressed in special drawing rights in subsection (1A) of this section; but an order under this subsection shall not have effect in respect of an occurrence before (or beginning before) the order comes into force.]

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476 Appendix 1—Nuclear Installations Act 1965 (c.57) (2)

Subsection (1) of this section shall not apply to any claim by virtue of such a relevant foreign law as is mentioned in that subsection in respect of injury or damage incurred within the territorial limits of a country which is net a relevant territory or to any claim such as is mentioned in section 15(2) of this Act which is not made within the period of twenty years so mentioned. (3) Where any claim such as is mentioned in subsection (1) of this section is satisfied wholly or partly out of moneys provided by Parliament under that subsection, there shall also be made available out of moneys so provided such sums as are necessary to ensure the satisfaction of any claim in respect of interest or costs in connection with the first-mentioned claim. (4) [In relation to liability by virtue of any relevant foreign law there shall be left out of account for the purposes of subsection (1) of this section any claim which, though made within the relevant period, was made after the expiration of any period of limitation imposed by that law and permitted by a relevant international agreement.] (4A) Where— (a) a relevant foreign law provides in pursuance of a relevant international agreement for sums additional to those referred to in subsection (1)(a) of this section to be made available out of public funds, but (b) the maximum aggregate amount of compensation for which it provides in respect of an occurrence in pursuance of that agreement is less than that specified in subsection (1A) of this section, then, in relation to liability by virtue of that law in respect of the occurrence, subsection (1) of this section shall have effect as if for the reference to the amount so specified there were substituted a reference to the maximum aggregate amount so provided. (4B) Where a relevant foreign law does not make the provision mentioned in subsection (4A)(a) of this section, then in relation to liability by virtue of that law in respect of any occurrence— (a) subsection (1) of this section shall not have effect unless the person (or one of the persons) liable is a licensee, the Authority or the Crown; and (b) if a licensee, the Authority or the Crown is liable, subsection (1) shall have effect as if for the reference to the amount specified in subsection (1A) there were substituted a reference to the amount which would be applicable to that person under section 16(1) of this Act in respect of the occurrence (or, if more than one such person is liable, to the aggregate of the amounts which would be so applicable) if it had constituted a breach of duty under section 7, 8 or 9 of this Act.] (5)

(6)

Any sums received by the Minister by way of a relevant foreign contribution towards the satisfaction of any claim by virtue of section 7, 8, 9 or 10 of this Act shall be paid into the Exchequer. In this section, the expression ‘the relevant period” has the same meaning as in section 16 of this Act.

Definitions “the Authority”: section 26(1). “injury”: section 26(1).

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Cover for compensation 477 “licensee”: section 26(1). “the Minister”: section 26(1). “occurrence”: section 26(1). “relevant foreign contribution”: section 26(1). “relevant foreign law”: section 26(1). “relevant foreign operator”: section 26(1). “relevant international agreement”: section 26(1). “relevant territory”: section 26(1). “territorial limits”: section 26(1). Amendments In subsection (1), the first and third sets of words in square brackets were substituted by the Energy Act 1983, s.28 (1) and the second set of words in square brackets was added by the Atomic Energy Act 1989, s.3. Subsections (1A) and (1B) were inserted by the Energy Act 1983, s.28(2). Subsection (4) was substituted, and subsections (4A) and (4B) were inserted, by the Energy Act 1983, s.(3). The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

Special cover for licensee’s liability 19.—(1) Subject to section 3(5) of this Act and to subsection (3) of this section, where a nuclear site licence has been granted in respect of any site, the licensee shall make such provision (either by insurance or by some other means) as the Minister may with the consent of the Treasury approve for sufficient funds to be available at all times to ensure that any claims which have been or may be duly established against the licensee as licensee of that site by virtue of section 7 of this Act or any relevant foreign law made for purposes corresponding to those of section 10 of this Act (excluding, but without prejudice to, any claim in respect of interest or costs) are satisfied up to [the required amount] in respect of each severally of the following periods, that is to say— (a) the current cover period, if any; (b) any cover period which ended less than ten years before the time in question; (c) any earlier cover period in respect of which a claim remains to be disposed of, being a claim made— (i) within the relevant period within the meaning of section 16 of this Act; and (ii) in the case of a claim such as is mentioned in section 15(2) of this Act, also within the period of twenty years so mentioned; and for the purposes of this section the cover period in respect of which any claim is to be treated as being made shall be that in which the beginning of the relevant period aforesaid fell. (1A) In this section “the required amount”, in relation to the provision to be made by a licensee in respect of a cover period, means an aggregate amount equal to the amount applicable under section 16(1) of this Act to the licensee, as licensee of the site in question, in respect of an occurrence within that period.]

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478 Appendix 1—Nuclear Installations Act 1965 (c.57) (2)

In this Act, the expression “cover period” means [,subject to the following provisions of this section, the period of the licensee’s responsibility;] and for the purposes of this definition the period of the licensee’s responsibility shall be deemed to include any time after the expiration of that period during which it remains possible for the licensee to incur any liability by virtue of section 7(2)(b) or (c) of this Act, or by virtue of any relevant foreign law made for purposes corresponding to those of section 10 of this Act. (2A) When the amount applicable under section 16(1) of this Act to a licensee of a site changes as a result of— (a) the coming into force of an order under section 16(1A) or of regulations made for the purposes of section 16(1), or (b) an alteration relating to the site which brings it within, or takes it outside, the description prescribed by such regulations, the current cover period relating to him as licensee of that site shall end and a new cover period shall begin. (2B) The current cover period continues to run (and no new cover period begins) on the grant of a new nuclear site licence to the same licensee in respect of a site consisting of or including the site in respect of which his existing nuclear site licence is in force. (3) Where in the case of any licensed site the provision required by subsection (1) of this section is to be made otherwise than by insurance and, apart from this subsection, provision would also fall to be so made by the same person in respect of two or more other sites, the requirements of that subsection shall be deemed to be satisfied in respect of each of those sites if funds are available to meet such claims as are mentioned in that subsection in respect of all the sites collectively, and those funds would for the time being be sufficient to satisfy the requirements of that subsection in respect of those two of the sites in respect of which those requirements are highest: Provided that the Minister may in any particular case at any time direct either that this subsection shall not apply or that the funds available as aforesaid shall be of such amount higher than that provided for by the foregoing provisions of this subsection, but lower than that necessary to satisfy the requirements of the said subsection (1) in respect of all the sites severally, as may be required by the direction. (4) Where, by reason of the gravity of any occurrence which has resulted or may result in claims such as are mentioned in subsection (1) of this section against a licensee as licensee of a particular licensed site, or having regard to any previous occurrences which have resulted or may result in such claims against the licensee, the Minister thinks it proper so to do, he shall by notice in writing to the licensee direct that a new cover period for the purposes of the said subsection (1) shall begin in respect of that site on such date not earlier than two months after the date of the service of the notice as may be specified therein. (5) If at any time while subsection (1) of this section applies in relation to any licensed site the provisions of that subsection are not complied with in respect of that site, the licensee shall be guilty of an offence and be liable— (a) on summary conviction to a fine not exceeding [the prescribed sum], or to imprisonment for a term not exceeding three months, or to both; (b) on conviction on indictment, to a fine . . ., or to imprisonment for a term not exceeding two years, or to both.

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Cover for compensation 479 Definitions “licensed site”: section 26(1). “licensee”: section 26(1). “the Minister”: section 26(1). “relevant foreign law”: section 26(1). “nuclear site licence”: section 26(1). “period of responsibility”: section 26(1). Amendments In subsection (1), the words in square brackets were substituted by the Energy Act 1983, s.27(4). Subsections (1A) and (2A) were added by the Energy Act 1983, s.27(4). In subsection (2), the words in square brackets were substituted by the Atomic Energy Act 1989, s.4(1) (a). Subsection (2B) was added by the Atomic Energy Act 1989, s.4(1) (b). In subsection (5), the words in square brackets in paragraph (a) were substituted by virtue of the Magistrates’ Courts Act 1980, s.32 (2) and the words omitted in paragraph (b) (“not exceeding £500”) are omitted by virtue of the Criminal Law Act 1977, s.32(1). The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

Furnishing of information relating to licensee’s cover 20.—(1) In the case of each licensed site, the licensee shall give notice in writing to the Minister forthwith upon its appearing to the licensee that the aggregate amount of any claims such as are mentioned in section 19(1) of this Act made in respect of any cover period falling within the period of the licensee’s responsibility has reached [three fifths of the required amount within the meaning of section 19]; and where the licensee has given such a notice, no payment by way of settlement of any claim in respect of the cover period in question by agreement between the licensee and the claimant shall be made except after consultation with the Minister and in accordance with the terms of any direction which the Minister may give to the licensee in writing with respect to any particular claim. (2) If in the case of any licensed site any cover period falling within the period of the licensee’s responsibility has ended, the licensee shall not later than 31st January in each year send to the Minister in writing a statement showing the date when that cover period ended and the following particulars of any claims in respect of that cover period as at the beginning and end respectively of the last preceding calendar year, that is to say— (a) the aggregate number of claims received; (b) the aggregate number of claims established; and (c) the aggregate number and aggregate amount of claims satisfied. (3)

The Minister shall as soon as may be lay before each House of Parliament a copy of any notice received by him under subsection (1) of this section and a report (in such form as, having regard to section 16 of this Act, he may consider appropriate) with respect to any statements received by him under subsection (2) of this section.

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480 Appendix 1—Nuclear Installations Act 1965 (c.57) (4)

Any person by whom any funds such as are mentioned in section 19(1) of this Act for the time being fall to be provided shall give to the Minister not less than two months notice in writing before ceasing to keep those funds available and, notwithstanding any such notice, so far as those funds relate to nuclear matter for the time being in the course of carriage, shall not so cease while that carriage continues.

Definitions “carriage”: section 26(2). “cover period”: section 26(1). “licensed site”: section 26(1). “licensee”: section 26(1). “the Minister”: section 26(1). “nuclear matter”: section 26(1). “period of responsibility”: section 26(1). “required amount”: section 19(1A). Amendments In subsection (1), the words in square brackets are substituted by the Energy Act 1983, s.27(6). The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

Supplementary provisions with respect to cover for compensation in respect of carriage 21—(1) Where, in the case of an occurrence involving nuclear matter in the course of carriage, a claim in respect of damage to the means of transport being used for that carriage is duly established— (a) against any person by virtue of section 7, 8, 9 or 10 of this Act; or (b) against a licensee, the Authority or the Crown by virtue of any relevant foreign law made for purposes corresponding to those of the said section 10, then, without prejudice to any right of the claimant to the satisfaction of that claim, no payment towards its satisfaction shall be made out of funds which are required to be available for the purpose by, or by any relevant foreign law made for purposes corresponding to those of, section 19(1) of this Act, or which have been made available for the purpose under section 18 of this Act or by means of a relevant foreign contribution, such as to prevent the satisfaction out of those funds up to an aggregate amount [which is the equivalent in sterling (on the day, or the first day, of that occurrence) of 5 million special drawing rights] of all claims which have been or may be duly established against the same person in respect of injury or damage caused by that occurrence other than damage to the said means of transport. (1A) The Secretary of State may with the approval of the Treasury by order increase or further increase the sum expressed in special drawing rights in subsection (1) of this section; but an order under this subsection shall not have effect in respect of any occurrence before (or beginning before) the order comes into force.] (2) Where, in the case of an occurrence involving nuclear matter in the course of carriage, a claim in respect of damage to the means of transport being used for that carriage is

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Cover for compensation 481

(3)

(4)

duly established against a relevant foreign operator by virtue of section 10 of this Act, but by virtue of section 16(2)(a) thereof that operator is not required to make a payment in satisfaction of the claim, section 12(1)(b) of this Act shall not apply to any liability of that operator with respect to the damage in question apart from this Act. Where any nuclear matter is to be carried by, or on behalf or with the agreement of, a licensee, the Authority, a government department or a relevant foreign operator in such circumstances that, while the matter is in the course of that carriage, the licensee, the Authority, the Crown or the operator, as the case may be (in this and the next following subsection referred to as “the responsible party”) may incur liability by virtue of section 7, 8, 9 or 10 of this Act or by virtue of any relevant foreign law made for purposes corresponding to those of the said section 10, the responsible party shall, before the carriage is begun, cause to be delivered to the person who is to carry that matter a document issued by or on behalf of the appropriate person mentioned in the next following subsection (in this subsection referred to as the guarantor) which shall contain such particulars as may be prescribed of the responsible party, of that nuclear matter and carriage, and of the funds available in pursuance of, or of the relevant foreign law made for purposes corresponding to those of, section 18 or 19(1) of this Act to satisfy any claim by virtue of that liability, and the guarantor shall be debarred from disputing in any court any of the particulars stated in that document; and if in any case there is a wilful failure to comply with this subsection, the responsible party (except where that party is the Crown), and also, if the carrier knew or ought to have known the matter carried to be such matter for carriage in such circumstances as aforesaid, the carrier, shall be guilty of an offence and liable on summary conviction to a fine not exceeding [level 3 on the standard scale]. The person by whom or on whose behalf the document referred to in the last foregoing subsection is to be issued shall be— (a) where the responsible party is a licensee, the person by whom there fall to be provided the funds required by section 19(1) of this Act to be available to satisfy any claim in respect of the carriage in question; (b) where the responsible party is the Authority, the Minister of Technology; (c) where the responsible party is the Crown, the Minister in charge of the government department concerned [or in relation to nay part of the Scottish Administration the Scottish Ministers]; (d) where the responsible party is a relevant foreign operator, the person by whom there fall to be provided the funds required by the relevant foreign law made for purposes corresponding to those of section 18 or 19(1) of this Act to be made available to satisfy any claim in respect of the carriage in question.

(4A) Subsection (3) of this section shall not apply where the carriage in question is wholly within the territorial limits of the United Kingdom. (5) The requirements of Part VI of the Road Traffic Act 1960 (which relates to compulsory insurance or security against third-party risks of users of motor vehicles) shall not apply in relation to any injury to any person [, or damage to the property of any person] for which any person is liable by virtue of section 7, 8, 9 or 10 of this Act.

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482 Appendix 1—Nuclear Installations Act 1965 (c.57) Definitions “the Authority”: section26(1). “carriage”: section 26(2). “injury”: section 26(1). “licensee”: section 26(1). “the Minister”: section 26(1). “nuclear matter”: section 26(1). “relevant foreign contributions”: section 26(1). “relevant foreign law”: section 26(1). “relevant foreign operator”: section 26(1). “special drawing rights”: section 25B. Amendments In subsection (1), the words in square brackets were substituted, and subsections (1A) and (4A) were inserted, by the Energy Act 1983, subs.29 (1), (2) and (3). In subsection (3), the words in square brackets were substituted by the Criminal Justice Act 1982, s.46. In subsection (4)(c), the words in square brackets were added by the Scotland Act 1998 (Consequential Modifications) (No.2) Order 1999 (S.I. 1999 No. 1820) art. 4, Sched. 2, Pt. I, para. 38. In subsection (5), the words in square brackets were inserted by the Motor Vehicles (Compulsory Insurance) Regulations 1987 (S.I. 1987 No. 2171), reg. 5 The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

Miscellaneous and general Reporting of and inquiries into dangerous occurrences 22.—(1) The provisions of this section shall have effect on the happening of any occurrence of any such class or description as may be prescribed, being an occurrence— (a) on a licensed site; or (b) in the course of the carriage of nuclear matter on behalf of any person where a duty with respect to that carriage is imposed on that person by section 7, 10 or 11 of this Act. (2)

The licensee or person aforesaid shall cause the occurrence to be reported forthwith in the prescribed manner to the [Health and Safety Executive] and to such other persons, if any, as may be prescribed in relation to occurrences of that class or description, and if the occurrence is not so reported the licensee or person aforesaid shall be guilty of an offence . . . (3)–(6) . . . Definitions “carriage”: section 26(2). “inspector”: section 26(1).

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Miscellaneous general 483 “licensed site”: section 26(1). “licensee”: section 26(1). “the Minister”: section 26(1). “nuclear matter”: section 26(1). “prescribed”: section 26(1). Amendments In subsection (2), the words in the first set of square brackets were substituted by the Nuclear Installations Act 1965, etc. (Repeals and Modifications) Regulations 1974 (S. 1974 No. 2056), reg. 2(1) (b) and Sched. 2, para. 1. The final words in subsection (2) and the whole of subsections (3)—(6) were repealed for England, Wales and Scotland by regulation 2(1) (a) of, and Schedule 1 to, the same Regulations.

