Greater London Authority
Radioactive Waste Trains Investigative Committee investigative review
Transportation of Radioactive Waste by Train through London
Evidence on behalf of the Nuclear Free Local Authorities’ Steering Committee
The NFLA consist of some 99 local authorities in England, Scotland, Wales and Northern Ireland. Many of their areas are traversed by railway lines which carry radioactive waste, including spent nuclear fuel. Authorities do not have powers to prevent these transports but work to make them unnecessary. They welcome the GLA inquiry.
We understand that the review will focus on emergency planning and trackside contamination and contributors are asked to consider three areas:
(i) Why should the transportation of radioactive waste concern Londoners?
(ii) Is there an alternative to transporting radioactive waste by train?
(iii) Other issues they wish to raise.
This submission assumes a critical distance between the GLA enquiry and the LFEPA. Its recommendations may therefore involve the GLA (qua enquiry) asking itself (qua LFEPA) questions.
We believe that it would be useful for the Committee to have an understanding of the legal framework governing these transports. We hope this will assist the Committee to explore specific avenues of inquiry.
This submission considers the following issues
After each issue, recommendations to the Committee are made.
The safety of railway and other workers and the London public is intended to be protected by three general principles of radiation protection law which therefore apply to transport operations of radioactive materials. These three principles derive from EU law.
Principle 1: Justification
The first principle is known as "justification". Transport activities commencing before 13th May 2000 resulting in exposure to ionizing radiation were required under European Union law to be justified in advance by the advantages which they produced. It is quite possible that the transport of spent fuel through London has never been subject to a formal process of justification as required by law. Successive British Governments, in breach of EU law, failed to give this EU legal requirement legislative force in the UK. It has however been recognised and enforced by the courts in the context of site specific activity.
From 13th May last year a new Directive has replaced the earlier Directive and its provision on justification. Contrary to EU law, the new provisions relating specifically to justification have also not yet been transposed into UK law. Nevertheless competent national authorities such as DETR, HSE, GLA and the courts are obliged to comply with EU Law.
The new Directive requires prior justification for new activities, which would appear inappropriate to a continuing activity such as transport. However the better view is that if an ongoing activity has never been justified prior to 13th May, the new Directive does not alter the previous obligation to justify if that has never been met.
The new Directive also provides that
"Existing classes or types of practice may be reviewed as to justification whenever new and important evidence about their efficacy or consequences is acquired."
If it could be shown that the transport of radioactive waste had been formally justified as a matter of law prior to 13th May 2000 (which we doubt), then this provision might well be relevant. Although framed as a matter of discretion by the word "may", the better view is that an obligation to review would arise if this "new and important evidence" arose. This may be significant if the findings of the current review are "new and important". For example, as much of the traffic is generated by the perceived need of BNFL and British Energy to transport spent fuel from power stations in the SE to Sellafield for reprocessing, if this is not necessary, a review of the justification for transport would be necessary.
Principle 2 "Optimisation"
All exposures to radiation are to be kept as low as reasonably achieveable. This is known as "optimisation" or "ALARA". It involves balancing costs and benefits.
Principle 3 "Dose limitation"
This requires that workers and the public are not to be exposed to exposure from any one or more activities causing exposures if this would exceed certain dose limits in excess of certain limits.
Principles 2 and 3 are legislated for by the Ionising Radiations Regulations 1999 (SI 1999 No 3232). These require all employers who use radioactive materials, whether they consign or transport them, to keep doses to those affected (i) below certain dose limits [1 mSv per year for members of the public] and (ii) as low (below those limits) as reasonably achieveable. [Compare the amount of 3.85 mSv per year to workers exposed apparently at the French rail terminal at Valognes]
It is recommended that the Committee pursue the following questions:
2. Transport Safety
Regulations give effect to an EU Directive which in turn gives effect to the International Atomic Energy Agency’s "Regulations for the Safe Transport of Radioactive Material". The philosophy of the IAEA Regulations is that safety is built into the requirements for the containers regardless of the mode of transport.