Registration in connection with certain occurrences 23.—(1) Without prejudice to any right of any person to claim against any person by virtue of any of sections 7 to 11 of this Act, the appropriate authority may, on the happening of any occurrence in respect of which liability may be incurred by virtue of any of those sections, by order make provision for enabling such particulars of any person shown to have been within such area during such period (being the period during which the occurrence took place) as may be specified in the order to be registered by or on behalf of that person in such manner as may be so specified, and any such registration in respect of any person shall be sufficient evidence of his presence within that area during that period unless the contrary is proved; and any such order shall be made by statutory instrument and be laid before Parliament after being made. (2) In the foregoing subsection, the expression “the appropriate authority” means, in relation to any occurrence, the authority hereinafter specified in relation to the person against whom any claim in respect of that occurrence falls to be made, that is to say— (a) where that person is the Authority, the Minister of Technology; (b) where that person is the Crown, the Minister in charge of the government department concerned [or where any part of the Scottish Administration is concerned the Minister]; (c) in any other case, the Minister. Definitions “the Authority”: section 26(1). “the Minister”: section 26(1). Amendments The words in square brackets in subsection (2)(b) were inserted by the Scotland Act 1998 (Modification of Functions) Order 1999 (S.I. 1999 No. 1756) art. 2, Schedule, para. 2. The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

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484 Appendix 1—Nuclear Installations Act 1965 (c.57)

Inspectors 24.—(1) The Minister may appoint as inspectors to assist him in the execution of this Act, other than provisions which are mentioned in Schedule 1 to the Health and Safety at Work etc Act 1974, such number of persons appearing to him to be qualified for the purpose as he may from time to time consider necessary or expedient, and may make to or in respect of any person so appointed such payments by way of remuneration, allowances or other payments as the Secretary of State may with the approval of the Minister for the Civil Service determine. (2) Any such inspector may for that purpose exercise such of the powers set out in section 20(2) of the Health and Safety at Work etc Act 1974 as are specified in his instrument of appointment and the provisions of sections 28 (restrictions on disclosure of information), 33 (offences) and 39 (prosecutions by inspectors) of that Act shall apply in the case of inspectors appointed under section 19 of that Act. (3) In such cases and to such extent as it may appear to the Secretary of State, with the agreement of the Treasury, to be appropriate to do so, the Secretary of State shall require a licensee to repay to the Secretary of State such part as may appear to the Secretary of State to be attributable to the nuclear installations in respect of which nuclear site licences have been granted to that licensee of— [(a) any sums paid by the Secretary of State under subsection (1) of this section;] and (b) any expenses . . . being— (i) (ii) (iii) (iv)

(4)

expenses incurred by the Secretary of State; or ... expenses incurred by any government department; or such sums as the Treasury may determine in respect of the use of any premises belonging to the Crown, which the Secretary of State may, with the consent of the treasury, determine to be incurred in connection with the [exercise by the Secretary of State of his powers under the said subsection (1)],

and the licensee shall comply with such requirement; and any sums so repaid to the Secretary of State shall be paid into the Consolidated Fund . . . [and except that in so far as sums so repaid relate to expenses incurred by the Scottish Administration they shall be paid to the Scottish Ministers.] any liability of a licensee in respect of sums payable by him under subsection (3) of this section on account of pensions shall, if the Secretary of State so determines, be satisfied by way of contributions calculated, at such rate as may be determined by the Minister for the Civil Service, by reference to remuneration.]

Definitions “inspector”: section 26(1). “licensed site”: section 26(1). “licensee”: section 26(1). “the Minister”: section 26(1). “nuclear installations”: section 26(1). “nuclear matter”: section 26(1). “nuclear site licence”: section 26(1).

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Miscellaneous general 485 Amendments This substituted section is inserted by the Nuclear Installations Act 1965, etc. (Repeals and Modifications) Regulations 1974 (S.I. 1974 No. 2056), reg. 2(1) (b) and Sched. 2, for England, Wales and Scotland. In subsection (3), paragraph (a) has been substituted by the Atomic Energy Act 1989, s.6(1) (a); in paragraph (b) the omitted words were repealed, and the words in square brackets substituted, by the Atomic Energy Act 1989, s.6(1)(b) and (c). In subsection (3)(b), the words relating to Scotland were inserted by the Scotland Act 1998 (Consequential Modifications) (No.2) Order 1999 (S.I. 1999 No. 1820, art.4, Sched. 2, Pt. I, para. 38 The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

Recovery of expenses by Health and Safety Executive 24A.—(1) This section applies to any expenses incurred by the Health and Safety Executive (“the Executive”) and any expenses incurred by the Health and Safety commission (“the commission”), which, in either case, the Executive may determine to be incurred wholly or partly in connection with— (a) the carrying into effect of such of the provisions of this Act as are mentioned in Schedule 1 to the Health and Safety at Work, etc. Act 1974; or (b) the carrying out of research into nuclear safety at the direction of the Commission. (2) Without prejudice to the generality of subsection (1) of this section, the reference in that subsection to expenses incurred by the Executive includes any sums paid by it by way of remuneration, allowances or other payments to inspectors appointed under the Health and Safety at Work, etc. Act 1974. (3) In such cases and to such extent as it may appear to the Executive appropriate to do so, the Executive shall require a person who has applied for a nuclear site licence to repay to it so much of any expenses to which this section applies as may appear to it to be attributable to dealing with the application. (4) In such cases and to such extent as it may appear to the Executive to be appropriate to do so, the Executive shall require a person to whom a nuclear site licence has been granted to repay to it— (a) so much of any expenses to which this section applies as may appear to it to be attributable to any nuclear installation in respect of which the licence has been granted; and (b) so much of any expenses to which this section applies which are not otherwise recoverable under this section as it thinks fit. (5) (6)

(7)

A person shall comply with any requirement made of him under this section. Any liability of a person in respect of sums payable by him under this section on account of pensions shall, if the Executive so determines, be satisfied by way of contributions calculated, at such rate as may be determined by the Treasury, by reference to remuneration. Where the Executive anticipates that a person who has applied for or has been granted a nuclear site licence will become subject to a liability under this section, it may require him to make to it a payment or payments on account of the liability.

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486 Appendix 1—Nuclear Installations Act 1965 (c.57) (8)

Where a person has made a payment under subsection (7) of this section on account of an anticipated liability, then— (a) if he does not become subject to the liability, the Executive shall be liable to repay the payment to him; and (b) if the amount of the liability to which he becomes subject is less than the amount paid under that subsection, the Executive shall be liable to repay the difference to him.

Definitions “nuclear installation”: section 26 (1). “nuclear site licence”: section 26 Amendment This section was inserted by the Atomic Energy Act 1989, s.2 (1). The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

Offences—general 25.—(1) Where a body corporate is guilty of an offence under [section 2(2) or 19(5)] of this Act and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly; and where the body corporate was guilty of the offence in the capacity of licensee under a nuclear site licence, he shall be so liable as if he, as well as the body corporate, were the licensee. In this subsection, the expression “director”, in relation to a body corporate established by or under any enactment for the purpose of carrying on under national ownership any industry or part of an industry or undertaking, being a body corporate whose affairs are managed by its members, means a member of that body corporate. (2) Where a body corporate is convicted on indictment of an offence under any of the following provisions of this Act, that is to say, sections . . . 2(2) . . . and 19(5), so much of the provision in question as limits the amount of the fine which may be imposed shall not apply, and the body corporate shall be liable to a fine of such amount as the court thinks just. (3) Proceedings in respect of any offence under [section 2(2) or 19(5) of] this Act shall not be instituted in England or Wales except by the Minister or by or with the consent of the Director of Public Prosecutions. Definitions “licensee”: section 26(1). “the Minister”: section 26(1). “nuclear site licence”: section 26(1).

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Miscellaneous general 487 Amendments The words in square brackets in subsection (1) were substituted by the Nuclear Installations Act 1965, etc. (Repeals and Modifications) Regulations 1974 (S.I. 1974 No. 2056), reg. 2(1)(b) and Sched. 2 for England, Wales and Scotland. In subsection (2) words were repealed by the same Regulations (reg. 2(1) (a) and Sched. 1) for England, Wales and Scotland, but not Northern Ireland. The words in square brackets in subsection (3) were inserted by the same Regulations (reg. 2(1) (b) and Sched. 2). The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

Orders [25A. The power to make orders under section 16(1A), 18(1B) or 21(1 A) of this Act shall be exercisable by statutory instrument; but no such order shall be made unless a draft of it has been laid before and approved by resolution of the House of Commons.] Amendment This section was inserted by the Energy Act 1983, s.30. The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

Special drawing rights 25B.—(1) In this Act “special drawing rights” means special drawing rights as defined by the International Monetary Fund; and for the purpose of determining the equivalent in sterling on any day of a sum expressed in special drawing rights, one special drawing right shall be treated as equal to such a sum in sterling as the International Monetary Fund have fixed as being the equivalent of one special drawing right— (a) for that day, or (b) if no sum has been so fixed for that day, for the last day before that day for which a sum has been so fixed. (2)

A certificate given by or on behalf of the Treasury stating— (a) that a particular sum in sterling has been so fixed for a particular day, or (b) that no sum has been so fixed for a particular day and that a particular sum in sterling has been so fixed for a day which is the last day for which a sum has been so fixed before the particular day,

(3)

shall be conclusive evidence of those matters for the purposes of subsection (1) of this section; and a document purporting to be such a certificate shall in any proceedings be received in evidence and, unless the contrary is proved, be deemed to be such a certificate. The Treasury may charge a reasonable fee for any certificate given in pursuance of subsection (2) of this section and any fee received by the Treasury by virtue of this subsection shall be paid into the Consolidated Fund.

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488 Appendix 1—Nuclear Installations Act 1965 (c.57) Amendment This section was inserted by the Energy Act 1983, s.30. The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

Interpretation 26.—(1) In this Act, except where the context otherwise requires, the following expressions have the following meanings respectively, that is to say— “the Act of 1959” means the Nuclear Installations (Licensing and Insurance) Act 1959; [“appropriate Agency” means: (a) in the case of a site in England or Wales, the Environment Agency; (b) in the case of a site in Scotland, the Scottish Environment Protection Agency;] “atomic energy” has the meaning assigned by the Atomic Energy Act 1946; “the Authority” means the United Kingdom Atomic Energy Authority; “contravention”, in relation to any enactment or to any condition imposed or direction given thereunder, includes a failure to comply with that enactment, condition or direction, and cognate expressions shall be construed accordingly; ... “cover period” has the meaning assigned by section 19(2) of this Act; “excepted matter” means nuclear matter consisting only of one or more of the following, that is to say— (a) isotopes prepared for use for industrial, commercial, agricultural, medical [scientific or educational] purposes; (b) natural uranium; (c) any uranium of which isotope 235 forms not more than 0.72 per cent; (d) nuclear matter of such other description, if any, in such circumstances as may be prescribed (or, for the purposes of the application of this Act to a relevant foreign operator, as may be excluded from the operation of the relevant inter national agreement by the relevant foreign law); “home territory”, in relation to a relevant foreign operator, means the relevant territory in which, for the purposes of a relevant international agreement, he is the operator of a relevant installation; ‘injury” means personal injury and includes loss of life; [“inspector’ in sections 4(5) and 5(2) of this Act means an inspector appointed by the Health and Safety Executive under section 24 of the Health and Safety at Work, etc. Act 1974;] “licensed site” means a site in respect of which a nuclear site licence has been granted, whether or not that licence remains in force; “licensee” means a person to whom a nuclear site licence has been granted, whether or not that licence remains in force;

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Miscellaneous general 489 “the Minister” means— (a) in the application of this Act to England and Wales, the Minister of Power; (b) . . .; “nuclear installation” means a nuclear reactor or an installation such as is mentioned in section 1(1)(b) of this Act; “nuclear matter’ means, subject to any exceptions which may be prescribed— (a) any fissile material in the form of uranium metal, alloy or chemical compound (including natural uranium), or of plutonium metal, alloy or chemical compound, and any other fissile material which may be prescribed; and (b) any radioactive material produced in, or made radioactive by exposure to the radiation incidental to, the process of producing or utilising any such fissile material as aforesaid; “nuclear reactor’ means any plant (including any machinery, equipment or appliance, whether affixed to land or not) designed or adapted for the production of atomic energy by a fission process in which a controlled chain reaction can be maintained without an additional source of neutrons; “nuclear site licence” has the meaning assigned by section 1(1) of this Act; “occurrence” in sections 16(1) [and (1A)], ( 17(3) and 18 of this Act— (a) in the case of a continuing occurrence, means the whole of that occurrence; and (b) in the case of an occurrence which is one of a succession of occurrences all attributable to a particular happening on a particular relevant site or to the carrying out from time to time on a particular relevant site of a particular operation, means all those occurrences collectively; “period of responsibility”, in relation to a licensee, has the meaning assigned by section 5(3) of this Act; “prescribed” means prescribed by regulations made by [the Secretary of State], which shall be made by statutory instrument and be subject to annulment in pursuance of a resolution of either House of Parliament; “relevant carriage”, in relation to nuclear matter, means carriage on behalf of— (a) a licensee as the licensee of a particular licensed site; or (b) the Authority; or (c) a government department for the purposes of such use of a site by that department as is mentioned in section 9 of this Act; or (d) a relevant foreign operator; or (e) a person authorised to operate a nuclear reactor which is comprised in a means of transport and in which the nuclear matter in question is intended to be used; “relevant foreign contribution”, in relation to any claim, means any sums falling by virtue of any relevant international agreement to be paid by the government of any relevant territory other than the United Kingdom towards the satisfaction of that claim; “relevant foreign judgment” means a judgment of a court of a relevant territory other than the United Kingdom which, under a relevant international agreement, is to be enforceable anywhere within the relevant territories;

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490 Appendix 1—Nuclear Installations Act 1965 (c.57) “relevant foreign law” means the law of a relevant territory other than the United Kingdom or any part thereof regulating in accordance with a relevant international agreement matters falling to be so regulated and, in relation to a particular relevant foreign operator, means the law such as aforesaid of this home territory; “relevant foreign operator” means a person who, for the purposes of a relevant international agreement, is the operator of a relevant installation in a relevant territory other than the United Kingdom; “relevant installation” means an installation to which a relevant international agreement applies; “relevant international agreement” means an international agreement with respect to third-party liability in the field of nuclear energy to which the United Kingdom or Her Majesty’s Government therein are party, other than an agreement relating to liability in respect of nuclear reactors comprised in means of transport; “relevant site” means any of the following, that is to say— (a) a licensed site at any time during the period of the licensee’s responsibility; (b) any premises at any time when they are occupied by the Authority; (c) any site at any time when it is occupied by a government department, if that site is being or has been used by that department as mentioned in section 9 of this Act; (d) any site in a relevant territory other than the United Kingdom at any time when that site is being used for the operation of a relevant installation by a relevant foreign operator; “relevant territory” means a country for the time being bound by a relevant international agreement; “territorial limits” includes territorial waters. (2)

(3)

References in this Act to the carriage of nuclear matter shall be construed as including references to any storage incidental to the carriage of that matter before its delivery at its final destination. Any question arising under this Act as to whether— (a) any person is a relevant foreign operator; or (b) any law is the relevant foreign law with respect to any matter; or (c) any country is for the time being a relevant territory,

(4)

shall be referred to and determined by the Minister. Save where the context otherwise requires, any reference in this Act to any enactment shall be construed as a reference to that enactment as amended, extended or applied by or under any other enactment.

Amendments The definition of “the appropriate Agency” was inserted by paragraph 10 of Schedule 22 to the Environment Act 1995. The words in square brackets in paragraph (a) of the definition of “excepted matter” were inserted by the Energy Act 1983, s.32. Although “injury” is defined in this section, the Congenital Disabilities (Civil Liability) Act 1976, subs.3(2) and (3), provide further clarification of what might constitute injury for the purposes of the 1965 Act.

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Miscellaneous general 491 The definition of “inspector” was substituted for England, Wales and Scotland by the Nuclear Installations Act 1965, etc. (Repeals and Modifications) Regulations 1974 (SI. 1974 No.2056), reg. 2(1) (b) and Sched. 2. The words in square brackets in the definition of “occurrence” were inserted by the Energy Act 1983, s.27(7). The words in square brackets in the definition of “prescribed” were substituted by the Transfer of Functions (Nuclear Installations) Order 1999 (S.I. 1999 No. 2786, art. 3(1). The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

Northern Ireland 27.— [Not reproduced]

Channel Islands, Isle of Man, etc. 28.— [Not reproduced].

Repeals and savings 29.— (1) . . . (2) Anything done under or by virtue of any enactment repealed by this Act shall be deemed for the purposes of this Act to have been done under or by virtue of the corresponding provision of this act, and anything begun under any of the enactments so repealed may be continued under the corresponding provision of this Act. (3) So much of any enactment or document as refers expressly or by implication to any enactment repealed by this Act shall, if an so far as the context permits, be construed as a reference to this Act or the corresponding enactment therein. (4) Nothing in this section shall be construed as affecting the general application of section 38 of the Interpretation Act 1889 with respect to the effect of repeals. Amendments Subsection (1) was repealed by the Statute law (Repeals) Act 1974 The section was modified in relation to the use by a contractor of “designated premises” as defined in the Atomic Weapons Establishment Act 1991, by the Atomic Weapons Establishment Act 1991, Schedule, para. 6.

SCHEDULE 1 [Not reproduced] SCHEDULE 2 [Not reproduced]

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492 Appendix 2—Nuclear Site Licence Conditions APPENDIX 2 NUCLEAR SITE LICENCE CONDITIONS Introduction The Nuclear Installations Act 1965 (as amended) (NIA65) requires HSE to attach to each nuclear site licence such conditions as it considers necessary or desirable in the interests of safety and with respect to the handling, treatment or disposal of nuclear materials. Breach of a licence condition is an offence under NIA65 s.4(6). HSE has developed a standard suite of licence conditions (LCs) which are attached to all nuclear site licences. Although some LCs impose specific duties the majority require the licensee to devise and implement adequate arrangements in particular areas. The issues covered range from processes for ensuring the safety of plant and for controlling operations to management issues such as the supervision and training of staff. The Conditions are non-prescriptive and set goals that the licensee is responsible for meeting, amongst other things by applying detailed safety standards and establishing safe procedures for the facilities. Each licensee can develop LC compliance arrangements that are appropriate to the scale and nature of its activities. Compliance arrangements may need to be adapted over the lifecycle of a site to ensure they remain relevant and proportionate as the facility progresses from initial design and installation through operation to final decommissioning. HSE reviews the licensee’s licence condition compliance arrangements to ensure they address the main safety issues adequately and are unambiguous. Powers provided by the Licence Conditions (LC) HSE has specific powers under the nuclear site licence conditions for the control of licensees’ activities, and may undertake enforcement action which is aimed at bringing about improvements in operational safety, or to require that specified operations are carried out or halted. The licence conditions provide six powers which are used as follows: Consent - A Consent is required before the licensee can carry out certain activities identified in the licence or other activities which HSE has the power to specify. For example, a Consent from HSE is required before a reactor is allowed to be started up again following a periodic shutdown. In order to secure a Consent the licensee must satisfy HSE that the proposed action is safe and that all procedures necessary for control are in place. Approval - Approvals are used to ‘freeze’ a licensee’s arrangements and other key elements of its safety management system. This may include the Terms of Reference of the Nuclear Safety Committee, Operating Rules, Maintenance Schedule and the ‘place and manner’ in which radioactive waste can be stored or accumulated. If HSE so specifies, the licensee is required to submit the arrangements etc to HSE for approval. Once approved, the arrangements cannot be changed without HSE’s agreement, and the procedure itself must be carried out in accordance with the approved arrangements: failure to do so would infringe the licence condition and would be an offence. For example, for nuclear power stations HSE generally approves operating rules important to safety in order to ensure that licensees cannot change them without seeking HSE’s agreement to the change.

Direction - A Direction is issued by HSE when it requires the licensee to take a particular action. For example, LC 31(1) gives HSE the power to Direct a licensee to shut down any facility, operation or process. Such a Direction would relate to a matter of major or immediate safety importance. Agreement - An Agreement issued by HSE allows a licensee to proceed with an agreed course of action. For example LC 30(2) enables HSE to agree the extension of a facility’s operating period. Notification - The standard licence conditions give HSE powers to request the submission of information by notifying the licensee of the requirement. For example, in LC 21(8) the licensee shall, if notified by HSE, submit a safety case and shall not commence operation of the relevant facility or process without the consent of HSE. Specification - The standard licence gives HSE discretionary controls with regard to a licensee’s arrangements and these are implemented through Specifications. For example, in LC 23(2), if HSE specifies, the licensee is required to refer operating rules to his Nuclear Safety Committee for consideration. In addition a number of licence conditions require the licensee to ‘make and implement adequate arrangements…’. In many cases the licensees have drafted their arrangements in such a way as to provide mechanisms for HSE to permission activities via licence instruments issued under ‘derived’ powers. Since licensees’ arrangements vary significantly the derived powers can be different from licensee to licensee. The Licence Conditions The full text of each of the current suite of 36 standard licence conditions is set out below (in italics) together with some explanatory text. HSE’s powers are highlighted in bold in each LC.

1 INTERPRETATION (1) In the conditions set out in this Schedule to this licence, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say "commissioning" means the process during which plant components and systems, having been constructed or modified, are made operational and verified to be in accordance with design assumptions and to have met the appropriate safety criteria; "excepted matter" has the meaning assigned thereto in the Nuclear Installations Act 1965 (as amended) and the Nuclear Installations (Excepted Matter) Regulations 1978 made thereunder; "the Executive" means the Health & Safety Executive; "experiment" means any test or non-routine activity other than an activity carried out pursuant to conditions 21 and 28; "installation" means "nuclear installation" and has the meaning assigned thereto in the Nuclear Installations Act 1965 (as amended);

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Appendix 2—Nuclear Site Licence Conditions 493 NUCLEAR SITE LICENCE CONDITIONS "the licensee" and "the site" each has the meaning assigned thereto in paragraph 1 of this licence; "modification" means any alteration to buildings, plants, operations, processes or safety cases and includes any replacement, refurbishment or repairs to existing buildings, plants or processes and alterations to the design of plants during the period of construction; "nuclear matter" and "relevant site" each has the meaning assigned thereto in the Nuclear Installations Act 1965 (as amended); "nuclear safety committee" means any nuclear safety committee established pursuant to condition 13 of this Schedule; "operations" includes maintenance, examination, testing and operation of the plant and the treatment, processing, keeping, storing, accumulating or carriage of any radioactive material or radioactive waste and "operating" and "operational" shall be construed accordingly; "radioactive material" and "radioactive waste" each has the meaning assigned thereto in the Radioactive Substances Act 1993; "safety" refers to the safety of persons whether on or off the site; "safety case" means the document or documents produced by the licensee in accordance with condition 14 of this Schedule.

2 MARKING OF THE SITE BOUNDARY (1) The licensee shall make and implement adequate arrangements to prevent unauthorised persons from entering the site or, if so directed by the Executive, from entering such part or parts thereof as the Executive may specify. (2) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements as the Executive may specify. (3) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements unless the Executive has approved such alteration or amendment. (4) The licensee shall mark the boundaries of the site by fences or other appropriate means and any such fences or other means used for this purpose shall be properly maintained. (5) The licensee shall, if so directed by the Executive, erect appropriate fences on the site in such positions as the Executive may specify and shall ensure that all such fences are properly maintained. The purpose of this Condition is to ensure the licensee takes the necessary steps to prevent unauthorised access to those parts of the licensed site that HSE specifies in order to prevent unauthorised persons entering the site and injuring themselves or damaging safety related plant or equipment.

3 RESTRICTION ON DEALING WITH THE SITE (2) In these conditions except where the context otherwise requires (a) any reference to the singular shall include the plural and vice versa and any reference to the masculine shall include the feminine; (b) any reference to any arrangement, agreement, approval, consent, direction, specification, notification or any formal communication between the Executive and the licensee (and vice versa) shall be deemed to be a reference to a written document; (c) any reference to a numbered condition is a reference to the condition so numbered in this Schedule. (3) Where in these conditions the Executive requires any matter to be approved or to be carried out only with its consent or to be carried out as it directs the Executive may (a) from time to time modify, revise or withdraw either wholly or in part any such approval, direction or consent; (b) approve either wholly or in part any modification or revision or any proposed modification or revision to any matter for the time being approved. The purpose of this condition is to ensure there is no ambiguity in the use of certain specified terms which are found in the text of the Conditions. It also contains important powers enabling the Executive to modify, revise or withdraw approvals etc. and to approve modifications to any matter currently approved. Where appropriate reference is made back to the relevant statutory Acts of Parliament.

The licensee shall not convey, assign, transfer, let or part with possession of the site or any part thereof or grant any licence in relation thereto without the consent of the Executive. This Condition requires that the licensee does not let, convey, assign or transfer any part of the nuclear licenses site to a third party without seeking the permission of the HSE. This is to ensure that the licensee does not change the character of the activities on the licensed site and to prevent activities being carried out on the site which could put nuclear operations at risk. The licensee should be able to demonstrate that there are organisational procedures to prevent individuals within the company from conveying, assigning, transferring or granting any licences in relation to the site or parts of the site without first obtaining the Consent of the Executive. Alternative version of LC3 attached to sites Designated 1 to the Nuclear Decommissioning Authority (NDA) (1) No person shall convey, assign, transfer, let or part with possession of the site or any part thereof or grant any property licence in relation thereto, except to the Civil Nuclear Police Authority, without the consent of the Executive. (2) The licensee shall notify the Executive forthwith if occupancy of any part of the site is taken by the Civil Nuclear 1

These are licensed nuclear sites designated to the Nuclear Decommissioning Authority (NDA) by the Secretary of State under powers provided by the Energy Act 2004. They are operated under contract to the NDA by Dounreay Site Restoration Ltd, Magnox North Ltd, LLW Repository Ltd, Magnox South Ltd, Research Sites Restoration Ltd, Sellafield Ltd and Springfields Fuels Ltd

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494 Appendix 2—Nuclear Site Licince Conditions NUCLEAR SITE LICENCE CONDITIONS Police Authority. (3) The licensee shall make and implement adequate arrangements to control all property transactions affecting the site or parts thereof. (4) The licensee shall submit to the Executive for approval such aforesaid arrangements as the Executive may specify. (5) The licensee shall ensure that once approved no alteration is made to the approved arrangements unless the Executive has approved such alteration or amendment.

Alternative version of LC3 attached to the licences of certain defence-related sites (1) The licensee shall not convey, assign, transfer, let or part with possession of the site or any part thereof or grant any licence in relation thereto except to the Secretary of State for Defence without the consent of the Executive. (2) The licensee shall notify the Executive forthwith if occupancy of the site or any part thereof is taken by the Secretary of State for Defence.

United Kingdom other than a relevant site 3 except with the consent of the Executive. (2) The licensee shall keep a record of all nuclear matter (including excepted matter and radioactive waste) consigned from the site and such record shall contain particulars of the amount, type and form of such nuclear matter, the manner in which it was packed, the name and address of the person to whom it was consigned and the date when it left the site. (3) The licensee shall ensure that the aforesaid record is preserved for 30 years from the date of dispatch or such other period as the Executive may approve except in the case of any consignment or part thereof subsequently stolen, lost, jettisoned or abandoned, in which case the record shall be preserved for a period of 50 years from the date of such theft, loss, jettisoning or abandoning. The purpose of this Condition is to ensure that the transfer of nuclear matter (other than excepted matter and radioactive 2 waste) to sites in the UK other than relevant sites is carried out only with the consent of the Executive and is adequately documented. The licensee should also be able to demonstrate that its compliance arrangements will prevent individuals from inadvertently consigning such matter to nonrelevant sites unless a Consent from the Executive is in place.

4 RESTRICTIONS ON NUCLEAR MATTER ON THE SITE (1) The licensee shall ensure that no nuclear matter is brought onto the site except in accordance with adequate arrangements made by the licensee for this purpose. (2) The licensee shall ensure that no nuclear matter is stored on the site except in accordance with adequate arrangements made by the licensee for this purpose. (3) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements as the Executive may specify. (4) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements unless the Executive has approved such alteration or amendment. (5) For new installations, if the Executive so specifies, the licensee shall ensure that no nuclear matter intended for use in connection with the new installation is brought onto the site for the first time without the consent of the Executive. This Condition seeks to ensure, in the interests of safety, that the licensee has adequate arrangements to control the 2 introduction and storage of nuclear matter on the licensed site. It also provides HSE with powers to specify that certain types of nuclear matter cannot be brought onto the site without the consent of Executive. This enables HSE to intervene to ensure that, for specific activities, it can assess the adequacy of the licensee’s arrangements before nuclear matter is brought onto the site.

5 CONSIGNMENT OF NUCLEAR MATTER (1) The licensee shall not consign nuclear matter (other than excepted matter and radioactive waste) to any place in the

2

Nuclear matter being nuclear fuel, radioactive waste, etc., as defined by the NI A65 s.26)

6 DOCUMENTS, RECORDS, AUTHORITIES AND CERTIFICATES (1) The licensee shall make adequate records to demonstrate compliance with any of the conditions attached to this licence. (2) Without prejudice to any other requirements of the conditions attached to this licence the licensee shall make and implement adequate arrangements to ensure that every document required, every record made, every authority, consent or approval granted and every direction or certificate issued in pursuance of the conditions attached to this licence is preserved for 30 years or such other periods as the Executive may approve. (3) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements as the Executive may specify. (4) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements unless the Executive has approved such alteration or amendment. (5) The licensee shall furnish to the Executive copies of any such document, record, authority or certificate as the Executive may specify. The purpose of this Condition is to ensure that adequate records are held by the licensee for a suitable period to ensure that the safety case for operation is available at all times, that design and construction information is available for decommissioning, that operational records are available to assist investigations in the event of an accident or incident and operational records are available for the statutory number of years after the cessation of operations for the 3

Relevant sites are other licensed or Crown sites as defined in the NI Act and S.I. 1965/1826 and S.I. 1978/1779

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Appendix 2—Nuclear Site Licence Conditions 495 NUCLEAR SITE LICENCE CONDITIONS purpose of assisting any claims of damage to health as a result of exposure to ionising radiation.

7 INCIDENTS ON THE SITE (1) The licensee shall make and implement adequate arrangements for the notification, recording, investigation and reporting of such incidents occurring on the site:

to be observed in connection therewith and the action to be taken in the event of an accident or emergency on the site. The purpose of this Condition is to ensure that the licensee provides adequate instructions to all persons allowed on the site so that they are aware of the risks and hazards associated with the plant and its operations, the precautions that must be taken to minimise the risk to themselves and others and the actions to be taken in the event of an accident or emergency.

(a) as is required by any other condition attached to this licence; 10 TRAINING (b) as the Executive may specify; and (c) as the licensee considers necessary. (2) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements as the Executive may specify. (3) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements unless the Executive has approved such alteration or amendment. The purpose of this Condition is to ensure that the licensee has adequate arrangements to deal with incidents that may occur on the nuclear licensed site. It is essential that the licensee keeps a record of all such incidents, notifies HSE when appropriate, investigates the cause of each incident and produces a report of the investigation to ensure that lessons are learnt.

8 WARNING NOTICES The licensee shall ensure that suitable and sufficient notices are kept on the site for the purposes of informing persons thereon of each of the following matters, that is to say:

(1) The licensee shall make and implement adequate arrangements for suitable training of all those on site who have responsibility for any operations which may affect safety. (2) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements as the Executive may specify. (3) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements unless the Executive has approved such alteration or amendment. The purpose of this Condition is to ensure that all people who carry out activities during design, construction, manufacture, commissioning, operation or decommissioning of a nuclear installation which may affect safety are adequately trained for that purpose. The licensee is expected to ensure that the necessary training requirements are identified for each activity, that individuals who carry out these activities can demonstrate that they have received such training and that records are kept to demonstrate that individuals have been trained. This Condition is in addition to the general duty under the Health and Safety at Work Act (HSW Act) s.2(2)(c) and the Ionising Radiation Regulations 1999, reg. 14.

(a) the meaning of any warning signal used on the site; (b) the location of any exit from any place on the site, being an exit provided for use in the event of an emergency; (c) the measures to be taken by such persons in the event of fire breaking out on the site or in the event of any other emergency; and that such notices are kept posted in such positions and in such characters as to be conveniently read by those persons. The purpose of this Condition is to ensure the safety of all people on the so that they can respond appropriately and without delay to an emergency situation. The Licensee therefore needs to ensure that all warning notices are in appropriate places to advise people on what to do in that area in the event of a fire or any other emergency.

9 INSTRUCTIONS TO PERSONS ON THE SITE The licensee shall ensure that every person authorised to be on the site receives adequate instructions (to the extent that this is necessary having regard to the circumstances of that person being on the site) as regards the risks and hazards associated with the plant and its operation, the precautions

11 EMERGENCY ARRANGEMENTS (1) Without prejudice to any other requirements of the conditions attached to this licence the licensee shall make and implement adequate arrangements for dealing with any accident or emergency arising on the site and their effects. (2) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements as the Executive may specify. (3) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements unless the Executive has approved such alteration or amendment. (4) Where any such arrangements require the assistance or co-operation of, or render it necessary or expedient to make use of the services of any person, local authority or other body the licensee shall ensure that each person, local authority or other body is consulted in the making of such arrangements. (5) The licensee shall ensure that such arrangements are rehearsed at such intervals and at such times and to such extent as the Executive may specify or, where the Executive has not so specified, as the licensee considers necessary.

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496 Appendix 2—Nuclear Site Licence Conditions NUCLEAR SITE LICENCE CONDITIONS (6) The licensee shall ensure that such arrangements include procedures to ensure that all persons in his employ who have duties in connection with such arrangements are properly instructed in the performance of the same, in the use of the equipment required and the precautions to be observed in connection therewith. Even though nuclear installations are designed and operated to high safety standards it is recognised that it is prudent to plan for accidents. This Condition requires the licensee to have adequate arrangements in place to respond effectively to any incident or accident. The arrangements should be capable of covering a wide range of events from minor incidents restricted to on-site locations to large incidents or emergencies which could result in a significant release of radioactive material to the environment. The Condition gives HSE the powers to ensure that the licensee’s emergency arrangements are exercised. HSE uses this power to ensure the licensee‘s exercises demonstrate adequate performance to protect both workers and the public.

12 DULY AUTHORISED AND OTHER SUITABLY QUALIFIED AND EXPERIENCED PERSONS (1) The licensee shall make and implement adequate arrangements to ensure that only suitably qualified and experienced persons perform any duties which may affect the safety of operations on the site or any duties assigned by or under these conditions or any arrangements required under these conditions. (2) The aforesaid arrangements shall also provide for the appointment, in appropriate cases, of duly authorised persons to control and supervise operations which may affect plant safety. (3) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements as the Executive may specify. (4) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements unless the Executive has approved such alteration or amendment. (5) The licensee shall ensure that no person continues to act as a duly authorised person if, in the opinion of the Executive, he is unfit to act in that capacity and the Executive has notified the licensee to that effect. The purpose of this Condition is to ensure that only suitably qualified and experienced persons perform duties which may affect safety. The licensee is required to ensure that all activities that can affect safety are identified and the experience and qualification requirements for people to carry out these activities are defined. The licensee must ensure that the qualifications and experience of people match those required for the job. Clause 5 gives HSE the power to remove a person from safety related work if he or she is not suitably qualified or experienced for the job.