The UK regulations prescribe some 16 groups of detailed requirements which impose duties on various parties involved with transport. These include the following:
(i)The consignor, freight, train operator and, inter alia, manufacturers and importers involved in the carriage, must to varying degrees comply with the "Approved Requirements for the packaging, labelling and carriage of radioactive materials by rail." issued by the Health and Safety Commission. (L94 - ISBN 0 7176 1227 9)
(ii)The Secretary of State must approve the design of particular types and packages and shipments of radioactive material.
(iii)Six parties - namely the designer, manufacturer, consignor, freight operator, train operator and infrastructure controller - must each have quality assurance programmes in place. The Secretary of State can call for additional tests.
(iii)Unique serial numbers for all "packages" including flasks are required.
(iv)Prior inspection before shipment is required.
(v)Prohibitions and restrictions apply to suitability of containers and contents.
(vi)Restrictions apply to tanks, openings to tanks and valves and caps.
(vii)Restrictions apply to bulk carriage.
(viii)Certain mixed or inadequately segregated loads are prohibited and requirements apply to loading, stowage and unloading;
(ix) Restrictions designed to ensure safe carriage, security and the prevention of fire, explosion or leakage apply.
(x) The train operators are required to ensure the safe marshalling and formation of trains carrying radioactive materials.
(xi) Specific information must be displayed on the components used for carriage.
(xii) The consignor must have the required documentation and "Carriage information".
(xii) The train crew and infrastructure controller employees must receive adequate information, instructions and records of that training must be kept.
(xiii) The Secretary of State must make provision for periodic assessment of radioactive emissions from the carriage of radioactive materials.
(xiv) The HSE and the MoD can grant exemptions in certain circumstances.
The philosophy behind the IAEA approach is that safety is assured by the containers/flasks. These have to meet three tests for impact, fire and submersion. These have been frequently criticised as inadequate individually or cumulatively. The GLA will wish to enquire why in a number of respects the USA imposes severer requirements and how often containers are allowed to traverse London that do not meet the latest standards under transitional arrangements that allow containers that met earlier standards to continue in use.
It is recommended that GLA scrutinises the regulations with care and seeks information on their enforcement from the HSE and DETR and that in particular the GLA request
(i) the train operator to provide
(ii) the Secretary of State to provide
(a) information regarding what provision he has made for periodic assessment of radioactive emissions from the carriage of radioactive materials through London (reg 40);
(iii) the HSE and MoD to provide details of any exemptions granted. (reg 41);
(iv) the infrastructure controller (i.e Railtrack) to provide details of training given (reg 39).
It is also recommended that the inquiry
3. Sabotage and theft: security and physical protection
Regulations require the operator of a generating station to
take all reasonable steps to secure that no nuclear fuel, including spent fuel, in transit to or from the site, shall be
except in accordance with a security plan
The plan consists of a description of security standards, security procedures and security arrangements adopted by the operator for the protection of any nuclear fuel in transit. This must be reviewed every two years and when the SoS requests. Such a regime includes arrangements for
The regulations empowers the Secretary of State to make a direction with respect to nuclear fuel in transit requiring the operator to adopt or implement in respect of nuclear fuel in transit a specified security regime or certain standards, procedures or arrangements as part of such security regime, inter alia, to secure compliance by the operator’s officers, employees, consultants and contractors; and amongst other matters, to direct that the regime will apply in certain events.
It is understood that DTI propose extending the nuclear security regulations.
It is recommended that the GLA
(a) what security plans designed to protect nuclear fuel or spent nuclear fuel in transit have been submitted to the Secretary of State for Trade and Industry by electricity generators and which might be relevant to London;
(c)what security standards, security procedures and security arrangements have been adopted by the operator for the protection of any nuclear fuel or spent fuel in transit through London;
(d) whether the Secretary of State has made any relevant direction;
(e) whether he will provide the GLA with a copy of each relevant plan; and
(f) whether currrent proposals to extend the regulations are relevant to London and if so how;
(ii) ask the HSE whether they take account of security risks in assessing the likelihood of any emergency.