(b) such arrangements or documents required by these conditions as the Executive may specify and any subsequent alteration or amendment to such specified arrangements or documents; (c) any matter on the site affecting safety on or off the site which the Executive may specify; and (d) any other matter which the licensee considers should be referred to a nuclear safety committee. (2) The licensee shall submit to the Executive for approval the terms of reference of any such nuclear safety committee and shall not form a nuclear safety committee without the aforesaid approval. (3) The licensee shall ensure that once approved no alteration or amendment is made to the terms of reference of such a nuclear safety committee unless the Executive has approved such alteration or amendment. (4) The licensee shall appoint at least seven persons as members of a nuclear safety committee including one or more members who are independent of the licensee's operations and shall ensure that at least five members are present at each meeting including at least one independent member. (5) The licensee shall furnish to the Executive the name, qualifications, particulars of current posts held and the previous relevant experience of every person whom he appoints as a member of any nuclear safety committee forthwith after making such appointment. Notwithstanding such appointment the licensee shall ensure that a person so appointed does not remain a member of any nuclear safety committee if the Executive notifies the licensee that it does not agree to the appointment. (6) The licensee shall ensure that the qualifications, current posts held and previous relevant experience of the members of any such committee, taken as a whole, are such as to enable that committee to consider any matter likely to be referred to it and to advise the licensee authoritatively and, so far as practicable, independently. (7) The licensee shall ensure that a nuclear safety committee shall consider or advise only during the course of a properly constituted meeting of that committee. (8) The licensee shall send to the Executive within 14 days of any meeting of any such committee a full and accurate record of all matters discussed at that meeting including in particular any advice given to the licensee. (9) The licensee shall furnish to the Executive copies of any document or any category of documents considered at any such meetings that the Executive may specify. (10) The licensee shall notify the Executive as soon as practicable if it is intended to reject, in whole or in part, any advice given by any such committee together with the reasons for such rejection.

13 NUCLEAR SAFETY COMMITTEE (1) The licensee shall establish a nuclear safety committee or committees to which it shall refer for consideration and advice the following: (a) all matters required by or under these conditions to be referred to a nuclear safety committee;

(11) Notwithstanding paragraph (7) of this condition, where it becomes necessary to obtain consideration of, or advice on, urgent safety proposals (which would normally be considered by a nuclear safety committee) the licensee may do so in accordance with appropriate arrangements made for the purpose by the licensee, considered by the relevant nuclear safety committee and approved by the Executive.

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(12) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements described in paragraph (11) of this condition unless the relevant nuclear safety committee has considered and the Executive has approved such alteration or amendment. The purpose of this Condition is to ensure that the licensee sets up a senior level committee to consider and provide advice on matters which affect the safe design, construction, commissioning, operation and decommissioning of any installations on its licensed site and any other matter relevant to safety. The committee must have members who are adequately qualified to perform this task including members who are independent of the licensee. The condition gives HSE the power to veto the appointment of or continued presence of any member. The committee is intended to act as a check on the licensee’s decision making process to ensure that safety considerations are given due weight. However, the committee is intended to be purely advisory and must not be considered to have an executive function. Where the licensee rejects the advice of the committee the Condition requires the licensee to notify the Executive; in this way HSE can investigate the justification of the licensee’s safety related actions.

(3) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements unless the Executive has approved such alteration or amendment. (4) The licensee shall, if so directed by the Executive, carry out a review and reassessment of safety and submit a report of such review and reassessment to the Executive at such intervals, within such a period and for such of the matters or operations as may be specified in the direction. The purpose of this Condition is to ensure that the licensee periodically stands back and reviews the safety case for his installations. The objective of the review is to compare the safety case against modern standards to see if there are reasonably practicable improvements that could be made, to demonstrate that the plant is safe to continue to operate for the next defined period (usually 10 years) and to identify any life limiting factors.

16 SITE PLANS, DESIGNS AND SPECIFICATIONS (1) The licensee shall submit to the Executive an adequate plan of the site (hereinafter referred to as the site plan) showing the location of the boundary of the licensed site and every building or plant on the site which might affect safety.

14 SAFETY DOCUMENTATION (1) Without prejudice to any other requirements of the conditions attached to this licence the licensee shall make and implement adequate arrangements for the production and assessment of safety cases consisting of documentation to justify safety during the design, construction, manufacture, commissioning, operation and decommissioning phases of the installation. (2) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements as the Executive may specify. (3) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements unless the Executive has approved such alteration or amendment. (4) The licensee shall furnish to the Executive copies of any such documentation or any such category of documentation as the Executive may specify. The purpose of this Condition is to ensure that the licensee sets up arrangements for the preparation and assessment of the safety related documentation used to justify safety during design, construction, manufacture, commissioning, operation and decommissioning. The arrangements for the assessment of safety related documentation are intended to ensure an independent review of the quality and accuracy of the licensee’s safety related decisions and activities to ensure they have been adequately justified.

15 PERIODIC REVIEW (1) The licensee shall make and implement adequate arrangements for the periodic and systematic review and reassessment of safety cases. (2) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements as the Executive may specify.

(2) The licensee shall submit to the Executive with the site plan a schedule giving particulars of each such building and plant thereon and the operations associated therewith. (3) If any changes are made on the site which affect the said buildings, plant or operations, the licensee shall forthwith send an amended site plan and schedule to the Executive incorporating these changes. (4) The licensee shall furnish to the Executive such plans, designs, specifications or other information relating to such buildings, plants and operations as the Executive may specify. This Condition requires the licensee to indicate, using a site plan, all buildings and plant or areas which might affect safety and to provide giving details of each building and its associated operations. The plan and schedule must be updated as necessary. This process ensures that not only does the licensee understand the content and function of all safety related buildings on his site, but it also enables HSE to inspect the adequacy of facilities and storage conditions across the site.

17 QUALITY ASSURANCE (1) Without prejudice to any other requirements of the conditions attached to this licence the licensee shall make and implement adequate quality assurance arrangements in respect of all matters which may affect safety. (2) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements as the Executive may specify. (3) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements unless the Executive has approved such alteration or amendment. (4) The licensee shall furnish to the Executive such copies

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shall not recommence such construction or installation without the consent of the Executive.

The purpose of this Condition is to ensure that the licensee applies quality assurance to all activities associated with the design, construction, manufacture, commissioning, operation and decommissioning of the installations on the site including the preparation and review of safety documentation. The licensee’s arrangements are expected to include the provision of a QA department to oversee the specification, audit and review of QA arrangements.

The purpose of this Condition is to ensure that the licensee provides and implements adequate control over the construction and installation of new plant which may affect safety. The objective is for the licensee to plan the design and construction of any safety related plant. This is to ensure that before construction takes place a preconstruction safety report is produced to demonstrate the safety of the installation. The condition gives the power to HSE to prevent the commencement of construction until it is satisfied with the safety case and / or put hold points during the construction process to ensure the installation is being constructed in accordance with the stated intent. HSE’s control can be either through using the direct powers in the condition or through secondary powers built into the licensee’s arrangements.

18 RADIOLOGICAL PROTECTION (1) The licensee shall make and implement adequate arrangements for the assessment of the average effective dose (including any committed effective dose) to such class or classes of persons as may be specified in the aforesaid arrangements and the licensee shall forthwith notify the Executive if the average effective dose to such class or classes of persons exceeds such level as the Executive may specify. (2) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements as the Executive may specify. (3) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements unless the Executive has approved such alteration or amendment. The purpose of this Condition is to ensure that the licensee makes and implements adequate arrangements to assess the average effective dose for any class or classes of workers the executive specifies. It also requires the licensee to notify the Executive if the dose exceeds a specified level. This is complementary to the Ionising Radiations Regulations 1999, reg. 25.

19 CONSTRUCTION OR INSTALLATION OF NEW PLANT (1) Where the licensee proposes to construct or install any new plant which may affect safety the licensee shall make and implement adequate arrangements to control the construction or installation. (2) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements as the Executive may specify. (3) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements unless the Executive has approved such alteration or amendment. (4) The aforesaid arrangements shall where appropriate divide the construction or installation into stages. Where the Executive so specifies the licensee shall not commence nor thereafter proceed from one stage to the next of the construction or installation without the consent of the Executive. The arrangements shall include a requirement for the provision of adequate documentation to justify the safety of the proposed construction or installation and shall where appropriate provide for the submission of this documentation to the Executive. (5) The licensee shall, if so directed by the Executive, halt the construction or installation of a plant and the licensee

20 MODIFICATION TO DESIGN OF PLANT UNDER CONSTRUCTION (1) The licensee shall ensure that no modification to the design which may affect safety is made to any plant during the period of construction except in accordance with adequate arrangements made and implemented by the licensee for that purpose. (2) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements as the Executive may specify. (3) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements unless the Executive has approved such alteration or amendment. (4) The aforesaid arrangements shall provide for the classification of modifications according to their safety significance. The arrangements shall where appropriate divide modifications into stages. Where the Executive so specifies the licensee shall not commence nor thereafter proceed from one stage to the next of the modification without the consent of the Executive. The arrangements shall include a requirement for the provision of adequate documentation to justify the safety of the proposed modification and shall where appropriate provide for the submission of this documentation to the Executive. The purpose of this Condition is to ensure that the licensee cannot change the design of an installation once HSE has given its consent or agreement to construction without going through a proper design change process which assesses the modification in relation to its safety significance and defines the degree of safety justification required. The condition gives HSE the power to intervene and stop a modification if it believes there is inadequate safety justification.

21 COMMISSIONING (1) The licensee shall make and implement adequate arrangements for the commissioning of any plant or process which may affect safety. (2) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements as the Executive may specify. (3) The licensee shall ensure that once approved no

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Appendix 2—Nuclear Site Licence Conditions 499 NUCLEAR SITE LICENCE CONDITIONS alteration or amendment is made to the approved arrangements unless the Executive has approved such alteration or amendment. (4) The aforesaid arrangements shall where appropriate divide the commissioning into stages. Where the Executive so specifies the licensee shall not commence nor thereafter proceed from one stage to the next of the commissioning without the consent of the Executive. The arrangements shall include a requirement for the provision of adequate documentation to justify the safety of the proposed commissioning and shall where appropriate provide for the submission of this documentation to the Executive. (5) The licensee shall appoint a suitably qualified person or persons for the purpose of controlling, witnessing, recording and assessing the results of any tests carried out in accordance with the requirements of the aforesaid commissioning arrangements. (6) The licensee shall ensure that full and accurate records are kept of the results of every test and operation carried out in pursuance of this condition. (7) The licensee shall ensure that no plant or process which may affect safety is operated (except for the purpose of commissioning) until: (a) the appropriate stage of commissioning has been completed and a report of such commissioning, including any results and assessments of any tests as may have been required under the commissioning arrangements referred to in paragraph (1) of this condition, has been considered in accordance with those arrangements; and (b) a safety case or cases as appropriate, which shall include the safety implications of modifications made since the commencement of construction of the plant and those arising from the commissioning of the plant, and any matters whereby the operation of the plant may be affected by such modifications or commissioning, has been considered in accordance with the arrangements referred to in paragraph (1) of this condition. (8) The licensee shall, if so notified by the Executive, submit to the Executive the safety case for the aforesaid plant or processes prepared in pursuance of paragraph (7) of this condition and shall not commence operation of the relevant plant or process without the consent of the Executive. When a new plant is constructed or when an existing plant is modified, it is important to commission the various systems to demonstrate they function as intended before the plant goes into routine operation. The purpose of this Condition therefore, is to ensure that the licensee has adequate arrangements for the commissioning of a new or modified plant or process which may affect safety. The condition gives HSE powers to control various stages of commissioning. This is to ensure that the licensee demonstrates that the plant or modification has been completed according to the design intent, and the necessary safety implications associated with commissioning have been considered and assessed and shown to be acceptable. Usually a hold point is put at the start of inactive commissioning i.e. testing systems before the introduction of radioactive materials, and at the start of active commissioning. This latter hold point is to ensure that the

licensee has demonstrated that the plant is functioning and safe to allow the introduction of radioactive materials. Finall y the condition gives HSE the power to control the commencement of routine operations by requiring the licensee to produce a pre-operational safety report and seek HSE’s consent to start operations.

22 MODIFICATION OR EXPERIMENT ON EXISTING PLANT (1) The licensee shall make and implement adequate arrangements to control any modification or experiment carried out on any part of the existing plant or processes which may affect safety. (2) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements as the Executive may specify. (3) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements unless the Executive has approved such alteration or amendment. (4) The aforesaid arrangements shall provide for the classification of modifications or experiments according to their safety significance. The arrangements shall where appropriate divide the modification or experiment into stages. Where the Executive so specifies the licensee shall not commence nor thereafter proceed from one stage to the next of the modification or experiment without the consent of the Executive. The arrangements shall include a requirement for the provision of adequate documentation to justify the safety of the proposed modification or experiment and shall where appropriate provide for the submission of the documentation to the Executive. (5) The licensee shall, if so directed by the Executive, halt the modification or experiment and the licensee shall not recommence such modification or experiment without the consent of the Executive. Many accidents across all industries have been caused by modifications to operating plant or changes to processes that have not been adequately assessed. The purpose of this Condition is to ensure that the licensee has adequate arrangements to control all modifications to its installations on the licensed site that may affect safety. It also gives HSE the power to control such modifications to ensure they cannot commence until the licensee has adequately demonstrated the safety of the proposal. These powers can be direct or indirect via the licensee’s own voluntary hold points. The LC also gives HSE power to halt a modification or intervene at any stage in the interest of safety.

23 OPERATING RULES (1) The licensee shall, in respect of any operation that may affect safety, produce an adequate safety case to demonstrate the safety of that operation and to identify the conditions and limits necessary in the interests of safety. Such conditions and limits shall hereinafter be referred to as operating rules. (2) The licensee, where the Executive so specifies, shall refer the operating rules arising from paragraph (1) of this condition to the relevant nuclear safety committee for consideration.

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500 Appendix 2—Nuclear Site Licence Conditions NUCLEAR SITE LICENCE CONDITIONS (3) The licensee shall ensure that operations are at all times controlled and carried out in compliance with such operating rules. Where the person appointed by the licensee for the purposes of condition 26 identifies any matter indicating that the safety of any operation or the safe condition of any plant may be affected that person shall bring that matter to the attention of the licensee forthwith who shall take appropriate action and ensure the matter is then notified, recorded, investigated and reported in accordance with arrangements made under condition 7.

actions of people who control, maintain or service the plant. It is important given the often complex nature of the safety case for all actions carried out by people to be done in accordance with procedures derived from the safety case. It is also important that actions are not carried out on an ad hoc basis without written evidence. Therefore the purpose of this Condition is to ensure that all operations as defined in Condition 1 which may affect safety, including any instructions to implement Operating Rules, are undertaken in accordance with written operating instructions.

(4) The licensee shall submit to the Executive for approval such of the aforesaid operating rules as the Executive may specify.

25 OPERATIONAL RECORDS

(5) The licensee shall ensure that once approved no alteration or amendment is made to any approved operating rule unless the Executive has approved such alteration or amendment. (6) Notwithstanding the preceding provisions of this condition the Executive may, if in its opinion circumstances render it necessary at any time, agree to the temporary suspension of any approved operating rule. The safe operation of a nuclear installation results from many factors including the design of the plant, its behaviour under fault or accident conditions and the functions of the operators. It is therefore essential that the totality of these often complex interactions are fully understood. The method of doing this is to require the operator to produce a safety case to justify the operation of the installation. The purpose of this Condition is to ensure that the licensee produces such a safety case and that it identifies all the necessary conditions and limits that ensure that the plant is kept within parameters which ensure the safety of the plant during normal operation and fault and accident conditions.

24 OPERATING INSTRUCTIONS (1) The licensee shall ensure that all operations which may affect safety are carried out in accordance with written instructions hereinafter referred to as operating instructions. (2) The licensee shall ensure that such operating instructions include any instructions necessary in the interests of safety and any instructions necessary to ensure that any operating rules are implemented. (3) The licensee shall, if so specified by the Executive, furnish to the Executive copies of such operating instructions and when any alteration is made to the operating instructions furnished to the Executive, the licensee shall ensure that such alteration is furnished to the Executive within such time as may be specified. (4) The licensee shall make and implement adequate arrangements for the preparation, review and amendment of such operating instructions. (5) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements as the Executive may specify. (6) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements unless the Executive has approved such alteration or amendment. The safety of a nuclear installation is influenced by the

(1) The licensee shall ensure that adequate records are made of the operation, inspection and maintenance of any plant which may affect safety. (2) The aforesaid records shall include records of the amount and location of all radioactive material, including nuclear fuel and radioactive waste, used, processed, stored or accumulated upon the site at any time. (3) The licensee shall record such additional particulars as the Executive may specify. (4) The licensee shall furnish to the Executive such copies of extracts from such records at such times as the Executive may specify. The purpose of this Condition is to ensure that adequate records are kept regarding operation, inspection and maintenance of any safety-related plant.

26 CONTROL AND SUPERVISION OF OPERATIONS The licensee shall ensure that no operations are carried out which may affect safety except under the control and supervision of suitably qualified and experienced persons appointed for that purpose by the licensee. The purpose of this Condition is to ensure that safety-related operations are carried out only under the control and supervision of suitably qualified and experienced personnel.