4. Risk assessment
4.1 Hazard assessment
All employers who undertake work involving radioactive materials, eg as consignor or transporter, are required to assess what could go wrong during their operations and could therefore result in a consequential risk of exposure to workers or to members of the public. In effect transport cannot take place unless the transporter
"has made an assessment sufficient to demonstrate that
(a) all hazards with the potential to cause a radiation accident have been identified; and
(b) the nature and magnitude of the risks to employees and other persons arising from those hazards have been evaluated."
A "radiation accident" means an accident where immediate action would be required to prevent or reduce the exposure to ionising radiation of employees or any other persons. If the assessment made "shows that a radiation risk to employees or other persons exists from an identifiable radiation accident" the transporter must
"take all reasonably practicable steps to -
(a) prevent any such accident;
(b) limit the consequences of any such accident which does occur; and
(c) provide employees with the information, instruction and training, and with the equipment necessary, to restrict their exposure to ionising radiation."
These steps are additional to those in regulation 3 (Risk assessment) of the Management of Health and Safety at Work Regulations 1992.
4.2 Special hazard assessment
In addition a special hazard assessment may be required where transport operations involve more than specified quantities of radionuclides.
It is recommended that the GLA ask relevant employers to provide copies of their assessments relating to the transport of radioactive materials and waste through London.
5 Emergency planning
5.1 Contingency planning by radiation employer for accidents that " may require urgent response" if they are "reasonably forseeable".
If the assessment referred to in 4.2 above, shows that a radiation accident is "reasonably foreseeable .." , then the employer must prepare a contingency plan Plans therefore have to be drawn up for reasonably foreseeable accidents that may require urgent response, whether predicted to be severe or not.
The employer is required to ensure that
"(a) … a copy of the contingency plan made in pursuance of paragraph (1) is identified in (local) rules and incorporated into them by way of summary or reference;
(b) any employee under his control who may be involved with or may be affected by arrangements in the plan has been given suitable and sufficient instructions ….; and
(c) where appropriate, rehearsals of the arrangements in the plan are carried out at suitable intervals."
It is recommended that the GLA
(c) details of how this is brought to the attention of persons in London (other than employees) who may be affected by the contingency plan as required by regulation 17(3);
(d) details of when the last rehearsals of the arrangements in the plan was carried out (i) anywhere and (ii) in London;
(e) what the HSE considers to be suitable intervals between such rehearsals.
5.2 Contingency planning by radiation employer for fairly severe accidents if they are "reasonably forseeable"
If the special hazard assessment referred to in 4.2 above, shows that an accident involving a dose of 5mSv to a member of the public is reasonably foreseeable, then the employer must also prepare a contingency plan for such an event. This involves what HSE considered to be a "fairly severe accident". The plan must include:
- arrangements for all persons (whether employees or not) who are likely to be affected as a result of an accident, occurrence or incident;
- the name of the person responsible for the safety, in the case of a transport operation, of that operation;
- the names of persons authorised to implement the plan in the event of an accident, incident or occurrence.
It is recommended that the GLA
(b) details of how these are brought to the attention of persons in London (other than employees) who may be affected by the contingency plan;
(c) details of when the last rehearsals of the arrangements in the plan was carried out (i) anywhere and (ii) in London;
(d)what the HSE considers to be suitable intervals between such rehearsals.
5.3 Emergency arrangments for train operators, facility owners and infrastructure controllers
Separate regulations require train operators, facility owners and infrastructure controllers to draw up emergency arrangements and to co-operate with each other to ensure effective co-ordination of those arrangements.