27 SAFETY MECHANISMS, DEVICES AND CIRCUITS The licensee shall ensure that a plant is not operated, inspected, maintained or tested unless suitable and sufficient safety mechanisms, devices and circuits are properly connected and in good working order. A nuclear installation is designed to have multiple safety systems to provide defence in depth against mal operation, faults or accidents. It is important that at all times there are sufficient of these systems in good working order because by definition they must be able to function on demand and such instances are unpredictable. The purpose of this Condition is therefore to ensure that there are always sufficient and operable safety mechanisms, devices and circuits to provide the necessary defence in depth.

28 EXAMINATION, INSPECTION, MAINTENANCE AND TESTING (1) The licensee shall make and implement adequate arrangements for the regular and systematic examination,

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29 DUTY TO CARRY OUT TESTS, INSPECTIONS AND EXAMINATIONS

(2) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements as the Executive may specify.

(1) The licensee shall carry out such tests, inspections and examinations in connection with any plant (in addition to any carried out under condition 28 above) as the Executive may, after consultation with the licensee, specify.

(3) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements unless the Executive has approved such alteration or amendment. (4) The aforesaid arrangements shall provide for the preparation of a plant maintenance schedule for each plant. The licensee shall submit to the Executive for its approval such part or parts of any plant maintenance schedule as the Executive may specify. (5) The licensee shall ensure that once approved no alteration or amendment is made to any approved part of any plant maintenance schedule unless the Executive has approved such alteration or amendment. (6) The licensee shall ensure in the interests of safety that every examination, inspection, maintenance and test of a plant or any part thereof is carried out:

(2) The licensee shall furnish the results of any such tests, inspections and examinations carried out in accordance with paragraph (1) of this condition to the Executive as soon as practicable. The purpose of this Condition is to enable the Executive, following consultation, to require the licensee to perform any tests, inspections and examinations which it may specify, and to be provided with the results.

30 PERIODIC SHUTDOWN (1) When necessary for the purpose of enabling any examination, inspection, maintenance or testing of any plant or process to take place, the licensee shall ensure that any such plant or process shall be shut down in accordance with the requirements of its plant maintenance schedule referred to in condition 28.

(a) by suitably qualified and experienced persons; (b) in accordance with schemes laid down in writing; (c) within the intervals specified in the plant maintenance schedule; and (d) under the control and supervision of a suitably qualified and experienced person appointed by the licensee for that purpose. (7) Notwithstanding the above paragraphs of this condition the Executive may agree to an extension of any interval specified in the plant maintenance schedule. (8) When any examination, inspection, maintenance or test of any part of a plant reveals any matter indicating that the safe operation or safe condition of that plant may be affected, the suitably qualified and experienced person appointed to control or supervise any such examination, inspection, maintenance or test shall bring it to the attention of the licensee forthwith who shall take appropriate action and ensure the matter is then notified, recorded, investigated and reported in accordance with arrangements made under condition 7. (9) The licensee shall ensure that a full and accurate report of every examination, inspection, maintenance or test of any part of a plant indicating the date thereof and signed by the suitably qualified and experienced person appointed by the licensee to control and supervise such examination, inspection, maintenance or test is made to the licensee forthwith upon completion of the said examination, inspection, maintenance or test. A nuclear installation, like any other complex machine, requires maintenance and if such maintenance is not carried out properly it has the potential to undermine the safety case and put the safety of the plant at risk. The purpose of this Condition therefore, is to ensure that all plant that may affect safety is scheduled to receive regular and systematic examination, inspection maintenance and testing, by and under the control of suitably qualified personnel and that records of maintenance activities are kept.

(2) Notwithstanding paragraph (1) of this condition the Executive may agree to an extension of a plant's operating period. (3) The licensee shall, if so specified by the Executive, ensure that when a plant or process is shut down in pursuance of paragraph (1) of this condition it shall not be started up again thereafter without the consent of the Executive. It is necessary for an operating nuclear installation to be shut down at regular intervals for inspection and testing of essential components. The maintenance schedule will define the required intervals. The purpose of this Condition is, therefore, to ensure that the plant is shut down in accordance with the plant maintenance schedule and these important examination and maintenance activities are carried out. The Condition also gives HSE the power to intervene and require the licensee to seek the Executive’s consent to restart operations following the completion of the necessary maintenance. For nuclear reactors the licensee is required to seek a Consent from HSE to restart after every statutory shut down.

31 SHUTDOWN OF SPECIFIED OPERATIONS (1) The licensee shall, if so directed by the Executive, shut down any plant, operation or process on the site within such period as the Executive may specify. (2) The licensee shall ensure that when a plant, operation or process is shut down in pursuance of paragraph (1) of this condition it shall not be started up again thereafter without the consent of the Executive. If HSE has concerns about the safety of any nuclear installation and the licensee is unable or unwilling to provide the necessary safety justification for continued operation, it must have the power to order the shut down of the plant or process. The purpose of this Condition is to give HSE the power to instruct the licensee to shut down any plant, operation or process within a given period. Following a

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32 ACCUMULATION OF RADIOACTIVE WASTE (1) The licensee shall make and implement adequate arrangements for minimising so far as is reasonably practicable the rate of production and total quantity of radioactive waste accumulated on the site at any time and for recording the waste so accumulated. (2) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements as the Executive may specify. (3) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements unless the Executive has approved such alteration or amendment. (4) Without prejudice to paragraph (1) of this condition the licensee shall ensure that radioactive waste accumulated or stored on the site complies with such limitations as to quantity, type and form as may be specified by the Executive. (5) The licensee shall, if so specified by the Executive, not accumulate radioactive waste except in a place and in a manner approved by the Executive.

so that it cannot leak or otherwise escape from such control or containment. (2) Notwithstanding paragraph (1) of this condition the licensee shall ensure, so far as is reasonably practicable, that no such leak or escape of radioactive material or radioactive waste can occur without being detected, and that any such leak or escape is then notified, recorded, investigated and reported in accordance with arrangements made under condition 7. (3) Nothing in this condition shall apply to discharges or releases of radioactive waste in accordance with an approved operating rule or with disposal authorisations granted under the Radioactive Substances Act 1960 or, as the case may be, the Radioactive Substances Act 1993. On nuclear licensed sites HSE has the responsibility for regulating the management of radioactive waste. It is therefore important for HSE to have confidence that it knows where the licensee is storing such wastes and its condition. The purpose of this Condition is to place a duty on the licensee to ensure so far as reasonably practicable that radioactive material and radioactive waste is adequately controlled or contained so as to prevent leaks or escapes, and that in the event of any fault or accident which results in a leak or escape, the radioactive material or radioactive can be detected, recorded and reported to HSE.

35 DECOMMISSIONING The purpose of this Condition is to ensure that the licensee has adequate arrangements to ensure that the production and accumulation of radioactive waste on the site is minimised. The Condition also give HSE the power to ensure that radioactive waste is stored under suitable conditions, and that adequate records are kept to enable HSE to monitor the management of radioactive waste on nuclear licensed sites.

(1) The licensee shall make and implement adequate arrangements for the decommissioning of any plant or process which may affect safety. (2) The licensee shall make arrangements for the production and implementation of decommissioning programmes for each plant.

33 DISPOSAL OF RADIOACTIVE WASTE

(3) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements or programmes as the Executive may specify.

The licensee shall, if so directed by the Executive, ensure that radioactive waste accumulated or stored on the site is disposed of as the Executive may specify and in accordance with an authorisation granted under the Radioactive Substances Act 1960 or, as the case may be, the Radioactive Substances Act 1993.

(4) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements or programmes unless the Executive has approved such alteration or amendment.

A licensee may wish to store radioactive waste on its site rather than dispose of it even when a suitable disposal facility is available. The purpose of this Condition is to give HSE the power to direct the licensee to dispose of radioactive waste which is stored on the licensed site. This is related to the powers available to the appropriate Agency under the Radioactive Substances Act 1993, s.13. In this context "the appropriate Agency" means, in relation to England and Wales, the Environment Agency, and, in relation to Scotland, the Scottish Environment Protection Agency. HSE would only use this power in conjunction with the appropriate agency.

34 LEAKAGE AND ESCAPE OF RADIOACTIVE MATERIAL AND RADIOACTIVE WASTE (1) The licensee shall ensure, so far as is reasonably practicable, that radioactive material and radioactive waste on the site is at all times adequately controlled or contained

(5) The aforesaid arrangements shall where appropriate divide the decommissioning into stages. Where the Executive so specifies the licensee shall not commence nor thereafter proceed from one stage to the next of the decommissioning without the consent of the Executive. The arrangements shall include a requirement for the provision of adequate documentation to justify the safety of the proposed decommissioning and shall where appropriate provide for the submission of this documentation to the Executive. (6) The licensee shall, if so directed by the Executive where it appears to them to be in the interests of safety, commence decommissioning in accordance with the aforesaid arrangements and decommissioning programmes. (7) The licensee shall, if so directed by the Executive, halt the decommissioning of a plant and the licensee shall not recommence such decommissioning without the consent of the Executive. It is important that when a nuclear facility reaches the end of its operational life it is decommissioned in a safe and

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Appendix 2—Nuclear Site Licence Conditions 503 NUCLEAR SITE LICENCE CONDITIONS controlled manner and not left to pose a hazard for current and future generations. The purpose of this Condition is therefore to require the licensee to have adequate arrangements for the safe decommissioning of its facilities. It also gives HSE the power to direct the licensee to commence decommissioning of any plant or facility to prevent it being left in a dangerous condition or to ensure decommissioning takes place in accordance with any national strategy. The Condition also gives HSE the power to halt any decommissioning activity if HSE has concerns about its safety.

36 CONTROL OF ORGANISATIONAL CHANGE (1) The licensee shall make and implement adequate arrangements to control any change to its organisational structure or resources which may affect safety. (2) The licensee shall submit to the Executive for approval such part or parts of the aforesaid arrangements as the Executive may specify. (3) The licensee shall ensure that once approved no alteration or amendment is made to the approved arrangements unless the Executive has approved such alteration or amendment. (4) The aforesaid arrangements shall provide for the classification of changes to the organisational structure or resources according to their safety significance. The

arrangements shall include a requirement for the provision of adequate documentation to justify the safety of any proposed change and shall where appropriate provide for the submission of such documentation to the Executive. (5) The licensee shall if so directed by the Executive halt the change to its organisational structure or resources and the licensee shall not recommence such change without the consent of the Executive. In recent years there has been substantial change in the nuclear industry, both in terms of restructuring of licensees and the adoption of new ways of working such as increased contractorisation. Such changes can, if inadequately conceived or implemented, have a detrimental affect on safety. The purpose of this Condition is therefore to ensure that the licensee has adequate arrangements to control any change to its organisational structure or resources which could affect safety. These arrangements require the licensee to assess the safety implications of proposed changes before they are carried out. For changes that could have a significant effect on safety if they were inadequately conceived or executed the Condition gives HSE the power to require the licensee to submit its safety case to HSE, and to prevent the change from taking place until HSE is satisfied that the safety implications are understood and that there will be no lowering of safety standards. The Condition also gives HSE the power to halt any change that has commenced if it is concerned that the safety implications have not been adequately considered.

HSE Nuclear Directorate Licensing, Leadership and Managing for Safety Unit

Updated May 2009

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APPENDIX 3

Convention on Nuclear Safety Preamble THE CONTRACTING PARTIES i. ii. iii. iv. v. vi.

vii.

viii.

ix.

x.

Aware of the importance to the international community of ensuring that the use of nuclear energy is safe, well regulated and environmentally sound; Reaffirming the necessity of continuing to promote a high level of nuclear safety worldwide; Reaffirming that responsibility for nuclear safety rests with the State having jurisdiction over a nuclear installation; Desiring to promote an effective nuclear safety culture; Aware that accidents at nuclear installations have the potential for transboundary impacts; Keeping in mind the Convention on the Physical Protection of Nuclear Material (1979), the Convention on Early Notification of a Nuclear Accident (1986), and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (1986); Affirming the importance of international co-operation for the enhancement of nuclear safety through existing bilateral and multilateral mechanisms and the establishment of this incentive Convention; Recognizing that this Convention entails a commitment to the application of fundamental safety principles for nuclear installations rather than of detailed safety standards and that there are internationally formulated safety guidelines which are updated from time to time and so can provide guidance on contemporary means of achieving a high level of safety; Affirming the need to begin promptly the development of an international convention on the safety of radioactive waste management as soon as the ongoing process to develop waste management safety fundamentals has resulted in broad international agreement; Recognizing the usefulness of further technical work in connection with the safety of other parts of the nuclear fuel cycle, and that this work may, in time, facilitate the development of current or future international instruments;

HAVE AGREED as follows: CHAPTER 1. OBJECTIVES, DEFINITIONS AND SCOPE OF APPLICATION ARTICLE 1. OBJECTIVES The objectives of this Convention are: i.

to achieve and maintain a high level of nuclear safety worldwide through the enhancement of national measures and international co-operation including, where appropriate, safety-related technical co-operation;

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General Provisions 505 ii.

iii.

to establish and maintain effective defences in nuclear installations against potential radiological hazards in order to protect individuals, society and the environment from harmful effects of ionizing radiation from such installations; to prevent accidents with radiological consequences and to mitigate such consequences should they occur.

ARTICLE 2. DEFINITIONS For the purpose of this Convention: i.

ii.

iii.

“nuclear installation” means for each Contracting Party any land-based civil nuclear power plant under its jurisdiction including such storage, handling and treatment facilities for radioactive materials as are on the same site and are directly related to the operation of the nuclear power plant. Such a plant ceases to be a nuclear installation when all nuclear fuel elements have been removed permanently from the reactor core and have been stored safely in accordance with approved procedures, and a decommissioning programme has been agreed to by the regulatory body. “regulatory body” means for each Contracting Party any body or bodies given the legal authority by that Contracting Party to grant licences and to regulate the siting, design, construction, commissioning, operation or decommissioning of nuclear installations. “licence” means any authorization granted by the regulatory body to the applicant to have the responsibility for the siting, design, construction, commissioning, operation or decommissioning of a nuclear installation.

ARTICLE 3. SCOPE OF APPLICATION This Convention shall apply to the safety of nuclear installations. CHAPTER 2. OBLIGATIONS a. General Provisions ARTICLE 4. IMPLEMENTING MEASURES Each Contracting Party shall take, within the framework of its national law, the legislative, regulatory and administrative measures and other steps necessary for implementing its obligations under this Convention. ARTICLE 5. REPORTING Each Contracting Party shall submit for review, prior to each meeting referred to in Article 20, a report on the measures it has taken to implement each of the obligations of this Convention ARTICLE 6. EXISTING NUCLEAR INSTALLATIONS Each Contracting Party shall take the appropriate steps to ensure that the safety of nuclear installations existing at the time the Convention enters into force for that Contracting Party is reviewed as soon as possible. When necessary in the context of this Convention, the Contracting Party shall ensure that all reasonably practicable improvements are made as a matter of urgency to upgrade the safety of the nuclear installation. If such upgrading cannot be achieved, plans should be implemented to shut down the nuclear installation as soon

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506 Appendix 3—Convention on Nuclear Safety as practically possible. The timing of the shut-down may take into account the whole energy context and possible alternatives as well as the social, environmental and economic impact. b. Legislation and regulation ARTICLE 7. LEGISLATIVE AND REGULATORY FRAMEWORK 1. Each Contracting Party shall establish and maintain a legislative and regulatory framework to govern the safety of nuclear installations. 2. The legislative and regulatory framework shall provide for: i. ii. iii. iv.

the establishment of applicable national safety requirements and regulations; a system of licensing with regard to nuclear installations and the prohibition of the operation of a nuclear installation without a licence: a system of regulatory inspection and assessment of nuclear installations to ascertain compliance with applicable regulations and the terms of licences; the enforcement of applicable regulations and of the terms of licences, including suspension, modification or revocation.

ARTICLE 8. REGULATORY BODY 3. Each Contracting Party shall establish or designate a regulatory body entrusted with the implementation of the legislative and regulatory framework referred to in Article 7, and provided with adequate authority, competence and financial and human resources to fulfil its assigned responsibilities. 4. Each Contracting Party shall take the appropriate steps to ensure an effective separation between the functions of the regulatory body and those of any other body or organization concerned with the promotion or utilization of nuclear energy. ARTICLE 9. RESPONSIBILITY OF THE LICENCE HOLDER Each Contracting Party shall ensure that prime responsibility for the safety of a nuclear installation rests with the holder of the relevant licence and shall take the appropriate steps to ensure that each such licence holder meets its responsibility. c. General Safety Considerations ARTICLE 10. PRIORITY TO SAFETY Each Contracting Party shall take the appropriate steps to ensure that all organizations engaged in activities directly related to nuclear installations shall establish policies that give due priority to nuclear safety. ARTICLE 11. FINANCIAL AND HUMAN RESOURCES 1. Each Contracting Party shall take the appropriate steps to ensure that adequate financial resources are available to support the safety of each nuclear installation throughout its life. 2. Each Contracting Party shall take the appropriate steps to ensure that sufficient numbers of qualified staff with appropriate education, training and retraining are available for all safety-related activities in or for each nuclear installation, throughout its life.