It is recommended that the GLA ask train operators, facility owners and infrastructure controllers for copies of these plans.
5.4 Emergency information for the public
Relevant requirements stem from an EU Directive which deals with the need for public information and was transposed into UK law by the Public Information for Radiation Emergencies Regulations 1992("PIRER").
PIRER has two relevant parts.
PIRER requires a person who conducts an undertaking from which a radiation emergency is reasonably foreseeable
"to ensure that members of the public who are likely to be in area in which the HSE considers they are liable to be affected by such a radiation emergency, are supplied without their having to request it with
(i)basic facts about radioactivity and its effects on persons and the environment;
(ii) the various types of radiation emergency covered and their consequences for the general public and the environment;
(iii) emergency measures envisaged to alert, protect and assist the general public in the event of a radiological emergency;
(iv) appropriate information on action to be taken by the general public in the event of a radiological emergency;
(v) the authority(ies) responsible for implementing the emergency measures and action referred to in paragraphs 3 and 4 above." (Regulation 3)
HSE takes the view that a railway accident involving an accident as defined is not reasonably foreseeable and so pre-distribution of material is not required.
It is recommended that the GLA
(i) ask HSE why it considers that the prior distribution of information to those resident or working in the proximity of relevant rail route corridors is not required, or desirable;
(ii)study Commission Communication on the implementation of Directive 89/618, 91C103/03, which, amongst other things, advises vis-a-vis ‘prior Information that
"1. A clear distinction must be made between regional or local populations, for which there are regional or local intervention plans relating to fixed installations, and the population as a whole, for which a national intervention plan may be drawn up to deal also with accidents … resulting from activities not related to fixed installations (e.g. accidents during the transport of radioactive materials). The prior information which must be given to these two categories of population under Article 5 is of two different types. The information given to the persons in the vicinity of fixed installations could be more detailed than that given to the population as a whole, since the latter is less likely to be affected by a radiological emergency." (our emphases)
Under PIRER, a local authority must prepare and keep up to date arrangements to supply, in the event of a radiation emergency, information of and advice on the facts of the emergency, of the steps to be taken and, as applicable, of health measures applicable to members of the public actually affected by the emergency (Regulation 4(1)). The authority has to consult any authority likely to be responsible for implementing these measures. (Reg 4(3))
The GLA is recommended to obtain this information
5.5 Local authority plans: REPPIR
5.5.1 Background and HSE approach
Articles 48 to 53 of Directive 96/29/Euratom contain specific provisions on emergency "intervention" plans in cases of radiological emergencies. UK legislation to transpose these should have been in place by 13th May 2000. Draft Radiation (Emergency Preparedness and Public Information) Regulations (REPPIR) have been drawn up to implement the requirements of the Directive and to subsume the requirements previously in IRR 1985 (see 4.2 and 5.2 above) and PIRER (see 5.4 above). These draft regulations will apply in principle to rail transport. They are unlikely to be brought into force before July this year.
HSE has made the judgment that some accidents involving the transport of radioactive materials simply will not happen. Accordingly REPPIR will not apply at all to transport where
One of the important aspects of REPPIR is that it will for the first time impose on local authorities duties to prepare, test, and, if necessary, implement off-site emergency plans for fixed sites. However there is no equivalent obligation on local authorities with rail transport corridors carrying radioactive materials to prepare emergency plans for accidents in such corridors. HSE has judged that there is no need (or presumably merit) in local authority planning for such accidents as they are not reasonably foreseeable at any one location stating that "the transport of radioactive materials does not necessarily follow pre-determined routes". The corollary of this is that since HSE propose no duty to prepare a plan for such an eventuality, there is no duty to implement any such plan. This seems a major lacuna in arrangements.