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General Safety Considerations 507 ARTICLE 12. HUMAN FACTORS Each Contracting Party shall take the appropriate steps to ensure that the capabilities and limitations of human performance are taken into account throughout the life of a nuclear installation. ARTICLE 13. QUALITY ASSURANCE Each Contracting Party shall take the appropriate steps to ensure that quality assurance programmes are established and implemented with a view to providing confidence that specified requirements for all activities important to nuclear safety are satisfied throughout the life of a nuclear installation. ARTICLE 14. ASSESSMENT AND VERIFICATION OF SAFETY Each Contracting Party shall take the appropriate steps to ensure that: iii.

iv.

comprehensive and systematic safety assessments are carried out before the construction and commissioning of a nuclear installation and throughout its life. Such assessments shall be well documented, subsequently updated in the light of operating experience and significant new safety information, and reviewed under the authority of the regulatory body; verification by analysis, surveillance, testing and inspection is carried out to ensure that the physical state and the operation of a nuclear installation continue to be in accordance with its design, applicable national safety requirements, and operational limits and conditions.

ARTICLE 15. RADIATION PROTECTION 5. Each Contracting Party shall take the appropriate steps to ensure that in all operational states the radiation exposure to the workers and the public caused by a nuclear installation shall be kept as low as reasonably achievable and that no individual shall be exposed to radiation doses which exceed prescribed national dose limits. ARTICLE 16. EMERGENCY PREPAREDNESS 5. Each Contracting Party shall take the appropriate steps to ensure that there are on-site and off-site emergency plans that are routinely tested for nuclear installations and cover the activities to be carried out in the event of an emergency. For any new nuclear installation, such plans shall be prepared and tested before it commences operation above a low power level agreed by the regulatory body. 6. Each Contracting Party shall take the appropriate steps to ensure that, insofar as they are likely to be affected by a radiological emergency, its own population and the competent authorities of the States in the vicinity of the nuclear installation are provided with appropriate information for emergency planning and response. 7. Contracting Parties which do not have a nuclear installation on their territory, insofar as they are likely to be affected in the event of a radiological emergency at a nuclear installation in the vicinity, shall take the appropriate steps for the preparation and testing of emergency plans for their territory that cover the activities to be carried out in the event of such an emergency.

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508 Appendix 3—Convention on Nuclear Safety d. Safety of Installations ARTICLE 17. SITING Each Contracting Party shall take the appropriate steps to ensure that appropriate procedures are established and implemented: i. ii. iii. iv.

for evaluating all relevant site-related factors likely to affect the safety of a nuclear installation for its projected lifetime; for evaluating the likely safety impact of a proposed nuclear installation on individuals, society and the environment; for re-evaluating as necessary all relevant factors referred to in sub-paragraphs (i) and (ii) so as to ensure the continued safety acceptability of the nuclear installation; for consulting Contracting Parties in the vicinity of a proposed nuclear installation, insofar as they are likely to be affected by that installation and, upon request providing the necessary information to such Contracting Parties, in order to enable them to evaluate and make their own assessment of the likely safety impact on their own territory of the nuclear installation.

ARTICLE 18. DESIGN AND CONSTRUCTION Each Contracting Party shall take the appropriate steps to ensure that: iv.

v. vi.

the design and construction of a nuclear installation provides for several reliable levels and methods of protection (defense in depth) against the release of radioactive materials, with a view to preventing the occurrence of accidents and to mitigating their radiological consequences should they occur; the technologies incorporated in the design and construction of a nuclear installation are proven by experience or qualified by testing or analysis; the design of a nuclear installation allows for reliable, stable and easily manageable operation, with specific consideration of human factors and the man-machine interface.

ARTICLE 19. OPERATION Each Contracting Party shall take the appropriate steps to ensure that: vii. the initial authorization to operate a nuclear installation is based upon an appropriate safety analysis and a commissioning programme demonstrating that the installation, as constructed, is consistent with design and safety requirements; viii. operational limits and conditions derived from the safety analysis, tests and operational experience are defined and revised as necessary for identifying safe boundaries for operation; ix. operation, maintenance, inspection and testing of a nuclear installation are conducted in accordance with approved procedures; x. procedures are established for responding to anticipated operational occurrences and to accidents; xi. necessary engineering and technical support in all safety-related fields is available throughout the lifetime of a nuclear installation; xii. incidents significant to safety are reported in a timely manner by the holder of the relevant licence to the regulatory body;

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Safety of Installations 509 xiii. programmes to collect and analyse operating experience are established, the results obtained and the conclusions drawn are acted upon and that existing mechanisms are used to share important experience with international bodies and with other operating organizations and regulatory bodies; xiv. the generation of radioactive waste resulting from the operation of a nuclear installation is kept to the minimum practicable for the process concerned, both in activity and in volume, and any necessary treatment and storage of spent fuel and waste directly related to the operation and on the same site as that of the nuclear installation take into consideration conditioning and disposal. CHAPTER 3. MEETINGS OF THE CONTRACTING PARTIES ARTICLE 20. REVIEW MEETINGS 1. The Contracting Parties shall hold meetings (hereinafter referred to as “review meetings”) for the purpose of reviewing the reports submitted pursuant to Article 5 in accordance with the procedures adopted under Article 22. 2. Subject to the provisions of Article 24 sub-groups comprised of representatives of Contracting Parties may be established and may function during the review meetings as deemed necessary for the purpose of reviewing specific subjects contained in the reports. 3. Each Contracting Party shall have a reasonable opportunity to discuss the reports submitted by other Contracting Parties and to seek clarification of such reports. ARTICLE 21. TIMETABLE 1. A preparatory meeting of the Contracting Parties shall be held not later than six months after the date of entry into force of this Convention. 2. At this preparatory meeting, the Contracting Parties shall determine the date for the first review meeting. This review meeting shall be held as soon as possible, but not later than thirty months after the date of entry into force of this Convention. 3. At each review meeting, the Contracting Parties shall determine the date for the next such meeting. The interval between review meetings shall not exceed three years. ARTICLE 22. PROCEDURAL ARRANGEMENTS 1. At the preparatory meeting held pursuant to Article 21 the Contracting Parties shall prepare and adopt by consensus Rules of Procedure and Financial Rules. The Contracting Parties shall establish in particular and in accordance with the Rules of Procedure: i. ii. iii. 2.

guidelines regarding the form and structure of the reports to be submitted pursuant to Article 5; a date for the submission of such reports; the process for reviewing such reports. At review meetings the Contracting Parties may, if necessary, review the arrangements established pursuant to sub-paragraphs (i)-(iii) above, and adopt revisions by consensus unless otherwise provided for in the Rules of Procedure. They may also amend the Rules of Procedure and the Financial Rules, by consensus.

ARTICLE 23. EXTRAORDINARY MEETINGS An extraordinary meeting of the Contracting Parties shall be held:

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510 Appendix 3—Convention on Nuclear Safety i. ii.

if so agreed by a majority of the Contracting Parties present and voting at a meeting, abstentions being considered as voting; or at the written request of a Contracting Party, within six months of this request having been communicated to the Contracting Parties and notification having been received by the secretariat referred to in Article 28, that the request has been supported by a majority of the Contracting Parties.

ARTICLE 24. ATTENDANCE 1. Each Contracting Party shall attend meetings of the Contracting Parties and be represented at such meetings by one delegate, and by such alternates, experts and advisers as it deems necessary. 2. The Contracting Parties may invite, by consensus, any intergovernmental organization which is competent in respect of matters governed by this Convention to attend, as an observer, any meeting, or specific sessions thereof. Observers shall be required to accept in writing, and in advance, the provisions of Article 27. ARTICLE 25. SUMMARY REPORTS The Contracting Parties shall adopt, by consensus, and make available to the public a document addressing issues discussed and conclusions reached during a meeting. ARTICLE 26. LANGUAGES 1. The languages of meetings of the Contracting Parties shall be Arabic, Chinese, English, French, Russian and Spanish unless otherwise provided in the Rules of Procedure. 2. Reports submitted pursuant to Article 5 shall be prepared in the national language of the submitting Contracting Party or in a single designated language to be agreed in the Rules of Procedure. Should the report be submitted in a national language other than the designated language, a translation of the report into the designated language shall be provided by the Contracting Party. 3. Notwithstanding the provisions of paragraph 2, if compensated, the secretariat will assume the translation into the designated language of reports submitted in any other language of the meeting. ARTICLE 27. CONFIDENTIALITY 1. The provisions of this Convention shall not affect the rights and obligations of the Contracting Parties under their law to protect information from disclosure. For the purposes of this Article, “information” includes, inter alia, (i) personal data; (ii) information protected by intellectual property rights or by industrial or commercial confidentiality; and (iii) information relating to national security or to the physical protection of nuclear materials or nuclear installations. 2. When, in the context of this Convention, a Contracting Party provides information identified by it as protected as described in paragraph 1, such information shall be used only for the purposes for which it has been provided and its confidentiality shall be respected. 3. The content of the debates during the reviewing of the reports by the Contracting Parties at each meeting shall be confidential.

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Safety of Installations 511 ARTICLE 28. SECRETARIAT 1. The International Atomic Energy Agency, (hereinafter referred to as the “Agency”) shall provide the secretariat for the meetings of the Contracting Parties. 2. The secretariat shall: i. ii.

convene, prepare and service the meetings of the Contracting Parties; transmit to the Contracting Parties information received or prepared in accordance with the provisions of this Convention.

The costs incurred by the Agency in carrying out the functions referred to in subparagraphs i) and (ii) above shall be borne by the Agency as part of its regular budget. 3. The Contracting Parties may, by consensus, request the Agency to provide other services in support of meetings of the Contracting Parties. The Agency may provide such services if they can be undertaken within its programme and regular budget. Should this not be possible, the Agency may provide such services if voluntary funding is provided from another source. CHAPTER 4. FINAL CLAUSES AND OTHER PROVISIONS ARTICLE 29. RESOLUTION OF DISAGREEMENTS In the event of a disagreement between two or more Contracting Parties concerning the interpretation or application of this Convention, the Contracting Parties shall consult within the framework of a meeting of the Contracting Parties with a view to resolving the disagreement. ARTICLE 30. SIGNATURE, RATIFICATION, ACCEPTANCE, APPROVAL, ACCESSION 1. This Convention shall be open for signature by all States at the Headquarters of the Agency in Vienna from 20 September 1994 until its entry into force. 2. This Convention is subject to ratification, acceptance or approval by the signatory States. 3. After its entry into force, this Convention shall be open for accession by all States. 4. This Convention shall be open for signature or accession by regional organizations of an integration or other nature, provided that any such organization is constituted by sovereign States and has competence in respect of the negotiation, conclusion and application of international agreements in matters covered by this Convention. i.

ii.

iii.

In matters within their competence, such organizations shall, on their own behalf, exercise the rights and fulfil the responsibilities which this Convention attributes to States Parties When becoming party to this Convention, such an organization shall communicate to the Depositary referred to in Article 34, a declaration indicating which States are members thereof, which articles of this Convention apply to it, and the extent of its competence in the field covered by those articles. Such an organization shall not hold any vote additional to those of its Member States.

5. Instruments of ratification, acceptance, approval or accession shall be deposited with the Depositary.

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512 Appendix 3—Convention on Nuclear Safety ARTICLE 31. ENTRY INTO FORCE 1. This Convention shall enter into force on the ninetieth day after the date of deposit with the Depositary of the twenty-second instrument of ratification, acceptance or approval, including the instruments of seventeen States, each having at least one nuclear installation which has achieved criticality in a reactor core. 2. For each State or regional organization of an integration of other nature which ratifies, accepts, approves or accedes to this Convention after the date of deposit of the last instrument required to satisfy the conditions set forth in paragraph 1, this Convention shall enter into force on the ninetieth day after the date of deposit with the Depositary of the appropriate instrument by such a State or organization. ARTICLE 32. AMENDMENTS TO THE CONVENTION 1. Any Contracting party may propose an amendment to this Convention. Proposed amendments shall be considered at a review meeting or an extraordinary meeting. 2. The text of any proposed amendment and the reasons for it shall be provided to the Depositary who shall communicate the proposal to the Contracting Parties promptly and at least ninety days before the meeting for which it is submitted for consideration. Any comments received on such a proposal shall be circulated by the Depositary to the Contracting Parties. 3. The Contracting Parties shall decide after consideration of the proposed amendment whether to adopt it by consensus, or, in the absence of consensus, to submit it to a Diplomatic Conference. A decision to submit a proposed amendment to a Diplomatic Conference shall require a two-thirds majority vote of the Contracting parties present and voting at the meeting, provided that at least one half of the Contracting Parties are present at the time of voting. Abstentions shall be considered as voting. 4. The Diplomatic Conference to consider and adopt amendments to this Convention shall be convened by the Depositary and held no later than one year after the appropriate decision taken in accordance with paragraph 3 of this Article. The Diplomatic Conference shall make every effort to ensure amendments are adopted by consensus. Should this not be possible, amendments shall be adopted with a two-thirds majority of all Contracting Parties. 5. Amendments to this Convention adopted pursuant to paragraphs 3 and 4 above shall be subject to ratification, acceptance, approval, or confirmation by the Contracting Parties and shall enter into force for those Contracting Parties which have ratified, accepted, approved or confirmed them on the ninetieth day after the receipt by the Depositary of the relevant instruments by at least three fourths of the Contracting Parties. For a Contracting Party which subsequently ratifies, accepts, approves or confirms the said amendments, the amendments will enter into force on the ninetieth day after that Contracting Party has deposited its relevant instrument. ARTICLE 33. DENUNCIATION 1. Any Contracting Party may denounce this Convention by written notification to the Depositary. 2. Denunciation shall take effect one year following the date of the receipt of the notification by the Depositary, or on such later date as may be specified in the notification.

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Safety of Installations 513 ARTICLE 34. DEPOSITARY 1. The Director General of the Agency shall be the Depositary of this Convention. 2. The Depositary shall inform the Contracting Parties of: i. ii. iii. iv.

the signature of this Convention and of the deposit of instruments of ratification, acceptance, approval or accession, in accordance with Article 30; the date on which the Convention enters into force, in accordance with Article 31; the notifications of denunciation of the Convention and the date thereof, made in accordance with Article 33; the proposed amendments to this Convention submitted by Contracting Parties, the amendments adopted by the relevant Diplomatic Conference or by the meeting of the Contracting Parties, and the date of entry into force of the said amendments, in accordance with Article 32.

ARTICLE 35. AUTHENTIC TEXTS The original of this Convention of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Depositary, who shall send certified copies thereof to the Contracting Parties.

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APPENDIX 4

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Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy 515

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516 Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy

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Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy 517

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518 Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy

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Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy 519

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520 Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy

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Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy 521

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522 Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy

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Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy 523

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524 Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy

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Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy 525

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526 Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy

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Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy 527

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528 Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy

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Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy 529

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530 Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy

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Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy 531

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532 Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy

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Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy 533

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534 Appendix 4—Convention on Third Party Liability in the Field of Nuclear Energy

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INDEX

ABM Treaty see under missile systems access to information 313–14, 440 accidents 31–6 reports/notification 253 Acheson-Lilienthal Report 39–41 advanced gas-cooled reactor (AGR) design/stations 12, 13, 15, 18, 20, 27, 112, 122, 130 retention issues 130–1 Africa, test-ban treaty 260 aggregate claims see claims in the aggregate air carriage/transport 325, 333–4 aircraft, liability see under liability ALARA (as low as reasonably achievable) principle 446, 447–8 ALARP (as low as reasonably possible) principle 110–11, 112, 448 Aldermaston establishment 9, 24–5 Annan, Kofi 259 Antarctic Treaty 259 Anti-Ballistic Missile (ABM) Treaty see under missile systems appeals 311–12, 436 AREVA European Pressurised Reactor 157 armed conflict 210–11 arms see also weapons limitation treaties 261–4 atomic bombs 7–8, 9 see also weapons Atomic Energy Authority see UK Atomic Energy Authority Atomic Energy of Canada Ltd 8 Atomic Energy Research Establishment 9 Atomic Weapons Establishment (AWE) 24–6, 249–50, 287 ‘Atoms for Peace’ speech 39, 166, 258, 266 see also peaceful/non-peaceful uses Australia, as uranium exporter 267 Austria, liability limits 185–6 authorisations see under Radioactive Substances Act 1993 Barnes, Michael 97–8, 129 Baruch Plan 41 Basic Safety Standards (Euratom) (BSS) background 239–40 implementation in UK 244 see also Ionising Radiations Regulations 1999 justification, cases 246–50 main features 238–43 monitoring requirement 253 proposed revision 243

BAT (best available technique), definition 448 becquerel (Bq) 3 Becquerel, Henri 4–5, 6 Belgium, disposal facility 373–4 Bergkranhheit 6 Bevan, Aneurin 293 BNFL see British Nuclear Fuels Ltd BNG America 23 Bohr, Niels 5 bombs see nuclear bombs Born, Max 5 British Energy 14, 19–20, 21, 28, 132 British Nuclear Associates 13 British Nuclear Design and Construction (BNDC) 12, 13 British Nuclear Fuels Ltd (BNFL) 12–13, 14–17, 19, 117–18, 119, 332 break-up 23–4 decommissioning 346–7 disposal facilities 379 reprocessing 392 British Nuclear Group (BNG) 17 Brussels Supplementary Convention 1963 176–8 compensation amount see compensation, amount mutual assistance 177–8 peaceful/non-peaceful uses 182 Protocol (2004) 178 Burghfield establishment 24, 25 Bush, President GW 47 Business, Enterprise and Regulatory Reform, Department for 126, 284 Calder Hall facilities 9, 11, 14–15 Campbell, Gordon 24 Canada disposal facility 374 mandatory cover 186 nuclear role 8 Capenhurst plant 9, 10, 12, 14–15, 24 enrichment processes 83–4 carbon dioxide emissions 27–8 Cardiff establishment 24–5 carriage see transport CCGT (combined cycle gas turbine) stations 26–7, 131 Central Electricity Generating Board (CEGB) 128–9, 129 Chadwick, James 5, 6 Chalk River nuclear research reactor 8 Chapelcross facility 11, 14–15 decommissioning 346

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536 Index Chernobyl accident 1, 34–6, 124, 167, 188, 220, 253–4, 256–7, 383 children, unborn 194–6 China nuclear policy 30 weapons testing 259, 260 Churchill, Winston 9, 41 Civil Aviation Authority (CAA) 333–4 claims in the aggregate background 221 carriage damage to means of transport 224–5 nuclear matter 225 compensation levels 226 cover from public funds 222–3 information 221–2 nuclear matter 225 occurrence-based/period-based, gap 223–4 subrogation prevention 222 climate change 135 coastal flooding/change processes 151–2 global warming 130 Clinton, President 281 coal fired stations 130, 132 coastal flooding/change processes 151–2 Committee on Medical Aspects of Radiation in the Environment (COMARE) 388 Committee on Radioactive Waste Management (CoRWM) 387–8 see also geological disposal compensation amount 172, 174, 176–7 global regime precursor 181 liability see under liability personal injury scheme see under personal injury right 207 exclusion/extension/reduction 208, 209–17 tiers 180–1 Compensation Scheme for Radiation-Linked Diseases 197–8 conditioning waste 453 consequential loss 201–2 consumer products, radioactivity in 291 contamination land see radioactively contaminated land material 417–18 Convention on the Liability of operators of Nuclear Ships 1962 182–3 Convention on the Physical Protection of Nuclear Material 282–3 Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material 183 Convention on Supplementary Compensation 180–1 compensation tiers 180–1 as global regime precursor 181 Convention for the Suppression of Acts of Nuclear Terrorism 283 corporate manslaughter 114–15 CoRWM see Committee on Radioactive Waste Management Crown

nuclear site duties 204 Radioactive Substances Act’s application to 442 Cuban missile crisis 259 see also missile systems Culham research facilities 22–3 Curie, Marie and Pierre 5, 6 Czech Republic mandatory cover 186 nuclear policy 30, 51 Daily Mirror 15 damage see nuclear damage dangerous occurrences 123–4 decommissioning approaches 342–3 background 341 Convention obligations 343 DRAWMOPS 22 environmental impact assessment 353–4 EU approach 343–6 examples 341–2 existing facilities 346–7 funding, draft guidance 359–60 iconic buildings xxi international cooperation 342 NDA see Nuclear Decommissioning Authority new build 357–60 nuclear liabilities 355–7 nuclear site licences 121, 352–3 period of responsibility 357 privatisation costs 18–20 waste see radioactive waste deep disposal see under disposal facilities defence see weapons DEFRA see Department for the Environment, Food and Rural Affairs Department for Business, Enterprise and Regulatory Reform (DBERR) 126, 284 Department of Energy and Climate Change 284 Department for the Environment, Food and Rural Affairs (DEFRA) exemptions 424 justification guidance 251–3 deuterium 5–6, 8 devolution issues 162–3 discharges see radioactive discharges disposal facilities 17, 373–4 see also radioactive waste; reprocessing/fuel services action plans 410–12 conditioning waste 453 deep disposal 373n, 374 criteria 374 geological disposal see geological disposal Nirex planning application see under Nirex sub-seabed see under seabed EC law 409–12 action plans 410–12 Euratom requirements 409–10 geological disposal see geological disposal international law 375–6, 399–409 IAEA role see under International Atomic Energy Agency

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Page 537

Index 537 London Convention 402–3 OSPAR/Sintra Statement 403–4, 406–7, 444 management policy 386–7 NDA assessments/decisions xxii NDA decisions xxii sea/ocean dumping see under seabed solid waste, guidance 450–3 sustainable development principles 383–4 in UK 379–84 current policy 386–7 legislation see Radioactive Substances Act 1993 Dounray Fast Reactor/site xxi, 12, 320 incident 124 waste at 389, 390 DRAWMOPS (decommissioning and radioactive waste management operations work) 22 Drigg repository 347, 350, 356, 378, 382, 389–90, 399, 421, 423, 451 Duke Power 19 Dungeness B power station 112 EARP (Enhanced Actinide Removal Plant) 16 EBRD (European Bank for Reconstruction and Development) 35–6 EIA see environmental impact assessment Eisenhower, President 26, 39, 41–2, 166, 258, 266 ElBaradei, Mohamed 281, 375–6 Electricité de France (EDF) 20, 21, 28 Electricity Act consents, nuclear site licences and 101 emergency procedures food protection measures 256–7 nuclear site licences, procedures 122 preparedness 253–6 radioactively contaminated land 361 Energy and Climate Change, Department for 284 Enhanced Actinide Removal Plant (EARP) 16 enrichment processes 83–4 Environment Agency 113, 287–8, 290, 294–6, 300 see also Scottish Environment Protection Agency new power stations, authorisation 454 radioactive discharges, guidance 446–50 radiological substances regulation 300–1 solid waste disposal, guidance 453 Environment, Food and Rural Affairs, Department for see Department for the Environment, Food and Rural Affairs environment, marine see seabed environmental impact assessment (EIA) 157–8, 430–2 see also strategic environmental assessment decommissioning 353–4 waste issues 158–62 Environmental Liability Directive 186–7 environmental permitting system xxi–xxii, 315–17, 372 environmental pollution 2, 13, 17, 379–80 E.ON/RWE joint venture 28 EPR (European Pressurised Reactor) xxii, 29 Euratom (European Atomic Energy Community) background 49–50 disposal requirements 409–10

EU development and 50–1 European constitution and 69–70 external relations 68 health and safety 55–6 information dissemination 54–5 internal market rules 74 investment powers 59–61 joint undertakings 62 liability developments 184 loans 61 military uses of nuclear energy and 69 nuclear common market 67–8 nuclear safety Directive 72–4 harmonisation 70–2 radiological protection and 56–9 ownership 66–7 radiological protection nuclear protection and 56–9 role 238–9 research promotion 53–4 role 51 safeguards 66, 272–5 Supply Agency 275 supply issues 62–6 tasks 52 treaty 51–3 European Bank for Reconstruction and Development (EBRD) 35–6 European Pressurised Reactor (EPR) xxii, 29 export controls 280 extra-territorial damage 210 fast breeder reactors 12, 29–30 Fermi, Enrico 6–7 Financial Times 19 Finland, liability 186 fissile materials 111, 189 see also nuclear matter; orphan sources Cut-off Treaty 281 special 66, 67, 272n, 274 Fletcher, Sir Eric 194–5 Flowers Report 13, 17, 379–80 Flowers, Sir Brian 1 food protection measures 256–7 foreign operators’ duties 204–5 Forum on Stakeholder Confidence (FSC) 46 fossil-fuels non-fossil obligation 18 power stations 12 Foulness establishment 24 France disposal facility 374 liability limits 185 as nuclear power 29–30 weapons testing 260 Friends of the Earth 15, 96–7, 248, 320, 385 Frisch, Otto 258 fuel fossil see fossil-fuels spent see spent fuel fuel services see reprocessing/fuel services

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Page 538

538 Index G8 Global Initiative to Combat Nuclear Terrorism 282 Gardner, Professor Martin 196–7 Generation IV International Forum (GIF) 48 generic design assessment (GDA) xviii–xix, 102–5 geological disposal conditioning waste 453 consultation paper 396–9 recommendations 393–6 Germany discovery of nuclear fission 258 disposal facility 373 nuclear policy 30 Global Nuclear Energy Partnership (GNEP) 47–8 global warming see under climate change Goiânia incident 290–1 Gorbachev, Mikhail 258, 261 gray (Gy) 3, 232 Greenpeace xxii, 15, 246, 248, 319–20, 385, 405–6 consultation challenge 134–5 Gummer, John 385 Gy (gray) 3 habitats assessment 156–7 Hahn, Otto 5, 258 Halban, Hans 5 Halcrow study 151 Hartlepool site 112, 122 Harwell research establishment 9, 11, 22 HASS (High-activity Sealed Sources), Directive 304–7 Hawkins, Sir Arthur 12 health and safety general duties 91–2 Nuclear Safety Advisory Committee (NuSAC) 90 nuclear site licences 116–17 periodic safety reviews (PSRs) 111–12 safety assessment principles (SAPs) 95–6 Health and Safety Commission (HSC) 87, 90 Health and Safety Executive (HSE), Nuclear Directorate (ND) 87–90 future plant 102–5 generic design assessment (GDA) 102–5 liaison role 91 licences see nuclear site licences risk issues see risk site licences see nuclear site licences heat-generating waste see high-level waste heavy water 5–6, 8 Heseltine, Michael 131 Heysham B AGR 13, 122 site 122, 123 High-activity Sealed Sources (HASS), Directive 304–7 high-level waste (HLW) 372–3, 377, 389, 392 Hinkley Point B reactor 19–20, 112 C reactor 13–14 decommissioning 346 inquiry 97–8, 129 Hiroshima 2, 7, 258, 264 hostile action 210–11

House of Commons Environment Select Committee, report on radioactive waste 382 House of Lords Select Committee on Science and Technology, report on nuclear waste 386 Hunterston B reactor 19–20, 112 Hunting-BRAE 25 Hutton, John 127 hydrogen bombs 9 see also weapons IAEA see International Atomic Energy Agency import controls 280 Independent 16 India 267, 268 INES (International Nuclear Event Scale) 16, 124 information, access to 313–14, 440 Infrastructure Planning Commission (IPC) xx, 140–1 see also national policy statements (NPS) applications to 141–2 challenges to decisions 144–5 decision criteria 145–6 examination role 142–3 habitats assessment 156–7 human rights issues 143–4 public participation 154–5 siting see siting, strategic suitability injury to persons see personal injury inland waterways transport 326 inquiries see public inquiries insurance categories of risk/installations 219 claims see claims in the aggregate non-insurability xx nuclear site licences 105 pool 217–18 provision by other means 220–1 terms 218–20 integrated toxic potential (ITP) 392 inter-generational equity issues 374–5 Interconnexion France Angleterre 27 Interim Agreement on Offensive Arms see SALT I and II intermediate-level waste (ILW) 377, 389, 392–3 Intermediate-Range Nuclear Forces (INF) Agreement 261 International Atomic Energy Agency (IAEA) decommissioning Convention 343 disposal role 399–400 International Action Plan 401–2 joint convention 374–5, 400–1 formation 39–43 inspection powers 45 licensing Convention 76–9 radiological protection standards 236–7 roles 44, 47 safeguards 271–2 in UK 276–8 safety standards 44–5 security 281–2, 283 guidance 284 Vienna Convention and 167 waste movement 393

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Page 539

Index 539 International Commission on Radiological Protection (ICRP) 3–4, 37–8, 233–5 publications 234–5 international control regimes 37 International Expert Group on Nuclear Liability (INLEX) 167–8 International Nuclear Event Scale (INES) 16, 124 International Nuclear Services Ltd (INS) 24 International Transboundary Movement of Radioactive Waste, Code of Practice (IAEA) 393 ionising radiations 2, 192–3, 232 Ionising Radiations Regulations 1999 110–11, 244–5 justification of practices 250–3 Guidance (DEFRA) 251–3 IPC see Infrastructure Planning Commission Iran, nuclear weapons xx–xxi, 269–70 Iraq, nuclear weapons 269 Israel 259 Italy, nuclear policy 30 ITER programme 54 Japan liability limits 185–6 nuclear policy 30 PPI data 197 Joliot-Curie, Frédérick 5 Joseph, Sir Keith 294 justification of practices see under Ionising Radiations Regulations 1999 Kashiwazaki-Kariwa power station 30 Khan, Abdul Qadeer 269, 281 Konrad facility 373 Kowarski, Lew 5 Kyshtyn incident 33 land see radioactively contaminated land Latin America, test-ban treaty 260 Lawson, Nigel 129 Layfield, Sir Frank 97, 128 Lean, Geoffrey 16 liability see also Nuclear Installations Act 1965 aircraft lien/rights in rem protection 212 UK-registered 210 armed conflict/hostile action 210–11 carriage to foreign operator’s site 210 channelling of 170–2, 193 claims see claims in the aggregate compensation limits 172, 174, 176–7, 213–14 right see Nuclear Installations Act 1965 compulsory cover for 173 consequential loss 201–2 contributory malicious/reckless behaviour 211–12 duties see under Nuclear Installations Act 1965 environmental, Directive 186–7 Euratom developments 184 extra-territorial damage 210 financial limits 172, 174, 176–7, 213–14

foreign judgments 215–16 foreign operators, financial liability 214 geographical extension 174–5, 178 Government, claims to 214–15 indemnity confirmation, Russian Federation 183–4 injury to persons 193–4 insurance see insurance international conventions 166–8 see also specific conventions: e.g. Paris Convention 1960 ionising radiations 192–3 issues 164 international 184–6 joint/several 216 jurisdiction issues 173, 215–16 legislation individual countries 164, 185–6 UK 164–6 see also Nuclear Installations Act 1965 licensee issues see under nuclear site licences malicious/reckless behaviour 211–12 mutual assistance 177–8 natural disaster 210–11 nuclear damage 35–6 peaceful/non-peaceful uses 180, 182 personal injury see personal injury property damage 198–201 radiation 192–3 see also personal injury sea carriage see maritime claims shipowners see shipowners ships see ships supplementary compensation see Convention on Supplementary Compensation third party, licensee’s property and 202–3 time limitation 212–13 unborn children 194–6 Libya, nuclear weapons 269 licensing background 75–6 future plant 102–5 health and safety see health and safety international law 76–9 ministerial responsibility 84–5 nuclear installations 80–1 prescribed 81–2 without licence 83 nuclear reactors 79–80 offence, installation without licence 83 procedures and construction consent 101–2 in Scotland 85–6 section 2 permit 83–4 site licences see nuclear site licences third party, duties/liability 202–3 UKAEA position 83 Limited Test Ban Treaty 259–60 Litvinenko, Alexander 424–5 local authority functions 434–5 local impact reports 145 local inquiries see under public inquiries low-level waste (LLW) 378, 389–90, 392–3

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Page 540

540 Index Magnox design/reactors 11–12, 13n, 14, 15, 19, 21, 24, 112, 129, 130 Magnox Electric 21, 438–9 Magnox Reactor Site Management 23 malicious/reckless behaviour 211–12 Manhattan Project 7–8 marine environment see seabed maritime claims see also sea carriage/transport; shipowners; ships civil liability Convention 183 limitation 208–9 Market Standards Research Board (MRSB) 135 Marshall, Walter (Lord) 129 Meacher, Michael 132 Miller, Dr CE 447 millisievert (mSv) 3, 232 Ministry of Defence (MOD), nuclear sites 100 missile systems see also Cuban missile crisis ABM Treaty 261 submarine-based 263–4 mobile radioactive apparatus 297 prohibition of use 307 registration 307–8 exemptions 308 as radioactive material 308 moon, test-ban treaty 260 MOX (mixed oxide) plant/fuel xxii, 15, 16, 17, 248–9, 320 case 407–9 mSv (millisievert) 3 Multinational Design Evaluation Programme (MDEP) 46 Nagasaki 2, 7, 258, 264 National Audit Office (NDA) 351 National Counter Terrorism Security Office 287 National Nuclear Company (NNC) 13 National Nuclear Laboratory (NNL) 29 national policy statements (NPS) xx, 138–40 see also Infrastructure Planning Commission (IPC) process 147–8 public participation 154–5 siting see siting, strategic suitability National Research Council of Canada 8 Natura 2000 156 natural disaster 210–11 new build consultation challenge 133–5 conclusions 136–7 decommissioning 357–60 devolution issues 162–3 IPC see Infrastructure Planning Commission issues 127 local impact reports 145 new developments xix–xx, 127–8 planning see also Planning Act 2008 progress 147–8 policy evolution 129–32 siting see siting

Nirex (Nuclear Industry Radioactive Waste Executive) 380–2 planning application 384–6, 387, 389, 392 non-proliferation see proliferation/ non-proliferation NORM (naturally-occurring radioactive materials) 231, 243 Norsk Hydro 6 North Korea, nuclear weapons 267, 269–70 Northern Ireland 163 notices 435–6 nuclear bombs 2, 7–8, 9 see also weapons nuclear damage contaminated land 367–70 Convention 175–6, 179–80 extra-territorial 210 liability 35–6 property 198–201 Nuclear Decommissioning Authority (NDA) xxi, 21, 24, 28, 348–60 see also decommissioning competition processes 349–50 contracting structure 350 current information 349 disposal decisions see under disposal facilities financial responsibility 349 functions 348–50 independent scrutiny 351–2 nuclear site licences 121, 352–3 Nuclear Development Forum (NDF) 127 Nuclear Directorate (ND) see Health and Safety Executive, Nuclear Directorate Nuclear Electric plc 13–14, 18, 19, 117–18, 124–5, 130, 438 Nuclear Energy Agency (NEA) 46, 167, 237 nuclear fission, discovery 258 nuclear incidents 123–4, 170–2 Nuclear Industry Radioactive Waste Executive see Nirex Nuclear Installations Act 1965 see also liability background 188–9 carriers’ duties 206 compensation right 207 exclusion/extension/reduction 208, 209–17 outside section 12 207 consequential loss 201–2 Crown’s duties 204 extension to British territories 227 foreign operators’ duties 204–5 ionising radiations 192–3 licensee issues see under nuclear site licences nuclear matter see nuclear matter occurrences in course of carriage 190–2 on licensed site 190 payments outside Act 211 property damage 198–201 provision by other means 220–1 third party, licensee’s property and 202–3 UKAEA’s duty 203–4