The NFLAs have consistently criticised this concept of "reasonable forseeability" and argued that planning should also encompass accidents that are "reasonably possible having significant consequences". This would ensure that planning was undertaken for less likely accidents which nonetheless have the potential for significant harm. NFLAs have also criticised the absence of a precautionary approach to accidents that are larger than plans cater for. Such difficulties are generally swept aside by stating that
"These emergency plans (i.e. for reasonably foreseeable accidents) can provide the basis for dealing with radiation emergencies which are
not reasonably foreseeable through the concept of extendibility."
Our critique of the HSE’s original proposals for PIRER has not altered. A copy has been sent to accompany this note.
The proposed Regulations will probably apply primarily to Direct Rail Services (the main freight train operating company, a subsidiary of BNFL), which is the only organisation currently carries radioactive goods (in significant quantities) by rail. BNFL’s analysis of the applicability of REPPIR is attached as an Annex.
HSE’s business-as-usual approach can be discerned from their own statement that
" It has been attempted to draft the Regulations on rail transport in REPPIR to fit around the current voluntary emergency planning and co-operation arrangements which essentially cover the requirements already. This is the RADSAFE transport emergency plan."
The GLA is recommended to consider the initial HSE proposals for REPPIR, the latest draft and the NFLA critique.
5.5.2 REPPIR: some aspects
If the report of assessment shows that a radiation emergency is reasonably foreseeable during transport, then the carrier has to prepare an emergency plan. However if the report of assessment shows that a radiation emergency is not reasonably foreseeable, then no emergency plans are required under REPPIR. (However, contingency plans will still be required for radioactive substances being transported under IRR99 but these are far less precriptive and do not trigger other important obligations.)
Information on what should be included in emergency plans is set out in Schedule 7 :
a) the names or positions of persons authorised to set emergency procedures in motion and the person in charge of and co-ordinating the mitigatory action;
b) for reasonably foreseeable conditions or events which could be significant in bringing about a radiation emergency, a description of the action which should be taken to control the conditions or events and to limit their consequences, including a description of the safety equipment and the resources available;
c) the arrangements for providing early warning of the incident, the type of information which should be contained in an initial warning and the arrangements for the provision of more detailed information as it becomes available; and
d) the arrangements for emergency exposures including the dose levels which have been determined as appropriate for the purposes of putting into effect the emergency plan.
Carriers will have to discuss with other employers (e.g. of the emergency services) the levels for emergency exposures. The operators and carriers will then need to agree with the HSE levels for the emergency exposures. The employer of these personnel will have to identify those who may be required to undergo emergency exposures beforehand and ensure they are provided with appropriate training (including for those authorising such employees), equipment and dosimetry.
Under the draft Regulations consignors will have to provide information to the carrier on the amount of radioactive material to be transported. The carrier will have to add up the total amount of radioactive material in a transport operation to see if it was below the inventory for each transport operation. This is not common practice at the moment.
6. Absence of adequate basis for compensation in the event of an accident
Compensation is payable where an occurrence involving nuclear matter in the course of carriage causes injury (i.e. physical injury or death) to any person or damage to any property (sections 11 and 12 Nuclear Installations Act 1965). Liability is channelled exclusively to the operator of the nuclear site from where the spent fuel came, whether or not anyone else would otherwise have been liable, and is limited in amount (c £280 million guaranteed maximum, the first half from the operator, the second from Government) and time (claims must be lodged within 30 years from the incident). The right to compensation arises without the need to show negligence but legal difficulty arises in showing
Compensation does not cover purely economic loss (unless this is consequent on a specific claimant’s prior proven injury or physical damage), preventative action, clean up costs, psychological impact or neighbourhood blight consequent on popular but unproven perceptions of damage to the reputation of a locality, property prices, commercial vitality etc. An accident in London could be devastating in impact without any liability for most of the financial impact arising or being proven in law. The maximum amount of c£280 million can be compared with estimates of the cost of Chernobyl of £200,000 million. A further paper relating to this issue will be forwarded shortly.
Nuclear Free Local Authorities
Tel 0114 220 4452