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Page 541

Index 541 Nuclear Installations Inspectorate 16, 89, 95, 101, 119–20 Nuclear Liabilities Fund 21 Nuclear Management Partners ltd 24 nuclear matter see also fissile materials; orphan sources definitions 111, 189–90 export/import controls 280 movement to/from UK 205–6 nuclear power see also power stations accidents 31–6 anxieties 1–2 destructive use 2 early developments 11–13 future policies 26–31 internal market (EU) rules 74 investment decisions 13–14 military uses of 69 national policies 29–31 non-interventionist policies 26–7 peaceful/non-peaceful uses 180, 182 ‘Atoms for Peace’ speech 39, 166, 258, 266 post-war development 11–13 privatisation, see also privatisation renaissance 27–9 new power stations, authorisation 454 proposed sites 28 reprocessing/fuel services 14–17, 334 waste see radioactive waste Nuclear Power Company (NPC) 13 Nuclear Power Group, The (TPNG) 12, 13 nuclear reactor first 6–7 licensing of 79–80 nuclear reprocessing/fuel services see reprocessing/fuel services Nuclear Risk Insurers Ltd (NRI) 218–20 Nuclear Safety Advisory Committee (NuSAC) 90, 388 Nuclear Security Plan/Fund 282 nuclear shipowners see shipowners nuclear ships see ships nuclear site licences 92–3 see also siting appeal against decisions 113 applications for 99 approvals 119 authorisation procedures 427–8 conditions see also contraventions below posting of 114 standard 106–9 variation/revocation 112–13 consents 119 consultation 99–100 contraventions 114 prosecution examples 117–18 statutory enforcement powers 118–19 corporate manslaughter 114–15 dangerous occurrences 123–4 decommissioning 121, 352–3

defence-related 100 directions 119–20 disposal of waste 422 Electricity Act consents/planning permission and 101 emergency procedures 122 enforcement powers 118–19 form of 105–6 handling/treatment/disposal conditions 111 health and safety 116–17 insurance 105 licensee cover for liability 216–17 duty 189 property 202–3, 209 provision by other means 220–1 requirements 93–4 list of sites, obligation 122 as non-prescriptive system 95 offences corporate manslaughter 114–15 directors/managers defined 115 health and safety 116–17 institutions of proceedings 115–16 penalties 116 periodic safety reviews (PSRs) 111–12 powers from licences 119–20 statutory 118–19 privatisation issues 124–6 radiation exposure limits 110–11 radioactive discharges, authorisation 113–14 radioactively contaminated land 370–1 radiographic material, registration, exemption 302 revocation/surrender 120 responsibility following 120–1 risk issues see risk security requirements 126 statutory enforcement powers 118–19 trade union representations 113 two or more installations 190 waste disposal 422 Nuclear Statutory Corporation (NSC) xix Nuclear Suppliers Group (NSG) 267, 268 nuclear terrorism 2–3, 259 nuclear tests see tests Nuclear Trust, The 21 nuclear weapons see weapons Nunn-Lugar Cooperative Threat Reduction Program 282 Obama, President 262–3 ocean dumping see under seabed Office of Civil Nuclear Security (OCNS) 284–5 Office of Nuclear Development (OND) 127 oil price crisis 12 orphan sources, disposal 304–7, 312, 437 OSPAR (Convention for Protection of the Marine Environment for the North East Atlantic) 403–4, 406–7, 444

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Page 542

542 Index outer space, test-ban treaty 260 oxide fuel see MOX packaging safety design 318–19 Pakistan, nuclear proliferation 268–9 parent body organisations (PBOs) 350 Paris Convention 1960 background 167 channelling of liability 170–2 compensation amount see compensation, amount compulsory cover 173 geographical extension 174–5 jurisdiction issues 173 nuclear damage see nuclear damage peaceful/non-peaceful uses 182 Protocol (2004) 174–6 time limitation 172–3 Parker, Sir Roger 15 Parkinson, Cecil 129 paternal pre-conception irradiation (PPI) 196 peaceful/non-peaceful uses 180, 182 personal injury definitions 193–4 industry compensation scheme 197–8 parental exposure to radiation 196–7 scheme 197–8 test veteran’s litigation 227–30 unborn children 194–6 Pickering A1 8 Pieirls, Rudolf 258 Pitt, Sir Michael 141, 151 Planning Act 2008 background 137–8 IPC see Infrastructure Planning Commission national policy statements (NPS) 138–40 summary 138 planning consents, nuclear site licences and 101 Planning (magazine) xx plutonium highly enriched (HEU) 263, 265 as radioactive waste 390–1 transport 319 Polaris missiles see missile systems, submarine-based pollution see environmental pollution postal transport 327 power stations see also nuclear power fossil-fuels see fossil-fuels new, authorisation 454 Praesidium proposal (Euratom) 70 pressurized water reactor (PWR) stations xxii, 13–14, 18, 19, 20, 33, 101, 112 inquiry 128–9 new build 130 Price-Anderson liability 181, 187–8 privatisation AEA 22 decommissioning costs 18–20 nuclear liabilities 20–1 nuclear site licences 124–6 proliferation/non-proliferation 259, 264, 265–70 arms limitation treaties 261–4

Non-Proliferation of Nuclear Weapons Treaty 266–70 IAEA safeguards 271–2 Proliferation Security Initiative 270 Russian Federation 267 property damage 198–201 protection see radiological protection public consultation/participation 154–5, 428–9 public inquiries Hinkley Point 97–8, 129 local 429–30 Sizewell B 101–2, 128–9 Public Value Programme xxi Putin, President 424 PWR see pressurized water reactor (PWR) stations radiation adverse effects 2, 290–1 beneficial 233 exposure limits 110–11 ionising 2, 192–3, 232 see also Ionising Radiations Regulations 1999 measurement 3–4, 232–3 natural exposure 231–2 parental exposure to 196–7 practices/interventions, distinction 235 reasonable limits concept 110–11 UNSCEAR effects programme 38–9 uses 290–1 Radiation Protection News 245 radioactive discharges ALARA principle 446, 447–8 authorisation 113–14 best available techniques 446–7 Environment Agency, guidance 446–50 new power stations, authorisation 454 UK strategy 443–6 radioactive material, definition 418–20 radioactive substances see also radiographic material, registration categories 289 in consumer products 291 enforcing authority 294–6 high-activity sealed sources (HASS) 304–7 legislation 292–4, 440–2 prohibition on use 297–9 rail transport 332–3 transboundary waste movements 338–9 uses 290–1 Radioactive Substances Act 1993 413–43 access to information 313–14, 440 accumulation authorisation requirement 423 disposal, distinction 420–1 appeals 436 authorisation accumulation 423 disposal 421–2 effect 434 non-nuclear sites 426–7 notices/records 435 nuclear sites 427–8

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Page 543

Index 543 offences 438–9 procedures 426–8 public consultation 428–9 public (local) inquiries 429–30 reviews 433 revocation 432 variation 432–3 background 413 contaminated material 417–18 Crown, application to 442 direction powers 436 disposal accumulation, distinction 420–1 agency powers 437 authorisation requirement 421–2 from nuclear sites 422 orphan sources 304–7, 312, 437 effect on other rights and duties 442–3 enforcement notices 435–6 entry rights 437 environmental assessment 430–2 see also environmental impact assessment exemptions 424–5 review of 425–6 Guidance (RASAG) 300 inspection rights 437 local authority functions 434–5 notices 435–6 offences 438–9 orphan sources, disposal 304–7, 312, 437 other legislation and 440–2 prohibition notices 435–6 public access to information 313–14, 440 public consultation 428–9 public (local) inquiries 429–30 radioactive material 418–20 records 435 secretary of state’s powers of direction 436 on waste 437 special precautions 434–5 territorial jurisdiction 443 waste agency powers 437 contaminated material 417–18 definition 414–15 end of waste issues 415–17 radioactive material 418–20 secretary of state’s powers 437 radioactive waste classification/categories 376–8, 389–90 conditioning 453 CoRWM see Committee on Radioactive Waste Management discharges see radioactive discharges disposal see disposal facilities EIA issues 158–62 environmental permitting system xxi–xxii, 315–17, 372 imports/exports see transboundary waste movements inter-generational equity issues 374–5

inventory (UK) 378 management see disposal facilities new power stations, authorisation 454 partitioning/transmutation 392 specific fuels see plutonium, uranium substitution 392–3 UK law 440–2 see also Radioactive Substances Act 1993 Radioactive Waste Management Advisory Committee (RWMAC) 380–1, 392, 448 Radioactive Waste management Policy Group (RWPG) 386 radioactively contaminated land appropriate person for responsibility 367–70 background 360–1 definition of harm 362–5 determination guidance 365–6 emergency situations 361 enforcing authority’s duties 367 inspection duty 365 legislation 360–1 nuclear damage responsibility 367–70 nuclear site licences 370–1 remediation notices 366–7 special sites 366 radioactivity anxieties 1–3 historical discovery 4–6 positive uses 3 radiographic material, registration access to information 313–14, 440 appeals 311–12 background 299 cancellation/variation 309 certificate display/records retention 309–10 charges 311 conditions 299–301 breaches of 301–2 Crown application 314–15 definition of material 296–7 enforcement notices 310 entry/inspection powers 313 environmental permitting system 315–17, 372 exemption for nuclear sites 302 specific 302–4 mobile apparatus see mobile radioactive apparatus, registration prohibition notices 310–11 secretary of state’s powers 312–13 radiological protection see also health and safety BSS see Basic Safety Standards (Euratom) components 233 emergencies see emergency procedures Euratom see Euratom, radiological protection IAEA standards see under International Atomic Energy Agency (IAEA) ICRP see International Commission on Radiological Protection NORM 231, 243

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Page 544

544 Index radiological protection (cont.): Nuclear Energy Agency 46, 167, 237 radiographic material see radiographic material, registration standards bodies 233–4 rail transport international regulations 326 radioactive material 332–3 Reagan, President 261 reckless behaviour 211–12 Redfern, Michael 17 rem (Roentgen equivalent man) 3–4 reprocessing/fuel services 14–17 see also disposal facilities BNFL 392 Russian Federation 334 THORP 15–16, 24, 246–8, 429, 430, 432 Ridley, Nicholas 194 risk acceptable 96–7 assessment 92 tolerability tests 97–8 road transport EU regulations 325–6 offences in UK 330–1 Rocky Flats facility 8 Roentgen equivalent man (rem) 3–4 Roentgen Ray Society (US) 234 Rokkasho-Mura 334 Röntgen, Wilhelm 4 Rossi, Sir Hugh 382 Royal Commission on Environmental Pollution 2, 13, 17, 379–80 Russian Federation arms limitation 261, 263 disposal facility 376 Litvenenko affair 424 Multilateral Nuclear Environmental Programme (MNEPR) 183–4 non-proliferation 267 nuclear policy 30 reprocessing services 334 Rutherford, Ernest (Lord) 4, 5, 6 safe integral reactor (SIR) 130 safeguards see also security background 258–9 Euratom 66, 272–5 in UK 278–80 export/import controls 280 IAEA 271–2 in UK 276–8 in UK 276 voluntary offer agreements 268 safety see also health and safety assessment principles (SAPs) 95–6 Convention 162 Salmond, Alex 163 SALT 1 and II (Interim Agreement on Offensive Arms) 261

see also arms, limitation treaties Scotland nuclear competence 85–6, 163 policy 162–3 Scottish Environment Protection Agency 99 see also Environment Agency Scottish Nuclear Ltd 18, 19, 124, 130 SEA see strategic environmental assessment sea carriage/transport 324–5, 333 see also maritime claims; shipowners; ships seabed ocean-floor, test-ban treaty 260 sea/ocean dumping 379–80, 381 MOX plant case see under MOX sub-seabed disposal 404–7 security see also safeguards; terrorism background 281–2 physical protection Convention 282–3 in UK 284–7 Sellafield see also Windscale decommissioning 356–7 disposal sites 384–5, 389 facilities 15–17, 24, 119 high-level waste 372n incident 124 litigation 246 new developments xix personal injury litigation 196–7 transport to 332 Sellafield Limited 24, 390 shipowners see also maritime claims; sea carriage/transport limitation of claims 208–9 operators’ liability 182–3 ships see also maritime claim; sea carriage/transport liability see under liability lien/rights in rem protection 212 UK-registered liability 210 Shore, Peter 15 Sibbert, Professor Wilson 163 sievert (Sv) 3–4, 232 Sintra Statement 403–4, 444 site licence companies (SLCs) 350 siting see also nuclear site licences alternative sites 155–6 licences see nuclear site licences strategic suitability 147–8, 153–4 coastal flooding/change processes 151–2 criteria 148, 149–51 Sizewell B xxii, 13–14, 27, 112, 131 inquiry 101–2, 128–9 privatisation 130 Sizewell C 13–14, 131 Soddy, Frederick 5 sodium-cooled fast reactor 29–30 SORT (Treaty on Strategic Arms Reductions) 261 see also arms, limitation treaties South Africa 259

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Page 545

Index 545 South East Asia, test-ban treaty 260 South Pacific, test-ban treaty 260 Soviet Union 258, 259, 261, 266 Spence, Sir Basil xxi spent fuel 372 see also radioactive waste; reprocessing/fuel services Springfields plant 9, 12, 14 SSA (Strategic Siting Assessment) 147–8, 155–7, 162, 163 START I and II (Strategic Arms Reduction Treaty) 261–3 see also arms, limitation treaties steam generating heavy water reactor (SGHWR) 13 Stonham, Lord 177 Strassman, Fritz 5, 258 Strategic Arms Reduction Treaty see (START I and II) strategic environmental assessment (SEA) 147–8, 153–4, 155 see also environmental impact assessment Strategic Siting Assessment (SSA) 147–8, 155–7, 162, 163 sub-seabed disposal, sea-bed 404–7 submarine-base see under missile systems Suez crisis 11 Supply Chain Charter xxi sustainable development principles 383–4 Sv (sievert) 3–4 Sweden, nuclear policy 30 Switzerland, nuclear policy 30 Szilard, Leo 5 Taylor, Lord 194 Temelin site 51 territorial jurisdiction 443 terrorism 2–3, 259 see also security suppression Convention 283 UK measures 287–8 tests see weapons, tests Thatcher, Margaret 128, 130 third party, duties/liability 202–3 Thomson, JJ 4 THORP (Thermal Oxide Reprocessing Plant) 15–16, 24, 246–8, 429, 430, 432 Three Mile Island accident 1, 33–4, 101, 124, 129, 158, 188 Times, The xxi toys, radioactivity in 291 trade union representations 113 transboundary waste movements background 334–6 EC regulation 336–40, 412 UK implementation 339–40 IAEA Code of Practice 393 international conventions 335–6 radioactive substances 338–9 supervision/control Directive 336–8 transport air carriage/transport 325, 333–4 back-end materials 319–20 carriers’ duties 206 denial 320

examiners/inspectors, powers 328–9 inland waterways 326 international regulation 320–4 liability/insurance 331–2 postal 327 rail see rail transport road see road transport safety issues 318–19 sea see sea carriage/transport UK regulations 327–34 Trawsfynydd power station xxi Treaty on Strategic Arms Reductions see (SORT) Trident nuclear deterrent 26, 264 Truman, President 41 UK Atomic Energy Authority (UKAEA) 10–11, 12–13, 14–15, 292 decommissioning 346–7 duties 203–4 licensing position 83 privatisation 22–3 security 285 Weapons Group transfer 24 UN Scientific Committee on the Effects of Atomic Radiation (UNSCEAR) 38–9 unborn children 194–6 United States, Price-Anderson liability 181, 187–8 uranium depleted 391 enrichment 263, 265, 286–7 radiation 231 US disposal facilities 373 Roentgen Ray Society 234 US Global Threat Reduction Initiative 282 Vienna Convention 1963 background 167, 178–9 IAEA and 167 joint protocol 168–9 peaceful/non-peaceful uses 180, 182 Protocol 2003 179–80 Villard, PV 5 Vitrification Plant (WVP) 16 voluntary offer agreements 268 Wakeham, Lord 130 Wales 163 waste see radioactive waste; transboundary waste movements Waste Isolation Pilot Plant (WIPP) 373 weapons arms limitation see arms, limitation treaties defence-related site licences 100 fissile material see fissile material historical development 258–9 legality 264–5 as non-peaceful use 180, 182 nuclear bombs 2, 7–8, 9 production 24–6 proliferation see proliferation/non-proliferation of weapons

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Page 546

546 Index weapons (cont.): tests individual countries 259–61 test ban treaties 259–61 veteran’s litigation 227–30 Wells, HG 5 Western Nuclear Regulators Association (WENRA) 91 Wigner release 32 Windscale see also Sellafield decommissioning 346 disposal facility 379

enrichment processes 83–4 facilities 9, 11, 13, 14, 16–17 Pile Number 1, fire 16, 32, 124 Vitrification Plant (WVP) 16 World Nuclear Association 341 X-rays discovery 4–6 uses 290 xenon poisoning 35 Zangger Committee 267